On appeal from the Superior Court of New Jersey, Law Division, Criminal Part, Hudson County, Indictment No. 02-10-2258.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: April 21, 2010
Before Judges Stern and Sabatino.
On this appeal from the denial of post conviction relief (PCR) following her conviction of aggravated manslaughter, as a lesser included offense to murder, defendant contends that the Supreme Court's opinion in State v. Rodriguez, 195 N.J. 165 (2008) "should be applied retroactively," so that reversal and a new trial is required in the absence of a self-defense instruction applicable to that offense. Defendant argues that the decision in Rodriguez "strikes to the very heart of a defendant's Constitutional rights to a fair trial." At the outset of his charge on aggravated and reckless manslaughter, the trial judge told the jury:
Of course, remember, although self-defense is not an element that the State must prove beyond a reasonable doubt in reckless manslaughter or aggravated manslaughter, however, still they have to prove it wasn't an accident, it wasn't careless, that is not reckless.
Subsequently, at the conclusion of his charge on aggravated and reckless manslaughter, the judge repeated "[r]emember, in this charge as in the last, it is not self-defense considered, not passion/provocation considered, but it can't be an accident or carelessness."
This instruction is now clearly outdated. Nevertheless, given the case law suggesting otherwise before Rodriguez was decided, see State v. Moore, 158 N.J. 292, 301 (1999), and the fact that Rodriguez abrogated Moore, see id. at 302-03, (see Rodriguez, supra, 195 N.J. at 173-74), we affirm the denial of PCR substantially for the reasons expressed by Judge Kevin Callahan in the written memorandum accompanying his order of March 17, 2009. See also Whorton v. Bockting, 549 U.S. 406, 127 S.Ct. 1173, 167 L.Ed. 2d 1 (2007) (Crawford v. Washington dealing with application of the confrontation clause not retroactive); State v. Cummings, 184 N.J. 84, 96-99 (2005) (applying "pipeline retroactivity" to a new rule regarding the burden of proof under N.J.S.A. 39:4-50-4a); State v. Burstein, 85 N.J. 394, 406-11 (1981) (test for retroactivity concluding that a new rule on the wiretap sealing requirement shall not be applied retroactively). Our opinion is limited to a case in which the direct appeal was concluded before Rodriguez was decided by the Supreme Court.*fn1