On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 99-06-2267.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 24, 2010
Before Judges Payne and Miniman.
In April 2000, defendant, Anthony Brooks, was convicted by a jury of first-degree robbery, N.J.S.A. 2C:15-1, second-degree aggravated assault, N.J.S.A. 2C:12-1b(1), third-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5b, and second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39- 4a. He was sentenced to sixteen years in custody, subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Following an unsuccessful appeal to us, State v. Brooks, No. A-1272-00 (App. Div. January 21, 2003) and denial of certification by the Supreme Court, State v. Brooks, 176 N.J. 430 (2003), defendant moved for post-conviction relief (PCR), making multiple arguments in pro-se and counseled briefs. The arguments were rejected by Judge Michael L. Ravin in a thoughtful and extensive written opinion.
On appeal, defendant presents all of the arguments raised before Judge Ravin, doing so in a fashion that requires some explanation. First, he has reordered them into twelve groups lettered "A" through "L." Then, he has synthesized and grouped certain arguments under the headings "Ground One through Four." After that, he has reproduced the original arguments as set forth in his pro se and counseled briefs, retaining their original point headings and type face. Points with Roman numerals were raised in defendant's counseled PCR brief, whereas points with numbers written out in English were raised in defendant's pro se PCR brief. The arguments follow:
THE DEADLINE UNDER RULE 3:22-12 FOR THE FILING OF A POST-CONVICTION RELIEF PETITION MUST BE RELAXED IN THE CASE OF PETITIONER BECAUSE OF EXCUSABLE NEGLECT.*fn1
Ground One - The trial court gave an erroneous instruction to the jury on count one (1) of the indictment for first degree (1˚) Robbery which violated the Defendant's right to due process of law under the 5th. Amendment of the U.S. Constitution and right to a fair and speedy trial under the 6th. Amendment of the U.S. Constitution, and N.J. State Constitution's Equal Protection Clause.
THE TRIAL COURT'S ERRONEOUS INSTRUCTION TO THE JURY ON COUNT (1) OF THE INDICTMENT, FIRST DEGREE ROBBERY, VIOLATED THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW, AND FAIR TRIAL UNDER THE 6th. AMENDMENT OF THE U.S. CONSTITUTION AND THE N.J. STATE CONSTITUTION'S EQUAL PROTECTION CLAUSE.
THE TRIAL COURT FAILED TO INSTRUCT THE JURY THAT THE STATE MUST PROVE BEYOND A REASONABLE DOUBT THE ELEMENTS WHICH RAISE ROBBERY TO THE FIRST DEGREE ROBBERY, THAT IS, WHETHER DEFENDANT WAS ARMED WITH, USED OR THREATENED TO USE A HANDGUN DURING THE ROBBERY.
Ground Two - The Court violated the Defendant's 5th. Amendment Right to the U.S. Constitution, by denying the Defendant his right to due process when the Court amended the Indictment.
THE TRIAL COURT VIOLATED THE DEFENDANT'S 5th. AMENDMENT RIGHT UNDER THE U.S. CONSTITUTION, AND N.J. STATE CONSTITUTION, (ARTICLE 1 - ...