SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5302-18T4

STATE OF NEW JERSEY,

Plaintiff-Respondent, 

v. 

EDWIN POLYNICE, 

Defendant-Appellant.

_________________________

Submitted October 15, 2020 – Decided

Before Judges Alvarez and Geiger.

On appeal from the Superior Court of New Jersey, Law 

Division, Essex County, Indictment No. 11-08-1594. 

Joseph E. Krakora, Public Defender, attorney for 

appellant (John V. Molitor, Designated Counsel, on the 

brief). 

Gurbir S. Grewal, Attorney General, attorney for 

respondent (Debra G. Simms, Deputy Attorney 

General, of counsel and on the brief).

PER CURIAM 

NOT FOR PUBLICATION WITHOUT THE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.

November 5, 2020
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Defendant Edwin Polynice appeals from the May 14, 2019 denial of his 

third petition for post-conviction relief, in which he alleged ineffective 

assistance of counsel. For the reasons that follow, we affirm.

Defendant was charged in nine counts of an indictment with offenses 

related to a May 11, 2011 incident. That evening, while defendant and his wife 

were arguing, defendant's wife called her family for help. After her sister and 

two nephews arrived at the apartment building, the conflict only intensified. 

Defendant and one of his nephews began to struggle in the building hallway, 

causing the building superintendent to warn the parties that he was going to call 

police. At that juncture, defendant went back into the apartment, returning with 

a kitchen knife. He stabbed his sister-in-law in the stomach and one of his 

nephews in the neck. At sentencing, the victims claimed defendant bit the other 

nephew on the hand. After stabbing his nephew in the neck, defendant pulled 

the knife out, discarded it, and attempted to flee. The victims appeared at 

sentencing and defendant did not then dispute this version of the facts.

Defendant entered a guilty plea to first-degree attempted murder, N.J.S.A. 

2C:5-1 and 2C:11-3, second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1), 

and fourth-degree unlawful possession of a knife, N.J.S.A. 2C:39-5(d). There 

is no question that defendant to that point had led a seemingly blameless life, 
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was a family man, worked three jobs, and had earned a college degree. On June 

5, 2012, he was sentenced to concurrent terms: ten years subject to the No Early 

Release Act (NERA), N.J.S.A. 2C:43-7.2, on the attempted murder; five years 

subject to NERA on the aggravated assault; and six months on the unlawful 

possession of a knife.1

Thereafter, on April 9, 2013, the matter was heard on the excess sentence

oral argument calendar. See R. 2:9-11. The order entered that same day states 

that the sentence was found to be "not manifestly excessive or unduly punitive 

and does not constitute an abuse of discretion." Defendant filed two timely

petitions for post-conviction relief (PCR), both of which were dismissed without 

prejudice. No information regarding those petitions, or the dismissals, was 

included in the record on appeal.

In this third petition, filed May 2018, defendant alleges that his second 

PCR petition was withdrawn and dismissed on November 7, 2016, without 

notice to him. He further alleges he was not told about the dismissal until he 

wrote to the court on April 2, 2018, and was informed a few days later regarding 

1

 Defendant contends on appeal that mitigating factor six should have been 

argued by his attorney, that he would make restitution to the victims, N.J.S.A. 

2C:44-1(b)(6), however, the judgment of conviction (JOC) does not indicate any 

restitution was ordered despite being discussed. 
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the outcome. The record contains no indication if defendant was represented, 

or the reason for the second dismissal.

The judge found defendant's claim no one notified him of the dismissal

for two years constituted excusable neglect, which should result in a relaxation 

of Rule 3:22-12(a)(1). The rule states "no petition [for PCR] shall be filed . . .

more than [five] years after the date of entry . . . of the judgment of conviction." 

After finding excusable neglect, the court went on to deny relief on the merits. 

At sentencing, defendant, his attorney, his wife and his sister pleaded with 

the judge not to incarcerate defendant because of his good character and his 

family's dependence upon him. Counsel did not enumerate specific mitigating 

factors, instead arguing that the judge should sentence defendant "below the 

sentencing guidelines" because of his exemplary prior history. Defendant's 

attorney said, "we're asking that you make a downward departure." 

Therefore, the judge who denied the petition concluded that counsel 

presented the necessary proof and arguments, had the sentencing court been 

convinced, for a downgrade and a lesser sentence than the ten years called for 

by the plea agreement. Thus, the judge opined, defendant failed to establish the 

first prong of the Strickland test, that the representation he received fell outside 

of the realm of adequate representation. Strickland v. Washingon, 466 U.S. 668, 
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687 (1984). Defendant's attorney had in fact argued for a reduced term of 

imprisonment.

On appeal, defendant raises the following point:

THIS COURT SHOULD REVERSE THE TRIAL 

COURT'S DECISION TO DENY THE 

DEFENDANT'S PETITION FOR POSTCONVICTION RELIEF BECAUSE THE 

DEFENDANT'S ATTORNEY DID NOT ARGUE FOR 

SEVEN MITIGATING FACTORS THAT ARE 

SUPPORTED BY THE RECORD.

We review de novo the Law Division's legal conclusions as to a PCR 

petition and factual inferences from the record as no evidentiary hearing was 

conducted. State v. Harris, 181 N.J. 391, 415 (2004). 

First, we do not agree as a matter of law that defendant's claimed

ignorance about the dismissal of his second PCR petition constitutes excusable 

neglect. The responsibility rested on defendant to monitor the status of the 

petition. Two years is too lengthy a period of time in which to make no inquiry. 

Defendant offers no explanation for his failure to exercise due diligence.

In any event, pursuant to Rule 3:22-4(b), defendant is barred from raising 

these grounds as a basis for relief since he was more than aware of his attorney's 

presentation during the sentence hearing. The rule clearly states that only those 

issues that could not have been raised during the course of a first petition are to 
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be entertained in a second or subsequent petition. See R. 3:22-4(b). Defendant 

knew he was unhappy with his attorney's performance since 2012. The issue 

could have been raised, but apparently was not. Defendant is barred by the rule 

from raising the argument now.

The New Jersey Supreme Court has said, "[o]ur courts will find 

fundamental injustice when the judicial system has denied a 'defendant . . . fair

proceedings leading to a just outcome' or when 'inadvertent errors mistakenly 

impacted a determination of guilt or otherwise wrought a miscarriage of 

justice.'" State v. Nash, 212 N.J. 518, 546 (2013) (quoting State v. Mitchell, 

126 N.J. 565, 587 (1992)). No fundamental injustice results from applying the 

time or Rule 3:22-4(b) bar because defendant's contentions have no merit, in 

addition to the fact no excusable neglect explains the delay in inquiring about 

the status of the petition, and his third PCR petition relies on arguments that 

could have been made in the first.

In this case, several of the mitigating factors defendant now contends

should have been found in his case are not supported by the record. An assailant 

who enters his home to retrieve a weapon, and leaves the safety of his residence 

in order to return to the scene to attack others, is not a person acting in selfdefense, under a strong provocation, or whose conduct can be excused or 
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justified. See N.J.S.A. 2C:3-4, N.J.S.A. 2C:44-1(b)(3), (4). The victims did not 

induce or facilitate the assaults. N.J.S.A. 2C:44-1(b)(5). A person who stabs 

another in the stomach and a second in the neck, was effectively represented by 

being permitted to plead guilty to concurrent, not consecutive, terms. Despite 

inflicting grave harm on two victims, he received a favorable sentence—the 

lowest possible term of years within the first-degree range. 

Therefore, defendant has not met the Strickland standard. It was not 

ineffective for defendant's attorney to have failed to argue for leniency relying 

on mitigating factors that do not apply. 

The only mitigating factor not found by the court, which is supported by 

the evidence, is mitigating factor eleven, the hardship that imprisonment inflicts 

on defendant's family. Unfortunately, that is true in most cases. Absent some 

extraordinary circumstance, not present in this record, that factor even if found

likely would have been given slight weight. Every family suffers, emotionally 

and financially, from the imprisonment of a husband, father, or brother. The 

court's failure to find that factor, and counsel's failure to name it, was harmless 

error given defendant, his family, and counsel all spoke to that issue.

In sum, the five-year time bar applies, as defendant does not establish

excusable neglect. See R. 3:22-12. Defendant is also barred because he now 
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raises, in his third petition, a claim that could have been raised in the first. See

R. 3:22-4(b). Defendant could have raised the issue of ineffective assistance of 

counsel in his first or second petition. See ibid. Since the arguments defendant 

now raises lack merit, no fundamental injustice would result from concluding 

defendant's petition is barred for either reason. See Nash, 212 N.J. at 546. 

Affirmed.