On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 02-09-2170.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 14, 2010
Before Judges Fisher and Simonelli.
Defendant was convicted by a jury of theft by deception, N.J.S.A. 2C:20-4, and sentenced to an extended ten-year prison term. In his direct appeal, defendant argued that the trial judge erred in denying his motion to acquit and in charging the jury, that the prosecutor's comments during the trial deprived him of a fair trial, and that the sentence imposed was excessive. We rejected these arguments by way of an unpublished opinion. State v. Rodriguez, No. A-5011-04T4 (App. Div. Apr. 12, 2006). The Supreme Court granted defendant's petition for certification regarding the sentence and summarily remanded for resentencing in light of State v. Pierce, 188 N.J. 155 (2006).
Thereafter, defendant filed a petition for post-conviction relief (PCR), arguing he was deprived of the effective assistance of counsel because his trial attorney failed to call certain witnesses to testify on his behalf. In his own June 11, 2007 certification, PCR counsel asserted that defendant said that "he informed trial counsel of the identities" of four individuals who "would have come forward as witnesses on his behalf." PCR counsel further certified that he was "in the process of having the defendant execute an affidavit setting forth these facts" and would supplement the record with such an affidavit in the future.
A few months later, the PCR judge notified defendant's counsel that the submission of his own certification was insufficient and that he was "required to submit . . . affidavits of the alleged witnesses that you cite in your certification . . . and NOT an affidavit by the defendant." The judge provided an additional three weeks for the required submission.
Three weeks later, on December 10, 2007, the judge wrote to PCR counsel confirming that the required affidavits had not been submitted and advising that if the affidavits were not provided within another week, the petition would be dismissed. When the additional affidavits were not submitted, the judge entered an order on January 8, 2008, which dismissed the petition without prejudice.
Defendant now appeals the January 8, 2008 order, arguing:
I. THE DEFENDANT CLEARLY FAILED TO RECEIVE ADEQUATE LEGAL REPRESENTATION FROM [PCR] COUNSEL.
II. TO PREVENT THE DEFENDANT FROM BEING IRREPARABLY PREJUDICED AS A RESULT OF [PCR] COUNSEL'S INEFFECTIVE ASSISTANCE IN REPRESENTING HIM, THE DEFENDANT SHOULD BE AFFORDED NEW COUNSEL AND PERMITTED TO SUPPLEMENT HIS ORIGINAL [PCR] PETITION RATHER THAN REQUIRING HIM TO FILE A NEW [PCR] PETITION.
As defendant correctly acknowledges in his appeal brief, "the trial court cannot be faulted for having entered [the order under review] approximately seven months after [PCR] counsel's initial submissions, and in light of two letters advising counsel of a continuing deficiency and a reasonable amount of time in which to correct the deficiency[;] [indeed], the court waited almost another month after the second stated deadline before entering" the order under review. See, e.g., State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). Instead, defendant contends that his PCR counsel was ineffective in failing to address this deficiency with the information allegedly provided to him by defendant. Whether defendant was deprived of the effective assistance of counsel in the PCR proceedings has never been addressed in the trial court. As a result, we decline to consider defendant's arguments and leave these issues to be developed by way of a new PCR petition in the trial court.
The order under review is ...