On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 02-03-0479.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 11, 2012
Before Judges Lihotz and Kennedy.
Defendant Pedro DeJesus appeals from the October 21, 2009 order denying his petition for post-conviction relief (PCR) and his request for an evidentiary hearing. On appeal, defendant argues:
POINT I: THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST CONVICTION RELIEF WITHOUT AFFORDING HIM AN EVIDENTIARY HEARING TO FULLY ADDRESS HIS CONTENTION THAT HE FAILED TO RECEIVE ADEQUATE LEGAL REPRESENTATION AT THE TRIAL LEVEL.
[A.]*fn1 TRIAL COUNSEL'S FAILURE TO ADEQUATELY COMMUNICATE WITH THE DEFENDANT, TO REVIEW ALL RELEVANT DISCOVERY WITH HIM, AND TO PURSUE A MUTUALLY AGREEABLE DEFENSE STRATEGY, WHICH RESULTED IN THE DEFENDANT NOT TESTIFYING AT TRIAL, SERVED TO DENY TO HIM HIS CONSTITUTIONAL RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL.
[B.] TRIAL COUNSEL WAS REMISS BY FAILING TO REQUEST THE TRIAL COURT CHARGE THE JURY REGARDING PASSION/PROVOCATION MANSLAUGHTER.
[C.] SINCE THE DEFENDANT PRESENTED A PRIMA FACIE CASE OF INEFFECTIVE ASSISTANCE OF COUNSEL, THE TRIAL COURT ERRED IN DENYING HIS PETITION WITHOUT AFFORDING HIM AN EVIDENTIARY HEARING.
POINT II: RULE 3:22-4 DID NOT PRECLUDE THE PRESENT CONTENTIONS FROM BEING ADJUDICATED ON A SUBSTANTIVE BASIS.
Following our review of the arguments advanced on appeal, in light of the record and applicable law, we affirm.
Defendant was tried by a jury and convicted of murder, N.J.S.A. 2C:11-3 (count one), and third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d (count two), in connection with the November 19, 2009 stabbing death of his live-in girlfriend, Maria Castle. At trial, the State's evidence included Castle's dying declaration to her daughter, stating defendant had stabbed her, and defendant's custodial statement admitting he had done so after an argument. Defendant offered treatment reports and expert testimony opining he suffered from an impaired mental state because of polysubstance dependence. The State countered with its own expert disagreeing with such a conclusion. Defendant was sentenced on count one to a thirty-year prison sentence, without the possibility of parole, and on count two to a concurrent five-year term of incarceration.
In an unpublished opinion, we affirmed defendant's conviction, but remanded for resentencing after the merger of count two into count one. State v. DeJesus, No. A-5066-04 (App. Div. Oct. 30, 2006) (slip op. at 6). The Supreme Court denied defendant's petition for certification. State v. DeJesus, 192 N.J. 68 (2007).
Defendant filed a pro se PCR petition alleging ineffective assistance of counsel. Counsel was assigned and a hearing was held on October 21, 2009. Defendant argued trial counsel was negligent because he failed to "adequately communicate and meet with the defendant during the pendency" of the case, and did not review discovery prior to trial or "properly prepare" a defense. To support his lack of communication claim, defendant offered a June 18, 2003 letter from Theodore V. Fishman, his counsel's supervisor, stating his attorney's trial schedule prevented communication with clients, but he would be in touch shortly after he had completed his next trial. Defendant asserted counsel's oversights left him "unable to speak freely" and unsure of the proposed trial strategy, which caused ...