On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 94-10-3643.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Gilroy and Simonelli.
Defendant Joseph Forman*fn1 appeals from the March 6, 2009 order that denied his petition for post-conviction relief (PCR). We affirm.
On October 20, 1994, an Essex County Grand Jury charged defendant with purposeful or knowing murder, N.J.S.A. 2C:11-3a(1) and/or (2) (count one); felony murder, N.J.S.A. 2C:11-3a(3) (count three); first-degree armed robbery, N.J.S.A. 2C:15-1 (count four); third-degree unlawful possession of a weapon (handgun), N.J.S.A. 2C:39-5b (count five); and second-degree possession of a weapon with a purpose to use it unlawfully against the person or property of another, N.J.S.A. 2C:39-4a (count six).*fn2 In March 1995, a jury acquitted defendant of purposeful or knowing murder and the lesser-included offense of aggravated manslaughter on count one. The jury failed to reach a verdict on the lesser-included offense of reckless manslaughter on count one and on all other remaining charges.
The State retried defendant in September and October 1995. Prior to the second trial, the court granted the State's motion to dismiss the lesser-included offense of reckless manslaughter on count one. A jury convicted defendant on the remaining four charges. On October 27, 1995, the court sentenced defendant on count three to thirty years of imprisonment with a thirty-year period of parole ineligibility, and on count five, to a concurrent term of five years of imprisonment. The court merged the convictions on counts four and six with the conviction on count three. Because the trial facts were discussed at length in our prior opinion, State v. Foreman, No. A-4183-95 (App. Div. October 6, 1997), it is unnecessary for us to detail the evidence against defendant for these crimes.
On direct appeal, defendant argued:
THE TRIAL COURT[']S JURY INSTRUCTIONS ON ROBBERY AND FELONY MURDER WERE ERRONEOUS AND INCOMPLETE, THUS, DEPRIVING THE DEFENDANT A FAIR TRIAL. (NOT RAISED BELOW).
A. FAILURE TO RELATE THE LEGAL DEFINITIONS OF FELONY MURDER AND ROBBERY TO THE FACTS ADDUCED AT TRIAL DEPRIVED DEFENDANT OF HIS DUE PROCESS RIGHT TO A FAIR TRIAL.
B. THE TRIAL COURT ERRED IN FAILING TO INSTRUCT THE JURY ON THE LESSER INCLUDED OFFENSE OF THEFT.
THE TRIAL COURT ERRED IN FAILING TO INSTRUCT THE JURY ON PASSION/PROVOCATION MANSLAUGHTER, AND RECKLESS MANSLAUGHTER AS LESSER OFFENSES TO FELONY MURDER. (NOT RAISED BELOW).
We affirmed the judgment of convictions and the sentences imposed. Id. (slip op. at 14). On November 18, 1997, the Supreme Court denied defendant's ...