On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 02-10-1296.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 10, 2011
Before Judges Graves and Koblitz.
Defendant Fedner Pierre-Louis appeals from an order dated January 30, 2009, denying his petition for post-conviction relief (PCR). We affirm.
On December 10, 2004, a jury convicted defendant of first- degree aggravated manslaughter, N.J.S.A. 2C:11-4(a)(1), as a lesser-included offense of knowing and purposeful murder (count one); first-degree robbery, N.J.S.A. 2C:15-1 (count two); first- degree felony murder, N.J.S.A. 2C:11-3(a)(3) (count three); third-degree unlawful possession of a firearm, N.J.S.A. 2C:39- 5(b) (count four); and second-degree possession of a firearm for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count five). After appropriate mergers, the court sentenced defendant to a forty- five-year term of imprisonment with an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2, for felony murder. The court imposed a consecutive five-year term for unlawful possession of a firearm. In an unpublished opinion,*fn1 we affirmed defendant's convictions, but we remanded the sentence for third-degree unlawful possession of a firearm because the five-year term exceeded "the now defunct presumptive term of four years."*fn2 Id. at 14.
In his PCR petition filed on August 6, 2007, defendant alleged, among other things, that he was denied his federal and state constitutional rights to the effective assistance of counsel and to due process because his trial attorney failed to adequately investigate his case, failed to serve the alibi notice required by Rule 3:12-2, and failed to assert an alibi defense. Defendant's PCR petition was submitted to Judge John Triarsi, who had presided over defendant's jury trial. Following an evidentiary hearing on January 12, 2009, the judge ruled that defendant satisfied the two-prong test established in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984), and he entered an order vacating defendant's judgment of conviction.
On January 26, 2009, the State filed a motion for reconsideration based upon "recently located files" that contained notes of interviews conducted by Robert Hasanoeddin, the Public Defender's trial investigator. During a second evidentiary hearing on January 29, 2009, the judge heard testimony from Hasanoeddin, defendant's trial counsel, and an Assistant Deputy Public Defender, who represented defendant before trial counsel. In a comprehensive oral decision on January 30, 2009, Judge Triarsi made detailed findings, which included the following:
Counsel's performance was not deficient. He was not under a duty to check an alibi which was already checked. He did testify, counsel, that he knew that the school alibi was not a viable alibi. He had access to these items we talked about. He knew that fact.
Did he have a duty to go beyond that, ask these same people, well, by the way, were you still with him an hour later? I don't think so.
Hasanoeddin is a very experienced man. I think he testified he has been doing this for 20 years and these young men are not babes in the woods. When he [told] them I am here to make inquiry of an alibi for Mr. Fedner, your friend, these young men, young city street people, knew what they were about to be asked. If they were there with him all night long, they knew to say that and those of them who gave statements to the police for other things who put the gun in [defendant's] hand, by way of example, didn't say I was with Fedner in his room playing video games so he couldn't have done it, Fedner's innocent.
The Strickland criteria [have] not been made. I enter a judgment, A, denying the PCR. B, reinstating the Judgment of Conviction. C, remanding him back to prison.
On appeal from the denial of his ...