On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 95-07-00916.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Cuff and Fuentes.
Defendant Gerald Wilson appeals from the denial of his second petition for post-conviction relief. He is serving a sentence of life imprisonment with thirty years of parole ineligibility for aggravated manslaughter, felony murder, robbery, and possession of a weapon for an unlawful purpose. On direct appeal, this court affirmed in part, reversed and remanded in part. State v. Wilson, No. A-5636-96 (App. Div. June 21, 1999); the Supreme Court denied certification, 162 N.J. 489 (1999). We affirmed the denial of defendant's first petition for post-conviction relief, No. A-2721-01 (App. Div. April 3, 2003); the Supreme Court denied certification, 178 N.J. 33 (2003).
In his petition, defendant argues that the prosecutor vouched for the credibility of various witnesses during the opening statement and summation and these remarks impeded the jury's function to find the facts. Defendant further contends that his attorney's failure to object to these comments deprived him of the effective assistance of counsel. Defendant also argued that these trial errors and counsel's ineffective representation should overcome the five-year procedural bar. See R. 3:22-12(a) (no petition may be filed more than five years after the rendition of the judgment or sentence).
Judge Carroll found that defendant failed to explain the delay; therefore, he declined to relax the five-year time limitation. He also held that appointment of counsel was not required. As to the merits, the judge found that the issue of the prosecutor's remarks could have been raised on direct appeal, and invocation of the procedural bar of Rule 3:22-4 would not cause a fundamental injustice. In the alternative, the judge found no error.
On appeal, defendant raises the following argument:
(a). THE LOWER COURT ERRED, WHEN IT DENIED DEFENDANT'S REQUEST FOR AN EVIDENTIARY HEARING. THUS, THE LOWER COURT'S ORDER SHOULD BE REVERSED.
(b). THE LOWER COURT SHOULD HAVE GRANTED APPELLANT'S MOTION FOR APPOINTMENT OF COUNSEL.
We affirm substantially for the reasons expressed by Judge Carroll in his July 9, 2008 opinion.
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