STATE OF NEW JERSEY v. ROBERT TODD

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3668-05T43668-05T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ROBERT TODD,

Defendant-Appellant.

________________________________

 

Submitted April 18, 2007 - Decided May 7, 2007

Before Judges Parrillo and Sapp-Peterson.

On appeal from the Superior Court of New Jersey,

Law Division, Hudson County, Indictment No. 0389-02-00.

Yvonne Smith Segars, Public Defender, attorney for appellant (Joan T. Buckley, Designated Counsel, of counsel and on the brief).

Edward J. De Fazio, Hudson County Prosecutor, attorney for respondent (Nicole D. DePalma, Assistant Prosecutor, on the brief).

PER CURIAM

Defendant Robert Todd appeals from an order of the Law Division denying his petition for post-conviction relief (PCR). We affirm.

By way of background, following a jury trial, defendant was convicted of third-degree burglary of a 1989 Chevrolet, N.J.S.A. 2C:18-2; third-degree attempted theft of a 1989 Chevrolet, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:20-3; third-degree aggravated assault on a police officer, N.J.S.A. 2C:12-1b(5)(a); and fourth-degree resisting arrest, N.J.S.A. 2C:29-2a(3)(a). Defendant was sentenced to an extended term of seven years with three years of parole ineligibility on the burglary conviction; concurrent five-year terms with two years of parole ineligibility on the attempted theft and aggravated assault convictions, to run concurrent to the burglary sentence; and a concurrent eighteen-month term on the resisting arrest conviction. Appropriate fees and penalties were also imposed.

The facts underlying defendant's judgment of conviction were succinctly stated in our decision on appeal:

Around 4:00 a.m. on May 16, 1999, North Bergen Police Officers Mark Johnson and Louis Farago observed defendant and co-defendant Jon Scott quickly exit two separate parked vehicles from the passenger side onto the curb in the area of 11th Street and Grand Avenue. As the patrol car pulled up next to the vehicles, Officer Johnson observed that the vehicle from which defendant had exited - a 1989 black Chevrolet Celebrity - had a broken window as well as damage to the left side of the steering column and the passenger side window. He also noticed that the glove box was opened and its contents were spilled on the floor of the car.

As Officer Johnson approached, Scott jumped over a fence and fled, but was later apprehended by another police officer responding to the scene. Meanwhile, defendant walked away with a can of Budweiser in his hand, ignoring repeated commands from Officer Farago for him to stop. Eventually, Officer Farago caught up with defendant, who appeared to be intoxicated. Officer Farago grabbed defendant by his pants to help steady him, walked him over to the police vehicle, and ordered him to put his hands on its hood. Defendant did not respond to this request either, so Farago used his own foot to spread defendant's legs apart. Complaining that he was "just drinking his beer," and "want[ed] to be left alone," defendant also refused to allow Farago to handcuff him, despite being told repeatedly to stop resisting and that the restraints were necessary so the officers could talk to him and figure out what had transpired.

Defendant continued to struggle for a few more minutes but was eventually handcuffed. Once inside the police vehicle, however, defendant laid on his back and began to kick the rear window with his feet. By this time, other police officers had responded to the scene, including Officers Johnson and Mulholland who had returned with co-defendant Scott. As soon as Officer Farago let defendant out of the car to adjust his handcuffs, which had tightened up on his wrists as he was squirming around, defendant turned and kicked Officer Howard in the groin, causing him pain for about two minutes. When he attempted to kick Officer Howard again, Officer Farago leaned heavily on defendant and eventually managed to adjust his handcuffs. Defendant refused to get back into the patrol car despite the many attempts to push him inside, and complied only after being administered a shot of pepper spray to his face. Defendant was then buckled into the seat and his eyes were cleared out with hydromist and later, back at police headquarters, thoroughly washed out.

The owner of the l989 Chevrolet, Dennis Queally, identified his vehicle at the impound where it had been towed for safekeeping. At that time, Queally noticed, among other things, the broken passenger side window and a half of a six-pack of Budweiser beer in the car that was not in the vehicle when he had parked it.

[State v. Robert Todd, No. A-1055-00T4, (App. Div. October 10, 2003) (slip op. at 5-7).]

As noted, defendant appealed, contending, among other issues, that the trial court erred in denying his request for discovery of police internal affairs documentation, and that counsel was ineffective for, among other things, failing to conduct an effective investigation and failing to pursue discovery, call witnesses and present evidence. In an unpublished opinion, we affirmed the judgment of conviction, specifically finding the discovery issue without merit, Rule 2:11-3(e)(2), inasmuch as "no basis whatsoever has been provided for discovery of police internal affairs records[,]" and the myriad claims of ineffective assistance of counsel more appropriate for PCR consideration. State v. Todd, A-1055-00T4 (App. Div. October 10, 2003) at 7-8. On January 29, 2004, the Supreme Court denied defendant's petition for certification. State v. Todd, 178 N.J. 455 (2004).

Subsequently, defendant filed a PCR petition, alleging ineffective assistance of trial counsel for failing to, among other things, pursue allegations of police brutality and discovery of internal police records. Following argument, the motion judge, who had also presided over defendant's jury trial, denied the petition, reasoning:

The defendant contended at trial and maintains that Internal Affairs documents from North Bergen, medical intake records to corroborate his version of physical injury, arrest photograph, his mug shot indicating physical injury following his arrest or what he says would be indicated, and transcripts or prior status conferences, Grand Jury proceedings, plea hearings, would support his contention of prosecutorial misconduct and police brutality. He contended that all of this was crucial to his defense. And I think that efforts were made to obtain documents that were -- that might have borne on those issues, but none of this is crucial to his defense, number one, and failure to present them does not make trial counsel so deficient to have denied the defendant counsel.

Again, as with the prior claim, the claim for Internal Affairs records that show police brutality was raised in the appeal of Mr. Todd and the Appellate Division stated there was no basis for the claim. There was much discussion and there was a lot of allegations by Mr. Todd. Photographs were adduced that showed not very much. There was never any -- there was never any support that more than reasonable force was used on Mr. Todd. And, in fact, it appears Mr. Todd used more -- even handcuffed -- used more force on the police than they used on him.

We did get the medical intake records. I think I gave a recess. I gave [defense counsel] whatever assistance I could have given him. There was even assistance from the Prosecutor's Office in trying to find out who would have been the person who took the pictures that he wanted to put into evidence, and that person was found and the picture of Mr. Todd and the arrest photo were entered into evidence and we avoided the need to have Mr. Todd with his criminal record testify about that.

So I am really at a loss to see how Mr. Todd could have been prejudiced by the absence of any additional records. The records were there. They showed what they showed. It wasn't very much in terms of police brutality and the relevance of that was really only, I guess, to two of the charges [i.e. resisting arrest and aggravated assault].

So having looked at the transcripts, having had the opportunity to review the transcripts, review the briefs of counsel, review the Appellate Division's opinion, it appears to me that Mr. Todd was not denied effective assistance of counsel. That counsel did what was possible to do for him and that any of the things that Mr. Todd is seeking, even -- actually, most of them were produced and made available to him -- would not have changed the outcome of the case. The evidence was very strong that the officers -- several officers testified as to his conduct. I can still remember the testimony of the officer who was kicked and his -- you know, how he explained his testimony to the jury.

[Defense counsel], I think, as trial counsel did his best to limit whatever harmful effects of that testimony could -- would have come out, and I certainly can't say he was ineffective. He did the best he could under the circumstances and any of the things that Mr. Todd appears to be raising, many of them have already been raised in his appeal and were denied by the Appellate Division, and the remainder would not have in my view changed the outcome of this case in any way, shape or form. I do not find counsel to have been ineffective in the first instance, in any event.

On appeal, defendant raises the following issue for our consideration:

THE LOWER COURT SHOULD HAVE ORDERED A FULL EVIDENTIARY HEARING IN CONNECTION WITH THE DEFENDANT'S POST CONVICTION RELIEF PETITION BECAUSE THE DEFENDANT PRESENTED A PRIMA FACIE CASE OF THE INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL BASED ON THE COUNSEL'S FAILURE TO ADEQUATELY PURSUE ALLEGATIONS OF POLICE BRUTALITY AND/OR MAKE A REASONABLE MOTION FOR DISCOVERY OF INTERNAL POLICE RECORDS.

We have considered this issue in light of the record, the applicable law, and the arguments of counsel, and we are satisfied that it is not of sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(2). Accordingly, we affirm substantially for the reasons expressed by Judge Kenny in her oral opinion of January 19, 2006. We add, however, only the following comments.

It is virtually axiomatic that in order for defendant to obtain relief based on ineffective assistance grounds, he is obliged to show not only the particular manner in which counsel's performance was deficient but also that the deficiency prejudiced his right to a fair trial. See, e.g., Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693, reh'g denied, 467 U.S. 1267, 104 S. Ct. 3562, 82 L. Ed. 2d 864 (1984); State v. Fritz, 105 N.J. 42, 52 (1987). Moreover, to warrant an evidentiary hearing, defendant must establish a prima facie claim of ineffective assistance of counsel, which requires more than bald assertions. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). Rather, defendant "must allege facts sufficient to demonstrate counsel's alleged substandard performance." Ibid. When defendant claims ineffective assistance of counsel based, as here, on inadequate investigation of his case, "he must assert the facts that an investigation would have revealed, supported by affidavits or certifications based upon the personal knowledge of the affiant or the person making the certification." Ibid.

Here, defendant contends that counsel failed to investigate defendant's allegations that the same officers who he claimed beat him up had also allegedly beaten up another individual by the name of Caleb Thomas. However, defendant has offered absolutely no proof that had his allegation been investigated, it would have been substantiated; or that even if substantiated, his discovery motion would have been granted; or that discovery of internal police records would have substantiated his claim of police brutality; or lastly that defendant would likely have been found not guilty of the aggravated assault and resisting arrest charges, let alone the burglary and attempted theft charges that were completely unrelated to the issue of police use of force, and were all, in any event, supported by overwhelming evidence. Especially where discovery is sought of confidential police internal affairs records, defendant must advance "some factual predicate making it reasonably likely that information in the file" will bear such fruit. State v. Harris, 316 N.J. Super. 384, 387, 397-400 (App. Div. 1998) (emphasis added); see also State v. Jones, 308 N.J. Super. 15, 44-45 (App. Div. 1998); State v. Kaszubinski, 177 N.J. Super. 136, 139-41 (Law Div. 1980). In this case, defendant's bare assertion, without more, is insufficient to support a prima facie case of ineffectiveness, and therefore an evidentiary hearing into his claim was simply not warranted. We are satisfied that defendant's claim fails to meet either the performance or prejudice prong of the Strickland test.

 
Affirmed.

(continued)

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A-3668-05T4

May 7, 2007