STATE OF NEW JERSEY v. GREGORY N. NOAKES

NOT FOR PUBLICATION WITHOUT THE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.

GREGORY N. NOAKES, a/k/a EDWARD

DEHART, GREGORY NOKES, GREGORY

ANDAKES,

Defendant-Appellant.

____________________________________

December 6, 2013

Submitted November 14, 2013 Decided

Before Judges Waugh and Accurso.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 95-08-1176.

Gregory N. Noakes, appellant pro se.

Andrew C. Carey, Acting Middlesex County Prosecutor (Nancy A. Hulett, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Gregory N. Noakes appeals the Law Division's June 5, 2012 order dismissing his petition for post-conviction relief (PCR). We affirm.

On November 14, 1996, Noakes was convicted of purposeful or knowing murder, contrary to N.J.S.A. 2C:11-3(a)(1)-(2), and related offenses. He was sentenced to incarceration for life, with a thirty-year term of parole ineligibility. Noakes appealed and we affirmed. State v. Noakes, No. A-4112-96 (App. Div. Jan. 6, 1999). The Supreme Court denied certification. State v. Noakes, 160 N.J. 475 (1999).

Noakes filed his first PCR petition in 1999. The trial judge dismissed the petition in a July 14, 2000 written opinion and September 19, 2000 order. Noakes appealed and we affirmed. State v. Noakes, No. A-5505-02 (App. Div. Jan. 24, 2005). The Supreme Court denied certification. State v. Noakes, 183 N.J. 216 (2005).

Noakes filed the PCR petition at issue in this appeal on May 17, 2012. The PCR judge dismissed the petition as time barred in a written opinion and order, both dated June 5, 2012. This appeal followed.

On appeal, Noakes raises the following issues:

POINT I: TRIAL, APPELLATE AND PCR COUNSEL ALL PROVIDED INEFFECTIVE ASSISTANCE OF COUNSEL, WHERE THEY FAILED TO PROTECT DEFENDANT'S RIGHT TO BE PRESENT AT A MATERIAL AND CRITICAL STAGE OF THE TRIAL PROCESS. IN PARTICULAR, JURY VOIR DIRE WAS HELD IN CHAMBERS ON NOVEMBER 7, 1996 WITHOUT DEFENDANT'S WAIVER OF HIS RIGHT TO BE PRESENT, IN VIOLATION OF THE U.S. CONSTITUTION, AMENDMENT VI AND THE N.J. CONSTITUTION ART. I, PARA. 10.

POINT II: TRIAL, APPELLATE, AND PCR COUNSEL ALL PROVIDED INEFFECTIVE ASSISTANCE OF COUNSEL, WHERE THEY FAILED TO CHALLENGE THE OMISSION OF THE SECOND ELEMENT OF THE CAUSATION INSTRUCTION AND THE FAILURE OF THE JUDGE TO SUMMARIZE THE STATE'S AND THE DEFENDANT'S CONFLICTING FACTUAL THEORIES OF CAUSATION. THEREFORE, THE DEFENDANT WAS DEPRIVED OF CLEAR AND CORRECT JURY INSTRUCTIONS AND THE CONSTITUTIONAL RIGHT TO A FAIR TRIAL.

POINT III: THE TRIAL COURT DEPRIVED DEFENDANT OF HIS CONSTITUTIONAL RIGHT TO A FAIR TRIAL BY FAILING TO GIVE PRELIMINARY INSTRUCTIONS AFTER THE JURY WAS SWORN REGARDING THE FUNCTION OF THE JURY, REASONABLE DOUBT, DIRECT AND CIRCUMSTANTIAL EVIDENCE, PRESUMPTION OF INNOCENCE, AND BURDEN OF PROOF. IN THE ALTERNATIVE, TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO OBJECT TO THE COURT'S FAILURE TO GIVE THESE APPROPRIATE PRELIMINARY JURY INSTRUCTIONS.

POINT IV: THE TRIAL COURT ERRED BY FAILING TO DISMISS JUROR CZARNECKI FOR CAUSE WHEN IT WAS DISCLOSED THAT THE JUDGE HAD PERFORMED THE JUROR'S MARRIAGE CEREMONY AND HAD A PERSONAL RELATIONSHIP WITH THE JUROR'S FAMILY. IN THE ALTERNATIVE, TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO MOVE FOR DISMISSAL OF THE JUROR FOR POSSIBLE BIAS DUE TO HER PERSONAL AND FAMILY CONNECTIONS TO THE TRIAL JUDGE.

POINT V: TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO OBJECT TO UNRESPONSIVE TESTIMONY OF STATE'S WITNESS MARIE KISH, AND TO REQUEST LIMITING INSTRUCTIONS WHERE THE WITNESS' TESTIMONY IMPINGED ON THE ULTIMATE FUNCTION OF THE JURY AND INCLUDED INADMISSIBLE HEARSAY STATEMENTS.

POINT VI: TRIAL COUNSEL'S SUMMATION WAS INEFFECTIVE FOR FAILING TO ADEQUATELY ARGUE DEFENDANT'S THEORIES OF ACCIDENTAL STABBING, SELF-DEFENSE AND REASONABLE DOUBT.

POINT VII: TRIAL, APPELLATE, AND PCR COUNSEL [WERE] EACH INEFFECTIVE FOR FAILING TO TIMELY RAISE THE ABOVE GROUNDS, AND THEREBY DEPRIVED THE DEFENDANT OF A FAIR TRIAL AND THE EFFECTIVE ASSISTANCE OF COUNSEL AT EACH STAGE IN THE TRIAL AND APPELLATE PROCESS.

POINT VIII: HAD TRIAL, APPELLATE, AND PCR COUNSEL TIMELY RAISED THE ABOVE GROUNDS, THE DEFENDANT'S CONVICTION WOULD HAVE BEEN REVERSED AND REMANDED FOR A NEW TRIAL. THEREFORE, IN THE INTEREST OF JUSTICE, THE GROUNDS RAISED IN THIS PETITION SHOULD NOT BE TIME-BARRED AND ALL CLAIMS SHOULD BE ADDRESSED AS IF RAISED WITHIN TIME. (Not Raised Below)

POINT IX: THE PROCEDURAL BARS UNDER R. 3:22-4 AND R. 3:33-12, SHOULD BE RELAXED IN VIEW OF THE CONSTITUTIONAL GROUNDS RAISED; THAT FAILURE TO REACH THE MERITS IN THE INSTANT PETITION WOULD RESULT IN A FUNDAMENTAL INJUSTICE; AND THAT THE INTERESTS OF JUSTICE WARRANTS SUCH RELAXATION. (Not Raised Below)

POINT X: JUDGE FERENCZ SERVED AS DEFENDANT'S COUNSEL OF RECORD AT A PRIOR HEARING IN THIS MATTER. FOR THAT REASON ALONE, RECUSAL AS JUDGE FOR DEFENDANT'S SECOND PCR WAS REQUIRED. THEREFORE, JUDGE FERENCZ'S DENIAL OF PCR WAS IMPROPER AND A NEW PCR HEARING BEFORE A DIFFERENT JUDGE IS WARRANTED. (Not Raised Below)

We have reviewed Noakes' arguments in light of the record and applicable law, and find them to be without merit and not warranting discussion in a written opinion. R. 2:11-3(e)(2). We affirm essentially for the reasons set forth by Judge Bradley J. Ferencz in his written opinion, adding only the following.

Noakes argues for the first time on appeal that Judge Ferencz was counsel of record for him in "a prior hearing in this matter." He provides no documentation of such representation, nor does he identify the prior proceeding.1

The trial transcripts reflect that Noakes' trial counsel was James R. Wronko, who was affiliated with the firm of Wronko, O'Hara & Miller. On the direct appeal, counsel of record was Ivelisse Torres, the Public Defender, and Cecelia Urban, an assistant deputy public defender. The appeal was decided in January 1999, by which time Judge Ferencz had been on the bench for over one-and-a-half years. Consequently, there is no basis in the record to conclude that Judge Ferencz could have been counsel of record or that he should have disqualified himself.

Affirmed.

1 We note that Judge Ferencz denied Noakes' motion to correct an illegal sentence in 2006. There is nothing in the record before us to indicate that Noakes raised any recusal issue in connection with that matter.