On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 93-04-0962.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 15, 2011
Before Judges Carchman and Baxter.
Following a jury trial, defendant John Delbridge was convicted of felony murder, N.J.S.A. 2C:11-3a(3), and armed robbery, N.J.S.A. 2C:15-1. The judge merged the two offenses and on August 4, 1994, sentenced defendant to life imprisonment with a thirty-year period of parole ineligibility. Defendant appealed, and we affirmed. State v. Delbridge, A-0712-94 (App. Div. December 23, 1996). The Supreme Court denied certification. 149 N.J. 142 (1997). Thereafter, defendant filed a timely petition for post-conviction relief (PCR). The Law Division judge denied relief, and we affirmed. State v. Delbridge, A-3978-00 (App. Div. Jan. 9, 2003), certif. denied, 176 N.J. 72 (2003). Apparently, no petition for certification was filed for further review in the Supreme Court.
In July 2008, defendant filed a "motion for reconstruction of the record," with the stated purpose to file yet another PCR petition. Judge Kevin Callahan denied the application in January 2010. Defendant appeals, and we affirm.
We need not restate the facts giving rise to the underlying offenses, as they are more specifically and fully set forth in our 1996 opinion, except to note that the offenses arose as a result of an armed robbery involving three elderly women returning from a church function in Jersey City.
On his direct appeal, defendant raised the following issues:
I. Defendant was denied due process as a result of several rulings of the trial court which ultimately permitted a positive in-court identification of defendant by R.K. when it was clear from her pretrial statements and her pretrial Wade[*fn1 ] hearing testimony that she could not positively identify defendant, and when the in-court identification could only have resulted from her observing defendant at the pretrial hearing.
II. The trial committed plain error during its jury charge when it instructed the jury that R.K. had identified defendant. (Partially raised below).
III. Defendant was deprived of his Fifth Amendment right to due process and his Sixth Amendment right to the effective assistance of counsel by the omission of jury charges on second degree robbery and the affirmative defense to felony murder, together with the absence of an instruction that an accomplice may be guilty of a lesser offense than the principal. (Partially raised below).
IV. The decision to impose a sentence of life imprisonment could not reasonably have been made upon a proper weighing of aggravating and mitigating factors.
On his appeal from his first PCR petition, defendant raised
I. The lower court erred in denying defendant's petition since defendant raised claims of constitutional magnitude and demonstrated the conviction was the ...