1

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. 
2

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. 
1

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 
2

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 
3

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.
4

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 

 

2 The 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.
5

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. 
6

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.
7

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 selfdefense 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. 
8

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 . . . .”).
9

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.
10

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 
11

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 
12

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 
13

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 
14

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 
15

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 
16

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 selfdefense -- 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 
17

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), 
18

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)). 
19

“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 
20

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, 
21

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 
22

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 
23

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 
24

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 aggravatedmanslaughter 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 selfdefense 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.
25

CHIEF JUSTICE RABNER; JUSTICES LaVECCHIA, PATTERSON, and 

FERNANDEZ-VINA; and JUDGE CUFF (temporarily assigned) join in 

JUSTICE ALBIN’s opinion.
1

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 

CHECKLIST

REVERSE/

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