dissenting.
I would affirm the decision of the Appellate Division substantially for the reasons expressed in Judge King’s thorough and thoughtful opinion. Like Judge King, I view defendant’s Humanik1 argument as a substantial one that “goes to the fundamental principle of the adversarial process, the State’s obligation to prove every element of the crime beyond a reasonable doubt.” State v. Milne, 355 N.J.Super. 355, 370, 810 A.2d 588 (App.Div.2002). I likewise adhere to the view that
when meritorious issues are raised that require analysis and explanation, our traditions of comprehensive justice will best be served by decisions that reflect thoughtful and thorough consideration and disposition of substantive contentions.
[State v. Preciose, 129 N.J. 451, 477-78, 609 A.2d 1280 (1992) (holding that defendant’s Post Conviction Relief (PCR) claims not procedurally barred for failing to raise on direct appeal).]
Moreover, I do not concede the majority’s conclusion that defendant unreasonably delayed in this case, warranting imposition of a procedural bar. As Judge King trenchantly observed:
This issue unfortunately has evaded forthright consideration to date in this case. Without dispute, the defendant, tried as an adult for a crime committed at age fifteen, potentially was impeded at trial in pursuing a diminished capacity defense by an unconstitutional statute, N.J.S.A. 2C:4-2.
After defendant’s trial and the rejection of his direct appeals in 1990, the Humanik issue was raised by him in a timely manner in his first PCR petition filed in July 1992. The Law Division judge, in March 1993, denied this PCR petition on the ground that Humanik did not apply to PCR petitions, relying upon State v. Culley, 250 N.J.Super. 558, 564, 595 A.2d 1098 (App.Div.1991). Appellate counsel (not present counsel) for defendant inexplicably failed to pursue the Humanik issue on *497the appeal, which was affirmed by this court in August 1994. Our Supreme Court denied certification in November 1994. 139 N.J. 186, 652 A.2d 174 (1994).
In June 1995, eight months after defendant’s PCE petition was rejected by our courts, our Supreme Court rejected Culley, and entertained a Humanik claim in a PCR proceeding. [State v.] Reyes, 140 N.J. [344] 358, 365, 658 A.2d 1218 [ (1995) ]. Thus, not until 1995 was defendant clearly entitled to pursue his Humanik claim which he had timely raised in his first PCR petition in 1992. He pursued federal habeas relief in 1997. The State opposed the petition, relying in part on defendants failure to exhaust available state remedies. In October 1999, federal Judge Cooper stayed the proceeding before her to permit exhaustion of state court remedies. This routed defendant back to state court where he filed this second PCR petition in 2000.
We cannot criticize current counsel for resorting to federal court in this circumstance. Nor do we think it appropriate now to deny a plenary hearing in state court on the Humanik issue, given the complex procedural history in this case. See State v. Afanador, 151 N.J. 41, 53, 697 A.2d 529 (1997).
[Milne, supra, 355 N.J.Super. at 370-71, 810 A.2d 588.]
Further, I note that the Appellate Division limned a fair procedure for the remand hearing including the requirement that defendant prove that the pre-Humanik statute dissuaded him from presenting a diminished-capacity defense and that there is a legitimate jury question regarding whether he suffered from diminished capacity at the time of the crime. Id. at 371-72, 810 A.2d 588. Failure of defendant to meet that burden will end the inquiry. That process is not such a hardship on the State that it would warrant closing the door on defendant here.
Finally, nothing in this opinion should be viewed as a commentary on the merits of defendant’s claim. It may indeed fail due to its inherent flaws and weaknesses. This is simply not the venue for such a determination.
For reversal — Chief Justice PORITZ and Justices VERNIERO, LaVECCHIA, ALBIN and WALLACE — 5.
For affirmance — Justice LONG — 1.
Humanik v. Beyer, 871 F.2d 432 (3d Cir.), cert. denied, 493 U.S. 812, 110 S.Ct. 57, 107 L.Ed.2d25 (1989).