On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 04-05-1038.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 14, 2011
Before Judges Rodriguez and Coburn.
Defendant pled guilty, pursuant to a plea agreement with the State, to aggravated manslaughter, N.J.S.A. 2C:11-4 and possession of a handgun for an unlawful purpose, N.J.S.A. 2C:39-4. He was sentenced within the parameters of the plea agreement.
On direct appeal, we affirmed the sentence. Thereafter, defendant pursued the petition for post-conviction relief now under review, which the trial court denied in an order dated June 3, 2009.
Defendant contends that he would not have pled guilty if he had known that the grand jury transcript revealed the inability of the police to match the bullet fragment retrieved during the autopsy with a test bullet fired from the defendant's handgun. Therefore, he asserts that his attorney was constitutionally ineffective in not showing him the grand jury transcript. He also claims for the first time on appeal that his attorney also provided ineffective counsel because he did not explore a possible defense of passion/provocation manslaughter. Finally, he contends that the judge erred during sentencing by failing to recognize the application and force of some mitigating factors.
After carefully considering the record and briefs, we are satisfied that all of defendant's arguments are without sufficient merit to warrant discussion in a written opinion, R. 2:11-3(e)(2), and we affirm substantially for the reasons expressed by Judge Turnbach in his thorough and well-reasoned oral opinion of June 3, 2009. Nevertheless, we add the following brief comments.
Defendant confessed to this killing. He told the police, and then the sentencing judge, that while he was on a Lakewood street, the victim took something from him and then started to drive away in his car. Defendant fired one shot which entered the back of victim's head, ultimately causing his death. Although the police could not match the bullet fragment, they were able to confirm that the bullet casing matched defendant's gun. Also, his cell phone was found at the scene. Consequently, we cannot say the judge erred in finding that defense counsel was not ineffective because defendant was unaware of the contents of the grand jury transcript. State v. Fritz, 105 N.J. 42, 52-58 (1987).
The passion/provocation claim is not properly before us because it was not raised before the trial court. In any case, it has no merit whatsoever.
The same is true with respect to the sentencing argument, an issue that we previously resolved on direct appeal. It, too, has no merit.
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