On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 00-10-0586.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: October 28, 2009
Before Judges Axelrad and Sapp-Peterson.
Defendant Sherwin Field appeals from the December 10, 2007 order denying his petition for post-conviction relief (PCR), in which he argues ineffective assistance of trial and appellate counsel, as well as error by the trial court in its jury charge. We affirm.
Tried to a jury over eight days, defendant was convicted of the lesser-included offense of reckless manslaughter, two counts of aggravated assault, and several weapons offenses. The convictions arose out of a confrontation between young men from Somerville and Plainfield at a party in Somerville that escalated into a street confrontation during which the Plainfield group was ambushed by defendant and his Somerville friends who were armed with handguns. Defendant fired his .40 caliber semi-automatic pistol containing illegal hollow-nosed bullets eight times into the crowd at the Plainfield men, one of which struck Jamie Suitt, a Plainfield high school basketball star, in the leg, perforating his artery and causing him to bleed to death. Another of defendant's bullets struck Wayne DeBarros through the right side before landing in a tree.
Shell casings linked to defendant's gun were found at the scene. A canine dog tracked a human's scent from the area where bullets were believed to have first been fired to defendant's backyard, finally stopping at his front door. Search warrants were issued and police recovered clothing, hollow-nosed bullets and a .40 caliber Heckler and Koch semi-automatic handgun from defendant's home and vehicle. Subsequent testing revealed the bullet removed from Suitt's body and a bullet found with the eight shell casings from the scene were similar to each other and probably fired from a gun similar to the one seized from defendant's vehicle. Defendant was identified by a witness during a photographic array.
Defendant received an aggregate custodial sentence of twenty-seven years with an 85% parole disqualifier under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. We affirmed the conviction and sentence on appeal, State v. Field, No. A-1481-02T4 (App. Div. April 12, 2004), and the Supreme Court denied defendant's petition for certification, State v. Field, 181 N.J. 286 (2004). On December 14, 2005, defendant filed a motion for a reduction or change of sentence, which was denied by the court and memorialized in an order of January 9, 2007.
This PCR petition ensued and was denied by Judge Paul Armstrong by order of December 10, 2007, following oral argument with defendant present, but without an evidentiary hearing. Defendant had sought relief from the judgment on a multitude of grounds asserted in a pro se submission and that of PCR counsel, claiming ineffective assistance of trial and appellate counsel and errors by the trial court necessitating reversal. Those issues which are renewed on appeal are error by the trial court in declining to give the jury a self-defense charge, which was requested by trial defense counsel, and ineffectiveness of appellate counsel for failing to raise that error as a point on appeal; ineffectiveness of trial and appellate counsel in failing to object to or raise as error the absence of a jury finding on the requirements of NERA as to reckless manslaughter; and an erroneous jury instruction by the trial court regarding the mental state aspect of accomplice liability.
Defendant's claims were rejected by the PCR court. Citing to the record, Judge Armstrong found that the trial court carefully reviewed the evidence presented by both the State and defendant and determined "there was no rational basis to support [a self-defense] charge" under State v. Moore, 158 N.J. 292, 308-310 (1999). The court noted that there was no evidence presented at trial to demonstrate that defendant fired the shots in self-defense or for the protection of others or that the victim or any of his companions were armed. Therefore, Judge Armstrong concluded it was not error for the trial court to refuse to provide the jury with the self-defense instruction and accordingly, appellate counsel's decision not to raise this issue on appeal could not be deemed ineffective assistance of counsel.
The court also disposed of defendant's NERA challenge, namely that since the jury did not specifically find beyond a reasonable doubt that defendant was guilty of a NERA offense when it found him guilty of the lesser-included offense of reckless manslaughter, a NERA term could not be imposed on that conviction. As Judge Armstrong explained, a separate jury finding on the NERA criteria was not required because at the time of defendant's trial, NERA clearly applied to a reckless manslaughter conviction. State v. Newman, 325 N.J. Super. 556, (App. Div. 1999), certif. denied, 163 N.J. 396 (2000); State v. Ferencsik, 326 N.J. Super. 228 (App. Div. 1999). Thus, even if defendant's trial attorney had argued at the time of sentencing that a NERA term could not be imposed on defendant's conviction for reckless manslaughter, that argument would have been unsuccessful.
The PCR judge also rejected defendant's challenges as to the jury instruction regarding accomplice liability, stating:
During deliberation the jury had a question regarding accomplice liability. The defendant requested a jury charge indicating that if defendant gave co-defendant Proctor the gun to protect himself, he did not share any criminal intent on Proctor's part.
Although the Court did not use the exact language requested by defendant, the Court's instruction to the jury [about] accomplice ...