February 14, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
EARL TAYLOR, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Criminal Division, Essex County, Indictment No. 92-02-00584.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 23, 2010
Remanded July 21, 2010
Resubmitted January 26, 2011
Before Judges Fuentes and Gilroy.
This is a supplemental opinion to our prior unreported decision, State v. Taylor, No. A-2148-08 (App. Div. July 21, 2010). In that opinion, we affirmed in part the November 10, 2008 order that denied defendant's motion for a new trial, and remanded for further proceedings. We now reverse in part and remand for additional proceedings consistent with this opinion.
This is defendant's third appeal in the matter. A jury found defendant guilty of first-degree murder, N.J.S.A. 2C:11-3a(1) and/or (2) (count one); and fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b (count two). On October 16, 1992, the court sentenced defendant on count one to a term of thirty years of imprisonment without parole, and on count two to an eighteen-month concurrent term of imprisonment.
On appeal, we affirmed. State v. Taylor, A-4021-92 (App. Div. Feb. 14, 1995). On April 27, 1995, the Supreme Court denied defendant's petition for certification. 140 N.J. 328 (1995). On March 19, 1996, defendant filed a petition for post-conviction relief (PCR), asserting that he had been denied effective assistance of trial and appellate counsel. On July 31, 1996, the trial court denied the petition. We affirmed. State v. Taylor, A-3801-98 (App. Div. Dec. 15, 2000). On March 27, 2001, the Court denied defendant's petition for certification. 167 N.J. 636 (2001).
On January 4, 2007, defendant filed a pro se motion for a new trial, contending that he had learned of newly discovered evidence warranting the vacation of the judgment of conviction and the grant of a new trial. On November 10, 2008, the trial court entered an order supported by a written decision denying the motion without an evidentiary hearing.
On appeal, we affirmed the trial court's rejection of two of defendant's arguments that he made in support of the motion. State v. Taylor, No. A-2148-08 (App. Div. July 21, 2010) (slip op. at 7). However, we remanded to clarify facts surrounding defendant's third argument concerning defendant's son recanting part of his trial testimony. Id. at 8.
The prior appellate record contained written confirmation that the Public Defender's Office had assigned an attorney to represent defendant on the new trial motion. Id. at 9. Nonetheless, defendant certified that the assigned attorney never undertook to represent him in the matter. Ibid. Accordingly, before we could determine whether the trial court properly denied defendant's motion for a new trial based on an April 6, 1999 private investigator's report concerning his son's alleged recantation of his trial testimony, we remanded to ascertain whether or not counsel had been assigned to represent defendant on the motion and failed to do so. Id. at 9-10. In so doing, we stated:
If there is an absence of an order assigning the matter to the Public Defender's Office for representation, the court shall conduct an evidentiary hearing to determine whether the Public Defender's Office sua sponte assigned counsel to represent defendant on the motion and, if so, whether the attorney failed to undertake defendant's representation. [Id. at 10.]
Pending the trial court's determination, we retained jurisdiction. Ibid.
On January 14, 2011, the trial court entered an order after considering evidence presented by the parties and the arguments of counsel, providing:
[T]his [c]court finds that the Essex County Office of the Public Defender did intend to provide representation to the defendant in that the Office had assigned counsel who left the Office, and that no counsel appeared nor filed any papers on the defendant's behalf in conjunction with the relief sought.
Based on the trial court's determination, we reverse that part of the November 10, 2008 order denying defendant's motion for a new trial based on defendant's argument that his son had recanted part of his trial testimony of overhearing defendant threatening to kill his wife. We remand for the court to conduct a new hearing on that part of defendant's motion. On remand, the court shall direct the Office of the Public Defender to assign counsel to represent defendant at the hearing.
Reversed in part and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.
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