NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 26, 2013
On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment Nos. 07-09-3244 and 06-11-3542.
Joseph E. Krakora, Public Defender, attorney for appellant (William Welaj, Designated Counsel, on the brief).
Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Jane Deaterly Plaisted, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).
Before Judges Ostrer and Kennedy.
Defendant appeals from the Law Division's order denying, without an evidentiary hearing, his petition for post-conviction relief (PCR) from two judgments of conviction entered against him in 2007 pursuant to a plea agreement. Defendant argues the
Law Division erred in denying an evidentiary hearing on his PCR claim that he was under the influence of prescription medication at the time of the plea, and that his counsel was ineffective because he misled defendant about the terms of the plea and failed to adequately inform defendant about "potential defenses" of insanity, N.J.S.A. 2C:4-1, or diminished capacity, N.J.S.A. 2C:4-2. We reverse and remand for an evidentiary hearing.
In November 2006, an Essex County Grand Jury returned Indictment 06-11-3542 charging defendant with various crimes resulting from a June 23, 2006, incident involving his mother-in-law, Lydia Lorenzo. The indictment charged defendant with first-degree kidnapping of Lorenzo, N.J.S.A. 2C:13-1b(1); first-degree attempted murder of Lorenzo, N.J.S.A. 2C:5-1 and 2C:11-3; second-degree aggravated assault, N.J.S.A. 2C:12-1b(1); second-degree burglary, N.J.S.A. 2C:18-2; third-degree terroristic threats, N.J.S.A. 2C:12-3a; fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5d; and third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C: 39-4d.
In September 2007, an Essex County Grand Jury returned a second indictment, 07-09-3244, charging defendant with various crimes stemming from a May 23, 2007, incident involving his estranged wife, Jennie Rosario, that occurred while defendant was out on bail on the first indictment. The indictment charged defendant with first-degree kidnapping of Rosario, N.J.S.A. 2C:13-1b; first-degree attempted murder of Rosario, N.J.S.A. 2C:5-1 and 2C:11-3; second-degree aggravated assault, N.J.S.A. 2C:12-1b(1); third-degree terroristic threats, N.J.S.A. 2C:12-3a; and related weapons charges.
Defendant, a high school graduate, joined the Marine Corps in 2001 and was assigned to a combat unit. He suffered some type of a head injury while sky-diving, and said he began to experience black-outs and "hear voices" thereafter. In 2005, he received an "Other Than Honorable" discharge from the service.
Defendant had married Rosario in October 2004 and they separated in April 2006. He reported that he attempted suicide twice that month by "ingesting pills" and was treated at a local hospital and released. He also claimed he began to drink heavily at this time and engage in drug abuse.
On June 23, 2006 defendant went to Lorenzo's home to seek her help in reconciling with his wife. After Lorenzo told him she had no time to speak with him because she was leaving for work, defendant attacked her and attempted to choke her and stab her with a knife. Police ...