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State v. Binot

March 17, 2010

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
PIERRE BINOT, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 01-12-1623.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted March 3, 2010

Before Judges Fisher and Espinosa.

In this appeal, we consider defendant's contention that he was erroneously denied post-conviction relief (PCR) based on the allegation he was denied the effective assistance of counsel when tried and convicted of, among other things, causing a drug- induced death, a first-degree offense, N.J.S.A. 2C:35-9. After careful review, we conclude the PCR judge correctly denied relief and affirm.

In affirming the judgment of conviction on direct appeal, we outlined the facts and circumstances that led to the indictment and conviction of defendant for bringing about the death of John Spampanato on April 21, 2001. State v. Binot, No. A-2645-02T3 (App. Div. September 30, 2004) (slip op. at 3-7). In rejecting defendant's arguments, we concluded that the evidence of defendant's guilt was overwhelming. Id. at 11. We did not then consider, however, the argument that defendant was denied the effective assistance of counsel, leaving that contention for a future PCR petition. Id. at 3 (citing State v. Preciose, 129 N.J. 451, 460 (1992)).

Defendant thereafter filed a PCR petition. Without conducting an evidentiary hearing, the PCR judge denied relief for reasons set forth in his thorough opinion. Defendant has appealed the order denying relief, presenting the following arguments for our consideration:

I. THE COURT ERRED IN DENYING POST-CONVICTION RELIEF WITHOUT CONDUCTING A FULL EVIDENTIARY HEARING BECAUSE TRIAL COUNSEL'S FAILURE TO REMEMBER THAT HE HAD BEEN GIVEN A COPY OF MS. HAMMARY'S INCOME TAX RETURN, AND TRIAL COUNSEL'S FAILURE TO RETAIN A FORENSIC EXPERT TO CONTEST DR. PARK'S OPINION, CONSTITUTE PRIMA FACIE INEFFECTIVE ASSISTANCE OF COUNSEL.

A. TRIAL COUNSEL'S DEFICIENT PERFORMANCE SATISFIED THE FIRST PRONG OF THE STRICKLAND/FRITZ[*fn1 ] TEST.

B. TRIAL COUNSEL'S DEFICIENT PERFORMANCE SATISFIED THE SECOND PRONG OF THE STRICKLAN[D]/FRITZ TEST.

II. THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED AND THE MATTER REMANDED FOR A NEW HEARING BECAUSE POST-CONVICTION RELIEF COUNSEL WAS INEFFECTIVE.

III. THE COURT'S RULING DENYING POST-CONVICTION RELIEF VIOLATED THE DEFENDANT'S RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ARTICLE I, PARAGRAPH 10, OF THE NEW JERSEY CONSTITUTION.

IV. DEFENDANT REASSERTS ALL OTHER ISSUES RAISED IN POST-CONVICTION RELIEF.

We find these arguments to have insufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We add ...


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