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State v. Berisha

Superior Court of New Jersey, Appellate Division

February 7, 2019

STATE OF NEW JERSEY, Plaintiff-Respondent,
v.
ZIA BERISHA, Defendant-Appellant.

          Argued December 18, 2018

          On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 09-09-1595.

          Alan Dexter Bowman argued the cause for appellant.

          Svjetlana Tesic, Assistant Prosecutor, argued the cause for respondent (Esther Suarez, Hudson County Prosecutor, attorney; Svjetlana Tesic, on the brief).

          Before Judges Fisher, Geiger and Firko. [1]

          OPINION

          FISHER, P.J.A.D.

         Defendant Zia Berisha appeals the denial of his post-conviction relief (PCR) petition based on a claim he was deprived of the effective assistance of both trial and appellate counsel. Because we agree with the argument that defendant's trial attorney should have but failed to seek jury instructions on the defense of self-defense - an issue clouded by our inconsistent reasoning when rejecting defendant's arguments in his direct appeal - we reverse the order denying post-conviction relief and remand for a new trial.

         I

         On the morning of November 7, 2007, Michael Marro, Jr., was found dead in his Jersey City apartment. Police investigation culminated in the indictment of defendant and Agim Gjonbalaj; both were charged with first-degree murder, N.J.S.A. 2C:11-3(a), and other related offenses. They were tried together in January and February 2010; defendant was convicted of first-degree aggravated manslaughter, N.J.S.A. 2C:11-4(a), a lesser-included offense of first-degree murder, among other things, and Gjonbalaj was convicted of second-degree aggravated assault but acquitted of all other charges. On May 27, 2010, defendant was sentenced to a thirty-year prison term; lesser concurrent terms were imposed on the other convictions.

         In his direct appeal, defendant claimed the trial judge erred by: refusing to grant a severance; admitting evidence of prior bad acts; failing to instruct the jury on the defenses of voluntary intoxication and self-defense; instructing the jury in a way that opened the door to a robbery or felony-murder conviction on acts not charged in the indictment; and declaring that defendant's thirty-year prison term would begin to run after his completion of a sentence on an unrelated matter. We rejected all these arguments and affirmed, State v. Berisha, No. A-2191-10 (App. Div. June 14, 2012), and the Supreme Court denied certification, 213 N.J. 396 (2013).

         Defendant timely filed a PCR petition in May 2015. An evidentiary hearing, at which only defendant's trial attorney testified, took place in November 2016. On January 6, 2017, the PCR judge rendered a written decision denying defendant's petition.

         Defendant appeals, arguing[2]:

I. DEFENSE COUNSEL WAS INEFFECTIVE IN FAILING TO REQUEST THAT THE COURT INSTRUCT THE JURY AS TO THE DEFENSE OF SELF-DEFENSE IN RELATION TO EACH OF THE OFFENSES IN THE INDICTMENT.
II. TRIAL AND APPELLATE COUNSEL WERE INEFFECTIVE IN FAILING TO RAISE A PROPER CHALLENGE TO THE CO-DEFENDANT'S TESTIMONY CONCERNING INCRIMINATING STATEMENTS ALLEGEDLY UTTERED BY [DEFENDANT].
III. THE PCR COURT ERRED IN REFUSING TO SET ASIDE THE CONVICTIONS BECAUSE THE CO-DEFENDANT IMPROPERLY DETAILED THE EXTENT AND METHODS OF [DEFENDANT'S] CDS ABUSE.
IV. [DEFENDANT] WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL DUE TO VARIOUS ADDITIONAL OMISSIONS [SPECIFICALLY, COUNSEL'S FAILURE TO REQUEST A RECORDED CHARGE CONFERENCE].
V. THE USE OF A SUBSTITUTE MEDICAL EXAMINER AND HEARSAY AUTOPSY REPORT VIOLATED THE CONFRONTATION CLAUSE.

         Because we agree defendant was deprived of the effective assistance of trial counsel due to counsel's failure to seek a jury charge on self-defense, and because we are satisfied that this error prejudiced defendant and requires that he be given a new trial, we need not discuss the other issues.[3]

         II

         An understanding of the conflicting and uncertain evidence adduced at the joint trial reveals the need for post-conviction relief.

         In deciding defendant's direct appeal, we recounted how, on November 7, 2007, Marro was found dead in his Jersey City apartment. His head was "bloodied" and the apartment was "in considerable disarray." Berisha, slip op. at 3. A police detective "swabbed the apartment for blood stains and biological evidence" and took "samples from the outside door handle, the hallway closet door, the hallway, a sliding glass door, the television and the glass table top." Ibid. The detective also found "a partially-burnt candle on the living room floor." Ibid.

         The day before Marro's body was found, police stopped a vehicle for a driving infraction; defendant was driving and Gjonbalaj was a passenger. In light of what occurred at that vehicle stop, defendant was arrested for marijuana possession. One of the officers noticed candle wax on defendant's jacket.

         At trial, a forensic scientist opined that the wax from the candle in Marro's living room was "similar" in "composition" to the candle wax taken from the jacket. Another forensic scientist testified that one swab of blood taken from the jacket matched Marro's ...


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