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State of New Jersey v. Kenneth Nero

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


May 9, 2012

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
KENNETH NERO, DEFENDANT-APPELLANT.

On appeal from Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 03-05-0497.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted March 14, 2012 -

Before Judges Graves and Koblitz.

Defendant Kenneth Nero appeals from an order dated August 11, 2009, denying his petition for post-conviction relief (PCR).

We affirm.

On January 20, 2005, a jury found defendant guilty of first-degree robbery, N.J.S.A. 2C:15-1 (count one), and simple assault, N.J.S.A. 2C:12-1(a) (count two), as a lesser-included offense of second-degree robbery. The court sentenced defendant to thirteen years imprisonment on the robbery conviction, subject to the provisions of the No Early Release Act, N.J.S.A. 2C:43-7.2, and to a consecutive six-month term for simple assault.

Defendant appealed his first-degree robbery conviction, and we reversed and remanded for a new trial.*fn1 State v. Nero, 393 N.J. Super. 316, 326 (App. Div. 2007). However, the Supreme Court reversed and reinstated defendant's first-degree robbery conviction and sentence. State v. Nero, 195 N.J. 397, 412 (2008). The relevant facts of the case were fully set forth by the Court, id. at 401-02, and need not be repeated here.

Defendant prepared a pro se PCR petition on August 22, 2008, alleging that trial counsel was ineffective for "failing to check [his] mental competence," and for failing to assert "a diminished capacity defense." Following the assignment of counsel, defendant supplemented his petition with a certification dated January 23, 2009. In his certification, defendant stated that his trial attorney and his appellate attorney were both ineffective:

5. I was not properly, or effectively represented by my attorney during the pretrial preparation process, and my subsequent trial[.]

6. My attorney did not fully investigate my case, and did not seek out and speak with witnesses as I requested. My attorney also did not investigate my diminished capacity due to intoxication at the time of the incident. Had he done so and presented this evidence to the jury I would not have been convicted.

7. My attorney failed in his obligation to provide effective assistance of counsel due to his failure to investigate all possible defenses, specifically that of diminished capacity of the defendant, and assert them in a timely manner specifically diminished capacity pursuant to N.J.S.A. 2C:4-2.

8. The [c]court did not give a proper charge regarding my alleged possession of a weapon.

9. Trial counsel was ineffective for failing to object to [the] faulty jury charge.

10. Trial counsel was ineffective for failing to object to improper remarks made by the State in its summation that prejudiced the jury.

11. I was assigned [an attorney] by the Office of the Public Defender to represent me on direct appeal. My appellate attorney did not properly represent me, and provided ineffective assistance as he did not have sufficient contact with me to make use of my knowledge of the matter, and therefore did not bring up all appropriate issues on appeal.

On August 11, 2009, after oral argument, the PCR court denied defendant's petition. The court found that trial counsel "argued very strenuously" on defendant's behalf, and the prosecutor's remarks in summation did not prejudice defendant's right to a fair trial. In addition, the PCR court noted the Supreme Court "made it very clear" that the trial court's jury instructions were appropriate. The PCR judge also found there was no support in the record for defendant's claim that his trial attorney was ineffective for failing to speak with potential witnesses and for failing to pursue a diminished capacity defense; and that his appellate attorney was ineffective for failing to raise "all appropriate issues." On appeal, defendant presents the following arguments:

POINT I

DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL ENTITLING HIM TO POST CONVICTION RELIEF.

A. FAILURE TO INVESTIGATE POTENTIAL WITNESSES.

B. FAILURE TO PURSUE DEFENSE OF DIMINISHED CAPACITY.

C. FAILURE TO OBJECT TO JURY CHARGE.

D. FAILURE TO OBJECT TO PROSECUTOR'S CLOSING REMARKS.

POINT II

DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF APPELLATE COUNSEL.

POINT III

DEFENDANT HAS SUBMITTED PRIMA FACIE EVIDENCE REQUIRING HE BE GRANTED AN EVIDENTIARY HEARING ON POST CONVICTION RELIEF.

We reject these arguments and affirm the denial of defendant's petition substantially for the reasons stated by Judge Marilyn Clark in her oral decision on August 11, 2009. Based on our examination of the record, we agree there is no factual support for defendant's arguments. See State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999) (noting that "bald assertions" are insufficient to entitle a defendant to an evidentiary hearing on a PCR petition). Defendant's arguments do not warrant any additional discussion. R. 2:11-3(e)(2).

Affirmed.


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