On appeal from Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 03-05-0497.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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).
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 ...