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State v. Cohen

August 24, 2010

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
HUMPHREY COHEN, DEFENDANT-APPELLANT.



On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 83-03-1433.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted August 10, 2010

Before Judges Lihotz and Baxter.

Defendant Humphrey Cohen appeals from an April 15, 2009 Law Division order denying his seventh petition for post-conviction relief (PCR) after the court concluded it was procedurally barred because the issues raised had been previously presented and reviewed on July 16, 2004. R. 3:22-4. He also appeals from a June 5, 2009 order denying reconsideration. Defendant's PCR challenge centers on a claimed flaw in the jury charge regarding whether defendant's voluntary intoxication mitigated his mental state. Defendant suggests the alleged faulty charge contributed to his convictions for felony murder, N.J.S.A. 2C:11-3(a)(3); purposeful, knowing murder, N.J.S.A. 2C:11-3(a)(1) and (2); armed robbery, N.J.S.A. 2C:15-1; and third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b).

Defendant presents the following points on appeal:

POINT I

THERE IS A FLAW IN THE MODEL JURY VOLUNTARY INTOXICATION CHARGE WHICH AFFECTS THE DEFENSE AND THE STATE. CONSEQUENTLY, THE STATE SHOULD JOIN DEFENDANT IN PRESENTING THIS ARGUMENT TO THE APPELLATE DIVISION.

POINT II

DEFECTS IN JURY CHARGES CAN WARRANT LIFTING OF PROCEDURAL BARS R. 3:22-4 [AND] R. 3:22-12. THEREFORE, BECAUSE PRO SE DEFENDANT HAS DEMONSTRATED HOW HIS JURY RECEIVED FLAWED VOLUNTARY INTOXICATION INSTRUCTIONS AND HOW THE CURRENT MODEL JURY INTOXICATION CHARGE IS MUTUALLY FLAWED FOR THE STATE & DEFENSE, MEANS HIS ARGUMENT SHOULD NOT BE BARRED.

POINT III

THE MURDER STATUTE N.J.S.A. 2C:11-3[(a)](1), (2) IS TRIVIALIZED BECAUSE SAID STATUTE ALLOWS FOR THE STATE TO OBTAIN AN INDICTMENT & CONVICTION FOR MURDER BASED ON THE ABSENCE OR PRESENCE OF INTENT TO CAUSE OF DEATH. THIS MEANS DEFENDANT VICTIM IS PROSECUTED THE SAME AS THOSE DEFENDANTS WHO INTENDED TO KILL THEIR VICTIMS. AND ALSO, BECAUSE DEFENDANT WAS CONVICTED OF N.J.S.A. 2C:11-3[(a)](1), (2) AS [A] CONSEQUENCE OF UNINTENTIONALLY KILLING HIS VICTIM, MEANS A STIGMA HAS ATTACHED TO HIS CONVICTION, WITHIN THE SENSE THAT SAID N.J.S.A. 2C:11-3[(a)](1), (2) IS THE MOST SE[VERE] MURDER STATUTE THAT THE STATE CAN CHARGE AGAINST A DEFENDANT; AND CONSEQUENTLY, THAT AFFECTS:

(1) SENTENCING, (2) REHABILITATION OPPORTUNITIES, (3) PRISON CLASSIFICATION & (4) PAROLE ...


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