On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 01-09-3649.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges A. A. Rodriguez and Sabatino.
This appeal arises from the dismissal of defendant Naquan O'Neil's petition for post-conviction relief ("PCR"). The petition was predicated on defendant's claim that he was deprived of the effective assistance of counsel at trial and in the unsuccessful direct appeal of his 2003 conviction for aggravated manslaughter and other crimes. The PCR judge concluded that defendant had not made a prima facie showing of ineffective assistance by his former counsel. Because we agree with that conclusion, we affirm the dismissal of defendant's petition.
The pertinent facts have already been detailed in this court's unpublished 2007 opinion affirming defendant's conviction on direct appeal. State v. O'Neil, No. A-5134-02 and A-3644-04 (App. Div. Aug. 10, 2007). Briefly, the State's proofs at trial established that on March 16, 2001, defendant and the homicide victim, Hassan Hardy, had an argument outside of a Newark nightclub. Their argument continued into a parking lot, where Hardy struck defendant with a car door and defendant punched Hardy in response. The two men then separated. According to defendant, the two men encountered one another again later that same evening. Hardy fired several gunshots in defendant's direction after emerging from bushes nearby, but missed. Defendant then retrieved a .380 caliber handgun from a hiding place and fired three shots into Hardy's vacant car. Defendant then left the area.
The next evening, March 17, a female acquaintance, Cynthia Crawford, noticed that defendant had a gun on his lap while he was driving her around. After dropping off Crawford at her residence, defendant returned to her street on foot, where he again encountered Hardy. Hardy asked defendant why he had fired shots into his parked car, and the two men proceeded to exchange insults. Defendant then saw Hardy reach into a pocket, prompting him to fire multiple shots at Hardy, one of which struck Hardy in the chest. Defendant then fled the scene, and Hardy died from the gunshot wound.
The police found a .25 caliber handgun next to Hardy's body, but there was no evidence showing that particular handgun had been fired. However, a ballistics analysis did show that two bullets recovered near Hardy had been discharged from defendant's own .380 caliber handgun.
At trial, Crawford testified that she had observed the street encounter through her front window. She specifically recalled defendant say to Hardy, "You like playing with guns?" before firing the shots at him. Crawford also testified that she had not seen Hardy wield a gun before defendant fired the shots.
The ensuing indictment charged defendant with first-degree murder, N.J.S.A. 2C:11-3a (count one); third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b (count two); and second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a (count three). Defendant interposed a claim of self-defense.
After four days of testimony, the trial judge issued the jury charge, which, among other things, alternatively charged aggravated manslaughter and reckless manslaughter as lesser-included offenses of murder. Without any objection from defendant's trial counsel, the charge included the following instruction, explaining to the jurors that defendant's self-defense claim did not apply to the lesser-included charges of manslaughter:
Now, it's important for you jurors to understand the following: The defense of self-defense is not applicable to the lesser-included charges of aggravated manslaughter and reckless manslaughter.
With aggravated and reckless manslaughter, the requisite mental state to establish the offense is recklessness, not purposeful or knowing conduct. When the mental state is recklessness, self ...