STATE OF NEW JERSEY v. DIANE OAKLEY

 
(NOTE: The status of this decision is Published.)

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DIANE OAKLEY,

Defendant-Appellant.

_______________________________

January 7, 2014

 

Submitted October 9, 2013 Decided

 

Before Judges Grall and Nugent.

 

On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 05-08-0120.

 

Joseph E. Krakora, Public Defender, attorney for appellant (Andrew P. Slowinski, Designated Counsel, on the brief).

 

John J. Hoffman, Acting Attorney General, attorney for respondent (Daniel I. Bornstein, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

Defendant Diane Oakley appeals from the denial of her petition for post-conviction relief. We affirm substantially for the reasons stated by Judge Ronald Lee Reisner in his written opinion of August 16, 2011.

A jury found defendant guilty of conspiracy to commit murder, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:11-3, and attempted murder, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3. Both are crimes of the second degree. N.J.S.A. 2C:5-4a.

The evidence at trial was overwhelming. Unknown to defendant, her co-conspirator, "Juan," was a detective employed by the Division of State Police. He was assigned to the case because a friend of defendant alerted the authorities that she was looking for someone she could hire to kill her husband. After advising the authorities, defendant's friend agreed to cooperate. Thereafter, the conversations between defendant and her friend and between defendant and Juan were recorded. Defendant gave Juan $1000 and photographs of her husband in return for his promise to kill her husband, and she agreed to pay him an additional $19,000 after the deed was done. To demonstrate her ability to pay the balance due, she showed Juan a copy of the insurance policy on her husband's life that would cover the cost and leave her with a profit. The judge merged the convictions and sentenced her to a ten-year term of imprisonment, which is subject to terms of parole ineligibility and supervision required by the No Early Release Act, N.J.S.A. 2C:43-7.2.

On direct appeal defendant argued:

I. THE JUDGE'S INSTRUCTIONS TO THE JURY ON

ATTEMPTED MURDER, THE RECORDED

CONVERSATIONS, AND THE PROPER USE OF TRANSCRIPTS, WERE LEGALLY INADEQUATE, AND DENIED MS. OAKLEY DUE PROCESS AND A FAIR TRIAL. U.S. CONST. AMENDS. V, VI XIV; N.J. CONST. ART. 1, PARS. 1, 9, 10. (Not Raised Below).

 

A. The Instructions On Attempted Murder.

 

B. The Instructions Concerning The Recordings.

 

C. Instructions Concerning The Proper Use of Transcripts.

 

D. Conclusion.

 

In a supplemental brief filed by defendant on her own behalf, she raised an additional issue:

I. THE FAILURE OF THE TRIAL COURT TO SUA

SPONTE CHARGE FOURTH DEGREE CONSPIRACY TO COMMIT ASSAULT AND FOURTH DEGREE ATTEMPTED ASSAULT, WHICH WERE CLEARLY INDICATED BY THE EVIDENCE, DEPRIVED DEFENDANT OF A FAIR TRIAL AND DUE PROCESS OF LAW. U.S. CONST. AMENDS. VI, XIV; N.J. CONST. ART. I, PARS. 1, 10. (Not Raised Below).

This court rejected the foregoing claims and affirmed defendant's conviction, and the Supreme Court denied her petition for certification. State v. Oakley, No. A-5518-06 (App. Div. Sept. 30, 2009), certif. denied, 201 N.J. 273 (2009).

On this appeal from the denial of post-conviction relief defendant argues:

I. THE PCR COURT ERRED IN DENYING

DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF ON THE GROUNDS OF INEFFECTIVE ASSISTANCE OF COUNSEL IN VIOLATION OF DEFENDANT'S RIGHTS UNDER THE SIXTH AMENDMENT TO THE U.S. CONSTITUION AND ARTICLE I, PARAGRAPH 10 OF THE NEW JERSEY CONSTITUTION.

 

A. DEFENDANT'S RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL WAS VIOLATED AS A RESULT OF HER TRIAL COUNSEL'S FAILURE TO VIGOROUSLY CROSS EXAMINE STATE'S WITNESS ERNEST STUKES AND SPECIFICALLY TO QUESTION HIM REGARDING HIS RECENT CHANGE TO PROBATIONARY STATUS.

 

B. DEFENDANT'S RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL WAS VIOLATED AS A RESULT [OF] HER TRIAL COUNSEL'S FAILURE TO BRING TO THE ATTENTION OF THE JURY THAT THE PARTIES HAD ALREADY AGREED ON CHANGING THE LIFE INSURANCE POLICY TO ELIMINATE DEFENDANT AS A DIRECT BENEFICIARY.

 

C. DEFENDANT'S RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL WAS VIOLATED AS A RESULT OF HER TRIAL COUNSEL'S FAILURE TO SEEK DISCOVERY OF ADDITIONAL RECORDED CONVERSATIONS OF DEFENDANT.

 

D. DEFENSE COUNSEL ERRED IN FAILING TO PRESENT THE DEFENSE OF RENUNCIATION OF CRIMINAL PURPOSE. (Not Raised Below).

 

II. THE PCR COURT SHOULD HAVE ORDERED AN

EVIDENTIARY HEARING ON DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF.

Judge Reisner addressed every argument defendant raised on the petition in his thorough opinion. We agree with his determinations and have no reason to elaborate. The only argument the judge did not address is defendant's objection to her attorney's failure to request a jury instruction on the defense of renunciation an issue not raised in the petition. Because the issue was not raised in the trial court, we decline to consider it. State v. Robinson, 200 N.J. 1, 20 (2009).

Affirmed.