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DOCKET NO. A-4694-05T54694-05T5









Submitted July 17, 2007 - Decided

Before Judges R. B. Coleman and Sapp-Peterson.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 83-12-3809.

Fredric J. Gross, attorney for appellant.

Anne Milgram, Attorney General, attorney for respondent (Robyn B. Mitchell, Deputy Attorney General, of counsel and on the brief).


Defendant, Delphine Green, now known as Lateefah Shabazz, appeals from an April 4, 2006 order denying her fifth petition for post-conviction relief (PCR). We affirm.

Defendant, who was fourteen-years-old in 1982 when the subject offense took place, was tried as an adult. On March 15, 1984, a jury found defendant guilty of felony murder, N.J.S.A. 2C:11-3(a)(3) (count one); conspiracy to commit robbery, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:15-1 (count two); and second degree robbery, N.J.S.A. 2C:15-1 (count three). On April 14, 1984, defendant was sentenced on count one to a mandatory minimum term of thirty years in prison, without eligibility for parole, and to a concurrent five-year term on count two. On direct appeal, the conviction and sentence were affirmed. State v. Green, No. A-4457-83T4 (App. Div. October 14, 1986) (slip op. at 1). Thereafter, on June 9, 1987, defendant's petition for certification was denied. State v. Green, 108 N.J. 175 (1987).

Approximately five years later, on August 1, 1992, defendant filed pro se her first PCR petition which she later withdrew, only to raise substantially the same issues in a second PCR petition, filed in February 1998. That petition was denied in January 1999. The denial was affirmed on appeal and on September 26, 2000, the ensuing petition for certification was also denied. State v. Green, 165 N.J. 532 (2000).

On November 19, 2001, more than seventeen years after her conviction, defendant filed her third petition for PCR; it was denied on April 26, 2002 and was followed by a fourth petition in November 2002, which was denied on procedural grounds. Defendant then moved for reconsideration and when that motion was denied, she again appealed. The Law Division's orders disposing of the petition and motion for reconsideration were affirmed by this court on September 4, 2003, and defendant's petition for certification on that decision was denied on January 29, 2004. State v. Green a/k/a Lateefah Shabazz, 178 N.J. 450 (2004).

Defendant's fifth petition, filed November 15, 2005, resulted in a hearing that was conducted on January 26, 2006, February 16, 2006 and March 23, 2006, before Judge Ned M. Rosenberg. The court heard testimony from defendant's mother, an assistant prosecutor and two attorneys, who represented defendant at trial, after which the court rejected all of defendant's claims in a written opinion dated April 4, 2006. The court concluded that defendant had failed to establish a basis for the relief sought in her petition, as amended. More specifically, the court determined that defendant failed to prove by a preponderance of credible evidence that trial counsel had failed to inform her of a plea offer. Consequently, defendant's claim of ineffective assistance on that basis was rejected for lack of credible supporting evidence.

Similarly, the court found no merit in defendant's claims that new scientific evidence and evolving standards of societal decency (a) rendered the waiver of jurisdiction in the juvenile court improvident and (b) rendered the mandatory thirty-year sentence constitutionally excessive. The court concluded the scientific evidence was not "newly discovered evidence" and observed that the issues relating to defendant's waiver out of juvenile court had already been considered and affirmed on appeal. To the extent defendant's petition challenged the excessiveness of the sentence, the court found it was not cognizable on a petition for post-conviction relief.

Finally, the court rejected defendant's contention that an erroneous jury instruction on the issue of felony murder constitutes plain error and necessitates a new trial as a result of a retroactive application of our Supreme Court's ruling in State v. Martin, 119 N.J. 2, 34 (1996). In Martin, the Court recognized "that felony murder is a strict-liability offense requiring proof that death was the probable consequence of the commission of the underlying felony." Id. at 27. "The causation requirement of the [New Jersey Code of Criminal Justice] contains two parts, a 'but-for test' under which the defendant's conduct is 'deemed a cause of the event if the event would not have occurred without that conduct' and, when applicable, a culpability assessment." State v. Pelham, 176 N.J. 448, 460 (2003) (quoting Martin, supra, 119 N.J. at 11). The culpability assessment entails the following considerations:

[w]hen the actual result is of the same character, but occurred in a different manner from that designed or contemplated [or risked], it is for the jury to determine whether intervening causes or unforeseen conditions lead to the conclusion that it is unjust to find that the defendant's conduct is the cause of the actual result. Although the jury may find that the defendant's conduct was a "but-for" cause of the victim's death . . . it may nevertheless conclude . . . that the death differed in kind from that designed or contemplated [or risked] or that the death was too remote, accidental in its occurrence, or dependent on another's volitional act to justify a murder conviction.

[Id. at 461 (quoting Martin, supra, 119 N.J. at 13).]

The PCR court was of the view that Martin would not apply retroactively, but it explained that, even assuming arguendo that the holding of Martin did apply retroactively, "the evidence upon which defendant was convicted was premised on the trial testimony that she possessed the box cutter and the permissible inference therefrom that she cut the plastic oxygen tubes, directly contributing to the death of Mr. Carter."

On this appeal, defendant makes the following arguments:





We reject defendant's arguments substantially for the reasons articulated by Judge Rosenberg in his well-reasoned opinion dated April 4, 2006, and for the further reasons expressed below.

The standard governing our review was recently recited by the Supreme Court in State v. Chapland:

This appeal arose based on defendant's belated challenge to the jury instruction. Because defendant did not object to the court's instruction when it was delivered, a plain error standard applies. As applied to a jury instruction, plain error requires demonstration of "legal impropriety in the charge prejudicially affecting the substantial rights of the defendant and sufficiently grievous to justify notice by the reviewing court and to convince the court that of itself the error possessed a clear capacity to bring about an unjust result." The alleged error is viewed in the totality of the entire charge, not in isolation. In addition, any finding of plain error depends on an evaluation of the overall strength of the State's case.

[ 187 N.J. 275, 288-89 (2006) (internal citations omitted).]

The following represents the relevant factual background. On December 8, 1982, defendant, then fourteen-years-old, accompanied two adult males to the apartment of William Carter, a disabled sixty-four-year-old man on oxygen support, whom defendant had previously befriended. En route, the two males armed themselves with a pipe and a stick, concealed under their clothes. While in the apartment, one of the males approached Carter from behind, grabbed him and started choking him. He took off Carter's pajama top and wrapped it around Carter's nose and mouth, as a gag. According to the State's proofs, defendant used a box cutter to cut a telephone cord that was used to bind Carter's hands and feet. As this was done, Carter's oxygen line was also cut. The group looted the apartment and took a television. Carter subsequently died as a result of asphyxiation.

During the presentation of his instructions to the jury, the trial judge emphasized that the participation, if any, by defendant was essentially what the jury was called upon to decide:

Now, before I get into charging as to the elements of the offense, credibility of witnesses, certain rules that may apply as to particular witnesses in this case, let me just say this: That the basic issue in the case and I think both counsel have referred to it is was Delphine Green a witness to what happened or was she a participant to what happened? And that's basically the issue that you have to deal with in this case and you've heard both summations by counsel and I think they both, you know, focused on that central issue for you to deal with.

The judge then elaborated on the theory of accomplice liability. He stated:

Now, let me talk to you about complicity, accomplice liability, in other words, where one person can be held responsible for actions of others and that cuts across the charges of felony murder as well as the robbery charge and the lesser charges that I will also discuss.

A person is legally accountable for the conduct of another person if she is an accomplice of such other person in the commission of the offense.

Now, the State has the burden of proving beyond a reasonable doubt that Stanley Griffen and/or Raymond Kelly committed the crimes of robbery, felony murder and the lesser included offenses that I will discuss also, aggravated manslaughter, reckless manslaughter and that the defendant Delphine Green was the accomplice of Griffen and/or Kelly and a person is an accomplice of another person in the commission of a crime when with a purpose of promoting or facilitating the commission of the crime she aids, agrees or attempts to aid such other person in planning or committing it.

The State must show beyond a reasonable doubt that Griffen and/or Kelly committed the crimes that I've just described to you and that the defendant Delphine Green acted purposely to promote, to bring into being, to advance, to launch, to facilitate, to make it easier to accomplish the commission of these crimes.

One acts purposely with respect to his conduct or result thereof if it's his conscious object to engage in conduct of that nature and to cause such a result. They must also show that the defendant aided which means assisted, supported, supplemented the efforts of another.

Now, if you find the defendant purposely aided other persons in the commission of the crimes, then you must consider her as if she committed the crimes herself.

. . . .

Mere presence at or near the scene of a crime does not make one a participant in it, nor does the failure of a spectator to interfere make him or her a participant in it.

However, it's a circumstance to be considered with the other evidence in determining whether she was present as an aider or abettor. Her presence is not in itself conclusive evidence of the fact. Whether presence has any probative value depends upon all the circumstances. To constitute guilt there must exist a community of purpose, an actual participation, an aiding or abetting in the crime committed.

While mere presence at the scene of the perpetration of the crime does not render a person a participant in it proof that one is present at the scene of the commission of the crime without disapproving or opposing it is evidence from which in connection with other circumstances it is possible for you to infer that she assented to it, lent to it her countenance and approval and was therefore aiding and abetting. It depends on the totality of the circumstances as those circumstances appear to you from the evidence.

However, one cannot be held to be an accomplice unless you find as a fact that she possessed the same criminal state of mind, that purposefulness that's required to be proved against the person or persons who actually committed the acts.

Now, this cuts across this case and you should consider this in connection with the charges of the robbery and the felony murder and the lesser included charges that I'll discuss.

Regarding felony murder, the judge charged:

Now, the charge of felony murder. The defendant is charged with the murder of William Carter. The State does not contend that the defendant herself killed William Carter. The State charges that William Carter was killed through asphyxiation while the defendant together with two other people, Stanley Griffen and Raymond Kelly, were engaged in the commission of the crime of robbery. Under our law if these facts are proven to your satisfaction beyond a reasonable doubt the defendant will be guilty of a criminal homicide constituting murder.

Now, our criminal homicide statute provides as follows: That [criminal homicide] constitutes murder when it is committed when the actor either acting alone or with one or more other persons is engaged in the commission of robbery and in the course of and in furtherance of such crime any person causes the death of a person other than one of the participants.

Under this law it does not matter that the act which caused the death was committed by a participant in the crime of robbery other than the defendant. Nor does it matter that the act which caused the death was committed recklessly or unintentionally or accidentally. Each participant in the crime of robbery whether he or she caused the death or not would be guilty of murder.

To find the defendant guilty of murder in this case the State is required to prove beyond a reasonable doubt from all the evidence in the case the following elements. First, the State must prove beyond a reasonable doubt that on or about December 8, 1982 the defendant was engaged in the commission of the crime of robbery; and second, the State must prove beyond a reasonable doubt that the death of William Carter was caused at some time within the course of the commission of that crime including its aftermaths of flight or concealment efforts.

. . . .

Now, under the Statute which applies here it is an affirmative defense to the charge of murder if there is proof in the case that the defendant first did not commit the homicidal act or in any way solicit, request, command, importune, cause or aid the commission thereof and two, was not armed with a deadly weapon or any instrument, article or substance readily capable of causing death or serious physical injury and of a sort not ordinarily carried in public places by law-abiding persons.

[Defines deadly weapon.]

. . . .

[T]hree, had no reasonable ground to believe that any other participant was armed with such a weapon, instrument, article or substance; and four, had no reason to believe that any other participant intended to engage in conduct likely to result in death or serious physical injury.

Now, this means that the affirmative defense is not available to the defendant unless there is evidence in the case supporting all of the four requirements and not merely one or two or three of them. If there is such supporting evidence either in the State's proofs or as presented on behalf of the defendant then it is incumbent upon the State to negate this evidence by proof beyond a reasonable doubt.

However, it is not necessary that all four requirements be negated. Since the defense is not available to the defendant unless the evidence supports all four of the requirements it is sufficient for the State in such a case to present proof beyond a reasonable doubt negating any one of them.

If you find that there is evidence in the case supporting all elements of the affirmative defense which I explained to you and that the State has failed to negate beyond a reasonable doubt one or more of them, then you must find the defendant not guilty of murder, but if you find that the State has presented proof beyond a reasonable doubt negating one or more of those elements of the affirmative defense and have also proved beyond a reasonable doubt all of the elements of the offense charged, namely that defendant was engaged in the commission of a robbery and that the death of William Carter was caused at some time within the course of the commission of that crime including the aftermaths of flight and concealment efforts, then you should find the defendant guilty of murder.

We have quoted so extensively from the charge because on this appeal, defendant has focused exclusively on the assertedly erroneous jury charge. Defendant has not briefed or raised any other issues addressed in the PCR petition and hearing. Consequently, those other issues are deemed to have been abandoned or waived. Liebling v. Garden State Indem., 337 N.J. Super. 447, 465-66 (App. Div.) certif. denied, 169 N.J. 606 (2001).

With regard to the sole issue addressed in her brief on this appeal, defendant concedes that the trial judge gave the then-standard Model Jury Charge on felony murder, but she argues that the given charge was deemed to be unconstitutional in Martin because it did not include any adequate instruction on causation. Thus, defendant argues the order denying her petition for relief should be reversed. In support of her position, defendant also relies upon State v. Perry, No. A-3505-88T4 (App. Div. August 7, 1991) (slip op. at 1-29), an unpublished opinion of this court, which she contends applied Martin retroactively.

Pursuant to R. 1:36-3, "[n]o unpublished opinion shall constitute precedent or be binding upon any court." That rule further provides that, except in certain circumstances not applicable to this case, "no unpublished opinion shall be cited by any court." Accordingly, we take no cognizance of Perry, except that we do note that Perry was decided on August 7, 1991, about fifteen months after the decision in Martin and that the Perry panel commented concerning timeliness in footnote 3 of that opinion. That footnote discloses that the Perry PCR petition was dated June 21, 1988, and, as stated in the footnote, the petition "was apparently filed barely fifteen days before expiration of the overall time limitation for filing such a petition under R. 3:22-12." Perry, supra, slip op. at 2 n.3. The panel further remarked "[t]here is no explanation for the delay in filing of this petition approximately three years and three months after the Supreme Court denied certification." Id. slip op. at 2-3 n.3.

The petition in this case was filed twenty one years after the judgment of conviction, eighteen years after the denial of certification following direct appeal, sixteen years after the expiration of the five-year limitation prescribed by R. 3:22-12 and fifteen years after the issuance of the opinion in Martin. Notably, Martin did not announce new law. The "probable consequence" standard was derived from the Model Penal Code. Martin, supra, 119 N.J. at 30. In addition, earlier opinions of this court presaged Martin. See, e.g., State v. Smith, 210 N.J. Super. 43, 45, 54-57, certif. denied, 105 N.J. 582 (1986) (causation issue raised on direct appeal in a case involving the death of a man who suffered a heart attack when his car was struck by a car driven by defendant fleeing from the scene of an armed robbery); and State v. Whitted, 232 N.J. Super. 384, 392-93 (App. Div. 1989) (reversing on direct appeal the trial judge's refusal, upon request, to instruct that the jury had to find (a) that but for the burglary a sixty-two-year-old man with a badly diseased heart would not have died and (b) that his death was the probable consequence of defendant burglarizing the victim's bedroom).

In denying defendant's petition, the PCR court found no indication in either Martin or Perry that the holding in Martin should apply retroactively. Moreover, the PCR court found the facts of this case are distinguishable from those of Martin. There was evidence presented at trial from which the jury could reasonably conclude that defendant actively conspired with and aided in the robbery that resulted in a death or that she possessed a box cutter and actually cut the oxygen tubing, thereby directly contributing to Carter's death. Therefore, "[t]he jury charge adequately conveyed to the jury that it could have acquitted defendant." Chaplin, supra, 187 N.J. at 277.

Even if the oxygen line was cut recklessly or negligently, the failure to charge "probable-consequences" would not have negatively affected defendant's right to a fair trial. The issue was not what caused the death of Carter, but rather what part defendant played in the underlying robbery. Cf. State v. N.A., 355 N.J. Super. 143, 150 (App. Div. 2002) certif. denied, 175 N.J. 434 (2003) (noting the issue was not what factor, event or conduct caused the injuries to the child, but who hit the child). The objective of the charge was to instruct the jury

that the defendant, whether a sole perpetrator or an accomplice, is liable for felony murder only if the death is not too remote, accidental in its occurrence, or too dependent on another's volitional act to have a just bearing on the defendant's culpability.

[Martin, supra, 119 N.J. at 32.]

In State v. Pantusco, we observed "[w]ith respect to the 'probable consequence' threshold, 'a defendant should be exculpated [from liability for felony murder] only when a death occurs in a manner that is so unexpected or unusual that he or she could not justly be found culpable for the result.'" 330 N.J. Super. 424, 441 (App. Div.) (quoting Martin, supra, 119 N.J. at 33), certif. denied, 165 N.J. 527 (2000)).

In this case, the victim's oxygen supply was compromised or cut off, either by the acts of defendant's male cohorts or by her own conduct during the commission of the robbery. Although the trial judge did not define the issue in terms of but-for and probable consequences, he did instruct regarding the then approved model charge for felony murder, including the affirmative defenses thereto and the applicable principle of accomplice liability. He gave the jurors the implements that they needed to decide the critical issue in the case, whether defendant was an observer or a participant. The failure to include a particular charge on causation was not error or, if it was error, it did not have the capacity to produce an unjust result. See R. 1:7-2 (parties should object in open court to reserve questions on appeal); R. 1:7-5 (errors that do not produce an unjust result should be disregarded); R. 2:10-2; State v. Afanador 151 N.J. 41, 54 (1997).

More fundamentally, we are convinced procedural bar of R. 3:22-12 should apply to this case. Rule 3:22-12(a) provides:

A petition to correct an illegal sentence may be filed at any time. No other petition shall be filed pursuant to this rule more than 5 years after rendition of the judgment or sentence sought to be attacked unless it alleges facts showing that the delay beyond said time was due to defendant's excusable neglect.

The justification for the time limit on the prosecution of a petition for PCR has been explained as follows:

[t]here are good reasons for [Rule 3:22-12]. As time passes after conviction, the difficulties associated with a fair and accurate reassessment of the critical events multiply. Achieving "justice" years after the fact may be more an illusory temptation than a plausibly attainable goal when memories have dimmed, witnesses have died or disappeared, and evidence is lost or unattainable. Those difficulties have not gone unnoticed by our courts. See, e.g., State v. Dillard, 208 N.J. Super. 722, 727, 506 A.2d and 848 (App.Div.) ("with the passage of time it may become more difficult to rule upon the allegations in a petition for post-conviction relief . . . ."), certif. denied, 105 N.J. 527, 523 A.2d 169 (1986); State v. Marshall, 244 N.J. Super. 60, 69, 581 A.2d 538 (Law Div. 1990) (faced with the potential prospect of evaluating the constitutionality of a twenty-two-year-old conviction, "it would be a practical impossibility . . . to conduct a proper hearing"). Moreover, the [Rule] serves to respect the need for achieving finality of judgments and to allay the uncertainty associated with an unlimited possibility of relitigation. The [Rule] therefore strongly encourages those believing they have grounds for post-conviction relief to bring their claims swiftly, and discourages them from sitting on their rights until it is too late for a court to render justice.

[State v. Milne, 178 N.J. 486, 491 (2004) (quoting State v. Mitchell, 126 N.J. 565, 575-76 (1992)).]

"PCR . . . is neither a substitute for direct appeal, Rule 3:22-3, nor an opportunity to relitigate matters already decided on the merits, Rule 3:22-5." Afanador, supra, 151 N.J. at 50.

We acknowledge that the five-year bar is not inflexible and may be relaxed "if the defendant alleges facts demonstrating that the delay was due to the defendant's excusable neglect or if the 'interests of justice' demand it." State v. Goodwin, 173 N.J. 583, 594 (2002). In deciding whether or not to entertain a defendant's claim, a court "'should consider the extent and cause of the delay, the prejudice to the State, and the importance of the [defendant's] claim in determining whether there has been an "injustice" sufficient to relax the time limits.'" Ibid. (quoting Afanador, supra, 151 N.J. at 52).

Notably, Martin was decided on May 17, 1990. If that opinion is seen as the event from which to measure the timeliness of defendant's claim for relief, then defendant should have filed her Martin claim prior to May 17, 1995. See, generally, Milne, supra, 178 N.J. at 493 (in determining whether a petition was time-barred, the Court measured the time period from the date of the decision of the case supporting the defendant's claim). Defendant's delay in asserting her claim for relief far exceeded five years, with no discernible reason and with no explanation why this claim was not previously asserted in one of the earlier petitions). See R. 3:22-4. As the PCR court recognized, it would be nearly impossible more than twenty years after the fact to speculate on whether a different jury instruction would have produced a different result. The proofs of defendant's guilt were strong and included the testimony of the individual who was the principal aggressor in the incident. The court also made a determination that it would be fundamentally unfair to both the State and the original participants in the trial to speculate on the results with a different charge. We agree.

"Absent compelling, extenuating circumstances, the burden to justify filing a petition after the five-year period will increase with the extent of the delay." Afanador, supra, 151 N.J. at 52 (1997). Mindful of the balance that must be struck between finality of judgments and serving the interests of justice, we conclude that the court's denial of the petition was appropriate.



The caption, as reflected in the April 4, 2006 order is State of New Jersey v. Lateefah Shabazz, formerly known as Delphine Green, however, the notice of appeal reflects the caption as shown above, which is also consistent with the captions of previous appeals.

In State v. Knight, the Court explained:

If a decision indeed sets forth a "new rule," three factors generally are considered to determine whether the rule is to be applied retroactively: "(1) the purpose of the rule and whether it would be furthered by a retroactive application, (2) the degree of reliance placed on the old rule by those who administered it, and (3) the effect a retroactive application would have on the administration of justice." . . . [O]ur cases also indicate that the retroactivity determination often turns more generally on the "court's view of what is just and consonant with public policy in the particular situation presented."

[ 145 N.J. 233, 251 (1996) (citations omitted).]





January 25, 2008