STATE OF NEW JERSEY v. HUMPHREY COHEN

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5472-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

HUMPHREY COHEN,

Defendant-Appellant.

_______________________________

 

Submitted August 10, 2010 - Decided

Before Judges Lihotz and Baxter.

On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 83-03-1433.

Humphrey Cohen, appellant pro se.

Robert D. Laurino, Acting Essex County Prosecutor, attorney for respondent (LeeAnn Cunningham, Special Deputy Attorney General/ Assistant Prosecutor, on the brief).

PER CURIAM

Defendant Humphrey Cohen appeals from an April 15, 2009 Law Division order denying his seventh petition for post-conviction relief (PCR) after the court concluded it was procedurally barred because the issues raised had been previously presented and reviewed on July 16, 2004. R. 3:22-4. He also appeals from a June 5, 2009 order denying reconsideration. Defendant's PCR challenge centers on a claimed flaw in the jury charge regarding whether defendant's voluntary intoxication mitigated his mental state. Defendant suggests the alleged faulty charge contributed to his convictions for felony murder, N.J.S.A. 2C:11-3(a)(3); purposeful, knowing murder, N.J.S.A. 2C:11-3(a)(1) and (2); armed robbery, N.J.S.A. 2C:15-1; and third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b).

Defendant presents the following points on appeal:

POINT I

THERE IS A FLAW IN THE MODEL JURY VOLUNTARY INTOXICATION CHARGE WHICH AFFECTS THE DEFENSE AND THE STATE. CONSEQUENTLY, THE STATE SHOULD JOIN DEFENDANT IN PRESENTING THIS ARGUMENT TO THE APPELLATE DIVISION.

POINT II

DEFECTS IN JURY CHARGES CAN WARRANT LIFTING OF PROCEDURAL BARS R. 3:22-4 [AND] R. 3:22-12. THEREFORE, BECAUSE PRO SE DEFENDANT HAS DEMONSTRATED HOW HIS JURY RECEIVED FLAWED VOLUNTARY INTOXICATION INSTRUCTIONS AND HOW THE CURRENT MODEL JURY INTOXICATION CHARGE IS MUTUALLY FLAWED FOR THE STATE & DEFENSE, MEANS HIS ARGUMENT SHOULD NOT BE BARRED.

POINT III

THE MURDER STATUTE N.J.S.A. 2C:11-3[(a)](1), (2) IS TRIVIALIZED BECAUSE SAID STATUTE ALLOWS FOR THE STATE TO OBTAIN AN INDICTMENT & CONVICTION FOR MURDER BASED ON THE ABSENCE OR PRESENCE OF INTENT TO CAUSE OF DEATH. THIS MEANS DEFENDANT VICTIM IS PROSECUTED THE SAME AS THOSE DEFENDANTS WHO INTENDED TO KILL THEIR VICTIMS. AND ALSO, BECAUSE DEFENDANT WAS CONVICTED OF N.J.S.A. 2C:11-3[(a)](1), (2) AS [A] CONSEQUENCE OF UNINTENTIONALLY KILLING HIS VICTIM, MEANS A STIGMA HAS ATTACHED TO HIS CONVICTION, WITHIN THE SENSE THAT SAID N.J.S.A. 2C:11-3[(a)](1), (2) IS THE MOST SE[VERE] MURDER STATUTE THAT THE STATE CAN CHARGE AGAINST A DEFENDANT; AND CONSEQUENTLY, THAT AFFECTS: (1) SENTENCING, (2) REHABILITATION OPPORTUNITIES, (3) PRISON CLASSIFICATION & (4) PAROLE STATUS OF THE DEFENDANT.

We affirm.

Only an abbreviated recitation of the facts and procedural history relevant to our determination is necessary, as the matter has been reviewed extensively by this court. Following his conviction by a jury for the robbery and shooting death of Otha Thompson on January 26, 1983, defendant appealed. In a reported opinion, we affirmed defendant's conviction and sentence. State v. Cohen, 211 N.J. Super. 544, (App. Div. 1986). The Court denied certification. State v. Cohen, 107 N.J. 115 (1987).

In November 1989, defendant filed his first PCR petition. All subsequent petitions for relief were denied. Each denial was affirmed on appeal. Defendant also exhausted his federal appeals.

The arguments presented in defendant's most recent appeal are neither timely nor novel. In our review of the denial of defendant's fifth PCR petition and the subsequent November 29, 2004 order denying reconsideration, we examined the single issue raised that "defendant was deprived of the effective assistance of counsel because the trial judge in 1984, did not adequately instruct the jury about the significance of his claimed intoxication on the purposeful, knowing murder charge." Cohen V, supra, slip op. at 4. We reviewed defendant's arguments, mirroring those again raised in this matter, and found them insufficient to overcome the procedural bars to warrant relief as there was no defect in the trial judge's charge. Id. at 7. We noted: "The jury was adequately instructed that defendant's intoxication could be a defense as against the purposeful and knowing murder charge, but that it would not operate as a defense to the lesser included manslaughter charges." Id. at 8. We also rejected as meritless, as did the PCR judge who heard the fifth petition, defendant's assertion of ineffective assistance of counsel during any trial or post-conviction proceedings. Id. at 8-9.

The rules governing PCR petitions include various procedural bars to relief requests "[b]ecause post-conviction relief is not a substitute for direct appeal[,]" State v. Echols, 199 N.J. 344, 357 (2009), and public policy requires we "promote finality in judicial proceedings." State v. McQuaid, 147 N.J. 464, 483 (1997).

For example, a petitioner may be barred from relief if the petitioner could have raised the issue on direct appeal but failed to do so, Rule 3:22-4; the issue was previously decided on direct appeal, Rule 3:22-5; or the petition was filed more than five years after the judgment or sentence that was imposed, Rule 3:22-12. Although our rules provide for certain exceptions to these general rules, we have emphasized that it is important to adhere to our procedural bars. [State v.] Goodwin, [] 173 N.J. [583,] 594 [(2002).]

[Echols, supra, 199 N.J. at 357.]

The challenge to the specific jury charge was included in the fifth PCR petition. Rule 3:22-4 bars any additional consideration. More important, defendant's requests are out of time. Rule 3:22-12, in effect at the time this matter was heard, mandated that PCR challenges other than those to correct an illegal sentence be filed within five years after entry of a judgment of conviction. Defendant recites no basis to relax the limitations period on presenting PCR arguments regarding his conviction, which was entered more than twenty-five years ago. Neither excusable neglect nor exceptional circumstances are presented. State v. Mitchell, 126 N.J. 565, 576-77 (1992). The order will not be disturbed.

 
Affirmed.

Defendant's first PCR petition was denied as untimely. The second petition, filed in 1990, was denied. That order was affirmed in an unpublished opinion and certification was denied. State v. Cohen, No. A-969-91T1 (App. Div. March 4, 1994), certif. denied, 137 N.J. 166 (1994). The third PCR petition was denied on November 12, 1997. That order was affirmed and certification was denied. State v. Cohen, No. A-940-99T5 (App. Div. November 13, 2000), certif. denied, 167 N.J. 636 (2001). The fourth petition was denied on April 30, 2003. The fifth PCR petition was denied on July 16, 2004. The order was affirmed and certification was denied. State v. Cohen, No. A-2208-04T2 (App. Div. June 29, 2006), certif. denied, 188 N.J. 579 (2006) (Cohen V). The sixth PCR petition was denied and that order was summarily affirmed State v. Cohen, No. A-5820-06T4 (App. Div. April 2, 2008).

Defendant first sought habeas corpus relief in 1988, which was denied. A second habeas corpus petition was denied and the District Court's order was affirmed by the Third Circuit. The United States Supreme Court denied certiorari on March 9, 1998. Cohen v. Morton, 523 U.S. 1009, 118 S. Ct. 1195, 140 L. Ed. 2d 325 (1998).

Amendments to Rule 3:22-12, effective February 1, 2010, have significantly limited the time frame to file a second or subsequent PCR petition.

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A-5472-08T4

August 24, 2010