NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 12, 2011
Before Judges Grall and Alvarez.
Defendant John Martinez appeals from a March 6, 2009 order of the Law Division denying his petition for post-conviction relief (PCR). We affirm.
Tried to a jury, defendant and his co-defendant Pierre Forbes were convicted of aggravated manslaughter, a lesser-included offense of murder, N.J.S.A. 2C:11-3 and N.J.S.A. 2C:2-6, and conspiracy to commit aggravated assault, N.J.S.A. 2C:12-1(b) and N.J.S.A. 2C:5-2. The offenses were merged, and defendant was sentenced to twenty-five years of imprisonment subject to an eighty-five percent parole disqualifier pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2(a). Defendant's conviction was affirmed on direct appeal on May 27, 2003. State v. Forbes, No. A-5005-00 (App. Div. May 27, 2003). The Supreme Court denied certification on October 14, 2003. State v. Forbes, 178 N.J. 32 (2003).
Defendant's initial petition for PCR was denied, and he appealed. We dismissed the appeal without prejudice on July 2, 2008, and remanded the matter in order to permit defendant to present new issues to the motion court.
On remand, the new issues were considered and a decision was reached without an evidentiary hearing. The final order, again denying PCR and from which this appeal is taken, was entered on March 6, 2009.
The charges resulted from the October 25, 1998 killing of Salvatore Salierno, whom defendant suspected was romantically involved with his wife. The victim had been found unconscious, bleeding, and near death, face-down on the ground next to his car in the parking lot adjacent to the apartment building where he lived.
On at least two occasions, defendant was overheard threatening Salierno and he had been accused by the victim of making threatening phone calls. Defendant and Salierno had filed cross-complaints against each other in municipal court, which were scheduled to be heard two days after the homicide.
The State's proofs were that defendant initially recruited Richard Forbes to exact revenge on Salierno. Forbes in turn recruited his brother, co-defendant Pierre Forbes, and another man, Jeremiah Farmer, to actually assault the victim. After two failed attempts, co-defendant and Farmer finally encountered Salierno outside his car and struck him repeatedly with their fists as well as an eight-to-ten-pound metal pipe. The assailants were driven to the scene of the crime by a fourth man, Gerald Gloster.
At trial, Forbes, Farmer, and Gloster testified against defendant and co-defendant. Not surprisingly, the defense theory was that Forbes, Farmer, and Gloster were all testifying falsely against defendant and co-defendant in exchange for very favorable sentences. In fact, Forbes was not charged with any offense as a result of his involvement with this crime.
Vanyce Forbes, co-defendant's sister, who was not on good terms with Forbes, testified that she found a map in Forbes's room labeled "Parsippany[,]" the town where the victim lived, complete with directions regarding public transportation. The map thereafter disappeared. She also testified that co-defendant, whom Farmer described as striking Salierno with the metal pipe in his right hand, is left-handed.
Defendant raises the following points:
THIS MATTER MUST BE REMANDED FOR AN EVIDENTIARY HEARING BECAUSE A PRIMA FACIE CASE WAS ESTABLISHED AS TO ...