On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 98-10-2525.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Payne, Simonelli and Hayden.
Defendant, Jamal Muhammad, was convicted by a jury of third-degree unlawful possession of a hand gun, N.J.S.A. 2C:39- 5b (count one); second-degree possession of a hand gun for an unlawful purpose, N.J.S.A. 2C:39-4a (count two); first-degree armed robbery, N.J.S.A. 2C:15-1 (count three); first-degree felony murder, N.J.S.A. 2C:11-3a(3) (count four); first-degree knowing or purposeful murder, N.J.S.A. 2C:11-3a(1) or (2) (count five); and second-degree conspiracy to commit armed robbery, N.J.S.A. 2C:15-1 and N.J.S.A. 2C:5-2 (count six). Following merger of the felony murder conviction into that for first-degree murder, defendant was sentenced to life imprisonment with a thirty-year parole disqualifier on the first-degree murder conviction. After further mergers, defendant was given lesser concurrent sentences on the remaining convictions.
Defendant appealed, and we affirmed in a published opinion. State v. Muhammad, 359 N.J. Super. 361 (App. Div.), certif. denied, 178 N.J. 36 (2003). Defendant then sought post-conviction relief (PCR), which was denied by the trial court.
On appeal, we remanded for a new hearing, determining that PCR counsel had violated Rule 3:22-6(d) by failing to present all of defendant's PCR petition claims and by filing a deficient brief. State v. Muhammad, No. A-3219-06 (App. Div. March 31, 2010) (slip op. at 5). The present appeal arises from the denial of PCR on remand.
On appeal, defendant raises the following issues through counsel:
THE DEFENDANT'S TRIAL ATTORNEY WAS CONSTITUTIONALLY INEFFECTIVE WHERE SHE DID NOT USE EVIDENCE WHICH WAS RELEVANT TO THE DEFENDANT'S DEFENSE THAT HE DID NOT PARTICIPATE IN THE ROLLINS HOMICIDE IN ANY WAY. (U.S. CONST. AMEND. VI, XIV; N.J. CONST. Art. I, para. 10 (1947)).
POINT TWO THE JURY COULD HAVE RATIONALLY BELIEVED THAT THE DEFENDANT CONSCIOUSLY DISREGARDED A KNOWN RISK WITH EITHER A PROBABILITY OR POSSIBILITY A DEATH WOULD FOLLOW WHERE HE PROVIDED A GUN TO SANTIAGO, BUT WAS NOT PRESENT WHEN THE CRIME OCCURRED, THEREBY WARRANTING A CHARGE OF THE LESSER INCLUDED OFFENSES OF AGGRAVATED OR RECKLESS MANSLAUGHTER.
POINT THREE THE DEFENDANT'S APPELLATE COUNSEL WAS CONSTITUTIONALLY INEFFECTIVE WHERE SHE DID NOT RAISE ON THE DEFENDANT'S DIRECT APPEAL THE ARGUMENT THAT THE TRIAL COURT SHOULD HAVE CHARGED THE JURY WITH THE LESSER INCLUDED OFFENSES OF AGGRAVAT[ED] AND RECKLESS MANSLAUGHTER.
POINT FOUR THE PCR COURT ERRED WHERE IT DID NOT CONDUCT AN EVIDENTIARY HEARING BECAUSE IT FOUND THAT IT WAS PRECLUDED FROM SECOND GUESSING THE TRIAL STRATEGY OF THE DEFENDANT'S TRIAL ATTORNEY DESPITE THE FACT THAT THE DEFENDANT PRESENTED A PRIMA FACIE CASE.
In addition, defendant submitted a pro se supplemental brief, in which he argued:
POINT ONE THE PCR COURT ERRED BY DENYING THE WARRANTED RELIEF ON CLAIMS FOR WHICH DEFENDANT HAS MADE A PRIMA FACIE SHOWING THAT: (a) THE TRIAL COURT ERRED BY FAILING TO INSTRUCT THE JURY ON THE LESSER-INCLUDED OFFENSES OF AGGRAVATED AND RECKLESS MANSLAUGHTERS; AND
(b) THAT TRIAL COUNSEL WAS INEFFECTIVE FOR NOT ACCEPTING THE TRIAL COURT'S OFFER FOR THE INSTRUCTIONS TO BE GIV[EN] ON THE LESSER-INCLUDED OFFENSES, THEREFORE THE DECISION OF THE PCR COURT SHOULD BE REVERSED AND THE MATTER SHOULD BE REMANDED FOR A NEW TRIAL.
POINT TWO BECAUSE THE PCR COURT DID NOT PROPERLY ADDRESS THE CERTIFICATIONS AND STIPULATIONS THE DEFENDANT OFFERED IN SUPPORT OF HIS PCR THE MATTER SHOULD BE REMANDED FOR THEIR ...