DATE NAME OF CASE (DOCKET NUMBER)
09-25-09* State vs. David Cooper A-2810-07T4
In a case in which defendant was sentenced to death and his sentence was upheld by the Supreme
Court and thereafter converted to life without parole upon abolition of the death penalty, a post
conviction relief petition addressed to the penalty phase, including claims of ineffective assistance of
counsel, was not moot because, if defendant is entitled to a new penalty proceeding, he could be
sentenced to a term less than life without parole. The scope of review embodying a claim of ineffective
assistance of counsel in a PCR involving a case in which the death penalty was imposed will remain the
same as it was at the time of trial. In the absence of prejudice, the Public Defender could substitute one
of defendant's trial counsel before the jury was empanelled and sworn, and the decision was for the
Public Defender, not the originally designated attorney, to decide. Given the mitigating factors
presented to the jury, including his mother's addiction to alcohol during pregnancy and while defendant
was a child, defendant did not demonstrate there was a reasonable probability that the penalty phase
deliberations would have been affected by proofs that defendant could be diagnosed as the victim of
fetal alcohol syndrome. [*Approved for Publication date]
Edited by Umair Hussain
