STATE OF NEW JERSEY v. HASSAN COUSINS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2147-10T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

HASSAN COUSINS,

Defendant-Appellant.

___________________________________

June 6, 2012

Submitted May 30, 2012 - Decided

Before Judges Baxter and Nugent.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 95-10-01787.

Joseph E. Krakora, Public Defender, attorney for appellant (Alan I. Smith, Designated Counsel, on the brief).

Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Maria I. Guerrero, Special Deputy Attorney General, Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Hassan Cousins appeals from the May 3, 2010 order denying his post-conviction relief (PCR) petition. Having considered his arguments in light of applicable legal principles, we find no merit in those arguments and therefore affirm.

In 1995 defendant, then a juvenile, was charged with numerous offenses stemming from the shooting of the victim and theft of her automobile. After the Chancery Division, Family Part, waived jurisdiction over defendant's case, see N.J.S.A. 2A:4A-26, defendant entered into a negotiated guilty plea in the Law Division, Criminal Part. Defendant pled guilty to those counts of a twelve-count accusation charging him with first-degree attempted murder, N.J.S.A. 2C:5-1a(3) and 11-3; first-degree carjacking, N.J.S.A. 2C:15-2a; second-degree conspiracy to commit carjacking, N.J.S.A. 2C:5-2a(2) and 15-2; second-degree possession of a weapon, a handgun, for an unlawful purpose, N.J.S.A. 2C:39-4a; and second-degree resisting arrest by eluding police, N.J.S.A. 2C:29-2b. Defendant also agreed to make restitution and to testify truthfully at the trial of the codefendant, if necessary. In exchange, the State agreed to recommend an aggregate prison term not to exceed thirty-four years with a seventeen-year period of parole ineligibility.

At sentencing, the court merged the conspiracy charge into the attempted murder charge, sentenced defendant to an aggregate prison term of thirty-four years with seventeen years of parole ineligibility on the charges to which defendant had pled guilty, and dismissed the remaining charges in the accusation. The court also ordered that defendant and his codefendant were jointly and severally liable to make restitution in the total amount of $32,313.44, and imposed appropriate assessments. On the same day defendant was sentenced, the court entered a Judgment of Conviction (JOC).

We affirmed the JOC and rejected all defendant's arguments, including his challenge to the decision of the Family Part to waive jurisdiction. State v. Cousins, No. A-2920-95 (App. Div. Nov. 13, 1998). The Supreme Court denied certification. 158 N.J. 71 (1999).

During the ensuing years, defendant filed two motions based on errors in the JOC, and the trial court ultimately ordered that the JOC be amended to correct the errors. Nearly fourteen years after defendant's sentencing, on September 9, 2009, defendant filed a PCR petition in which he alleged:

MY "WAIVE UP" WAS UNCONSTITUTIONAL AS IT WAS NOT DONE VIA THE BEYOND A REASONABLE DOUBT STANDARD, NOR DID A GRAND JURY CONSIDER SUCH OR JURY [SIC] MAKE THE DECISION; RATHER IT WAS DONE BY A LONE JURIST ON A PREPONDERANCE OF EVIDENCE STANDARD; AND THERE WAS NO HEARING TO A[SS]ESS MY ABILITY TO PAY FINES.

The court appointed counsel for defendant and in January 2010 counsel filed a letter brief in support of defendant's PCR petition, arguing that:

POINT I.

DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF SHOULD NOT BE TIME BARRED.

A. Defendant's Delay In Filing His Petition for Post-Conviction Relief Is Not Prejudicial to the Prosecution.

B. The Important [sic] of Defendant's Claims Manifest Good Cause to Relax the Time Bar.

POINT II.

THE DECISION OF THE FAMILY PART JUDGE TO WAIVE JURISDICTION TO THE LAW DIVISION, CRIMINAL PART, WAS A CLEAR ERROR IN JUDGMENT AND SHOULD BE REVERSED.

POINT III.

DEFENDANT'[S] DUE PROCESS PROTECTIONS WERE VIOLATED AS THE SENTENCING COURT FAILED TO PROVIDE DEFENDANT WITH A HEARING AS TO THE AMOUNT AND DEFENDANT'S ABILITY TO PAY RESTITUTION.

On April 27, 2010, three days before the PCR hearing, defendant supplemented his brief by adding the following argument:

POINT II(A)

The Process of Waiving Defendant Up Should Have Been Subject To Apprendi and Natale, Specifically Done By An Additional Count In His Indictment And The Subject For A Jury To Consider In Accordance with State v. Re[a]d, 397 N.J.Super. 598, 609-611 (App. Div. 2008)

The trial court denied defendant's PCR petition in a written opinion filed on May 3, 2010. Defendant filed an appeal and now presents the following arguments:

POINT I SINCE THE DEFENDANT'S PETITION ESTABLISHED A VIOLATION OF HIS FOURTEENTH AMENDMENT DUE PROCESS RIGHT TO A SENTENCE THAT IS JUST AND IMPOSED IN ACCORDANCE WITH LAW, THE PCR COURT MISAPPLIED ITS DISCRETION IN FINDING THAT THE DEFENDANT'S RESTITUTION ARGUMENT RAISED IN POST-CONVICTION RELIEF WAS PROCEDURALLY BARRED BY RULES 3:22-4, 3:22- 12 AND 3:9-3

POINT II SINCE THE DEFENDANT MADE A PRIMA FACIE SHOWING OF INEFFECTIVE ASSISTANCE OF TRIAL AND APPELLATE COUNSEL, THE PCR COURT MISAPPLIED ITS DISCRETION IN DENYING POST-CONVICTION RELIEF WITHOUT CONDUCTING A RESTITUTION HEARING (NOT RAISED BELOW)

POINT III THE COURT'S RULING DENYING POST-CONVICTION RELIEF VIOLATED THE DEFENDANT'S RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION

POINT IV DEFENDANT REASSERTS ALL OTHER ISSUES RAISED IN POST-CONVICTION RELIEF

(A)

THE WAIVER OF JURISDICTION BY THE FAMILY PART COURT WAS UNCONSTITUTIONAL AND SHOULD BE REVERSED

(B)

THE WAIVER OF JURISDICTION BY THE FAMILY PART COURT WAS A CLEAR ERROR IN JUDGMENT AND SHOULD BE REVERSED

(C)

THE WAIVER OF JURISDICTION BY THE FAMILY PART COURT SHOULD HAVE BEEN SUBJECT TO THE RULINGS IN APPRENDI V. NEWJERSEY, STATE V. NATALE, AND STATE V. READ

We affirm substantially for the reasons explained by Judge Michael L. Ravin in his written opinion. Defendant's arguments lack sufficient merit to warrant further discussion in another written opinion. R. 2:11-3(e)(2).

Affirmed.