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NOT FOR PUBLICATION WITHOUT THE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-1397-10T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ALBERT WESSEL,

Defendant-Appellant.

_____________________________________________________

October 28, 2011

Submitted October 17, 2011 - Decided

Before Judges Alvarez and Skillman.

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

No. 03-09-1830.

Albert Wessel, appellant pro se.

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

PER CURIAM

Defendant was found guilty by a jury of purposeful or knowing murder, in violation of N.J.S.A. 2C:11-3(a)(1)(2); armed robbery, in violation of N.J.S.A. 2C:15-1; and various other related offenses. The trial court sentenced defendant to life imprisonment, with thirty years parole ineligibility, for the murder, and a consecutive fifteen year term of imprisonment, with the 85% period of parole ineligibility mandated by the No Early Release Act, N.J.S.A. 2C:43-7.2, for the armed robbery. The court imposed a concurrent sentence for one of defendant's other convictions and merged the remaining convictions.

On appeal, we affirmed defendant's convictions and sentences in an unreported opinion. State v. Wessel,

No. A-1302-05 (App. Div. June 20, 2007). The Supreme Court denied defendant's petition for certification. State v. Wessel, 192 N.J. 482 (2007).

On May 16, 2008, defendant filed a first 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 that petition, we affirmed in an unreported opinion. State v. Wessel, No. A-1807-08 (App. Div. May 21, 2010). The Supreme Court subsequently denied defendant's petition for certification. State v. Wessel, 204 N.J. 41 (2010).

On July 28, 2010, defendant filed a second petition for post-conviction relief. On September 15, 2010, the trial court denied this petition on the ground defendant had failed to satisfy any of the recently adopted Rule 3:22-4(b)(2) prerequisites for filing a second petition for post-conviction relief.

On appeal, defendant presents the following arguments:

POINT I:

PLEA COUNSEL FAILED TO PROVIDE THE DEFENDANT AN OBJECTIVE ANALYSIS IN TERMS OF THE ADVANTAGES OF PLEADING GUILTY RATHER THAN GOING TO TRIAL.

POINT II:

AN INADEQUATE INVESTIGATION OF LAW OR FACT ROBS A STRATEGIC CHOICE OF ANY PRESUMPTION OF COMPETENCE.

POINT III:

TRIAL COUNSEL FAILED TO CROSS-EXAMINE STATE WITNESS VELARDO REGARDING AN INCONSISTENT STATEMENT AND FAILED TO MOVE THAT STATEMENT INTO EVIDENCE AFTER OUTLINING THE INCONSISTENCIES IN HIS OPENING STATEMENT AS PART OF THE DEFENSE.

POINT IV:

TRIAL COUNSEL FAILED TO INVESTIGATE OTHER FALSE ACCUSATIONS MADE AGAINST THE DEFENDANT BY STATE WITNESS JOSE DIPINI CONCERNING STOLEN CHECKS, AND FAILED TO CROSS-EXAMINE DIPINI REGARDING INCONSISTENT TRIAL TESTIMONY REGARDING THE CHECKS, AND DIPINI'S MOTIVE TO TESTIFY FALSELY AGAINST THE DEFENDANT.

POINT V:

TRIAL COUNSEL FAILED TO OBJECT TO PREJUDICIAL CHARACTER EVIDENCE ADDUCED BY THE PROSECUTOR FROM STATE WITNESS DIPINI AND ERRONEOUSLY INTRODUCED OTHER BAD ACT EVIDENCE IN HIS CROSS-EXAMINATION OF DIPINI, AND APPELLATE COUNSEL WAS INEFFECTIVE FOR FAILING TO RAISE THIS ISSUE ON APPEAL.

POINT VI:

TRIAL COUNSEL FAILED TO ADEQUATELY PREPARE AND ADVISE THE DEFENDANT AS TO HIS ELECTION TO TESTIFY.

POINT VII:

TRIAL COUNSEL FAILED TO APPLY FOR A MOTION TO STRIKE FROM THE RECORD AND/OR REQUEST LIMITING INSTRUCTIONS ON DR. SINGH'S MODIFIED EXPERT OPINION TESTIMONY AFTER IT WAS REVEALED NOT TO [BE] BASED ON REASONABLE MEDICAL PROBABILITY OR CERTAINTY, AND APPELLATE COUNSEL FAILED TO RAISE THIS ISSUE OF APPEAL.

POINT VIII:

TRIAL COUNSEL FAILED TO OBJECT TO THE ADMISSIBILITY OF THE EXPERT TESTIMONY OF DR. TAFF ON THE GROUNDS THAT IT WAS DESIGNED TO IMPROPERLY ATTACK THE CREDIBILLITY OF DR. SINGH'S AUTOPSY FINDINGS AND ITS PREJUDICIAL EFFECT OUTWEIGHED ANY PROBATIVE VALUE AND APPELLATE COUNSEL FAILED TO RAISE THIS ISSUE ON APPEAL.

POINT IX:

APPELLATE COUNSEL FAILED TO RAISE ON APPEAL SEVERAL IMPROPER REMARKS IN THE PROSECUTOR'S SUMMATION WHICH WERE BEYOND THE SCOPE OF THE EVIDENCE, SUGGESTED THAT THE PROSECUTOR WAS IN POSSESSION OF ADDITIONAL EVIDENCE NOT REVEALED AT TRIAL, AND THAT THEIR CUMULATIVE EFFECT DENIED THE DEFENDANT A FAIR TRIAL.

POINT X:

APPELLATE COUNSEL FAILED TO RAISE ON APPEAL THAT THE DEFENDANT'S RIGHT TO PRESENT A DEFENSE UNDER THE CONFRONTATION CLAUSE WAS INFRINGED WHEN THE TRIAL COURT ERRONEOUSLY EXCLUDED RELEVANT EVIDENCE SEIZED BY THE POLICE FROM THE VICTIM'S CAR.

POINT XI:

PETITIONER RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL AND WAS DENIED A FULL AND FAIR HEARING ON FIRST PETITION FOR POST-CONVICTION RELIEF.

POINT XII:

DEFENDANT DID DEMONSTRATE A PRIMA FACIE CLAIM OF INEFFECTIVE ASSISTANCE OF COUNSEL THAT REPRESENTED HIM ON HIS FIRST PETITION FOR POST-CONVICTION RELIEF AND THE TRIAL COURT ERRED BY CONCLUDING OTHERWISE.

We reject these arguments substantially for the reasons set forth in the September 15, 2010 order of the trial court denying defendant's second petition for post-conviction relief. We only note that defendant's brief relies primarily upon arguments we have already rejected on his direct appeal and his appeal from the denial of his first petition and that defendant has failed to address the limitations upon second or subsequent petitions for post-conviction relief. Defendant's argument that he presented a prima facie case of ineffective assistance of the counsel assigned to represent him on his first petition for post-conviction relief is clearly without merit. R. 2:33-3(e)(2).

Affirmed.