NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Yannotti and Espinosa.
Defendant appeals from the denial of his fourth petition for post-conviction relief (PCR) and motion for a new trial. We affirm.
In December 1994, defendant was convicted of first-degree murder, N.J.S.A. 2C:11-3(a)(1) or (2) (counts one and two); second-degree conspiracy, N.J.S.A. 2C:5-2 (count three); first- degree felony murder, N.J.S.A. 2C:11-3(a)(3) (count four); second-degree burglary, N.J.S.A. 2C:18-2 (count six); third- degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d) (count seven); and fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(d) (count eight). The jury acquitted defendant of first-degree robbery, N.J.S.A. 2C:15-1 (count five).
He was sentenced February 17, 1995, to fifty years in prison, with a thirty-year period of parole ineligibility, on count one and concurrent terms on counts six and eight. The judge merged counts three, four and seven into count one for purposes of sentencing and dismissed count two. Defendant appealed and we affirmed his conviction and sentence. State v. Colon, No. A-5327-94 (App. Div. Apr. 14, 1997). His petition for certification was denied on July 10, 1997. State v. Colon, 151 N.J. 77 (1997).
Defendant filed his first PCR petition in November 1997. After conducting an evidentiary hearing, the PCR judge denied relief. We affirmed, State v. Colon, No. A-6621-97 (App. Div. Dec. 27, 1999), and the Supreme Court denied certification. State v. Colon, 164 N.J. 560 (2000).
Defendant filed a second PCR petition in June 2000. The Public Defender's Office (the PD) asked the PCR judge to determine whether good cause existed for the Public Defender to represent defendant on this subsequent PCR, and later wrote to defendant, explaining the steps he needed to follow in order to raise his claims in a pro se petition. By order dated January 17, 2002, the PCR court dismissed the petition without prejudice and indicated the PD was not required to represent defendant. On April 16, 2002, defendant filed a third PCR petition. After it was ordered to represent defendant, the PD wrote to the Assignment Judge requesting a determination as to whether good cause existed requiring the PD to represent defendant. The PD later wrote to the PCR judge, enclosing defendant's first petition, supplemental brief and a transcript of the evidentiary hearing. The PD also stated that it did "not see anything in Defendant's subsequent Petition that provid[ed] Good Cause for this Office to provide Counsel." The PCR judge denied defendant's petition on October 29, 2002, finding that more than five years had passed since the date of defendant's judgment; his sentence was not illegal; and there were no facts alleged to excuse the untimeliness.
Defendant filed his fourth PCR petition and a Motion for New Trial Based Upon Newly Discovered Evidence on July 28, 2010. Both the PCR petition and motion were denied. Defendant raises the following issues in this appeal:
DEFENDANT WAS ENTITLED TO A NEW TRIAL BASED UPON NEWLY DISCOVERED EVIDENCE.
THE DEFENDANT WAS DEPRIVED HIS CONSTITUTIONAL RIGHT TO TESTIFY ...