On appeal from Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 98-08-1545.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 14, 2010
Before Judges Wefing and Koblitz.
Defendant appeals from a trial court order denying his petition for post-conviction relief. After reviewing the record in light of the contentions advanced on appeal, we reverse and remand for further proceedings.
Tried to a jury, defendant was convicted of three counts of third-degree burglary, N.J.S.A. 2C:18-2, and three counts of third-degree theft, N.J.S.A. 2C:20-3. The trial court sentenced defendant to an aggregate sentence of fifteen years in prison, with a seven-and-one-half-year period of parole ineligibility. Defendant appealed his convictions and sentence, and we affirmed. State v. Morales, No. A-5921-00 (App. Div. Oct. 24, 2002), certif. denied, 178 N.J. 375 (2003). Defendant filed a timely petition seeking post-conviction relief, in which he alleged that he had not received effective assistance from his counsel. The trial court denied defendant's petition after hearing oral argument but without conducting a plenary hearing. This appeal followed.
Defendant raises the following contentions on this appeal:
POINT I - THE DEFENDANT'S CLAIMS CONCERNING THE FAILURE TO INSTRUCT THE JURY ON THE ISSUE OF IDENTIFICATION WERE NOT PROCEDURALLY BARRED UNDER R. 3:22-5 BECAUSE THEY WERE RAISED IN THE CONTEXT OF AN INEFFECTIVE ASSISTANCE OF COUNSEL ARGUMENT AND THEREFORE WERE NOT "IDENTICAL" TO OR "SUBSTANTIALLY  EQUIVALENT" TO THE IDENTIFICATION ISSUES RAISED ON DIRECT APPEAL.
POINT II - THE COURT ERRED IN DENYING POST-CONVICTION RELIEF WITHOUT CONDUCTING A FULL EVIDENTIARY HEARING ON THE ISSUE OF INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL BECAUSE THE DEFENDANT MADE A PRIMA FACIE SHOWING THAT TRIAL COUNSEL'S DEFICIENT PERFORMANCE SATISFIED BOTH PRONGS OF THE STRICKLAND/FRITZ TEST.
(A) TRIAL COUNSEL'S FAILURE TO MOVE FOR A MISTRIAL AFTER THE DEFENDANT WAS SEEN BY THE JURY IN HANDCUFFS, AND TRIAL COUNSEL'S FAILURE TO SECURE AN APPROPRIATE JURY INSTRUCTION ON THE ISSUE OF IDENTIFICATION RESULTED IN A TRIAL THAT DID NOT PRODUCE A JUST RESULT.
(B) TRIAL COUNSEL'S DEFICIENT PERFORMANCE PREJUDICED THE DEFENDANT.
(C) UNDER R. 3:22-2 CRITERIA, THE DEFENDANT WAS ENTITLED TO A FULL EVIDENTIARY HEARING IN POST-CONVICTION RELIEF.
POINT III - THE COURT'S RULING DENYING POST-CONVICTION RELIEF VIOLATED THE DEFENDANT'S RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH ...