On appeal from the Superior Court of New Jersey, Law Division, Morris County, Indictment No. 01-01-145.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 6, 2011
Before Judges Fisher and Baxter.
At the conclusion of a jury trial, defendant was convicted of the first-degree murder of his former girlfriend, Deborah Schroeder, N.J.S.A. 2C:11-3a, the second-degree aggravated assault of Ms. Schroeder's boyfriend, Joseph DeMayo, N.J.S.A. 2C:12-1b(1), and second-degree burglary, N.J.S.A. 2C:18-2; he was also convicted of other offenses that, for sentencing purposes, merged with the murder conviction. The trial judge imposed: a life sentence, subject to a thirty-year period of parole ineligibility, on the murder conviction; a consecutive ten-year prison term, subject to a five-year period of parole ineligibility, on the aggravated assault conviction; and a five-year concurrent prison term on the burglary conviction.
Defendant appealed, arguing in three points that: statements he made to police should have been suppressed; the judge erred in denying his motion for a new trial and should have conducted an evidentiary hearing to explore his ineffective-assistance-of-counsel claim; and the judge erred in denying an adjournment of the trial to allow new counsel to assume his defense. In rejecting these arguments, we noted that defendant's ineffective-assistance-of-counsel claim included five specific contentions, namely:
(1) that counsel had not moved to disqualify the trial judge; (2) that counsel did not ask defendant whether the jury was satisfactory to him; (3) that counsel did not probe prospective jurors about their willingness to consider a psychiatric defense or whether they, their families or friends had experienced psychiatric illness; (4) that counsel visited defendant only four times in jail; and (5) counsel's failure to request that a juror be excused who recognized a trial witness.
[State v. Conte, No. A-6672-01 (App. Div. Mar. 23, 2004) (slip op. at 24).]
We rejected the fourth of these contentions on its merits. Id. at 24-25. We observed that the other ineffective-assistance-of-counsel contentions had not been previously raised in the trial court and, consequently, we declined to rule on them, noting that "[s]uch claims are better reserved for an application for post judgment relief especially in view of defendant's request for an evidentiary hearing." Ibid. The Supreme Court denied defendant's petition for certification. 181 N.J. 285 (2004).
In March 2007, defendant filed in the trial court a petition for post-conviction relief (PCR), which was later supplemented and ultimately denied by way of a written decision and order entered on December 21, 2010. Defendant appealed, presenting the following arguments for our consideration:
I. THE TRIAL COURT'S AND APPELLATE DIVISION'S ERRONEOUS DENIAL OF A CRIMINAL DEFENDANT'S SIXTH AMENDMENT RIGHT TO BE REPRESENTED BY COUNSEL OF CHOICE REQUIRES AUTOMATIC REVERSAL OF PETITIONER'S CONVICTIONS.
II. A STRUCTURAL ERROR OCCURRED WARRANTING REVERSAL OF THE CONVICTION WHEN THE TRIAL COURT FAILED TO FOLLOW THE PROPER PROCEDURES IN DECIDING TO ALLOW THE TRIAL TO PROCEED WITH THE DEFENDANT IN ABSENTIA. THIS ERROR WARRANTS REVERSAL OF THE CONVICTION.
III. THE TRIAL COURT AND APPELLATE DIVISION'S CONCLUSORY DENIALS OF MR. CONTE'S PRO SE PETITION FOR POST-CONVICTION RELIEF DID NOT RISE TO THE LEVEL OF LEGAL ANALYSIS. THE CONVICTIONS SHOULD BE VACATED AND THE MATTER REMANDED FOR A NEW TRIAL.
IV. THE TESTIMONY OF THE STATE'S PSYCHIATRIC EXPERT, AZARIAH ESHKENAZI, M.D., SHOULD NOT HAVE BEEN ...