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State v. Penzo

Superior Court of New Jersey, Appellate Division

October 16, 2013

STATE OF NEW JERSEY, Plaintiff-Respondent,
v.
VICTOR PENZO, Defendant-Appellant.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted October 9, 2013

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 05-04-0477.

Joseph E. Krakora, Public Defender, attorney for appellant (Michael J. Confusione, Designated Counsel, on the brief).

Gaetano T. Gregory, Acting Hudson County Prosecutor, attorney for respondent (Megan B. Kilzy, Special Deputy Attorney General/ Acting Assistant Prosecutor, on the brief).

Before Judges Simonelli and Fasciale.

PER CURIAM

Defendant Victor Penzo appeals from the August 25, 2011 Law Division order, which denied his petition for post-conviction relief (PCR) without an evidentiary hearing. We affirm.

Following a jury trial, defendant was convicted of first-degree aggravated manslaughter, N.J.S.A. 2C:11-4a, and was sentenced to a twenty-year term of imprisonment subject to the No Early Release Act, N.J.S.A. 2C:43-7.2. Defendant appealed his conviction and sentence. We affirmed, and our Supreme Court denied certification. State v. Penzo, No. A-4616-06 (App. Div. Jan. 8, 2009), certif. denied, 198 N.J. 474 (2009).

Defendant timely filed a PCR petition, contending that trial counsel rendered ineffective assistance by failing to: investigate and locate witnesses who would have bolstered his claim of self-defense; request a Driver[1] hearing; and object more sufficiently to submitting a transcript of his statement to the police to the jury. Defendant also contended that appellate counsel rendered ineffective assistance by failing to argue that defendant was unduly prejudiced and denied a fair trial when his statement to the police was given to the jury after he testified.

In an August 25, 2011 oral opinion, Judge Venable denied the petition, concluding that defendant failed to satisfy the first prong of the Strickland test that trial and appellate counsel rendered ineffective assistance. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693 (1984). The judge found that defendant failed to provide the names of the alleged witnesses, as well as certifications or affidavits from those witnesses asserting facts that would have been favorable to defendant. The judge found that trial counsel had "vehemently objected" to the admission of the transcript of defendant's statement, the transcript was admissible and properly admitted into evidence, and defendant failed to point to any inaccuracy in the transcript. The judge also found that appellate counsel was not required to raise unsuccessful arguments.

Even assuming that defendant had satisfied the first prong of the Strickland test, Judge Venable concluded that defendant failed to satisfy the second prong that trial and appellate counsels' deficiency prejudiced his defense. Ibid. The judge found that multiple eyewitnesses and other evidence of defendant's guilt were presented at trial. This appeal followed.

On appeal, defendant raises the following contention:

The Court should reverse the denial of defendant's [PCR] and remand this matter for an evidentiary ...

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