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State of New Jersey v. Tremayne Briston


October 12, 2012


On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 02-10-1347.

Per curiam.


Submitted September 12, 2012 -

Before Judges Simonelli and Lisa.

Defendant appeals from an order denying his post-conviction relief (PCR) petition, and denying his request for an evidentiary hearing. For the reasons that follow, we affirm, subject to modification on one issue.


Defendant was charged in a multi-count indictment with:

(1) first-degree murder of James Anderson, N.J.S.A. 2C:11-3a(1) or (2) and N.J.S.A. 2C:2-6 (count one); (2) second-degree possession of a handgun with the purpose to use it unlawfully against Anderson, Victor Sanders, and Romaine York, N.J.S.A. 2C:39-4a (counts two, five and seven);*fn1 (3) third-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5b (count three); and

(4) first-degree attempted murder of Sanders and York, N.J.S.A. 2C:5-1, N.J.S.A. 2C:11-3 and N.J.S.A. 2C:2-6 (counts four and six). After a ten-day trial, the jury found defendant guilty on count one of the lesser included offense of first-degree aggravated manslaughter, N.J.S.A. 2C:11-4a. The jury also convicted defendant on counts two and three, but acquitted him of the attempted murder charges in counts four and six.

After merging counts two and three with count one, Judge Edward V. Gannon sentenced defendant to twenty years imprisonment subject to an eighty-five percent parole disqualifier and five years parole supervision pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2. The judge also ordered that defendant pay $25,000 in restitution to Anderson's children, to be paid jointly and severally with his co-defendant, Jonathan Wheeler, who was also convicted at the same trial of the same charges as defendant.*fn2

Defendant filed a direct appeal with this court. He challenged the denial of his motion to dismiss the indictment, the propriety of certain testimony, comments made by the prosecutor in summation, and his sentence that was imposed. State v. Briston, No. A-3395-06 (App. Div. June 20, 2008) (slip op. at 2-3). We affirmed defendant's conviction but remanded for reconsideration of his sentence. Id. at 3-4. The Supreme Court denied defendant's petition for certification. State v. Briston, 196 N.J. 596 (2008).

The matter again came before Judge Gannon for reconsideration of sentence on December 12, 2008. At that proceeding, defendant was represented by Margaret Anne Kean, a member of the Office of the Public Defender, the same attorney who had represented him at trial (but who had not handled his appeal). After conducting an ability-to-pay hearing and making findings regarding aggravating and mitigating factors, Judge Gannon imposed the same sentence as he had previously imposed.

Judge Gannon informed defendant of his right to appeal within forty-five days. No such appeal has been filed.

On April 20, 2010, defendant filed his PCR petition. He sought vacation of his conviction, asserting that the representation by his trial counsel was constitutionally deficient, and that a reasonable probability existed that, but for her unprofessional errors, the result of the proceeding would have been different.

The main thrust of his petition was that trial counsel failed to properly advise him of the implications of her past representation of a critical witness against him, namely York. He contended that his trial counsel failed to effectively present a third-party guilt defense with respect to York. He further contended that his conviction should be vacated because the prior representation of York by his trial counsel created an appearance of impropriety.

Defendant made an additional argument of ineffective assistance based upon failure to investigate information pertaining to slugs recovered at the crime scene. Finally, he requested permission to file a late notice of appeal from his resentencing, contending that he requested that his attorney file such an appeal, but she failed to do so. Defendant requested an evidentiary hearing on the allegations raised in his petition.

On February 4, 2011, Judge Joseph A. Portelli considered the PCR petition. He concluded that all of the information needed to decide the issues raised by defendant was contained in the trial record. Accordingly, he denied defendant's request for an evidentiary hearing.

Judge Portelli found that defendant failed to meet the two-prong Strickland*fn3 test because he failed to show that Kean's performance was deficient or that she "could have done more with her prior client [York] than she did." The judge found that Kean provided defendant with excellent representation, noting defendant was acquitted of the most serious charge of the murder of Anderson as well as two counts of attempted murder of Sanders and York. Accordingly, the judge issued an order on February 4, 2011 denying defendant's petition without an evidentiary hearing.

Defendant then filed this appeal, in which he raises the following arguments:


a. Briston was entitled to conflict-free representation.

b. Briston did not receive conflict-free representation.

1. The prior representation was not brief or insignificant.

2. The previous client was a key witness against Briston.

3. There is a strong third-party guilt defense.

4. Briston was never properly advised of the potential problems raised by the conflict and thus his waiver of the right to conflict-free representation was uninformed and invalid.

c. Briston was prejudiced by the prior representation in that the third[-]party [guilt] defense was not effectively presented at trial.






With the exception of Point V, we reject defendant's arguments and affirm. With respect to Point V, we exercise original jurisdiction and grant the relief requested by defendant.


To provide context for the issues raised on appeal, we set forth the following facts derived from the trial record as expressed in our prior opinion on defendant's direct appeal:

Defendant was a drug dealer and member of a group known as the "Pittsburgh Crew." Between April and May 2002, defendant traveled from Pittsburgh, Pennsylvania to Passaic to meet with Anderson and York to conduct several drug-related transactions. At some point, defendant advanced money to Anderson and York to acquire a large amount of heroin. York insisted that he and Anderson were robbed of this money when they went to buy the drugs in Newark. The Pittsburgh Crew, however, suspected that Anderson had kept the money instead.

On the evening of May 28, 2002, at about 11:00 p.m., defendant ran into Anderson's brother Ronald and Tyrone Sanders at the T & L Lounge in Passaic. Defendant was looking for Anderson and asked both Ronald and Tyrone to place phone calls to Anderson. Defendant told Tyrone to tell Anderson that if he didn't bring the money he stole, defendant was going to kill him and his family.

On May 29, 2002, at about 12:30 a.m., Anderson, York, and Tyrone's brother Victor met around the corner from the T & L. York brought with him $10,000 that Anderson had requested so they could pay back defendant. York also brought along a gun and a bulletproof vest. The three drove to the T & L, where they met defendant and another "little guy" outside. Wheeler was standing by a van across the street, and two other individuals were by a nearby car.

Anderson attempted to give defendant the money, and York proceeded to show defendant the gunshot wound he allegedly sustained during the robbery in Newark. This did not appease defendant, who was angered that Anderson had not returned his calls. As the encounter escalated, defendant stated, "I beat two homicides, I'll beat this one, too." Then, defendant got a gun from the "little guy," pointed it at Anderson, and said, "I'm going to blow your mother fuckin' head off." Anderson and York took off running in opposite directions as multiple gunshots were fired. Victor was already across the street by that point. Both York and Victor testified that defendant and Wheeler were shooting at them, but that they did not fire back.

When Passaic police officers arrived at the scene, they observed Anderson lying on his back on the sidewalk next to the gas station across the street from the T & L. Anderson was taken to Passaic General Hospital, where he died of multiple gunshot wounds. Police discovered a .38 caliber handgun lying about two feet away from where Anderson had fallen, eleven .40 caliber shell casings in the parking lot of the T & L, a bullet hole in the front driver's side door of a nearby Toyota Camry, projectiles on the ground in front of and toward the back of the Camry, a bullet hole in a gas port, and several projectiles near the gas pump and in front of the gas station. [Briston, supra, No. A-3395-06 at 4-6.]

On January 20, 2005, when jury selection was set to begin, Kean advised Judge Gannon that she had just learned that she had represented York in an unrelated criminal matter about nine years earlier. Kean had no recollection of York or of her representation of him. She noticed her name on York's 1997 judgment of conviction when she was reviewing the prior criminal histories of the proposed State's witnesses on the eve of trial. From court records, she was able to ascertain that she entered an appearance for York in November 1996, for which he was arraigned in December 1996 on an indictment charging third-degree receiving stolen property, third-degree eluding, fourth-degree aggravated assault, and fourth-degree resisting arrest. Pursuant to a plea bargain, York pled guilty on February 3, 1997 to the two third-degree charges, for which he was sentenced on April 10, 1997 to concurrent four-year terms.

Kean advised the court that she was not in possession of the file and had no access to it. She further advised that she had no recollection of anything pertaining to the charges or to York. Indeed, York had testified at a pretrial proceeding a week earlier, during which Kean had cross-examined him. She did not recognize him or remember him in any way, and the same was apparently true of York with respect to her. Her present knowledge was limited to what was shown in the public record of his indictment, plea and judgment of conviction. She had no recollection of the nature of the underlying charges or of anything not reflected in those records about York. Kean advised the court as follows:

I represented this man nine years ago. I don't remember him or any confidential information which may have impact in this case. The only information I know is that he had this conviction which is a matter of public record. I have no other independent recollection. I have no access to the file or anything like that.

The hearing on this issue included extensive colloquy, during the course of which the judge and the prosecutor expressed concerns about the ability of Kean to present a potential third-party guilt defense aimed at York. The prosecutor stated:

I just have a - have a concern that the cross-examination and ultimately there is going to be in this case an attack on Romaine York from a number of perspectives: identification, misidentification, he may allege that he was the instigator of the offense, may allege that he had a weapon, that his weapon was consistent with casings and projectiles or slugs that were found at the scene thereby, I guess, intimating that he may have caused the fatal shot.

The judge echoed similar concerns:

Well, it's no mystery to me from having heard in the preliminary hearings here that the defense make focus, either one or both of you [referring defendant and Wheeler], on Mr. York as being the person who actually committed the crime here, the murder of the victim.

The judge then inquired whether his analysis was factually correct, to which Kean replied, "I can't deny that as being a possible situation that would develop in this trial."

As the colloquy continued, Judge Gannon again expressed the same concern. He decided to reserve decision in order to read the relevant caselaw. He directed counsel to return the following week for a decision. He also directed Kean to discuss the matter further with defendant in the interim. Before adjourning for the day, the judge again asked defendant, who was present for all of the colloquy, whether he wanted to keep Kean as his attorney. Defendant answered in the affirmative.

On Monday, January 24, 2005, the judge began the proceeding on the same subject on which he had ended the prior proceeding. He asked defendant whether, having had the opportunity during the past few days to think about it further, he still wanted Kean to continue to represent him. Defendant answered affirmatively. He asked defendant whether Kean had come over to the jail to meet with him, and defendant acknowledged that she had. Defendant also acknowledged that he was satisfied with her representation and that, notwithstanding Kean's prior representation of York and having heard all the colloquy during the courtroom proceedings on this subject, he insisted that Kean remain his counsel.

The judge then set forth in detail his decision on the State's motion and his reasons for denying it. Relying on various authorities, and most particularly, State v. Jimenez, 175 N.J. 475 (2003), Judge Gannon was satisfied that defendant's presumptive right to be represented by the counsel of his choosing outweighed any considerations to the contrary. Applying the factors set forth in Jimenez, he found: (1) the present case was not related to the case nine years earlier in which Kean represented York; (2) the interest of defendant was materially adverse to the interest of York in the present case because there was potentially a viable claim of third-party guilt that might be asserted against him; (3) because Kean credibly represented that she had no recollection of York or of any personal or confidential information about him (other than what was represented by public records), she would not use any such information obtained during the course of her representation of York to York's disadvantage or refrain from using any such information to the detriment of defendant; and (4) there was no appearance of impropriety to the general public occasioned by Kean's continued representation of defendant.

The judge was particularly influenced by the long passage of time that had elapsed since the prior representation as well as the very routine and limited scope of the representation which, after several contacts and court appearances, ended in a plea bargained disposition. The judge was satisfied that defendant had a full understanding of the issues related to the alleged conflict and the ramifications that could ensue at trial, and nevertheless knowingly and voluntarily asserted his wish to continue with Kean's representation.

On January 25, 2005, the State filed a motion with this court for leave to appeal Judge Gannon's order. On the same date, we denied the motion. The jury was then selected and the trial commenced.


In Point I, defendant argues that his conviction must be vacated because he was entitled to but did not receive conflict-free representation, and that he was not properly advised of the potential problems raised by the asserted conflict, thus rendering his waiver of any potential conflict uninformed and invalid. He further argues that, as a result, he was prejudiced by his attorney's prior representation of York because his third-party guilt defense against York was not effectively presented at trial. In Point II, defendant argues that even absent a conflict of interest, he was denied the effective assistance of counsel because his trial counsel failed to effectively present the third-party guilt defense. We address the two points together.

To be entitled to relief for ineffective assistance of counsel, a defendant must demonstrate that counsel's performance was deficient and that "a reasonable probability exists that but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 2068, 80 L. Ed. 2d 674, 698 (1984). New Jersey has adopted the Strickland test. State v. Fritz, 105 N.J. 42, 58 (1987). Prejudice is not presumed. Id. at 61. A defendant must demonstrate "how specific errors of counsel undermined the reliability of the [proceedings]." U.S. v. Cronic, 466 U.S. 648, 659 n.26, 104 S. Ct. 2039, 2047 n.26, 80 L. Ed. 2d 657, 668 n.26 (1984).

Under the first prong, a strong presumption exists that counsel "rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Strickland, supra, 466 U.S. at 690, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695. Adequate assistance of counsel must be measured by a standard of reasonable competence. Fritz, supra, 105 N.J. at 58. Therefore, judicial scrutiny requires great deference because the standard does not demand "the best of attorneys," but rather requires that attorneys not be "so ineffective as to make the idea of a fair trial meaningless." State v. Davis, 116 N.J. 341, 351 (1989).

Notably, complained-of acts or omissions of counsel must amount to more than mere tactical or strategic decisions. Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694. To establish that counsel's conduct was constitutionally deficient, a defendant must demonstrate that counsel's performance fell "outside the wide range of professionally competent assistance." Id. at 690, 104 S. Ct. 2066, 80 L. Ed. 2d 695.

The second prong demands that a defendant must show he was prejudiced by the deficient conduct, meaning "counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Id. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. The asserted error "must be so serious as to undermine [a reviewing court's] confidence in the jury's verdict" rather than mere failed trial strategy. State v. Sheika, 337 N.J. Super. 228, 242 (App. Div.), certif. denied, 169 N.J. 609 (2001).

With respect to the specific deficiency asserted in this case, we acknowledge that a defendant has a constitutional right to have his counsel seek to establish that he is innocent by introducing evidence that a third party committed the crime with which he is charged. Jimenez, supra, 175 N.J. at 486. Further, a defendant has a right to representation "'untrammeled and unimpaired'" by conflicts of interest. State v. Bellucci, 81 N.J. 531, 538 (1980) (quoting Glasser v. U.S., 315 U.S. 60, 70, 62 S. Ct. 457, 465, 86 L. Ed. 680, 699 (1942)). When asserting that a conflict of interest caused counsel to render ineffective assistance, the "defendant who raised no objection at trial must demonstrate that an actual conflict of interest adversely affected his lawyer's performance." Cuyler v. Sullivan, 446 U.S. 335, 348, 100 S. Ct. 1708, 1718, 64 L. Ed. 2d 333, 346-47 (1980).

Applying these principles, our review of the record satisfies us that defendant's trial counsel, Kean, had no actual conflict of interest by virtue of her representation, nine years earlier, of York. We are also satisfied that defendant was fully apprised of the potential pitfalls arising from the prior representation, yet he repeatedly asserted that he waived any potential conflict and knowingly and voluntarily chose to continue to have Kean represent him. Defendant repeatedly declined the trial judge's offer to order that new counsel be assigned.

The record further reveals that Kean represented defendant vigorously and effectively. Her extensive and forceful cross-examination of York elicited substantial damaging information, which included his conviction for the offenses for which Kean had previously represented him as well as other convictions and pending criminal matters. Through this cross-examination and Kean's summation, she presented to the jury significant evidence and argument in support of a third-party guilt defense aimed at York. Similar tactics were used by counsel for defendant's co-defendant, Wheeler. The combined efforts of these two attorneys resulted in the same disposition for both of their clients, which was favorable. They were convicted only of aggravated manslaughter of Anderson, rather than murder, and they were acquitted of the attempted murder of Sanders and York.

Defendant does not argue that Kean did not challenge York's testimony through cross-examination or present a third-party guilt defense. He argues that her efforts in that regard were substandard. In his appellate brief, defendant catalogs seventeen facts established by the trial evidence which he contends could have been used to craft a more effective third-party guilt defense than that presented by Kean.

We find this argument unpersuasive in light of the prevailing standard of review. As we have stated, tactical decisions should not be second-guessed by reviewing courts on PCR applications. Indeed, it was Kean who established many of those seventeen facts through her questioning. Some others were established through the questioning of Wheeler's counsel. In any event, in her summation, Kean utilized many of those facts in arguing third-party guilt. She provided the jury with a basis from the trial evidence upon which to find that York had a motive to lie and also had a motive to kill Anderson. She explained that the Pittsburgh Crew, in contrast, had a motive to keep Anderson alive, i.e., to obtain the remaining money he owed them.

In addition to concluding that Kean's performance was not substandard, defendant has also failed to establish any prejudice. As we have pointed out, his co-defendant, Wheeler, was convicted of the same offenses. We are not persuaded by defendant's argument that had Kean adjusted her trial strategy in the manner defendant now suggests in hindsight, the result would have likely been different. Indeed, as we have pointed out, the result was favorable.

With respect to the conflict issue, we are satisfied that Judge Gannon correctly applied the Jimenez factors in denying the State's motion to disqualify Kean. The prior representation of York was remote in time. It occurred in a completely unrelated case that had long since ended. Kean remembered nothing of a confidential nature from York that she could possibly use in this trial to York's detriment. Under the circumstances, she bore no further allegiance to York. Most importantly from defendant's point of view, Kean withheld nothing in her treatment of York arising out of the prior representation that was detrimental to defendant. She cross-examined him regarding the crimes he committed for which Kean had represented him and used that information as part of the formulation and presentation of a third-party guilt defense aimed at him.

Furthermore, defendant's belated claim that he was not adequately informed of the potential pitfalls arising out of the prior representation rings hollow. Defendant was present in court during the extended colloquy in which all of these pitfalls were discussed. He acknowledged having discussed the matter with Kean, in whom he had full confidence. He told the judge unequivocally that, notwithstanding the prior representation of York, he wanted to continue with Kean as his attorney and did not want the judge to order that new counsel be assigned. He repeated these unequivocal assertions several days later after further discussing it with Kean and after the opportunity for further reflection.


In Point III, defendant argues that his conviction must be vacated because Kean's prior representation of York created an appearance of impropriety. We need not evaluate Judge Gannon's very able analysis in rejecting this argument. This is because the Rules of Professional Conduct no longer provide for relief in the event of an appearance of impropriety. See R.P.C. 1.7.

Judicial review of an attorney's conduct must be based upon the "rules in effect at the time the conduct occurred." Comparato v. Schait, 180 N.J. 90, 96 (2004). Prior to January 1, 2004, the appearance of impropriety provision in the Rules of Professional Conduct was contained in subsection (c) of R.P.C.

1.7. Effective January 1, 2004, that subsection was eliminated. City of Atl. City v. Trupos, 201 N.J. 447, 464 (2010); Michels, New Jersey Attorney Ethics, The Law of New Jersey Lawyering, § 21:6-2 at 554 (2012) (noting that the "now-discarded 'appearance of impropriety' doctrine historically assumed added significance when a defendant's attorney had previously represented . . . another person with significant involvement in the case").

Effective January 1, 2004, the Court also eliminated from R.P.C. 1.9 (setting forth the responsibilities of an attorney regarding a conflict of interest between a present and former client) the incorporation of the appearance of impropriety provision in R.P.C. 1.7. The elimination of the appearance of impropriety provision rendered that analysis null under the Rules of Professional Conduct. In re Sup. Ct. Adv. Comm. on Prof'l Ethics Op. No. 697, 188 N.J. 549, 562 n.5 (2006) ("[W]e reject the appearance of impropriety as a factor to be considered in determining whether a prohibited conflict of interest exists under R.P.C. 1.7 . . . or 1.9."). Instead, the "inquiry must start from the now well-established principle that whether the matters are the 'same or substantially related' must be based in fact[.]" Trupos, supra, 201 N.J. at 464.

In this case, the initial motion to disqualify Kean was filed on January 20, 2005, more than a year after the appearance of impropriety provision was eliminated. Of course, the trial proceeded thereafter.

Accordingly, defendant's request for relief under the appearance of impropriety doctrine lacks legal basis.


Defendant's Point IV, that his attorney was deficient for failing to investigate the slugs found at the crime scene, requires very little discussion. A PCR petition "shall be verified by [the] defendant and shall set forth with specificity the facts upon which the claim for relief is based[.]"

R. 3:22-8. Bare assertions or conclusions will not suffice to establish the requisite showing. State v. Cummings, 321 N.J. Super. 154, 168 (App. Div.), certif. denied, 162 N.J. 199 (1999). A defendant is required to "assert the facts that an investigation would have revealed, supported by affidavits or certifications based upon the personal knowledge of the affiant or the person making the certification." Id. at 170. Defendant's petition merely asserted that an investigation into the slugs might have revealed that they were fired from a .40 caliber handgun. However, the petition failed to provide any competent factual evidence that the failure to investigate the slugs undermined the reliability of the trial. Accordingly, there was no error in the PCR court's rejection of this argument.


In Point VI, defendant argues that the PCR court erred in denying him an evidentiary hearing on his allegations of ineffective assistance of counsel. We disagree.

Evidentiary hearings in PCR proceedings are discretionary.

R. 3:22-10; State v. Preciose, 129 N.J. 451, 462 (1992). To be entitled to an evidentiary hearing, the defendant must present a prima facie claim of ineffective assistance by demonstrating a reasonable likelihood of succeeding under the Strickland test. Preciose, supra, 129 N.J. at 463. If the PCR court finds "that holding an evidentiary hearing will not aid the court's analysis of whether the defendant is entitled to post-conviction relief, . . . or that the defendant's allegations are too vague, conclusory, or speculative to warrant an evidentiary hearing, . . . then an evidentiary hearing need not be granted." State v. Marshall, 148 N.J. 89, 158 (internal citations omitted), cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997). The PCR court "should view the facts in the light most favorable to a defendant to determine whether a defendant has established a prima facie claim." Preciose, supra, 129 N.J. at 463.

Viewing the facts alleged in defendant's verified PCR petition most favorably to him, we agree with Judge Portelli that those facts, together with the trial record, provided all of the information required to adjudicate the ineffective assistance issue. Thus, an evidentiary hearing would provide no additional evidence required for such an adjudication. We are therefore satisfied that the judge did not mistakenly exercise his discretion in denying defendant's request for an evidentiary hearing.


Finally, we address defendant's Point V, in which he argues that he must be permitted to file a late notice of appeal relating to his resentencing. Although this claim was included in defendant's PCR petition, it was not mentioned during oral argument at the PCR hearing. Likewise, the judge did not make any findings on the subject.

In his appellate brief, without citing any legal authority, defendant devotes less than one-half page to this argument. By citation to his verified PCR petition, he asserts that he directed his attorney to file an appeal. He then argues that despite that direction, the appeal was not filed, thereby denying defendant of the opportunity for appellate review.

In its responding brief, the State devotes slightly more than one page to the subject. Citing Rule 2:4-1(a), the State argues that appeals must be filed within forty-five days, and that the time period may be extended an additional thirty days pursuant to Rule 2:4-4(a). The State does not deny that defendant asked his attorney to file a notice of appeal or that his attorney failed to do so. The State simply argues, without further legal authority, that defendant should be denied relief because he was remiss for waiting nearly three years after requesting that his attorney file an appeal before doing anything about it. Of course, defendant did not wait nearly three years. He was resentenced on December 12, 2008. He filed his PCR petition requesting leave to file the appeal on April 20, 2010.

The time within which an appeal may be filed may not be extended except upon motion to the Appellate Division.

R. 2:4-4. That rule prescribes certain constraints which could not be satisfied in this case. However, with respect to criminal defendants who have been convicted and sentenced for their crimes, relaxation of the rule is required in certain circumstances, namely where an indigent defendant requested that his attorney file an appeal but the attorney failed to do so. State v. Altman, 181 N.J. Super. 539, 541 (App. Div. 1981). Our Supreme Court has recently reaffirmed the so-called Altman rule, with some modifications not relevant here. State v. Molina, 187 N.J. 531, 541-43 (2006).

As applicable to the facts in this case, the Court held that a defendant who has been advised of his right to appeal but does not file the appeal in a timely manner is entitled to file out of time "if he satisfies the burden of demonstrating, by his own certification and by a preponderance of the credible evidence, that defendant did request the filing of an appeal in a timely manner and that his then counsel failed to prosecute it." Id. at 542 (footnote omitted).

The record before us contains the following statement by defendant in his verified PCR petition:

25. Following the resentencing on remand, Briston asked his attorney to file a notice of appeal. The attorney did not do so, thereby denying Briston his opportunity for appellate review. Accordingly, he should be permitted to file a notice of appeal.

As we have stated, the State does not deny this verified statement by defendant. Although defendant's statement is imprecise with respect to timing, we read it as being a timely request that counsel file the appeal. Accordingly, under Altman and Molina, defendant should be granted leave to file an appeal out of time of his resentencing.

Because (1) the factual record is complete and undisputed,

(2) the trial court did not make any findings on this issue, and

(3) as within time relief may only be granted upon a motion to this court, we exercise original jurisdiction, see Rule 2:10-5; State v. Harris, 181 N.J. 391, 417 (2004), cert. denied, 545 U.S. 1145, 125 S. Ct. 2973, 162 L. Ed. 2d 898 (2005), to resolve the issue. In doing so, we deem defendant's request in his PCR petition for leave to file an appeal from his resentencing out of time as a motion for such leave, and, based upon the factual record and the holdings in Altman and Molina, we grant the motion. The appeal is limited to the December 12, 2008 resentencing that occurred as a result of our prior remand. The appeal shall be filed promptly after the filing of this opinion.


For the reasons we have expressed, the February 4, 2011 order denying defendant's PCR petition is affirmed as modified.

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