STATE OF NEW JERSEY v. ROBERT ROSS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6181-04T46181-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ROBERT ROSS,

Defendant-Appellant.

____________________________________

 

Submitted May 10, 2006 - Decided June 5, 2006

Before Judges Stern and Grall.

On appeal from Superior Court of New

Jersey, Law Division, Atlantic County,

Indictment No. 96-11-2572.

Yvonne Smith Segars, Public Defender,

attorney for appellant (Adam W. Toraya,

Designated Counsel, of counsel and on the brief).

Jeffrey S. Blitz, Atlantic County Prosecutor, attorney for respondent

(Jack R. Martin, Assistant County Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Robert Ross appeals from the denial of his petition for post-conviction relief (PCR). We affirm that decision substantially for the reasons stated by Judge Garofolo in his decision of May 9, 2005, and reject defendant's claim that PCR counsel was ineffective.

Defendant was indicted and charged with purposely, knowingly or recklessly causing bodily injury to Officer John Saraceni, a law enforcement officer performing his duties. N.J.S.A. 2C:12-1b(5)(a). A jury convicted defendant of that third-degree crime, id., and the judge denied his motion for a new trial. Defendant was sentenced to an extended term of ten years, five of which must be served without possibility of parole. The judgment of conviction was entered on November 20, 1998.

This court affirmed defendant's conviction and sentence. State v. Ross, No. A-2649-98 (App. Div. May 12, 2000) (slip op. at 4). On appeal defendant raised one argument that is pertinent to his claims on this petition for post-conviction relief. He contended that "the evidence at trial did not support a conviction for third-degree aggravated assault because no bodily injury was sustained by the victim." Id. at 2. We found that argument lacked merit sufficient to warrant extended discussion in a written opinion, R. 2:11-3(e)(2). Id. at 2-3. We added that the evidence was sufficient to support the following findings: "defendant kicked Parole Officer John Saraceni in the right thigh 'several times' and on the right side of his forehead;" the officer suffered "intense hip pain"; there was "swelling and discoloration around the [officer's] eye" and "a large red mark on his forehead." Id. at 3. The officer also testified that he was "kind of dazed from the kick in the head," and "experienced pain" in "both areas" -- i.e., the area of the kick to his head and his hip. Ibid. The Supreme Court denied defendant's petition for certification. State v. Ross, 165 N.J. 529 (2000).

By letter dated June 30, 2003, defendant filed a petition for post-conviction relief, pro se. An Assistant Deputy Public Defender filed an amended petition dated November 4, 2004. Judge Garofolo heard argument and denied the petition on May 9, 2005.

On appeal from Judge Garofolo's order defendant presents the following arguments:

AN EVIDENTIARY HEARING WAS REQUIRED FOR DEFENDANT TO ESTABLISH THAT [HE] HAD RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL.

A. THE COURT ERRED WHEN IT DENIED AN

EVIDENTIARY HEARING ON THE GROUNDS OF

INEFFECTIVE ASSISTANCE OF COUNSEL WHEN

COUNSEL FAILED TO CONDUCT PRE-TRIAL

INVESTIGATION AS TO THE MEDICAL RECORDS

OF PAROLE OFFICER JOHN SARACENI.

B. POST CONVICTION RELIEF COUNSEL WAS

INEFFECTIVE WHEN SHE FAILED TO ELABORATE

ON HER ARGUMENT AS TO OFFICER SARACENI'S

EXAGGERATION OF HIS ALLEGED INJURY TO

HIS RIGHT KNEE.

C. THE APPELLATE COUNSEL WAS INEFFECTIVE

FOR FAILURE TO RAISE ON APPEAL TRIAL

COUNSEL'S FAILURE TO PROCURE EVIDENCE,

NAMELY THE MEDICAL RECORDS OF OFFICER

SARACENI FOR IMPEACHMENT PURPOSES. (Not

Raised Below)

The arguments lack sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(2). We add a brief explanation for that conclusion with respect to each contention.

The Supreme Court discussed the circumstances under which an evidentiary hearing is required on a claim of ineffective assistance of counsel in State v. Preciose, 129 N.J. 451 (1992).

The Court reasoned that a "claim of ineffective assistance of trial and appellate counsel is more likely to require an evidentiary hearing because the facts often lie outside the trial record and because the attorney's testimony may be required." Id. at 462.

Generally, a claim of ineffective assistance of counsel cannot be raised on direct appeal. Rather, the "'defendant must develop a record at a hearing at which counsel can explain the reasons for his conduct and inaction and at which the trial judge can rule upon the claims including the issue of prejudice'". Ibid. (quoting State v. Sparano, 249 N.J. Super. 411, 419 (1991)). The Court concluded that "evidentiary hearings to resolve ineffective-assistance-of-counsel claims [are required] if a defendant has presented a prima facie claim in support of post-conviction relief." Ibid. The Court further held that "courts should view the facts in the light most favorable to a defendant to determine whether a defendant has established a prima facie claim." Id. at 462-63.

In order to establish a prima facie claim of ineffective assistance of counsel, a defendant must demonstrate a reasonable likelihood of success in establishing: 1) deficient performance by the attorney and 2) a reasonable probability that the outcome would have been different but for counsel's unprofessional error. Id. at 463-64 (discussing the standard established in Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 2068, 80 L. Ed. 2d 674, 698 (1984), United States v. Cronic, 466 U.S. 648, 104 S. Ct. 2039, 80 L. Ed. 2d 657 (1984), and State v. Fritz, 105 N.J. 42, 58 (1987)).

Judge Garofolo did not abuse his discretion in denying an evidentiary hearing. Defendant did not establish a prima facie case with respect to trial or appellate counsel. As the judge found, records showing that the officer exaggerated his injuries could have provided impeachment evidence, but defendant failed to show either that the records were not provided or that those records would have shown what defendant alleged. Thus, with respect to trial and appellate counsel, an evidentiary hearing was not required because defendant's claim was based on nothing more than speculation about whether the attorneys failed to obtain the records and about the contents of the medical records. See Fritz, supra, 105 N.J. at 64-65 (rejecting as too speculative and without benefit of an evidentiary hearing, defendant's claim that the outcome would have been different if absent witnesses had been called).

Our review of the record convinces us that defendant cannot establish a reasonable probability that the outcome of his PCR petition, appeal or trial would have been different if counsel had obtained the officer medical records. At trial defense counsel cross-examined the officer and asked whether his hip was re-injured. The officer responded: "The hip wasn't re-injured. I went to the medical center. But I did feel a lot of pain and I did go down. The -- It just gave out." When defense counsel asked, "How much time did you miss from work?" The officer responded, "I didn't take any time off. I had to testify for probable cause hearings the next day. I took some medication and -- Motrin, and I went to work." Thus, even assuming that the records showed no exacerbation of the officer's hip condition, defense counsel's questioning elicited an admission from the officer that his hip was not re-injured, he was not required to take time off from work and he was able to address the pain with Motrin. In light of this testimony, regardless of the content of the medical records, we fail to see any additional impeachment value in medical records indicating an absence of injury on the day in question. The officer had acknowledged that the records would not show an injury. Records would have done nothing more that bolster the officer's testimony about his visit to the clinic.

We stress that for purposes of assault, bodily injury "means physical pain, illness or any impairment of physical condition." N.J.S.A. 2C:11-1a. We have held that such bodily injury includes discomfort and pain caused by a kick. State In Re S.B., 333 N.J. Super. 236, 244 (App. Div. 2000). The officer testified about pain in his hip and the area of his head that was kicked; proof of an "injury" confirmed by medical evidence was not required to establish pain.

Affirmed.

 

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A-6181-04T4

June 5, 2006