On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 84-11-1051.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Yannotti and Lyons.
Defendant Jose Reyes appeals from an order entered by the trial court on October 13, 2006, denying his motion for the production of certain records pertaining to the sentencing of Zabulon Rodriguez ("Rodriguez"). We affirm.
We briefly summarize the relevant facts. In 1984, a Passaic County grand jury charged defendant with: burglary, N.J.S.A. 2C:18-2 (count one); burglary, N.J.S.A. 2C:18-2b(1) and (2) (count two); murder, N.J.S.A. 2C:11-3a(1) and (2) (count three); felony murder, N.J.S.A. 2C:11-3a(3) (count four); aggravated assault, N.J.S.A. 2C:12-1b(1) and (2) (counts five, nine and twelve); terroristic threats, N.J.S.A. 2C:12-3a and b (counts six and ten); attempted aggravated sexual assault, N.J.S.A. 2C:5-1 and 2C:14-2a(3), (4) and (6) (count seven); attempted murder, N.J.S.A. 2C:5-1 and 2C:11-3 (counts eight and eleven); and possession of weapons for unlawful purposes, N.J.S.A. 2C:39-4 (count thirteen). The events that led to these charges were summarized by the Supreme Court in State v. Reyes, 140 N.J. 344, 346-49 (1995).
Trial in the matter commenced on June 16, 1986. Id. at 350. After the State rested its case, the trial court dismissed count one, charging burglary. Id. at 351. Defendant was found not guilty on count seven, in which he was charged with attempted aggravated assault. Ibid. He was found guilty of the remaining charges. Ibid. Defendant was sentenced to an aggregate term of eighty years of imprisonment with a forty-five year period of parole ineligibility. Ibid.
Defendant's direct appeal focused primarily on the jury charge on voluntary intoxication, which defendant "argued shifted the burden of proving voluntary intoxication to the defense." Id. at 352. We affirmed defendant's convictions. Ibid. The Supreme Court denied defendant's petition for certification. Ibid.
In August 1991, defendant filed a petition for post-conviction relief ("PCR"). Ibid. He argued that the trial court's instruction to the jury on diminished capacity was unconstitutional. Ibid. Defendant further argued that he was denied the effective assistance of counsel because his trial attorney did not object to the charge and his appellate counsel did not raise the issue on appeal. Id. at 352-53. The trial court denied PCR. Id. at 353. We reversed, but the Supreme Court affirmed the denial of PCR finding that, although the jury charge was erroneous, the error was harmless. Id. at 353, 366.
Thereafter, defendant filed a petition for habeas corpus in the United States District Court. On May 3, 1996, the court denied the petition. The Court of Appeals for the Third Circuit declined review on April 15, 1997.
In June 2002, defendant filed a second PCR petition, in which he alleged that he had been denied the effective assistance of counsel because his trial attorney did not prepare his case properly; failed to advise him concerning his right to testify; and failed to inform him concerning certain possible defenses because he was allegedly "under medication" at the time of trial. State v. Reyes, No. A-1999-04 (App. Div. Sept. 6, 2006) (slip op. at 6).
Defendant also argued that the consecutive sentences imposed by the trial court were illegal and that the trial court should have found certain mitigating factors. Ibid. In addition, defendant argued that the State improperly failed to provide the defense with the criminal histories of two persons who testified at trial, Teresita Martinez ("Martinez") and Rodriguez. Id. at 7.
The trial court denied defendant's petition. Id. at 7-8. Defendant appealed and argued, among other things, that his right to due process was violated by the State's failure to provide him with Rodriguez's and Martinez's criminal histories at the time of trial. Id. at 8. We affirmed the denial of PCR, noting that the PCR court had reviewed the "rap" sheets for Rodriguez and Martinez and concluded that the State had provided defendant with all of the relevant information concerning the criminal histories of those witnesses. Id. at 15-17. The PCR court had also noted that the State had represented that there were no promises made to or agreements with Rodriguez. Id. at 17.
It appears that, while defendant's appeal from the denial of his second PCR petition was pending, defendant made a request for copies of the transcript of Rodriguez's plea hearing on September 12, 1986, and Rodriguez's sentencing on December 5, 1986. By letter dated March 4, 2005, the supervisor of the official court reporters for the Passaic County Courthouse informed defendant that the reporter's notes of the September 12, 1986 proceeding could not be found. The supervisor also informed ...