STATE OF NEW JERSEY v. ELIJAH GREEN

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1977-04T41977-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ELIJAH GREEN,

Defendant-Appellant.

_______________________________

 

Submitted May 3, 2006 - Decided May 24, 2006

Before Judges Stern and Alley.

On appeal from the Superior Court of New Jersey, Law Division, Mercer County, 97-07-0239-I.

Yvonne Smith Segars, Public Defender, attorney for appellant (Richard Sparaco, Designated Counsel, of counsel and on the brief).

Joseph L. Bocchini, Jr., Mercer County Prosecutor, attorney for respondent (Dorothy Hersh, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

This is an appeal by defendant from the denial of his petition for post-conviction relief. Defendant filed a Notice of Appeal on December 20, 2004 following the entry of an undated "Opinion Denying Defendant's Post Conviction Relief" by Judge Bill Mathesius.

The proceedings arise from the fatal shooting of Hae Ja Lee on February 7, 1995. She was at her store, Mr. Deli, in Trenton, and defendant allegedly admitted to his co-defendant, Corey Jackson, that he had shot her in the head. Defendant's story was at variance with the co-defendant's story. According to defendant, he never had possession of the gun until after the incident, when he attempted to retrieve the gun for the co-defendant.

At defendant's waiver hearing in the Family Part, the court found that the State had demonstrated probable cause to believe a homicide had occurred and that defendant was involved in its commission. This ended the first phase of the waiver hearing, N.J.S.A. 2A:4A-26a.

Then, over a five day period ending on August 29, 1995, the court held phase two of the waiver hearing. Defendant had the burden of proving that despite the existence of probable cause, the probability of his rehabilitation through use of the services and facilities available to the court, before turning nineteen, substantially outweighed the reasons for waiver. N.J.S.A. 2A:4A-26e. Among the witnesses who testified was Dr. Charles Martinson, who found defendant unlikely to be rehabilitated in only twenty-six months given the amount of time he had suffered under developmental deprivations.

Defendant pled guilty to aggravated manslaughter and armed robbery after the waiver.

The first claim is that the post-conviction relief court erred in denying the petition on procedural grounds, and that the relief should have been granted based on the alleged disparate sentence between defendant and his co-defendant. This is without merit, as the court below properly found. Indeed, we note among other things that defendant now acknowledges that his sentence was not "illegal," and that it fell "within [the statutory] limits under the Code [of Criminal Justice]." Rather, he asserts "that it was fundamentally unfair to be sentenced to ten years more than his co-defendant under the circumstance and facts of this case." It suffices to point out on this record that defendant has failed to demonstrate a fundamental injustice necessary to relax R. 3:22-4, and that the petition for post-conviction relief was properly denied substantially for the reasons expressed by Judge Mathesius.

Defendant is also off the mark in arguing that the court improperly denied his request for a hearing. Rather, the record indicates that the defense counsel's performance was sufficiently competent and not prejudicial within the meaning of Strickland v. Washington, 466 U.S. 668 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), and State v. Fritz, 105 N.J. 42 (1987). See also Hill v. Lockhart, 474 U.S. 52, 106 S. Ct. 366, 88 L. Ed. 2d 203 (1985).

We add only that, by accepting the State's plea offer, defendant avoided the possible exposure to a much harsher term if he was convicted of felony murder. Appellate counsel indeed was not ineffective for failing to raise the sentence disparity issue on direct appeal.

Defendant's motion was properly denied.

Affirmed.

 

The record contains no order denying relief following the judge's formal "opinion denying defendant's petition for post-conviction relief." We note that the judgment of conviction was entered on October 31, 1997, that defendant's pro se "Motion to Correct an Illegal Sentence" or, in the alternative, for post-conviction relief was not filed until April 14, 2003, and that his counselled "Notice of Motion to invalidate defendant's sentence based on disparity or non-conformity with sentence of co-defendant" was not filed until April 8, 2004. We bypass the question of timeliness, see R. 3:22-12, because the judge's opinion noted that the court had granted a motion to withdraw a prior petition for post-conviction relief "without prejudice."

(continued)

(continued)

4

A-1977-04T4

May 24, 2006