STATE OF NEW JERSEY v. ALBERT WESSEL

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1807-08T41807-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ALBERT WESSEL,

Defendant-Appellant.

_____________________________________________________

Submitted May 4, 2010 - Decided May 21, 2010

Before Judges Skillman and Simonelli.

On appeal from Superior Court of New Jersey, Law Division, Bergen County, Indictment

No. 03-09-1830.

Yvonne Smith Segars, Public Defender, attorney for appellant (Jack Gerber, Designated Counsel, on the brief).

John L. Molinelli, Bergen County Prosecutor, attorney for respondent (Catherine A. Foddai, Senior Assistant Prosecutor, of counsel and on the brief).

Appellant filed pro se supplemental briefs.

PER CURIAM

A jury found defendant guilty of purposeful or knowing murder, in violation of N.J.S.A. 2C:11-3(a)(1) and (2); armed robbery, in violation of N.J.S.A. 2C:15-1; armed burglary, in violation of N.J.S.A. 2C:18-2; and various other offenses. The trial court sentenced defendant to life imprisonment, with thirty years of parole ineligibility, for the murder; a consecutive term of fifteen years imprisonment, with 85% of the term to be served without parole eligibility under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, for the armed robbery; and a concurrent seven-year term, with 85% of the term to be served without parole eligibility under NERA, for the armed burglary. The court merged defendant's other convictions.

On appeal, we affirmed defendant's convictions and sentence in an unreported opinion. State v. Wessel, A-1303-05T4 (June 20, 2007). The Supreme Court denied defendant's petition for certification. 197 N.J. 482 (2007).

Defendant filed a petition for post-conviction relief. The trial court denied the petition by an oral opinion rendered on November 3, 2008.

On appeal from the denial of defendant's petition, the Public Defender has submitted a brief on his behalf which presents the following arguments:

POINT I:

A CERTIFIED CRIMINAL ATTORNEY REPRESENTS THAT HE HAS AND WILL USE THAT SPECIAL DEGREE OF KNOWLEDGE AND SKILL POSSESSED BY OTHER SPECIALISTS IN THE FIELD OF CRIMINAL LAW.

POINT II:

DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL WHEN TRIAL COUNSEL FAILED TO DISCOVER AND/OR INVESTIGATE THE DATE AND TIME OF DEATH OF THE VICTIM AND FAILED TO INVESTIGATE FACTS SUPPORTING DEFENDANT'S ALIBI DEFENSE.

POINT III:

DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL WHEN TRIAL COUNSEL FAILED TO ENGAGE AND CONSULT EXPERT WITNESSES TO ASSIST IN PRESENTING A DEFENSE.

POINT IV:

DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL WHEN TRIAL COUNSEL FAILED TO CALL WITNESSES WHO WERE SUBPOENAED TO TESTIFY IN SUPPORT OF AGREED TRIAL STRATEGY AND FAILED TO CONDUCT INVESTIGATIONS INTO DISCOVERY PROVIDED BY THE PROSECUTION RESULTING IN MAKING STRATEGIC DECISIONS WITHOUT THOROUGH INVESTIGATION OF THE RELEVANT FACTS.

POINT V:

DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL WHEN TRIAL COUNSEL FAILED TO CHALLENGE THE ADMISSIBILITY OF THE TESTIMONY OF ROBIN VELARDO, FAILED TO INVESTIGATE HER PRE-EXISTING EMOTIONAL, PSYCHIATRIC AND MENTAL DISORDERS AND FAILED TO APPLY TO HAVE HER EXAMINED BY A PSYCHIATRIST PRIOR TO TESTIFYING AND APPELLATE COUNSEL WAS INEFFECTIVE FOR FAILING TO RAISE THIS ISSUE ON APPEAL.

POINT VI:

DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL WHEN TRIAL COUNSEL FAILED TO OBJECT TO OTHER CRIMES EVIDENCE AND EVIDENCE OF BAD ACTS ELICITED BY THE PROSECUTOR FROM RICHARD GREENWALD AND/OR TO REQUEST JURY INSTRUCTIONS THEREON, AND APPELLATE COUNSEL WAS INEFFECTIVE FOR FAILING TO RAISE THIS ISSUE ON APPEAL.

POINT VII:

DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL WHEN TRIAL COUNSEL, ON HIS OPENING STATEMENT, PROMISED THE JURY SPECIFIC INCONSISTENT TESTIMONY FROM PROSECUTION WITNESSES THAT NEVER DEVELOPED AT TRIAL, AND APPELLATE COUNSEL WAS INEFFECTIVE FOR FAILING TO RAISE THIS ISSUE ON APPEAL.

POINT VIII:

DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL WHEN APPELLATE COUNSEL FAILED TO RAISE ON APPEAL THE ISSUE THAT THE DEFENDANT'S SIXTH AMENDMENT RIGHT TO CONFRONTATION OF WITNESSES AND HIS STATE CONSTITUTIONAL RIGHT TO A FAIR TRIAL WERE DENIED WHEN THE TRIAL JUDGE REFUSED TO ALLOW FULL CROSS-EXAMINATION TO SHOW BIAS, PREJUDICE AND MOTIVATION TO TESTIFY.

POINT IX:

DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL WHEN APPELLATE COUNSEL FAILED TO RAISE ON APPEAL THE ISSUE THAT THE TRIAL JUDGE ERRED BY ALLOWING INFLAMMATORY AUTOPSY PHOTOS INTO EVIDENCE OVER OBJECTION, SINCE THEIR PREJUDICIAL VALUE OUTWEIGHED THEIR PROBATIVE VALUE.

POINT X:

THE MATTER MUST BE REMANDED FOR AN EVIDENTIARY HEARING ON THE DEFENDANT'S CLAIM OF INEFFECTIVE ASSISTANCE OF COUNSEL AS TO ADVICE ON ACCEPTING THE STATE'S PLEA OFFER AND INEFFECTIVE ASSISTANCE OF PCR COUNSEL IN NOT ADVANCING THE CLAIM ON THE PETITION.

In addition, defendant has submitted a pro se supplemental brief, which presents the following arguments:

POINT I:

DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL WHEN DEFENSE COUNSEL FAILED TO INVESTIGATE AND DISCOVER WHEN THE VICTIM WAS MURDERED AND FAILED TO CHALLENGE THE STATE'S THEORY AS TO THE DEFENDANT'S OPPORTUNITY TO HAVE COMMITTED THE MURDER. (PARTIALLY RAISED BELOW).

POINT II:

DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL WHEN TRIAL COUNSEL FAILED TO ENGAGE AND CONSULT EXPERT WITNESSES TO ASSIST IN PREPARING AND PRESENTING A DEFENSE AND THE COURT ERRED BY CONCLUDING OTHERWISE.

POINT III:

TRIAL COUNSEL'S FAILURE TO INVESTIGATE SGT. MARK WILLIAMS DENIED THE DEFENDANT IMPEACHMENT EVIDENCE AS TO STATE WITNESSES VELARDO, AND DIPINI'S BIAS, INTEREST, AND MOTIVATION TO TESTIFY, AND RESULTED IN MAKING UNINFORMED STRATEGIC DECISIONS WITHOUT THOROUGH INVESTIGATION. ALTHOUGH, THE OMISSION IS ALSO ATTRIBUTABLE TO THE STATE'S FAILURE TO PROVIDE DISCOVERY REQUIRED BY RULE, ITS EFFECT IN EITHER EVENT WAS TO DEPRIVE THE DEFENDANT OF HIS RIGHTS TO EFFECTIVE ASSISTANCE OF COUNSEL, A FAIR TRIAL, TO MEANINGFULLY CONFRONT WITNESSES, AND TO DUE PROCESS OF LAW. (PARTIALLY RAISED BELOW).

POINT IV:

DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL WHEN TRIAL COUNSEL FAILED TO CHALLENGE THE ADMISSIBILITY OF ROBYN VELARDO'S TESTIMONY, FAILED TO INVESTIGATE HER PRE-EXISTING EMOTIONAL, PSYCHIATRIC, AND MENTAL DISORDERS, AND FAILED TO APPLY TO HAVE HER EXAMINED BY A PSYCHIATRIST PRIOR TO TESTIFYING, AND APPELLATE COUNSEL WAS INEFFECTIVE FOR FAILING TO RAISE THIS ISSUE ON APPEAL.

POINT V:

DEFENDANT WAS ENTITLED TO AN ORDER REQUIRING TRIAL COUNSEL TO PRODUCE HIS [COUNSEL'S] MEDICAL RECORDS, LAW DIARY OR TRIAL CALENDAR, TO SUBSTANTIATE CERTAIN CLAIMS OF INEFFECTIVE ASSISTANCE OF COUNSEL, AND THE P.C.R. COURT ABUSED ITS DISCRETION BY CONCLUDING OTHERWISE.

POINT VI:

DEFENDANT WAS ENTITLED TO AN EVIDENTIARY HEARING ON HIS POST-CONVICTION RELIEF CLAIMS OF INEFFECTIVE ASSISTANCE OF COUNSEL, AND THE COURT ABUSED ITS DISCRETION BY CONCLUDING OTHERWISE.

 
We reject these arguments and affirm the denial of defendant's petition substantially for the reasons set forth in the trial court's November 3, 2008 oral opinion. Defendant's arguments do not warrant any additional discussion. R. 2:11-3(e)(2). We only note that we have not considered the May 29, 2009 certification included in the appendix to defendant's brief because this certification was executed after the denial of defendant's petition and thus was not considered by the trial court.

Affirmed.

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A-1807-08T4