On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 92-03-00356.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 13, 2010
Before Judges Skillman and Parrillo.
After a reversal of a prior conviction and remand for a new trial, defendant was found guilty by a jury of the 1991 murder of his wife. On January 20, 1998, defendant was sentenced to a term of life imprisonment, with a thirty-year period of parole ineligibility for the murder, and a concurrent five-year term for possession of a weapon for an unlawful purpose. On defendant's direct appeal, we affirmed his conviction and sentence in an unreported opinion, except that we merged his conviction for possession of a weapon into his conviction for murder. State v. Rivers, No. A-4164-97T4 (Jan. 3, 2001). The Supreme Court denied defendant's petition for certification. 167 N.J. 637 (2001).
Defendant filed a petition for post-conviction relief.
Following an evidentiary hearing in which defendant and the trial counsel in both his first and second trials testified, the trial court denied defendant's petition by a lengthy written opinion.
On appeal from the denial of the petition, the Public Defender raises the following issues on defendant's behalf:
POINT I: THE COURT MISAPPLIED THE APPLICABLE LEGAL STANDARDS IN DENYING POST-CONVICTION RELIEF BECAUSE OF PROCEDURAL BARS.
A. THE DEFENDANT'S POST-CONVICTION RELIEF CLAIMS CONCERNING THE TRIAL COURT'S FAILURE TO PROPERLY INSTRUCT THE JURY ON HOW TO ASSESS THE VERACITY OF HIS STATEMENTS TO DR. KLEINMAN AND DR. KULL WERE NOT PROCEDURALLY BARRED UNDER R. 3:22-5 BECAUSE THEY WERE NOT "IDENTICAL" TO OR "SUBSTANTIALLY EQUIVALENT" TO THE ISSUES RAISED ON DIRECT APPEAL.
B. THE DEFENDANT'S POST-CONVICTION RELIEF CLAIMS CONCERNING THE INADEQUACY OF THE TRIAL COURT'S JURY INSTRUCTIONS ON PASSION/ PROVOCATION MANSLAUGHTER AND THE FAULTY JURY VERDICT SHEET WERE NOT PROCEDURLLY BARRED UNDER R. 3:22-4 BECAUSE THEY INVOLVED THE INEFFECTIVENESS OF TRIAL AND APPELLATE COUNSEL.
POINT II: THE COURT ERRED IN DENYING POST-CONVICTION RELIEF BECAUSE TRIAL COUNSEL'S UNI-LATERAL DECISION THAT THE DEFENDANT WOULD NOT TESTIFY AT TRIAL, AND TRIAL COUNSEL'S UNILATERAL DECISION TO STIPULATE THAT THE DEFENDANT HAD BEEN PREVIOUSLY INCARCERATED, SATISIFED BOTH PRONGS OF THE STRICKLAND/ FRITZ TEST FOR INEFFECTIVE ASSISTANCE OF COUNSEL AND APPELLATE COUNSEL WAS INEFFECTIVE FOR FAILING TO RAISE THESE ISSUES ON APPEAL.
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 ...