                                                     SYLLABUS

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the
interest of brevity, portions of any opinion may not have been summarized.)

                State of New Jersey v. Naquan O’Neil, a/k/a Naquan O’Neal (A-68-12) (072072)

Argued February 4, 2014 -- Decided October 6, 2014

ALBIN, J., writing for a unanimous Court.

          In this appeal, the Court considers whether appellate counsel’s failure to raise on direct appeal an erroneous
jury instruction that denied defendant a valid defense to the charges of aggravated manslaughter and manslaughter
constituted ineffective assistance of counsel.

          Early on the morning of March 18, 2001, defendant Naquan O’Neil fatally shot Hassan Hardy. In the days
prior to the shooting, defendant and Hardy were involved in several verbal and physical altercations. On one
occasion, Hardy slammed a car door into defendant and defendant punched Hardy. Later the same evening, Hardy
accosted defendant, shot four shots in the direction of his legs without hitting him, and struck defendant in the head
with the gun. Defendant then retrieved a gun from a nearby known gun stash and shot out the windows of Hardy’s
car. A witness observed the shooting on the morning of March 18, testifying that she saw defendant approach
Hardy, ask him if he liked playing with guns, and shoot him. Although the witness did not see Hardy pull a gun on
defendant, police recovered a loaded and cocked gun that another man had removed from Hardy’s clothing
following the shooting. Defendant was arrested and charged with first-degree murder.

          At trial, defendant testified that his earlier altercations with Hardy prompted him to carry a .380 caliber
handgun for protection. He claimed that he shot Hardy because Hardy had pointed a gun at him and he feared he
would be shot. At the jury-charge conference, the prosecutor and defense counsel agreed that self-defense applied
only to the murder charge but not to the lesser-included charges of aggravated manslaughter and manslaughter,
which are predicated on reckless conduct. The court provided the jury with a self-defense instruction on the murder
charge, advising that the defense was not applicable to the lesser-included charges. The jury acquitted defendant of
murder, but convicted him of first-degree aggravated manslaughter.

          Defendant appealed, but did not challenge the self-defense charge. The case was submitted to the
Appellate Division on March 21, 2007. Eight days later, another Appellate Division panel held that self-defense is
applicable to a charge of manslaughter. State v. Rodriguez, 392 N.J. Super. 101, 113 (App. Div. 2007), aff’d, 195
N.J. 165 (2008). Defendant’s appellate counsel did not raise the validity of the self-defense charge with the panel in
this case either after the Rodriguez decision was rendered or after this Court granted certification on July 6, 2007.
State v. Rodriguez, 192 N.J. 292 (2007). On August 10, 2007, the panel in defendant’s case affirmed his conviction.

         In May 2008, defendant filed a petition for post-conviction relief (PCR), claiming that his trial and
appellate attorneys provided ineffective assistance of counsel by failing to raise self-defense as a defense to
aggravated manslaughter and manslaughter. The PCR court denied the petition, finding that defendant should have
challenged the jury charge on direct appeal and that appellate counsel did not act unreasonably in relying on State v.
Moore, 158 N.J. 292, 303 (1999), which included language stating that justification defenses are unavailable where
recklessness or negligence establish the requisite mental element of a charged crime. Although this Court had
subsequently affirmed the Appellate Division decision in Rodriguez, referring to its earlier assertion in Moore as
“mistaken,” the PCR court maintained that appellate counsel could not be expected to have anticipated that decision.
Defendant appealed, and the Appellate Division affirmed, reasoning that the governing law prior to this Court’s
decision in Rodriguez was ambiguous because of the language in Moore. Thus, the panel determined that
defendant’s appellate counsel did not have a professional or constitutional obligation to raise self-defense as a
defense to manslaughter. The Court granted defendant’s petition for certification. 214 N.J. 119 (2013).

HELD: Defendant’s appellate counsel’s failure to bring the Rodriguez decisions to the attention of the Appellate
Division panel that heard this case rendered counsel’s performance ineffective under both our Federal and State
Constitutions.


                                                           1
1. A PCR proceeding is a defendant’s last opportunity to challenge the fairness of a criminal verdict in the state
system, and ineffective assistance of counsel claims are particularly suited for post-conviction review. The Sixth
Amendment of the United States Constitution and Article I, Paragraph 10 of the New Jersey Constitution guarantee
an accused the right to effective assistance of counsel in criminal proceedings, including direct appeal. To establish
a valid claim under both the Federal and State Constitutions, a defendant must satisfy a two-pronged standard: (1)
counsel’s errors were so egregious, falling below an objective standard of reasonableness, that he or she was not
functioning as the “counsel” guaranteed by the Sixth Amendment; and (2) counsel’s deficient performance
prejudiced the defense. The prejudice standard is met if there is a reasonable probability that, but for counsel’s
errors, the result of the proceeding would have been different. (pp. 13-16)

2. Here, one fair inference is that the defense succeeded, given the acquittal on murder. However, defendant had no
legitimate defense to aggravated manslaughter or manslaughter in light of the court’s charge that self-defense could
not exonerate him of those crimes. In Rodriguez, supra, the Court affirmed a published Appellate Division decision,
which held that “a valid claim of self-defense -- when not disproved by the State -- exonerates a defendant of
reckless manslaughter.” 195 N.J. at 169. That Appellate Division decision was decided eight days after the appeal
in this case was submitted to a panel and more than four months before the panel rendered its decision, and was an
expression of the law in the State at that time. It directly benefitted defendant, signaling that he had been denied a
legitimate defense at his trial. However, defendant’s appellate counsel failed to raise that meritorious issue before
the panel in this case. Nor did counsel raise the issue following this Court’s grant of certification in Rodriguez.
Although appellate counsel is not obligated to endlessly advocate for his or her client, he or she should bring to the
court’s attention controlling law that will vindicate the client’s cause. (pp. 16-18)

3. The Court’s Rodriguez decision, which was rendered after defendant’s direct appeal had run its course, was not a
novel interpretation of the law of self-defense. Rather, the Court’s conclusion that “a person who kills in the honest
and reasonable belief that the protection of his own life requires the use of deadly force does not kill recklessly,”
was based on the plain language of the relevant statutory provisions. Rodriguez, supra, 195 N.J. at 171-73.
Specifically, N.J.S.A. 2C:3-4(b)(2) provides, in part, that deadly force is justified where a defendant “reasonably
believes” it is necessary to protect himself against death or serious bodily harm. A “reasonable belief” is defined as
one “which does not make the actor reckless or criminally negligent.” N.J.S.A. 2C:1-14(j). Accordingly, the plain
language of the Code of Criminal Justice indicates that self-defense is a defense to aggravated and reckless
manslaughter, a conclusion which has been reflected in case law since the Code’s inception. In light of this history,
the Rodriguez Court viewed the broadly stated dicta in Moore, supra, 158 N.J. at 303 -- that justification defenses
are unavailable where recklessness or negligence suffice to establish the requisite mental element of a charged crime
-- as a “mistaken assertion” limited to the facts of that case. Rodriguez, supra, 195 N.J. at 173-74. Additionally,
widely-read commentary existing at the time of defendant’s appeal warned that Moore should not be read to indicate
that the justification of self-defense is unavailable against charges based on recklessness. (pp. 18-21)

4. Addressing the narrow question of whether defendant was denied the effective assistance of appellate counsel,
the Court concludes that counsel’s representation fell below the objective standard of reasonableness. Counsel
should have brought to the attention of the appellate panel in defendant’s case the Appellate Division decision in
Rodriguez, which, at the time of defendant’s appeal, was controlling law and clearly expressed that defendant was
denied a valid defense to the lesser-included offenses of aggravated manslaughter and manslaughter. Counsel is
expected to be aware of important and relevant changes in the law. Defendant was clearly prejudiced by counsel’s
failure to raise the self-defense issue since, but for this error, there is a reasonable probability that the panel deciding
defendant’s case would have applied the published holding of its sister panel and reversed defendant’s aggravated
manslaughter conviction. Similarly, there is a reasonable probability that, had the jury been properly instructed, the
outcome of the trial would have been different. Since the trial court’s erroneous jury instruction undermines
confidence in the verdict, remand for a new trial is required. (pp. 21-24)

       The judgment of the Appellate Division is REVERSED, defendant’s aggravated-manslaughter conviction
is VACATED, and the matter is REMANDED for a new trial.

       CHIEF JUSTICE RABNER; JUSTICES LaVECCHIA, PATTERSON, and FERNANDEZ-VINA;
and JUDGE CUFF (temporarily assigned) join in JUSTICE ALBIN’s opinion.




                                                             2
                                       SUPREME COURT OF NEW JERSEY
                                         A-68 September Term 2012
                                                  072072

STATE OF NEW JERSEY,

    Plaintiff-Respondent,

         v.

NAQUAN O’NEIL, a/k/a NAQUAN
O’NEAL,

    Defendant-Appellant.


         Argued February 4, 2014 – Decided October 6, 2014

         On certification to the Superior Court,
         Appellate Division.

         Laura B. Lasota, Assistant Deputy Public
         Defender, argued the cause for appellant
         (Joseph E. Krakora, Public Defender,
         attorney; Ms. Lasota and Karen Ann
         Lodeserto, Designated Counsel, of counsel
         and on the briefs).

         Lucille M. Rosano, Special Deputy Attorney
         General/Assistant Essex County Prosecutor
         argued the cause for respondent (Carolyn A.
         Murray, Acting Essex County Prosecutor,
         attorney).


    JUSTICE ALBIN delivered the opinion of the Court.

    In State v. Rodriguez, we held that a person who acts in

self-defense and “kills in the honest and reasonable belief that

the protection of his own life requires the use of deadly force”

cannot be convicted of murder, aggravated manslaughter, or

manslaughter.   195 N.J. 165, 172-74 (2008).   That conclusion, we

                                 1
stated, follows directly from the language of the New Jersey

Code of Criminal Justice, N.J.S.A. 2C:11-2(a), 11-4(b)(1), 3-

4(b)(2), and 3-9(c).   Id. at 172-73.   In Rodriquez, supra, we

put to rest the “mistaken assertion” in State v. Moore, 158 N.J.

292, 303 (1999), that a defendant charged with aggravated

manslaughter and manslaughter could not assert self-defense.

195 N.J. at 173-74.

     In the 2003 trial of defendant Naquan O’Neil, the trial

court instructed the jury that self-defense is a valid

justification for murder but not for aggravated manslaughter or

manslaughter.   Defense counsel did not object to the charge.

The jury acquitted defendant of murder and convicted him of

aggravated manslaughter.   On appeal, defense counsel did not

challenge the court’s charge on self-defense.

     In his petition for post-conviction relief (PCR), defendant

claims that he was denied the effective assistance of appellate

counsel guaranteed by the Sixth Amendment of the United States

Constitution and Article I, Paragraph 10 of the New Jersey

Constitution.   The basis for that claim is that appellate

counsel did not raise on direct appeal the erroneous jury

instruction that denied him a valid defense to the charges of

aggravated manslaughter and manslaughter.1   The Law Division


1 Although initially defendant contended that trial counsel was
ineffective for not requesting a self-defense charge on the
                                 2
denied the PCR petition, and the Appellate Division affirmed,

finding that appellate counsel’s performance was not deficient

because Moore controlled at the time of defendant’s appeal.

    We now reverse.   The Appellate Division panel in

defendant’s direct appeal heard argument on March 21, 2007, but

did not render its decision until August 10, 2007.   Between

those dates, another Appellate Division panel ruled, in a

decision published on March 29, 2007, that self-defense was a

valid defense to a charge of manslaughter.   State v. Rodriguez,

392 N.J. Super. 101, 113 (App. Div. 2007).   On this precise

issue, this Court granted certification on July 6, 2007.      State

v. Rodriguez, 192 N.J. 292 (2007).   Whatever confusion was

caused by Moore, defendant’s appellate counsel’s failure to

bring the Rodriguez decisions to the attention of the Appellate

Division panel that heard this case rendered counsel’s

performance ineffective under both our Federal and State

Constitutions.   We are therefore constrained to vacate

defendant’s aggravated-manslaughter conviction and remand for a

new trial.

                                I.

                                A.




aggravated-manslaughter and manslaughter charges, he did not
press this claim on appeal.
                                 3
     Defendant was indicted on charges of first-degree murder,

N.J.S.A. 2C:11-3(a); third-degree unlawful possession of a

handgun without a carrying permit, N.J.S.A. 2C:39-5(b); and

second-degree possession of a handgun for the purpose of using

it unlawfully against another, N.J.S.A. 2C:39-4(a).     At

defendant’s trial, the court instructed the jury on the

additional charges of first-degree aggravated manslaughter and

second-degree manslaughter, lesser-included offenses of murder.

The charges stemmed from the shooting death of Hassan Hardy.

Defendant claimed self-defense as the justification for killing

Hardy.     The evidence presented at trial relevant to this appeal

follows.

                                  B.

     Defendant and Hardy had been friends.    In the two days

before defendant fatally shot Hardy, however, the two had

several violent encounters.2    On the evening of March 16, 2001,

they went to a nightclub in Newark with a group of mutual

friends.    At the club, defendant and Hardy got into an argument

and later exchanged verbal insults in a nearby parking lot.     The

confrontation escalated when Hardy, seated in a friend’s car,

slammed the car door twice into defendant, who then punched




2The events leading to the shooting of Hardy are generally not
in dispute. Those events, as described, are a composite of the
trial testimonies of three witnesses, one of whom was defendant.
                                   4
Hardy.     Friends stopped the fight, and defendant and Hardy went

their separate ways.

       Sometime later that evening, the two encountered each other

again on a Newark street.     Defendant was sitting on his car when

Hardy emerged from behind a bush, armed with a handgun.       The two

exchanged words, and Hardy, who was much larger than defendant,

grabbed defendant by the arm.     Hardy fired approximately four

shots in the direction of defendant’s legs without hitting him

and then struck defendant in the head with the gun several

times.    Hardy began to drag defendant toward an empty lot but

let him go when someone yelled that the police were coming.

Afterwards, defendant went to a nearby lot and retrieved a .380

caliber handgun from a known gun stash.     From there, defendant

walked to where Hardy had parked his vehicle and shot out its

windows.     Defendant did not return the gun to the stash.

       Cindy Crawford testified that she was friends with both

defendant and Hardy.     On March 17, 2001, at 9:00 p.m., defendant

picked Crawford up at her house and the two drove in defendant’s

car.     Crawford noticed that defendant had a gun on his lap.   At

about 10:00 p.m., defendant brought her home.

       According to Crawford, at around 1:00 a.m., she observed

Hardy standing by a tree near her home.     She saw defendant

approach Hardy and say to him, “You like playing with guns?”

Defendant then opened fire, and Hardy fell to the ground.

                                   5
Crawford did not see Hardy pull a gun on defendant.     Defendant

got in a car and left the scene.

    After the shooting, Crawford saw someone she recognized

from the neighborhood rifle through Hardy’s clothing, removing a

cell phone, money, and a gun -- but drop the gun as police

arrived.     The police recovered a .25 caliber handgun next to

Hardy’s body.    The gun’s trigger was cocked, one live round was

in the chamber, and five rounds were in the magazine.     The gun

had not been fired.

    In his testimony, defendant claimed that, after his earlier

bouts with Hardy, he carried a .380 caliber handgun in the early

morning of March 18 for protection.     He encountered Hardy again

on the street, and they exchanged heated words.     According to

defendant, Hardy was angry and pulled from his pocket a gun,

which he pointed at defendant.     In response, defendant quickly

drew the gun and shot Hardy.    Defendant explained that he did

not retreat because he could not “outrun no bullet,” and fired

the weapon because he feared he “was going to be shot.”     After

leaving the scene, defendant stated he “[b]lacked out” and

either “dropped” or “threw” the gun behind nearby townhouses.

    Nine days after the shooting, the police arrested

defendant.     The gun used to kill Hardy was never recovered.

                                  C.



                                   6
      At the jury-charge conference, no one questioned that

defendant was entitled to a charge on self-defense.   The

prosecutor and defense attorney, however, agreed that self-

defense applied only to the charge of murder and not to the

lesser-included charges of aggravated manslaughter and

manslaughter -- offenses that are predicated on reckless

conduct.   See N.J.S.A. 2C:11-4(a)(1) (defining aggravated

manslaughter as “recklessly caus[ing] death under circumstances

manifesting extreme indifference to human life”); N.J.S.A.

2C:11-4(b)(1) (defining manslaughter as “recklessly” causing

death).

      The court instructed the jury that, on the charge of

murder, “self-defense completely exonerates a person who uses

force in the reasonable belief that such action was necessary to

prevent his or her death or serious injury, even though his

belief was later proven mistaken.”   The court added, “The

defense of self-defense is not applicable to the lesser-included

charges of aggravated manslaughter and reckless manslaughter. .

. .   When the mental state is recklessness, self-defense is not

a justification.”

      The jury acquitted defendant of murder but convicted him of

first-degree aggravated manslaughter, third-degree unlawful

possession of a handgun, and second-degree possession of a

handgun for the purpose to use it unlawfully against another.

                                 7
On May 2, 2003, the trial court sentenced defendant to a prison

term of twenty-two years on the aggravated-manslaughter

conviction subject to an eighty-five percent period of parole

ineligibility pursuant to the No Early Release Act (NERA),

N.J.S.A. 2C:43-7.2, and to a concurrent five-year term on the

unlawful possession of a handgun conviction.   The remaining

charge was merged into the aggravated-manslaughter conviction.

The court imposed all requisite fines and penalties.3

                                 II.

     On direct appeal, defendant’s appellate counsel raised

several purported trial errors and claimed that the sentence was

excessive.   Appellate counsel did not challenge the self-defense

charge.   The case was submitted to the Appellate Division on

March 21, 2007.   Just eight days later, the Rodriguez panel held

that self-defense is applicable to both a charge of manslaughter

and possession of a weapon for an unlawful purpose.     Rodriguez,

supra, 392 N.J. Super. at 103.




3 The court did not impose the five-year period of parole
supervision mandated by the version of the No Early Release Act
in effect at the time of the offense, L. 1997, c. 117, § 2 (eff.
June 9, 1997) (codified as amended at N.J.S.A. 2C:43-7.2(c))
(“[A] court imposing a minimum period of parole ineligibility of
85 percent of the sentence pursuant to [N.J.S.A. 2C:43-7.2]
shall also . . . impose a five-year term of parole supervision
if the defendant is being sentenced for a crime of the first
degree . . . .”).


                                 8
     Significantly, defendant’s appellate counsel failed to

raise the validity of the self-defense charge with the panel in

this case after the Rodriguez decision was rendered.    Nor did

appellate counsel raise the self-defense issue with the panel

after we granted certification in Rodriguez, supra, on July 6,

2007.   192 N.J. 292.   On August 10, 2007, the Appellate Division

affirmed defendant’s conviction in an unpublished opinion but

remanded for re-sentencing pursuant to State v. Natale, 184 N.J.

458 (2005).4

                                III.

                                 A.

     In May 2008, defendant filed a PCR petition.    He claimed

that the failure of his trial and appellate attorneys to raise

self-defense as a defense to aggravated manslaughter and

manslaughter constituted ineffective assistance of counsel.

Defendant argued that “it has always been the law of New Jersey

that self-defense could be a justification for a charge of

manslaughter” and that this Court’s decision in Rodriguez

“authoritatively clarified” this issue in the wake of “confusion

generated by the language in [Moore].”

     In September 2010, the PCR court denied the petition on two

grounds.   It held that defendant should have raised a challenge


4 On remand, the court imposed the sentence originally given to
defendant.
                                 9
to the jury charge at trial or on direct appeal and therefore

was procedurally barred by Rule 3:22-4 from raising the claim on

PCR.    It also held that appellate counsel did not act

unreasonably by relying on Moore -- “the most recent available

opinion on the topic.”       The PCR court maintained that appellate

counsel could not be expected to have anticipated this Court’s

2008 decision in Rodriguez.

       Defendant appealed.

                                    B.

       The Appellate Division affirmed in an unpublished opinion.

The panel reasoned that before this Court’s decision in

Rodriguez, “it was by no means clear that a trial court” was

required to charge on self-defense in a manslaughter case.       The

panel maintained that, although “case law fragments” indicated

that self-defense was an available defense to a manslaughter

charge at the time of defendant’s trial, citing State v. Kelly,

97 N.J. 178, 203-04 n.12 (1984), and State v. Ciuffreda, 127

N.J. 73, 81-82 (1992), the “governing law” was nonetheless

“ambiguous” because of language in Moore, which suggested that

self-defense was barred in crimes charging recklessness.

According to the panel, not until this Court in Rodriguez

rejected the disputed language in Moore did defendant’s

appellate counsel have a professional or constitutional

obligation to raise self-defense as a defense to a manslaughter

                                    10
charge.   Indeed, the panel asserted that defendant’s trial and

appellate counsel should not be faulted for not predicting that

this Court “would repudiate its earlier unqualified assertion in

Moore that self-defense claims do not pertain to crimes of

recklessness.”    The panel concluded that defendant was not

deprived of the effective assistance of counsel guaranteed by

the Federal and State Constitutions.

    This Court granted defendant’s petition for certification.

State v. O’Neil, 214 N.J. 119 (2013).

                                  IV.

    Defendant argues that our holding in Rodriguez -- that

self-defense can constitute a defense to manslaughter -- did not

announce a new rule of law.    Instead, he submits that Rodriguez

merely reaffirmed well-settled principles found in the Code of

Criminal Justice and our jurisprudence, and clarified our

earlier decision in Moore.    On this basis, defendant insists

that Rodriguez’s holding should be fully retroactive and

applicable to his PCR petition.     Alternatively, he reasons that

even if Rodriguez did set forth a new rule of law, the new “rule

must apply retroactively to the small class of cases in which

the trial court erroneously relied upon the dicta in Moore in

denying a self-defense” charge for aggravated manslaughter and

manslaughter.    Defendant, moreover, submits that appellate

counsel was constitutionally deficient because he “should have

                                  11
been aware of the Appellate Division’s published opinion in

Rodriguez which was issued while [defendant’s] direct appeal was

pending” and should have raised the jury charge issue in that

appeal.

    In contrast, the State urges this Court to affirm the

Appellate Division.   The State submits that our holding in

Rodriguez represents a new rule of law and therefore does not

apply retroactively on collateral review, such as on PCR.      It

points out that the Court in Moore “made the broad pronouncement

that the justification of self-defense was not available where

the charged offense required a reckless state of mind.”    The

State notes that several Appellate Division decisions, all but

one unpublished, relied on the “unequivocal language” of Moore.

The State maintains that any retroactive application of

Rodriguez should be limited to cases pending on direct review on

the day Rodriguez was announced.     Because our decision in

Rodriguez was decided ten months after defendant’s direct

appeal, the State argues that interests in finality must be

respected.   Additionally, the State insists that “[a]ppellate

counsel should not be held accountable for failing to anticipate

the Supreme Court would affirm Rodriguez,” nor should she have

“a never-ending obligation . . . to advocate ad infinitum.”      The

State concludes that appellate counsel “exercised reasonable

professional judgment” and fulfilled her responsibility to

                                12
provide effective representation under both the Federal and

State Constitutions.

                                V.

                                A.

    This appeal comes to us from the denial of defendant’s

petition for PCR.   A PCR proceeding provides a defendant a forum

to remedy a substantial denial of rights guaranteed by “the

Constitution of the United States or the Constitution or laws of

the State of New Jersey.”   R. 3:22-2(a).    It is a defendant’s

last opportunity “to challenge the ‘fairness and reliability of

a criminal verdict in our state system.’”     State v. Nash, 212

N.J. 518, 540 (2013) (quoting State v. Feaster, 184 N.J. 235,

249 (2005)).   It is a “safeguard” intended to ensure that “a

defendant was not unjustly convicted.”      State v. McQuaid, 147

N.J. 464, 482 (1997).

    “Ineffective-assistance-of-counsel claims are particularly

suited for post-conviction review because they often cannot

reasonably be raised in a prior proceeding.”     State v. Preciose,

129 N.J. 451, 460 (1992).   Indeed, without collateral review, a

defendant would have no forum to review his claim that he was

denied the effective assistance of counsel on direct appeal.

That is so because a defendant “will often not realize that he

has a meritorious ineffectiveness claim until he begins



                                13
collateral review proceedings.”    Kimmelman v. Morrison, 477 U.S.

365, 378, 106 S. Ct. 2574, 2584, 91 L. Ed. 2d 305, 321 (1986).

    The primary focus of defendant’s challenge is that he was

denied the effective assistance of appellate counsel in

violation of the Federal and State Constitutions.      We now turn

to the law governing defendant’s claim.

                                  B.

    The Sixth Amendment of the United States Constitution and

Article I, Paragraph 10 of the New Jersey Constitution both have

been construed to guarantee an accused “‘the right to the

effective assistance of counsel’” in a criminal proceeding.

Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052,

2063, 80 L. Ed. 2d 674, 692 (1984) (quoting McMann v.

Richardson, 397 U.S. 759, 771 n.14, 90 S. Ct. 1441, 1449 n.14,

25 L. Ed. 2d 763, 773 n.14 (1970)); State v. Fritz, 105 N.J. 42,

58 (1987) (adopting Strickland’s effective-assistance standard).

The standard for establishing that a defendant was denied the

effective assistance of counsel is the same under both the

Federal and State Constitutions.       State v. Allah, 170 N.J. 269,

283 (2002).

    The right to effective assistance includes the right to the

effective assistance of appellate counsel on direct appeal.       See

Evitts v. Lucey, 469 U.S. 387, 396, 105 S. Ct. 830, 836, 83 L.

Ed. 2d 821, 830 (1985) (“A first appeal as of right . . . is not

                                  14
adjudicated in accord with due process of law if the appellant

does not have the effective assistance of an attorney.”); State

v. Guzman, 313 N.J. Super. 363, 374 (App. Div.) (holding that

Strickland test applies to claims of ineffective assistance at

trial level and on appeal), certif. denied, 156 N.J. 424 (1998).

    To establish ineffective assistance of counsel, a defendant

must satisfy two prongs.   First, he must demonstrate that

counsel made errors “so serious that counsel was not functioning

as the ‘counsel’ guaranteed the defendant by the Sixth

Amendment.”   Strickland, supra, 466 U.S. at 687, 104 S. Ct. at

2064, 80 L. Ed. 2d at 693; Fritz, supra, 105 N.J. at 52.     An

attorney’s representation is deficient when it “[falls] below an

objective standard of reasonableness.”    Strickland, supra, 466

U.S. at 688, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693; see Fritz,

supra, 105 N.J. at 58.

    Second, a defendant “must show that the deficient

performance prejudiced the defense.”     Strickland, supra, 466

U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693; Fritz,

supra, 105 N.J. at 52.   A defendant will be prejudiced when

counsel’s errors are sufficiently serious to deny him “a fair

trial.”   Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064,

80 L. Ed. 2d at 693; Fritz, supra, 105 N.J. at 52.    The

prejudice standard is met if there is “a reasonable probability

that, but for counsel’s unprofessional errors, the result of the

                                15
proceeding would have been different.”      Strickland, supra, 466

U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698; Fritz,

supra, 105 N.J. at 52.    A “reasonable probability” simply means

a “probability sufficient to undermine confidence in the

outcome” of the proceeding.    Strickland, supra, 466 U.S. at 694,

104 S. Ct. at 2068, 80 L. Ed. 2d at 698; Fritz, supra, 105 N.J.

at 52.

    We next discuss the law of self-defense relevant to the

present case.

                                 VI.

                                  A.

    In Rodriguez, supra, we affirmed a reported Appellate

Division decision, which held that “a valid claim of self-

defense -- when not disproved by the State -- exonerates a

defendant of reckless manslaughter.”     195 N.J. at 169.   In the

case before us, no one disputed at trial that defendant had a

legitimate claim of self-defense that had to be decided by the

jury.    The jury in this case, without objection, was told that

self-defense could not exonerate defendant of aggravated

manslaughter or manslaughter because the mental state at issue

was recklessness on both charges.      Defendant presented only one

defense to the jury:     self-defense.   One fair inference is that

the defense succeeded, given the acquittal on murder.

Defendant, however, had no legitimate defense to aggravated

                                  16
manslaughter or manslaughter in light of the court’s charge that

self-defense could not exonerate defendant of those crimes.

    As earlier explained, the published Appellate Division

opinion in Rodriguez was decided just eight days after the

appeal in this case was submitted to the panel and more than

four months before that panel rendered its decision.    The

Appellate Division decision in Rodriguez directly benefitted

defendant, signaling that he had been denied a legitimate

defense at his trial.   That decision was “an expression of the

law of our State” at that time.    See Gormley v. Wood-El, 218

N.J. 72, 114 (2014) (“The decisional law of the Appellate

Division is not only binding on our trial courts, but is an

expression of the law of our State unless the New Jersey Supreme

Court says otherwise.”).   Nevertheless, appellate counsel failed

to raise that meritorious issue before the panel in this case.

Nor did she raise the issue with the panel after we granted

certification in Rodriguez.

    While appellate counsel does not have an obligation “to

advocate ad infinitum,” she should bring to the court’s

attention controlling law that will vindicate her client’s

cause.   See Stallings v. United States, 536 F.3d 624, 628 (7th

Cir. 2008) (holding appellate counsel’s performance deficient

for failing to challenge sentence pursuant to United States v.

Booker, 543 U.S. 220, 125 S. Ct. 738, 160 L. Ed. 2d 621 (2005),

                                  17
where Booker was decided after defendant’s conviction but prior

to appeal); Ballard v. United States, 400 F.3d 404, 410-11 (6th

Cir. 2005) (holding appellate counsel ineffective for failing to

raise violation of Apprendi v. New Jersey, 530 U.S. 466, 120 S.

Ct. 2348, 147 L. Ed. 2d 435 (2000), where Apprendi was decided

while direct appeal pending); see also R. 2:6-11(d) (“A party

may . . . without leave, serve and file a letter calling to the

court’s attention . . . relevant cases decided or legislation

enacted subsequent to the filing of the brief.”).

                                B.

    Additionally, our Rodriguez decision, which was rendered

after defendant’s direct appeal had run its course, was not a

novel interpretation of the law of self-defense.    We explained

in detail in Rodriguez, supra -- and need not repeat at length

here -- that the plain language of the relevant provisions of

the Code of Criminal Justice led to the inexorable conclusion

that self-defense was a defense to aggravated manslaughter and

reckless manslaughter.   195 N.J. at 171-73.   By the very terms

of the Code, the use of deadly force is justifiable provided

that (1) the defendant “‘reasonably believes that such force is

necessary to protect himself against death or serious bodily

harm,’” (2) he does not “‘provoke[] the use of force against

himself,’” and (3) he does not have the ability to safely

retreat.   Id. at 171 (quoting N.J.S.A. 2C:3-4(b)(2)).

                                18
“Reasonably believes” is defined in the Code as “‘a belief the

holding of which does not make the actor reckless or criminally

negligent.’”   Id. at 172 (quoting N.J.S.A. 2C:1-14(j)).      We thus

concluded that “[b]ased on the Code’s own language, a person who

kills in the honest and reasonable belief that the protection of

his own life requires the use of deadly force does not kill

recklessly.”   Ibid.   Notably, manslaughter and aggravated

manslaughter both require proof that the accused recklessly

caused the death of another human being.    Ibid. (citing N.J.S.A.

2C:11-4(a)(1), (b)(1)).   Accordingly, the Code’s plain language

indicates that self-defense applies to charges of aggravated

manslaughter and manslaughter.

    In addition, from the inception of the Code, case law

reflected what the Code made manifest -- that defendants facing

manslaughter charges could offer a self-defense justification.

See Kelly, supra, 97 N.J. at 204 n.12 (holding that legislative

intent at time of Code’s enactment was that “self-defense based

on a reasonable belief in the need for deadly force would

constitute justification -- a complete defense -- to the charge

of reckless manslaughter”); see also Ciuffreda, supra, 127 N.J.

at 81-82 (stating that self-defense could be valid justification

against both aggravated manslaughter and reckless manslaughter);

State v. Hines, 303 N.J. Super. 311, 323 (App. Div. 1997)

(“Self-defense is a complete defense not only to murder but also

                                 19
to manslaughter . . . .”   (citing Kelly, supra, 97 N.J. at 203-

04 n.12)).

    In light of that history, we viewed the broadly stated

dicta in our 1999 decision in Moore -- that “‘[t]he Code’s

justification defenses are not available in a prosecution where

recklessness or negligence suffices to establish the requisite

mental element’” -- as a “mistaken assertion” limited to the

peculiar facts in Moore.   Rodriguez, supra, 195 N.J. at 173-74

(quoting Moore, supra, 158 N.J. at 303).    Although here the

State cites State v. Hogan, 336 N.J. Super. 319, 346 (App.

Div.), certif. denied, 167 N.J. 635 (2001), which repeated the

language in Moore later disapproved in Rodriguez, in the end the

Hogan court reached a result similar to the one in Rodriguez.

The Hogan court upheld a grand jury charge, which “conveyed the

principle that if defendants were reasonable in perceiving they

were under attack and used reasonable force to repel that

attack, they could not be charged with aggravated assault, an

offense that required ‘reckless’ conduct as an alternative

predicate to a conviction.”   Id. at 347.

    It also bears mentioning that a widely read commentator, in

discussing N.J.S.A. 2C:3-9 at the time of defendant’s direct

appeal, warned that “[Moore] should not be read to indicate that

the subsection means that the justification of self-defense is

unavailable against any charge based on recklessness.”   Cannel,

                                20
New Jersey Criminal Code Annotated, comment 4 on N.J.S.A. 2C:3-9

(2002).   The commentator emphasized that “[i]f the actor is

justified in using the actual force that occurred, the

justification is available against all charges based on the

force.”   Ibid.   That commentary foreshadowed the Appellate

Division decision in Rodriguez.

    With these principles in mind, we now turn to whether

defendant’s counsel provided constitutionally deficient

representation.

                                VII.

    The parties dispute the extent of retroactivity to be

accorded to our Rodriguez holding.     The parties argue over

whether Rodriguez recites a long-standing rule or a new one and

whether Rodriguez should be given full retroactivity or only

pipeline retroactivity.    We need not address these issues here.

Instead, we are presented with the narrow question of whether

defendant’s appellate attorney denied defendant the effective

representation of counsel guaranteed by the Sixth Amendment of

the Federal Constitution and Article I, Paragraph 10 of our

State Constitution.

    We conclude that defendant’s counsel’s representation “fell

below an objective standard of reasonableness.”     See Strickland,

supra, 466 U.S. at 688, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693;

Fritz, supra, 105 N.J. at 58.     Putting aside (1) the clear

                                  21
language of the Code indicating that self-defense is available

to charged crimes involving the mens rea of recklessness, (2)

cases such as Kelly that state the same, and (3) the commentary

to N.J.S.A. 2C:3-9 cautioning lawyers not to misread Moore as

suggesting that “self-defense is unavailable against any charge

based on recklessness,” defendant’s appellate counsel should

have brought to the attention of the appellate panel in

defendant’s case the Appellate Division decision in Rodriguez.

That decision explained that self-defense is a defense in a

manslaughter prosecution and construed the factual setting of

Moore to support that statement of law.   See Rodriguez, supra,

392 N.J. Super. at 112-14.

    At the time of defendant’s appeal, the Appellate Division’s

Rodriguez decision was the controlling law unless overturned by

this Court.   That decision clearly expressed that defendant was

denied a valid defense to the lesser-included offenses of

aggravated manslaughter and manslaughter at his trial.    Surely,

appellate counsel could have no strategic reason for not raising

a ruling that presumably would lead to a new trial for his

client.   The Strickland/Fritz standard may not require appellate

counsel to have the foresight to raise a cutting-edge issue or

anticipate a change in the law not evident in existing

jurisprudence.   However, “once a change -- particularly an

important and relevant change -- does come about,” counsel is

                                22
expected to be aware of it.     Ballard, supra, 400 F.3d at 408;

see Stallings, supra, 536 F.3d at 627-28.     If every person is

presumed to know the law, no exception can be made for appellate

counsel.     Although informed “strategic choices” made by counsel

will rarely be subject to challenge, Strickland, supra, 466 U.S.

at 690, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695, no deference

must be paid to a choice made in disregard of standing

precedent.

    The prejudice suffered by defendant is clear.      Had

appellate counsel raised the self-defense issue, there is a

reasonable probability that the panel deciding defendant’s

appeal would have applied the published holding of its sister

panel, almost certainly leading to the reversal of defendant’s

aggravated-manslaughter conviction.     Even had the panel denied

relief, that would have led to inconsistent decisions between

two appellate panels, an independent ground for the grant of

certification by this Court.    In any event, this Court granted

certification in Rodriguez even before defendant’s panel reached

its decision.    At the very least, the issue would have been

preserved if raised by appellate counsel.

    We find that, but for appellate counsel’s errors, there is

“a reasonable probability” that “the result of the proceeding

would have been different.”     See Strickland, supra, 466 U.S. at

694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698; Fritz, supra, 105

                                  23
N.J. at 52.   If the jury found that defendant had an honest and

reasonable belief that the use of deadly force was necessary to

save his own life, that he was not the aggressor, and that he

could not have safely retreated, then self-defense applied not

only to the murder charge, but also to the aggravated-

manslaughter and manslaughter charges.     The jury was instructed

that self-defense applied to the murder charge and acquitted

defendant of that offense.   The jury was instructed that self-

defense did not apply to the aggravated-manslaughter and

manslaughter charges and convicted him of those offenses.

    Of course, we cannot know the precise reason for the jury’s

verdict of not guilty to murder.     Nevertheless, the trial

court’s failure to charge self-defense on aggravated

manslaughter and manslaughter leaves open a reasonable

probability that, if properly instructed, the outcome would have

been different.   The erroneous jury instruction necessarily

undermines confidence in the verdict.     See Strickland, supra,

466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698; Fritz,

supra, 105 N.J. at 52.

                               VIII.

    For the reasons expressed, we reverse the judgment of the

Appellate Division, vacate defendant’s aggravated-manslaughter

conviction, and remand for a new trial.



                                24
     CHIEF JUSTICE RABNER; JUSTICES LaVECCHIA, PATTERSON, and
FERNANDEZ-VINA; and JUDGE CUFF (temporarily assigned) join in
JUSTICE ALBIN’s opinion.




                               25
                  SUPREME COURT OF NEW JERSEY
NO.       A-68                        SEPTEMBER TERM 2012

ON CERTIFICATION TO             Appellate Division, Superior Court




STATE OF NEW JERSEY,

      Plaintiff-Respondent,



                 v.



NAQUAN O’NEIL, a/k/a NAQUAN

O’NEAL,

      Defendant-Appellant.




DECIDED                        October 6, 2014

                  Chief Justice Rabner                      PRESIDING

OPINION BY                 Justice Albin

CONCURRING/DISSENTING OPINIONS BY

DISSENTING OPINION BY



                                         REVERSE/
  CHECKLIST                               VACATE/
                                          REMAND
  CHIEF JUSTICE RABNER                       X
  JUSTICE LaVECCHIA                          X
  JUSTICE ALBIN                              X
  JUSTICE PATTERSON                          X
  JUSTICE FERNANDEZ-VINA                     X
  JUDGE CUFF (t/a)                           X
  TOTALS                                     6




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