STATE OF NEW JERSEY v. ANTHONY ARMSTRONG

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4200-03T44200-03T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ANTHONY ARMSTRONG,

Defendant-Appellant.

______________________________

 

Submitted September 14, 2005 - Decided

Before Judges Wefing and Fuentes.

On appeal from Superior Court of New

Jersey, Law Division, Salem County,

Docket No. 95-04-0114.

Yvonne Smith Segars, Public Defender,

attorney for appellant (David A. Snyder,

Designated Counsel, of counsel and on

the brief).

John T. Lenahan, Salem County Prosecutor,

attorney for respondent (Gregory G. Waterston,

Assistant Prosecutor, on the brief).

PER CURIAM

Defendant Anthony Armstrong appeals from the denial of his post-conviction relief (PCR) petition. In 1996, defendant was tried before a jury and convicted of second-degree aggravated assault (N.J.S.A. 2C:12-1b-(1)); fourth-degree aggravated assault (N.J.S.A. 2C:12-1b-(4)); two counts of third-degree unlawful possession of a weapon, and one count of fourth-degree unlawful possession of a weapon (N.J.S.A. 2C:39-5b; N.J.S.A. 2C:39-5d) and second-degree possession of a weapon for an unlawful purpose (N.J.S.A. 2C:39-4a). He was acquitted of attempted murder. The court sentenced defendant to an aggregate term of eight years in prison, with three years of parole ineligibility.

We affirmed defendant's conviction and sentence on direct appeal, State v. Armstrong, A-14-88-96T4 (April 17, 1998) and the Supreme Court denied his petition for certification. State v. Armstrong, 155 N.J. 589 (1998). Among the issues raised by defendant on direct appeal was the trial court's failure to have instructed the jury "on the law of oral inculpatory admission," otherwise known as a Hampton charge. State v. Hampton, 61 N.J. 250 (1972).

On January 4, 2000, defendant filed a PCR petition in the Law Division. On April 27, 2000, the trial court denied the petition without the benefit of oral argument. Defendant filed an appeal of this denial in 2002. After reviewing the record, we reversed the denial of the petition and remanded the matter, based only on the trial court's failure to entertain oral argument. State v. Armstrong, A-3799-00T4 (June 18, 2002). See State v. Mayron, 344 N.J. Super. 382 (App. Div. 2001).

After conducting an evidentiary hearing pursuant to State v. Preciose, the trial court once again denied defendant's petition. 129 N.J. 451 (1992). Defendant now appeals raising the following argument.

THE TRIAL COURT COMMITTED ERROR BY DENYING THE APPELLANT'S MOTION FOR POST CONVICTION RELIEF.

Defendant's argument lacks sufficient merit to warrant discussion in a written opinion. R. 2:11-3 (e)(2). We note only that we rejected defendant's Hampton charge argument on direct appeal. He is thus barred from raising it again in the context of a PCR petition. R. 3:22-5.

Defendant's contention that his trial counsel should have consulted with him before agreeing to stipulate to the victim's testimony is equally without merit. Here, the victim could not identify his attacker. The stipulation was limited to a description of the victim's injuries, and of the manner the attack was carried out. Thus, even accepting defendant's contention (that defense counsel should not have agreed to the stipulation without consulting with him first), as a matter of law defendant cannot satisfy the second prong of the Strickland/Fritz test, because admission of this stipulation did not affect the outcome of the trial.

Defendant's last contention, that his trial counsel should have called a number of witnesses as part of his defense, is also unavailing. As appellate counsel concedes in his brief before us, the record here does not reveal what, if anything, these alleged witnesses would have testified about at trial.

Affirmed.

 

This refers to the two prong test articulated by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 674 (1984), and adopted by our Supreme Court in State v. Fritz, 105 N.J. 42 (1987). Under this test, a defendant claiming reversible error based on ineffective assistance of counsel must prove: (1) that counsel's performance fell below a level of reasonable professional competence; and (2) that, but for counsel's unreasonable performance, the results of the trial would have been different. State v. Castagna, 376 N.J. Super. 323, 359-60 (App. Div.), certif. granted, 185 N.J. 35 (2005).

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A-4200-03T4

September 22, 2005