STATE OF NEW JERSEY v. STATE OF NEW JERSEY

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0187-06T10187-06T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ROBERT ZARINSKY,

Defendant-Appellant.

_______________________________

 

Submitted March 20, 2007 - Decided May 9, 2007

Before Judges Coburn and Gilroy.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 586-74.

Robert Zarinsky, appellant pro se.

Luis A. Valentin, Monmouth County Prosecutor, attorney for respondent (Mary R. Juliano, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Robert Zarinsky appeals from the July 18, 2006, order of the Law Division, denying his petition for post-conviction relief (PCR). We affirm.

Tried to a jury, defendant was convicted of first-degree murder and received a mandatory sentence of life imprisonment. Because the trial facts were discussed at length in our prior opinion, State v. Zarinsky, 143 N.J. Super. 35 (App. Div. 1976), aff'd, 75 N.J. 101 (1977), it is unnecessary to detail the evidence against defendant for the crime. We affirmed the judgment of conviction. Id. at 60. On Certification granted, the Supreme Court affirmed. State v. Zarinsky, 75 N.J. 101, 114 (1977).

Having previously been denied relief on three petitions for a writ of habeas corpus in the United States District Court, as well as on two prior petitions for PCR, defendant filed a third petition for PCR on September 15, 2004, contending that the imposition of his life sentence violated Blakeley v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004). On April 11, 2005, the trial court entered an order denying defendant's petition, having considering the application as a motion to correct an illegal sentence. On September 27, 2005, we summarily remanded the matter to the trial court for reconsideration in light of the recent Supreme Court decisions of State v. Natale, 184 N.J. 458 (2005) (Natale II) and State v. Abdullah, 184 N.J. 497 (2005). In October 2005, defendant filed a fourth petition for PCR. On July 18, 2006, Judge Bette E. Uhrmacher, having considered both the remand of defendant's 2004 petition and his subsequently-filed 2005 petition, entered an order denying all relief requested.

On appeal, defendant argues:

POINT I.

THE TOTAL LACK OF PRETRIAL INVESTIGATION AND PREPARATION BY DEFENDANT'S TRIAL COUNSEL AND APPELLATE COUNSEL ON DIRECT APPEAL, RICHARD F. PLECHNER, ESQ., WHO WERE ONE AND THE SAME, GAVE RISE AT TRIAL TO A HASTILY ASSEMBLED FRAUDULENT ALIBI DEFENSE THAT COUNSEL PLECHNER CONSTRUCTED IN HIS METUCHEN LAW OFFICE DURING PRETRIAL REHEARSALS WITH FALSE ALIBI WITNESSES IN HIS CONFERENCE ROOM IN MARCH OF 1975, LESS THAN FOUR WEEKS PRIOR TO TRIAL ON APRIL 7, 1975, WHICH COUNSEL PLECHNER KNEW, OR SHOULD HAVE KNOWN, INVOLVED FRAUD PREJUDICIAL TO THE ADMINISTRATION OF JUSTICE, WHEREBY THE TRUTH-FINDING PROCESS HAS BEEN CORRUPTED AND DEFENDANT HAS BEEN DEPRIVED OF CONSTITUTIONALLY ADEQUATE REPRESENTATION OF COUNSEL IN VIOLATION OF ARTICLE I, PARAGRAPH 10 OF THE NEW JERSEY CONSTITUTION PURSUANT TO THE TEST SET FORTH BY THE NEW JERSEY SUPREME COURT IN STATE V. FRITZ, 105 N.J. 42 (1987).

POINT II.

INEFFECTIVE ASSISTANCE OF COUNSEL IN VIOLATION OF THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ARTICLE I, PARAGRAPH 10 OF THE NEW JERSEY CONSTITUTION, COMBINED WITH THE TRIAL JUDGE'S FAILURE, SUA SPONTE, TO CHARGE THE JURY ON RECKLESS VEHICULAR MANSLAUGHTER AS REQUIRED BY THE NEW JERSEY SUPREME COURT'S DECISION IN STATE V. POWELL, 84 N.J. 305 (1980), DEPRIVED DEFENDANT ZARINSKY OF DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION.

POINT III.

INEFFECTIVE ASSISTANCE OF COUNSEL BLOTTED OUT DEFENDANT'S DEFENSES OF INVOLUNTARY VEHICULAR HOMICIDE PURSUANT TO N.J.S.A. 2A:113-9, AND RECKLESS VEHICULAR MANSLAUGHTER PURSUANT TO N.J.S.A. 2A:113-5, WHICH, ALTHOUGH TIME-BARRED BY THE STATUTE OF LIMITATIONS AS LESSER INCLUDED OFFENSES IN A MURDER PROSECUTION UNDER STATE V. STILLWELL, 175 N.J. SUPER. 244 (APP. DIV. 1980), WERE COGNIZABLE ISSUES FOR THE JURY'S DELIBERATIONS UNDER THE DOCTRINE OF THE NEW JERSEY SUPREME COURT IN STATE V. SHORT, 131 N.J. 47 (1973).

POINT IV.

THE UNCONSTITUTIONAL "FARCE AND MOCKERY" STANDARD THAT GOVERNED DEFENDANT ZARINSKY'S TRIAL IN 1975[] WAS NOT IN COMPLIANCE WITH THE SIXTH AND FOURTEENTH AMENDMENTS, AND WAS ABANDONED BY THE NEW JERSEY SUPREME COURT IN STATE V. FRITZ, 105 N.J. 42 (1987), AS FAILING TO PASS CONSTITUTIONAL MUSTER WITHIN THE MEANING OF ARTICLE I, PARAGRAPH 10 OF THE NEW JERSEY CONSTITUTION, WHICH WARRANTS THE ADJUDICATION OF ZARINSKY'S INEFFECTIVE ASSISTANCE OF COUNSEL CLAIM PURSUANT TO THE CORRECT CONSTITUTIONAL STANDARD OF THE STATE V. FRITZ TEST.

POINT V.

A NEW TRIAL SHOULD BE GRANTED UNDER THE CUMULATIVE ERROR DOCTRINE SET FORTH BY THE NEW JERSEY SUPREME COURT IN STATE V. ORECCHIO, 16 N.J. 125 (1954).

Although not raised in either the 2004 or 2005 petitions for PCR, defendant argues in his reply brief that the State failed to prove that it had territorial jurisdiction to prosecute and punish him for the crime charged, citing State v. Denofa, 187 N.J. 24 (2006). The State does not oppose our reaching the jurisdiction issue, notwithstanding that it had not been presented to the trial court on the two petitions.

After carefully considering the record and briefs, we are satisfied that defendant's arguments presented under Points I through V are without sufficient merit to warrant discussion in a written opinion, R. 2:11-3(e)(2), and we affirm substantially for the reasons expressed by Judge Uhrmacher in her written opinion of July 18, 2006. We are equally satisfied that defendant's additional argument, concerning territorial jurisdiction, is without merit.

Defendant previously raised the issue of territorial jurisdiction in his second petition for PCR filed on or about April 29, 1986, contending that the State had failed to prove that the alleged murder had occurred within the territorial jurisdiction of the State. The petition was denied on July 11, 1986. Although the record does not disclose whether defendant appealed that order, defendant is barred for re-litigating a prior adjudication on the merits of any grounds for relief "in any post-conviction proceeding brought pursuant to this rule . . . or in any appeal taken in such proceedings." R. 3:22-5. Accordingly, we reject the argument.

 
Affirmed.

(continued)

(continued)

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A-0187-06T1

May 9, 2007