STATE OF NEW JERSEY v. ALLEN ESSNER

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3354-06T43354-06T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ALLEN ESSNER,

Defendant-Appellant.

____________________________________________

 

Submitted January 14, 2009 - Decided

Before Judges A. A. Rodr guez and Lyons.

On appeal from Superior Court of New Jersey, Law Division, Morris County, Indictment No. 97-11-1245.

Yvonne Smith Segars, Public Defender, attorney for appellant (Louis H. Miron, Designated Counsel, on the brief).

Robert A. Bianchi, Morris County Prosecutor, attorney for respondent (Paula Jordao, Assistant Prosecutor, on the brief).

PER CURIAM

Defendant Allen Essner appeals from an order denying his post-conviction relief (PCR) application. Defendant was convicted of first-degree murder, pursuant to N.J.S.A. 2C:11-3, and second-degree possession of a weapon for an unlawful purpose, pursuant to N.J.S.A. 2C:39-4(a), after a trial by jury. We affirmed his conviction on appeal on November 22, 2002. State v. Essner, No. A-2498-99T4 (App. Div. Nov. 22, 2002). The Supreme Court denied certification on February 11, 2003. State v. Essner, 175 N.J. 547 (2003).

Defendant now raises for our consideration on appeal the following arguments:

POINT I

ESSNER WAS DENIED A FAIR TRIAL BECAUSE THE JURY CHARGE WITH RESPECT TO THE EVIDENCE CONCERNING THE TERRORISTIC THREATS AND RESTRAINING ORDER WAS CONFUSING AND INADEQUATE TO PROTECT ESSNER'S RIGHTS.

POINT II

ESSNER'S CONSTITUTIONAL RIGHTS WERE VIOLATED BECAUSE HE WAS DENIED THE ASSISTANCE OF EFFECTIVE COUNSEL WITH RESPECT TO HIS POST-CONVICTION RELIEF PETITION. (Not Raised Below).

In defendant's first point, he argues that the jury charge with respect to certain evidence concerning terroristic threats and a domestic violence restraining order was confusing and inadequate to protect his rights and denied him a fair trial. We disagree.

We note, first of all, that pursuant to Rule 3:22-4, the claim should be procedurally barred. The argument could have reasonably been raised in the prior direct appeal. However, even if we were to consider defendant's substantive argument, we would find it to be without merit. The argument is factually and logically flawed.

At the trial, the victim's wife, who was also defendant's paramour, testified that she sought a domestic violence restraining order against defendant for terroristic threats he allegedly made. The prosecutor asked her if she had filed criminal charges of terroristic threats against defendant. She replied, "I believe so, yes." There was an objection. The objection was sustained and the trial court provided the appropriate instruction to the jury concerning the use of that statement.

Later, in the wife's testimony, she was asked why she had moved to dismiss the restraining order she had obtained against defendant. The witness responded that defendant's comment that if she ever left him, that he would kill her was not "really made to me the way it was said." Again, there was an objection and that testimony was stricken. The jury was also given the appropriate instruction.

The trial court had earlier appropriately ruled, however, that given the facts and circumstances of this case, testimony concerning restraining orders and domestic disputes between the victim's wife and the victim and the victim's wife and defendant would be admissible. That testimony was adduced and the trial court gave a thorough and detailed instruction to the jury as to its use during the jury charge.

Defendant in his PCR application confuses the distinction between testimony regarding domestic violence and testimony regarding terroristic threats and criminal charges. The trial court's jury instructions, though, were clear on the matter and were not capable of producing an unjust result. R. 2:10-2.

Defendant next argues that his first PCR counsel was ineffective because he failed to advance arguments raised by defendant in his pro se PCR petition and additionally failed to argue that trial counsel was also ineffective for not pursuing these arguments.

New Jersey Courts follow the rule formulated by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984). Under our Court's interpretation of New Jersey's Constitution, to demonstrate ineffective assistance of counsel, a defendant must identify acts or omissions allegedly showing unreasonable professional judgment, and then must show that these acts or omissions had a prejudicial effect on the judgment. State v. Fritz, 105 N.J. 42, 58 (1987).

Defendant's argument with respect to ineffective assistance of counsel is directed at his first PCR counsel and indirectly at his trial counsel. Present counsel argues that the PCR counsel should have argued that it was error for the trial court not to have charged passion/provocation manslaughter first in outlining the substantive offenses; that counsel should have argued that the introduction of defendant's statement to the police at trial was in violation of his Miranda rights; that counsel should have argued defendant was denied a "speedy trial"; and that PCR counsel did not argue ineffectiveness of trial counsel for failing to argue the above points.

Again, we note that pursuant to Rule 3:22-4, all of these issues, except the issue of PCR counsel's alleged ineffectiveness, could have been raised on direct appeal and, therefore, are barred. Moreover, a substantive review of each of these arguments demonstrates that they are without merit and, therefore, the failure to raise them would not have resulted in any actual prejudice to defendant.

We have carefully reviewed the trial judge's charge, particularly with respect to the first-degree murder charge. The court appropriately incorporated the required discussion of passion/provocation in that charge. Hence, there was no error with respect to the sequential order of the charge. See State v. Coyle, 119 N.J. 194, 221-24 (1990).

With respect to defendant's argument concerning the trial court denying his motion to suppress his statement to the police, we note that to admit a confession into evidence, the State must prove beyond a reasonable doubt that the suspect's waiver of his right against self-incrimination was knowing, intelligent, and voluntary in light of all the circumstances. State v. Patten, 362 N.J. Super. 16, 42 (App. Div.), certif. denied, 178 N.J. 35 (2003). We are presented with nothing in this record that would cause us to question that this burden was not met.

Lastly, defendant argues that his "speedy trial" rights were violated and this should provide him a new trial. We have looked at the factors in Barker v. Wingo, 407 U.S. 514, 519-20, 92 S. Ct. 2182, 2186-87, 33 L. Ed. 2d 101, 110-11 (1972) and State v. Szima, 70 N.J. 196, 201 (1976), cert. denied, 429 U.S. 896, 97 S. Ct. 259, 50 L. Ed. 2d 180 (1976), and note the length between indictment and trial here was not unreasonable, and there was no earlier assertion by defendant of his right to a "speedy trial" or any proof of any prejudice to him caused by this passage of time. Consequently, we find defendant's "speedy trial" argument to be without merit.

In light of the fact that the underlying points which defendant claims PCR counsel should have advanced in his PCR application and trial counsel should have raised at trial or in direct appeal are without merit, we find that the second prong of the Strickland analysis, actual prejudice to defendant, was not met and, therefore, his claim of ineffective assistance of PCR counsel fails.

Affirmed.

The conviction itself was affirmed, except we remanded for resentencing with respect to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, pursuant to State v. Manzie, 168 N.J. 113 (2001).

Miranda v. Arizona, 384 U.S. 436, 478-79, 86 S. Ct. 1602, 1630, 16 L. Ed. 2d 694, 726 (1966).

See Sixth Amendment of the United States Constitution as imposed on the states by the Due Process Clause of the Fourteenth Amendment.

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A-3354-06T4

February 2, 2009