On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 00-08-0866.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: February 16, 2011
Before Judges Cuff and Simonelli.
Defendant Edward Lynch appeals from the denial of his petition for post-conviction relief (PCR). Defendant is serving a thirty-five year term of imprisonment subject to a No Early Release Act*fn1 85% parole ineligibility term following his conviction of attempted murder, possession of a weapon for an unlawful purpose, and unlawful possession of a weapon. We affirmed defendant's conviction and sentence. State v. Lynch, No. A-3819-02 (App. Div. May 21, 2007).
On January 8, 2000, defendant was selling drugs in the hallway of an apartment building in Passaic. Two other drug dealers, Mark Jackson and Warren Grier, were smoking cocaine in an apartment in the building with Jackson's cousin Patricia Jackson and another woman. Mark Jackson and Grier left the apartment, encountered defendant in the hallway, and confronted him about his activities in the building. Defendant and Mark Jackson fought, defendant left the building, but returned with a gun. Defendant fired the gun and struck Mark Jackson three times. The wounds were not life threatening but required medical treatment. About twelve hours later, Mark Jackson identified defendant as the shooter. Patricia Jackson did not identify defendant as the shooter until August 2002. Both Mark and Patricia Jackson recanted their identification at trial.
In December 2007, defendant filed a petition for PCR. Defendant alleged that trial counsel was ineffective because the trial judge omitted the limiting instruction on evidence of other crimes from his charge as specifically requested by defense counsel. Defendant also asserted trial counsel was ineffective for failing to timely object to a question posed by the prosecutor that improperly bolstered the credibility of a State's witness. Furthermore, defendant asserted that appellate counsel erred by failing to raise other significant issues on appeal.
By order dated October 24, 2008, defendant's petition was denied without an evidentiary hearing. Judge Marmo, who was the trial judge, rejected the argument that the defense attorney erred by requesting he omit the other crimes limiting instruction. The judge observed that evidence of drug-dealing was an inextricable part of the trial, that defense counsel was capable and experienced, and that counsel and the judge spoke directly to defendant at trial about omission of this charge. The judge observed that providing the other crimes limiting instruction was the "safe thing" for him to do, but defense counsel argued vigorously for its omission, and he did not believe it appropriate to second-guess an experienced and capable defense attorney. Judge Marmo also found that inclusion of the charge would not have altered the verdict due to the weight of the evidence against defendant, including three eyewitness identifications.
Judge Marmo also rejected the contention that a question asked by the prosecutor, which referred the witness to a document, unduly prejudiced defendant. The judge noted the question was improper, but the information imparted by the witness was a stipulated fact.
At oral argument of the petition, defendant argued that appellate counsel provided ineffective assistance of counsel because she failed to argue that the voir dire of the jury improperly suggested that defendant had an obligation to participate in the trial, failed to argue that the judge erred by omitting the other crimes limiting instruction, and failed to argue that the State improperly bolstered the credibility of a State's witness. Judge Marmo held the arguments were without merit; therefore, appellate counsel had no obligation to raise these arguments.
Judge Marmo also addressed the contention that he improperly suggested during jury voir dire that defendant had an obligation to participate in the trial. Defendant argues that the judge created this impression when he informed the jury they would have opening statements by the prosecutor and defense counsel and statements by counsel at other parts of the trial.
The judge held that the issue should have been raised on direct appeal, and that the contention was without merit. In fact, he noted that his voir dire has been reviewed on appeal many times and no error has ever been found.
On appeal, defendant raises the following arguments:
The Court should reverse the denial of defendant's petition for post-conviction relief and remand this matter for an ...