NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 11, 2013
On appeal from Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 98-10-0971.
Joseph E. Krakora, Public Defender, attorney for appellant (Abby P. Schwartz, Designated Counsel, on the brief).
Camelia M. Valdes, Passaic County Prosecutor, attorney for respondent (Marc A. Festa, Senior Assistant Prosecutor, of counsel and on the brief).
Appellant filed a pro se supplemental brief.
Before Judges Espinosa and Guadagno.
Defendant appeals from the denial of his petition for post-conviction relief (PCR) after an evidentiary hearing. We affirm, substantially for the reasons set forth in the written decision of Judge Ralph L. DeLuccia, Jr.
Defendant entered a guilty plea to first-degree aggravated manslaughter, N.J.S.A. 2C:11-4(a)(1), pursuant to a plea agreement in November 2000. The charge arose from the savage stomping and kicking of Juan Cruz by defendant and co-defendant Lameek Walker. Cruz died approximately ninety-six hours after the attack. An autopsy revealed traumatic injury to the neck, face, and skull, as well as significant swelling to the brain and damage to the spinal cord. The medical examiner noted Cruz's cause of death as "[c]raniocerebral and spinal injury" and ruled Cruz's death a homicide.
At the plea hearing, defendant's attorney, Laura Sutnick, reviewed with him the fact that he had been indicted for first-degree murder, and that, if convicted, the penalty was life imprisonment with a thirty-year period of parole ineligibility. Defendant confirmed his understanding of those facts. Upon questioning by Sutnick, defendant agreed she had visited him several times in jail; that they had discussed the facts in the discovery, the likelihood of success of possible defenses, what his trial testimony would be if he testified at trial, and the likely success of that testimony. He agreed that after they reviewed discovery and discussed possible defenses, Sutnick recommended he plead guilty to first-degree aggravated manslaughter with an exposure of nineteen years incarceration. Defendant testified that he wanted to follow her recommendation.
In providing a factual basis for his guilty plea, defendant testified he and Walker were walking in Paterson on August 5, 1998. He saw Juan Cruz run in front of him. Defendant threw a punch at Cruz and missed. Cruz continued to run across the street. Defendant and Walker followed Cruz and when they got across the street, Cruz attempted to throw a punch at defendant but missed. The three of them "tangled up and tussled." Cruz fell to the ground. Defendant testified, "[Lameek] and I proceeded to kick him." Defendant admitted that he "personally stomp[ed] on [Cruz's] head several times so that he became immobile[.]" Defendant and Walker left Cruz lying on the ground. Defendant testified further that while he was stomping on Cruz's head, he understood that there was a "substantial likelihood that [his] actions would cause physical injury or even death because [he was] wearing shoes and [was] stomping on his head[.]"
Defendant was sentenced to nineteen years, subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, and a five year period of parole supervision. Defendant filed a direct appeal, arguing only that his sentence was excessive. We affirmed his sentence by order dated February 6, 2002. The Supreme Court denied his petition for certification, 174 N.J. 548 (2002).
In May 2004, defendant filed a pro se PCR petition and motions for a new trial and a reduction in his sentence. He claimed he was denied the effective assistance of counsel and that the trial court "failed to scrupulously protect his rights during the plea proceedings." In his brief, defendant argued that his trial counsel failed to advise him he was waiving his right to have the jury consider whether NERA applied and misinformed him about his sentencing exposure; and that appellate counsel was ineffective in failing to challenge trial counsel's effectiveness.
A supplemental brief was submitted on behalf of defendant in which it was argued that trial counsel had been ineffective in failing to conduct an investigation because such investigation would have shown that "the proximate cause link between defendant's ...