Opinion
DOCKET NO. A-3589-16T3
04-06-2018
STATE OF NEW JERSEY, Plaintiff-Respondent, v. LEON NELSON, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Frank M. Gennaro, Designated Counsel, on the brief). Jennifer Webb-McRae, Cumberland County Prosecutor, attorney for respondent (Stephen C. Sayer, Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3. Before Judges Fisher and Moynihan. On appeal from Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 04-02-0179. Joseph E. Krakora, Public Defender, attorney for appellant (Frank M. Gennaro, Designated Counsel, on the brief). Jennifer Webb-McRae, Cumberland County Prosecutor, attorney for respondent (Stephen C. Sayer, Assistant Prosecutor, of counsel and on the brief). PER CURIAM
In this appeal, we consider the denial of defendant's post-conviction relief (PCR) petition. Finding no merit in his arguments, we affirm.
In 2005, defendant was convicted by a jury of second-degree sexual assault and third-degree criminal restraint. He was sentenced to an extended twenty-year prison term on the former and a five-year concurrent prison term on the latter. We affirmed defendant's conviction but remanded for resentencing. State v. Nelson, No. A-2110-05 (App. Div. Mar. 27, 2008). The remand proceedings resulted in the imposition of the same prison term, defendant again appealed, and we affirmed. State v. Nelson, No. A-0949-08 (App. Div. Feb. 9, 2010).
On August 16, 2010, defendant filed a pro se PCR petition. That application was denied without an evidentiary hearing in 2011, following which defendant appealed. We remanded for additional proceedings regarding the sufficiency of trial counsel's efforts in asserting a diminished capacity defense. State v. Nelson, No. A-3280-11 (App. Div. Sept. 6, 2013).
The arguments regarding the diminished capacity defense, however, soon fizzled out when, among other things, an expert retained to opine in that regard could not offer an opinion helpful to defendant. Notwithstanding, the PCR judge allowed defendant to file an amended PCR petition for the purpose of raising other arguments. In his amended petition, defendant argued:
1. Trial counsel did not properly investigate his case.On March 28, 2017, the PCR judge denied relief for reasons expressed in a written opinion.
2. Police engaged in misconduct when they knowingly arrested [defendant] under false pretenses when he was actually the victim and was himself taken [to] the hospital with injuries to his genitals.
3. Prosecutors knowingly prosecuted the wrong person, misled the grand jury and withheld exculpatory evidence. For example, they did not present his clothing or the victim's clothing in evidence.
4. There was unsafe insufficient evidence to convict the defendant at trial.
5. Four different attorneys were appointed to represent [defendant] pretrial. None had adequate time with the file or the defendant to prepare the case.
6. The trial was unfair.
7. The judge violated judicial canons and was biased.
8. The jury instructions were not appropriately given.
9. Paperwork provided in the case was full of clerical errors and omissions.
10. Counsel was ineffective for failing to call the first responding officer during the trial. Said officer wrote no report.
Defendant appeals the denial of his PCR petition, arguing that the PCR judge erroneously failed to afford him an evidentiary hearing on three of his assertions, namely:
A. Failure to Communicate and Investigate.We find insufficient merit in these arguments to warrant further discussion. R. 2:11-3(e)(2). Judge Robert G. Malestein addressed each of these three arguments, as well as the others not raised on appeal, in his written decision.
B. Failure to Call [the First Responding Officer].
C. The Judicial Bias Issue.
The judge rejected the first point, finding that defendant made only "vague assertion[s]" about trial counsel's preparedness; the judge determined from a review of the trial transcript that "counsel was extraordinarily well-prepared" and that he "vigorously cross-examined the witnesses" and "vigorously argued on [defendant's behalf] throughout the course of the trial." He also observed that the evidence of defendant's guilt was "overwhelming" in that defendant was caught by police "with his pants down on top of the screaming victim."
The trial judge had retired by this time. --------
The judge found defendant's second argument to be without merit because the decision to call the first responding officer represented a matter of trial strategy and because defendant failed to provide any evidence that the officer's "testimony would have been different than that of other law enforcement officers who did testify"; indeed, the judge observed that this testimony might "have only served to bolster testimony already adduced at trial."
In his third and final argument defendant claimed that the trial judge's father had also been a superior court judge who presided over a matter brought against defendant that was later overturned. Defendant argued that the trial judge would consequently have "a grudge" against defendant. Like the PCR judge, we find this contention — as well as defendant's other unspecified allegations that the judge's bias was revealed by what he claims were improper jury instructions — unworthy of further discussion. R. 2:11-3(e)(2).
We affirm substantially for the reasons set forth by Judge Malestein in his comprehensive and well-reasoned opinion.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION