December 18, 2018
appeal from Superior Court of New Jersey, Law Division,
Hudson County, Indictment No. 09-09-1595.
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).
Judges Fisher, Geiger and Firko. 
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.
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.
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).
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
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
V. THE USE OF A SUBSTITUTE MEDICAL EXAMINER AND HEARSAY
AUTOPSY REPORT VIOLATED THE CONFRONTATION CLAUSE.
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
understanding of the conflicting and uncertain evidence
adduced at the joint trial reveals the need for
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."
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.
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 ...