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NOT FOR PUBLICATION WITHOUT THE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-2208-04T22208-04T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

HUMPHREY COHEN,

Defendant-Appellant.

 

Argued May 31, 2006 - Decided June 29, 2006

Before Judges Kestin and Hoens.

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

Nina Rossi argued the cause for appellant.

Joan E. Love, Special Deputy Attorney General, argued the cause for respondent (Paula T. Dow, Essex County Prosecutor, attorney; Ms. Love, of counsel and on the brief).

PER CURIAM

Defendant Humphrey Cohen appeals from the November 29, 2004 order denying his Post Conviction Relief (PCR) petition. We affirm.

In May 1984, defendant was found guilty by a jury of felony murder, N.J.S.A. 2C:11-3a(3); purposeful, knowing murder, N.J.S.A. 2C:11-3a(1), (2); first-degree robbery, N.J.S.A. 2C:15-1; and third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b. He was sentenced to life imprisonment with thirty years of parole ineligibility on the murder convictions and he was also sentenced to a consecutive term of fifteen years, seven and one-half of which were to be served without parole, on the robbery count, into which the count for unlawful possession of a weapon merged. We affirmed the conviction and sentence, see State v. Cohen, 211 N.J. Super. 544 (App. Div. 1986), and defendant's petition for certification was denied. State v. Cohen 107 N.J. 115 (1987).

Defendant next pursued his federal rights, without success, by filing petitions for writs of habeas corpus with the United States District Court in 1988 and in 1995, pursuing an appeal with the United States Court of Appeals for the Third Circuit, and filing a petition for a writ of certiorari with the United States Supreme Court. See Cohen v. Morton, 523 U.S. 1009, 118 S. Ct. 1195, 140 L. Ed. 2d 325 (1998). During the same time frame, defendant also filed several PCR petitions and motions for reconsideration, in November 1989, September 1990 and in November 1997. Each was denied and we have twice considered and rejected defendant's appeals from the denial of those earlier PCR petitions as well. See State v. Cohen, No. A-969-91T1 (App. Div. Mar. 4, 1994); State v. Cohen, No. A-940-99T5 (App. Div. Nov. 13, 2000).

Defendant's most recent PCR petition, filed in April 2004, was heard and denied by Judge Thomas McCormack for reasons he set forth on the record on July 16, 2004. Defendant's request for reconsideration filed thereafter was heard and denied by Judge McCormack as well for reasons he set forth on the record on November 29, 2004.

The facts that support the conviction and sentence are fully set forth in our published decision on defendant's direct appeal and need not be repeated here. Rather, we focus on the single argument raised by defendant as the basis for his most recent PCR petition. In short, he asserts that he 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. He points to our Supreme Court's 1986 decision in State v. Warren, 104 N.J. 571 (1986), as support for the argument that there was an error in the charge in his 1984 trial.

In addressing this argument, Judge McCormack concluded that the petition was time-barred, since it related to a conviction twenty years earlier. See R. 3:22-4. Moreover, the judge found that defendant had not identified any exceptional circumstances to justify the delay in filing the petition, see R. 3:22-12, and that the extraordinarily long passage of time would significantly prejudice the State in its efforts to re-try defendant were the petition to be granted. In addition, the judge found that because the issue defendant was seeking to raise had been addressed in the Warren decision, published two years after defendant's conviction, it could have been raised during his direct appeal or in a timely PCR petition. He therefore rejected as meritless defendant's argument that the delay was excusable. Finally, the judge reviewed the trial record and concluded that the jury charge utilized during defendant's 1984 trial was appropriate in light of the facts and the testimony, even considering the Warren rationale.

On appeal, counsel for defendant raises the following points for our consideration.

POINT I

DEFENDANT WAS DENIED HIS CONSTITUTIONAL RIGHT TO A TRIAL BY JURY.

POINT II

EXCEPTIONAL CIRCUMSTANCES EXIST THAT PERMIT REVIEW OF DEFENDANT'S OUT OF TIME PCR PETITION ON ITS MERITS.

In addition to these arguments, defendant filed a pro se supplemental brief in which he raises the following points for our consideration as well.

POINT I OF III

DEFENDANT BELIEVES THE INTOXICATION INSTRUCTIONS HIS JURY RECEIVED WERE FLAWED BECAUSE THE TRIAL COURT INCORRECTLY PLACED THE BURDEN ON THE STATE TO PROVE DEFENDANT'S INTOXICATION DEFENSE. DEFENDANT'S INTOXICATION DEFENSE RESULTED IN AGGRAVATED MANSLAUGHTER AND MANSLAUGHTER BEING CHARGED AS LESSER INCLUDED OFFENSES AND THE COURT INSTRUCTED THE JURY THAT DEFENDANT COULD BE FOUND GUILTY OF AGGRAVATED MANSLAUGHTER OR MANSLAUGHTER IF THE STATE HAD PROVEN SUCH. WHEREAS THE TRIAL COURT SHOULD HAVE INSTRUCTED THE JURY THAT THE DEFENDANT COULD BE FOUND GUILTY OF AGGRAVATED MANSLAUGHTER OR MANSLAUGHTER IN LIEU OF MURDER IF THE STATE FAILED TO DISPROVE DEFENDANT'S INTOXICATION/RECKLESS EVIDENCE. THE INTOXICATION CHARGE IS FLAWED BECAUSE IT PRESUMES THE STATE DESIRED A MANSLAUGHTER CONVICTION AND FAILS TO ACCOUNT FOR WHAT WOULD BE THE STATE'S BURDEN WHEN IT IS THE DEFENDANT WHO WANTS A CONVICTION ON AGGRAVATED MANSLAUGHTER OR MANSLAUGHTER AND NOT THE STATE.

POINT II OF III

THE STATE DID NOT HAVE IN PLACE A SYSTEM TO PUT APPELLATE/POST CONVICTION ATTORNEYS ON NOTICE TO BE ON THE LOOKOUT FOR PRE-WARREN CASES CONTAINING THE FAULTY JURY INTOXICATION CHARGE. THEREFORE DEFENDANT'S WARREN CLAIM SHOULD NOT BE BARRED.

POINT III OF III

DEFENDANT'S CLAIMS SHOULD NOT BE BARRED BECAUSE THE STATE WOULD SUFFER NO PREJUDICE IF THE COURT REVERSES DEFENDANT'S 22 YEAR OLD CONVICTION SINCE STATE LAW ALLOWS FOR THE STATE TO CONSENT TO ENTRY OF A JUDGMENT ON THE LESSER INCLUDED MURDER OFFENSES IN LIEU OF RETRYING THE DEFENDANT.

Finally, defendant filed a supplemental pro se reply brief in which he raised the following further arguments for our consideration:

POINT I OF II

DEFENDANT IS ASSERTING THAT THE INTOXICATION INSTRUCTIONS HIS JURY RECEIVED [AND THE INTOXICATION INSTRUCTIONS CURRENTLY IN USE] ARE FLAWED BECAUSE IT PLACED THE BURDEN ON THE STATE TO PROVE LESSER INCLUDED MURDER OFFENSE CHARGED VIA THE DEFENSE.

POINT II OF II

THE AVAILABLE INTOXICATION DEFENSE IS FLAWED BECAUSE SAID DEFENSE CREATES A CONFLICT OF INTEREST WITHIN THE SENSE THAT IN ORDER FOR SAID DEFENSE TO WORK IT REQUIRES COUNSEL AND THE STATE TO WORK TOGETHER IN ORDER FOR MURDER TO BE REDUCED TO AGGRAVATED MANSLAUGHTER OR MANSLAUGHTER. THAT IS, IN ORDER FOR A DEFENDANT'S DEFENSE OF INTOXICATION TO SUCCEED THE STATE HAS TO UNDERMINE ITS CASE FOR MURDER AND INSTEAD SUPPORT DEFENDANT'S DEFENSE. AND IT IS NEVER THE STATE'S BURDEN TO SUPPORT THE DEFENDANT'S DEFENSE.

We have considered each of these arguments in light of the record and the applicable legal principles and have concluded that they are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We therefore affirm substantially for the reasons set forth on the record by Judge McCormack on July 16, 2004 and November 29, 2004. We add only the following observations.

First, we reject defendant's argument that the delay in raising the Warren issue is exceptional, or excusable, so as to relieve him of the ordinary time constraints that apply to the filing of a PCR petition. His argument that the delay is excusable because it is the product of ineffective assistance of counsel is circular and his alternate suggestion that the issue was not timely until the adoption of the revised model charge in 2003 overlooks the fact that the Warren decision was published nearly twenty years ago.

Second, our review of the record compels us to conclude, as did Judge McCormack, that the charge given in this trial did not violate the principle announced in Warren. In short, this jury was not faced with a choice between a conviction for murder and an acquittal as to which an intoxication defense applied. Rather, this 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. Nothing in the charge misled the jury into the error that the Court addressed in Warren.

Third, the evidence in the record of defendant's claimed intoxication does not rise to the level that the Court addressed in Warren. Unlike Warren, in which evidence of defendant's intoxication, from multiple witnesses, supported the argument that he was not capable of forming the intent required for the purposeful or knowing offense, this defendant's evidence, at most, suggested that he might have been drinking at some point prior to the crime. Even so, the trial judge gave the charge relating to intoxication and adequately explained its relevance both to the purposeful and knowing crimes and to the lesser included manslaughter offenses. Nothing in this record supports defendant's claim of an error in the charge of constitutional dimension.

Under all of the circumstances, we reject, as did Judge McCormack, the assertion that any of the attorneys who represented defendant during the trial or in any of the post-trial proceedings rendered ineffective assistance for failing to raise the Warren argument. We reject the assertion that reliance on the Warren decision would have altered the outcome of the trial or of any of the post-trial proceedings.

Affirmed.

 

The PCR judge referred to an additional PCR petition that was filed and denied in 2003, but the record does not include any document that we discern to be a PCR petition filed in that time frame.

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9

A-2208-04T2

June 29, 2006