STATE OF NEW JERSEY v. ANDRE BENNETT

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5811-09T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ANDRE BENNETT,

Defendant-Appellant.

_________________________________

May 25, 2011

Submitted May 16, 2011 - Decided

Before Judges Sabatino and Alvarez.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 88-08-2808.

Yvonne Smith Segars, Public Defender, attorney for appellant (Frank M. Gennaro, Designated Counsel, on the brief).

Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Raymond W. Hoffman, Special Deputy Attorney General/ Assistant Prosecutor, on the brief).

Appellant filed a pro se supplemental brief.

PER CURIAM

Defendant Andre Bennett, who was convicted of felony murder and first-degree robbery after a trial in April 1989, appeals the trial court's denial of his fourth petition for post-conviction relief ("PCR").

Defendant was sentenced to a thirty-year term on the felony murder and a consecutive seven-year term on the robbery conviction. We sustained defendant's conviction and sentence on direct appeal in 1991 and certification was thereafter denied. State v. Bennett, No. A-5046-88 (App. Div. May 16), certif. denied, 126 N.J. 341 (1991).

Subsequently, defendant filed three successive PCR petitions, all of which were dismissed. Those dismissals were sustained by various panels of this court. See State v. Bennett, A-1180-93 (App. Div. Nov. 4, 1996) (per curiam plenary opinion); State v. Bennett, No. A-2771-98 (App. Div. Mar. 30, 2000) (per curiam plenary opinion); State v. Bennett, No. A-2016-06 (App. Div. Oct. 22, 2008) (order on an excessive sentencing calendar).

Defendant filed his fourth PCR petition in April 2009, approximately twenty years after his conviction. He argued that the trial court erred in failing to instruct the jury as to lesser-included offenses, and also in improperly defining concepts of attempt in the jury charge. He further claims that he was deprived of the effective assistance of counsel. Judge Joseph Cassini dismissed the petition as time-barred under Rule 3:22-12, finding no excusable neglect nor any other justification to consider defendant's belated arguments.

Defendant raises the following points on appeal:

POINT ONE

THE TRIAL COURT ERRED IN DENYING DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF ON PROCEDURAL GROUNDS.

POINT TWO

THE JURY SHOULD HAVE BEEN CHARGED AS TO THE LESSER INCLUDED OFFENSES OF SECOND DEGREE ROBBERY AND THEFT.

POINT THREE

THE TRIAL COURT ERRED IN FAILING TO PROVIDE THE JURY WITH A PROPER INSTRUCTION AS TO THE CONCEPT OF ATTEMPT.

He has also filed a pro se supplemental brief, raising the following argument:

THE LOWER COURT'S ENFORCEMENT OF PROCEDURAL BAR PURSUANT TO RULE 3:22-12 WAS ERROR, AS WELL AS UNCONSTITUTIONAL.

Having considered these arguments, we affirm the trial court's dismissal of defendant's fourth PCR application as time-barred. Defendant has not demonstrated facts supporting a claim of excusable neglect for not bringing his claims to the court's attention within the five years prescribed under Rule 3:22-12(a)(1). Cf. State v. Mitchell, 126 N.J. 565, 576-77 (1992) (underscoring defendant's obligation to furnish sufficient facts in his PCR petition to establish excusable neglect). Nor do we detect any fundamental injustice in enforcing the time limits of the PCR rules in this case. Simply stated, the day to raise the points now being asserted by defendant has long since come and gone.

Affirmed.