On appeal from the Superior Court of New Jersey, Morris County, Indictment No. 02-12-1500.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Fisher and Baxter.
Defendant appeals the denial of his petition for post-conviction relief. We reject most of defendant's arguments but we agree that an evidentiary hearing should be conducted to inquire into the effectiveness of counsel with regard to the testimony of the State's medical expert and remand for such a hearing.
Following a trial, defendant was convicted of first-degree murder, N.J.S.A. 2C:11-3a(1), a(2); third-degree hindering his own apprehension, N.J.S.A. 2C:29-3b(1); and fourth-degree tampering with physical evidence, N.J.S.A. 2C:28-6(1). He was sentenced to a term of imprisonment of forty-five years, subject to an 85% period of parole ineligibility on the murder conviction; the judge merged the other convictions and imposed a consecutive three-year prison term.
We affirmed the convictions and sentence, but deemed it inadvisable to consider defendant's claim of ineffective assistance of counsel, leaving those arguments for a future petition for post-conviction relief. State v. Crisci, No. A-5618-03T4 (App. Div. May 12, 2006). The Supreme Court denied defendant's petition for certification. 188 N.J. 220 (2006).
In October 2006, defendant filed a pro se petition for post-conviction relief, which was later supplemented after the appointment of counsel. The trial judge concluded that defendant failed to establish a prima facie case of ineffective assistance of counsel and therefore did not provide defendant with the opportunity to explore the issues at an evidentiary hearing; instead, after hearing oral argument, the judge denied defendant's petition.
Defendant appealed, raising the following arguments:
I. MR. CRISCI'S CLAIMS ARE NOT BARRED BY THE PROVISIONS OF R. 3:22 AS THEY ASSERT CONSTITUTIONAL ISSUES ARISING UNDER THE NEW JERSEY AND UNITED STATES CONSTITUTIONS.
II. THE TRIAL COURT ERRED IN DENYING MR. CRISCI'S PETITION FOR POST-CONVICTION RELIEF BASED ON HIS CLAIM OF INEFFECTIVE ASSISTANCE OF COUNSEL, WHERE IT WAS SHOWN THAT HIS TRIAL COUNSEL DID NOT ADEQUATELY INVESTIGATE THE CASE OR COMMUNICATE WITH MR. CRISCI PRIOR TO TRIAL AND WAS NOT PREPARED TO QUESTION THE STATE'S EXPERT.
A. Trial counsel failed to conduct appropriate investigations in preparing Mr. Crisci's defense.
B. Trial Counsel failed to adequately communicate with Mr. ...