STATE OF NEW JERSEY v. FRANK R. ZOLLO

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5253-02T35253-02T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

FRANK R. ZOLLO,

Defendant-Appellant.

________________________________

 

Submitted: January 24, 2006 - Decided July 26, 2006

Before Judges Kestin and Coleman.

On appeal from the Superior Court of New Jersey, Law Division, Criminal Part, Morris County, 95-09-1079-I.

Frank R. Zollo, appellant pro se.

Michael M. Rubbinaccio, Morris County Prosecutor, attorney for respondent (Brian D. Kenney, Assistant Prosecutor, on the brief).

PER CURIAM

Defendant appeals from the denial of his second petition for post-conviction relief (PCR), filed pursuant to Rule 3:22. We affirm.

In 1996, defendant was convicted of murder, N.J.S.A. 2C:11-3a(1), and third-degree hindering apprehension or prosecution, N.J.S.A. 2C:29-3. On the murder conviction, the trial court sentenced defendant to a prison term for life with thirty years of parole ineligibility. On the hindering conviction, the court imposed a consecutive five-year term with two-and-one-half years of parole ineligibility. We affirmed the convictions and sentences in an unpublished opinion filed on October 22, 1998. The Supreme Court denied certification in an order entered on April 30, 1999 and reported at 158 N.J. 686.

Defendant filed his first PCR petition on May 24, 1999, asserting, on various grounds, that he had not received the effective assistance of both trial and appellate counsel. Following argument on June 15, 2000, the trial court denied that petition and entered an order memorializing that denial on June 23, 2000. Defendant appealed, and we affirmed the trial court's order in an unpublished opinion filed on April 5, 2002. The Supreme Court denied defendant's petition for certification in an order entered on September 6, 2002 and reported at 174 N.J. 362.

On October 4, 2002, defendant filed this second PCR petition. It included a request for the assignment of counsel and sought an evidentiary hearing. Defendant asserted that his trial attorney had rendered ineffective assistance by failing to investigate or produce evidence of defendant's mental diseases and defects. The petition was accompanied by numerous documents, primarily behavioral reports and analyses dating from defendant's school days from first grade through high school. The documents also included a copy of defendant's "Master File Card" from the Essex County Hospital showing his admission and discharge in 1981, when he was fourteen years old. The judge noted that the diagnostic codes on the hospital's master card file indicated admission diagnoses of borderline personality disorder, conduct disorder, and ADHD. The hospital papers included an explanation dated June 7, 2002, that patients' records are destroyed when ten years from discharge have expired.

Defendant was twenty-seven years of age when the homicide occurred in 1994.

Judge Langlois heard argument on the current PCR petition on April 25, 2003. She noted the Public Defender's declination to provide representation and reiterated her denial of defendant's application for assignment of counsel on the basis that good cause had not been shown. See R. 3:22-6(b).

The judge opined that the diminished capacity defense, in respect of which defendant was asserting inadequate representation, was not available to him because he had "always denied committing the murder, and . . . a diminished capacity defense is one that's available or relevant . . . as a defense to the intent aspect of that finding . . . . [i.e.,] saying I did it, but I did not have the purpose to kill." Defendant responded in the affirmative to the court's inquiry whether he was "seeking . . . a full hearing and the ability to have an expert review this and determine if the diminished capacity defense would otherwise [have] been available . . . and affected the jury verdict[.]"

Judge Langlois disposed of the matter on several bases. She referred to and adopted the reasoning Judge Conforti had employed in denying the first PCR petition, based essentially on the view that defendant continued to deny responsibility for the murder and that the psychiatric showings he contended should have been developed bore primarily on his reactions to the discovery of the victim's death. Judge Langlois concluded that the issues defendant sought to raise in the second PCR proceeding had been adequately developed and rejected in the first PCR proceeding, see R. 3:22-5, and that the application was also barred by the applicable time limitations, see R. 3:22-12. She also held that the records submitted in support of the petition were inadequate as bases for the relief defendant sought. The confirming order she entered on May 6, 2003, denied the second PCR petition, defendant's motion to reconsider the application for assignment of counsel, and defendant's motion to reconsider the ruling on the merits.

On appeal, defendant raises the following issues:

POINT I TRIAL COUNSEL'S FAILURE TO INVESTIGATE AND PRODUCE EVIDENCE AT TRIAL REGARDING DEFENDANT'S MENTAL DISEASES AND DEFECTS DEPRIVED DEFENDANT OF HIS RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL UNDER BOTH THE UNITED STATES AND NEW JERSEY CONSTITUTIONS.

A. ADMISSIBILITY OF PSYCHOLOGICAL EVIDENCE

B. ASSESSMENT OF INEFFECTIVENESS CLAIM

POINT II DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF WAS NOT PROCEDURALLY BARRED.

POINT III DEFENDANT WAS ENTITLED TO AN EVIDENTIARY HEARING IN SUPPORT OF HIS PETITION FOR POST-CONVICTION RELIEF.

POINT IV DEFENDANT WAS ENTITLED TO THE ASSIGNMENT OF COUNSEL ON POST-CONVICTION RELIEF.

We have reviewed the record in the light of the arguments advanced by the parties and prevailing standards of law, and are in substantial agreement with the reasons for decision Judge Langlois announced in disposing of the merits of the instant PCR application. Defendant had established no adequate basis for an evidentiary hearing. We also discern no misapplication of the trial court's discretion in denying defendant's motion for assignment of counsel with respect to the second PCR petition.

 
Accordingly, we affirm.

(continued)

(continued)

6

A-5253-02T3

July 26, 2006