On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 88-08-2808.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Sabatino and Alvarez.
Defendant Andre Bennett, who was convicted of felony murder and first-degree robbery after a trial in April 1989, appeals the trial court's denial of his fourth petition for post- conviction relief ("PCR").
Defendant was sentenced to a thirty-year term on the felony murder and a consecutive seven-year term on the robbery conviction. We sustained defendant's conviction and sentence on direct appeal in 1991 and certification was thereafter denied. State v. Bennett, No. A-5046-88 (App. Div. May 16), certif. denied, 126 N.J. 341 (1991).
Subsequently, defendant filed three successive PCR petitions, all of which were dismissed. Those dismissals were sustained by various panels of this court. See State v. Bennett, A-1180-93 (App. Div. Nov. 4, 1996) (per curiam plenary opinion); State v. Bennett, No. A-2771-98 (App. Div. Mar. 30, 2000) (per curiam plenary opinion); State v. Bennett, No. A- 2016-06 (App. Div. Oct. 22, 2008) (order on an excessive sentencing calendar).
Defendant filed his fourth PCR petition in April 2009, approximately twenty years after his conviction. He argued that the trial court erred in failing to instruct the jury as to lesser-included offenses, and also in improperly defining concepts of attempt in the jury charge. He further claims that he was deprived of the effective assistance of counsel. Judge Joseph Cassini dismissed the petition as time-barred under Rule 3:22-12, finding no excusable neglect nor any other justification to consider defendant's belated arguments. Defendant raises the following points on appeal:
THE TRIAL COURT ERRED IN DENYING DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF ON PROCEDURAL GROUNDS.
THE JURY SHOULD HAVE BEEN CHARGED AS TO THE LESSER INCLUDED OFFENSES OF SECOND DEGREE ROBBERY AND THEFT.
THE TRIAL COURT ERRED IN FAILING TO PROVIDE THE JURY WITH A PROPER INSTRUCTION AS TO ...