STATE OF NEW JERSEY v. CHRISTOPHER KORNBERGER

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

A-6058-12T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

CHRISTOPHER KORNBERGER,

Defendant-Appellant.

____________________________

March 27, 2015

Submitted March 3, 2015 - Decided

Before Judges Reisner and Koblitz.

On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 05-08-3322 and Burlington County, Indictment No. 05-03-0335.

Joseph E. Krakora, Public Defender, attorney for appellant (Steven M. Gilson, Designated Counsel, on the brief).

Mary Eva Colalillo,Camden County Prosecutor, attorney for respondent in A-5866-12 (Natalie A. Schmid Drummond, Assistant Prosecutor, of counsel and on the brief).

RobertD.Bernardi,BurlingtonCountyProsecutor, attorney for respondent in A-6058-12 (Alexis R. Agre, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

In these two cases, which we have consolidated for purposes of this opinion, defendant Christopher Kornberger appeals from trial court orders denying his petitions for post-conviction relief (PCR). We affirm in both appeals.

The history of these cases was reviewed at length in our prior opinions. In both cases, the crimes occurred in 2003, while the trials took place years later. In Camden County, defendant was convicted by a jury in 2007 of assaulting a woman with a tire iron, and pled guilty to kidnapping another woman. We affirmed his convictions on direct appeal. State v. Kornberger, 419 N.J. Super. 295 (App. Div.), certif. denied, 208 N.J. 368 (2011).

In Burlington County, a jury convicted defendant in 2008 of sexually assaulting and murdering one woman, and assaulting another woman. Defendant also pled guilty to attacking a third woman with a knife. We affirmed those convictions on direct appeal. State v. Kornberger, No. A-6133-07 (App. Div. Apr. 11, 2011), certif. denied, 208 N.J. 368 (2011).

Defendant then filed the PCR petitions giving rise to these appeals. In Docket No. A-5866-12, defendant appeals from an April 4, 2013 order issued by Judge Samuel D. Natal in Camden County. In that case, Judge Natal, who had also been the trial judge, issued a sixty-three page written opinion on April 9, 2013.1

In Docket No. A-6058-12, defendant appeals from a June 3, 2013 order issued by Judge Jeanne T. Covert in Burlington County. Judge Covert issued a thirty-five page written opinion explaining the reasons for her decision.

In each of these appeals, defendant claims that his trial attorney was ineffective in failing to move for a change of venue or a foreign jury, due to allegedly prejudicial pre-trial publicity, and that his trial attorney was ineffective in failing to pursue a mental health defense. In each appeal, he phrases those issues as follows

THIS MATTER MUST BE REMANDED FOR AN EVIDENTIARY HEARING BECAUSE DEFENDANT ESTABLISHED A PRIMA FACIE CASE OF TRIAL COUNSEL'S INEFFECTIVENESS.

A. Trial Counsel Failed to Move For A Change of Venue And/Or For A Foreign Jury.

B. Trial Counsel Failed To Pursue An Insanity And/Or A Diminished Capacity Defense.

Judges Natal and Covert, the PCR judges, each issued lengthy opinions thoroughly and correctly addressing those issues, and in each appeal we affirm substantially for the reasons stated by the PCR judge.2 Defendant's appellate arguments are without sufficient merit to warrant further discussion here, beyond the following comments. R. 2:11-3(e)(2).

In each appeal, defendant argues that his trial counsel should have pursued a psychiatric defense of either insanity or diminished capacity, or both. However, as Judges Natal and Covert correctly found, in each case, defendant's PCR argument was not supported by an expert report or any other legally competent evidence that he actually suffered from a mental illness at the time he committed the crimes, or that any alleged mental illness was of a type that could have supported either an insanity or diminished capacity defense. Mere "bald assertions" are insufficient to support a claim of ineffective assistance of counsel. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). As a result, defendant did not present a prima facie case of ineffective assistance and was not entitled to an evidentiary hearing. See State v. Preciose, 129 N.J. 451, 462 (1992).

Defendant also argues that his trial counsel in each case should have moved for a change of venue or a foreign jury, due to prejudicial pre-trial publicity. In each case, the PCR judge reviewed the evidence concerning the pre-trial publicity, as well as the record of the jury voir dire, and concluded that defendant's arguments were not supported by the record. We find no basis to disturb either judge's factual and legal conclusions.

Affirmed.

1 Judge Natal initially issued a sixty-four page written opinion on April 4, 2013. However, on April 9, 2013 he issued an amended opinion. As Judge Natal explained in a covering letter of April 9, 2013, the only change was the redaction of one paragraph which cited an unpublished opinion of this court.

2 In the PCR petition decided by Judge Natal, defendant raised a plethora of issues, all of which Judge Natal addressed and found to be without merit. However, because defendant has only raised two of those issues on this appeal, we do not address the remaining issues he raised before Judge Natal. Likewise, we do not address issues defendant raised before Judge Covert which he has not pursued on this appeal.