STATE OF NEW JERSEY v. ARNOLD BORRERO

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5784-06T45784-06T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ARNOLD BORRERO,

Defendant-Appellant.

___________________________________

 

Submitted: October 16, 2008 - Decided:

Before Judges Parrillo and Lihotz.

On appeal from Superior Court of New Jersey, Law Division, Essex County, Municipal Appeal No. 2006-077.

Alan M. Liebowitz, LLC, attorney for appellant (Mr. Liebowitz and Daniel P. McNerney, on the brief).

Paula T. Dow, Essex County Prosecutor, attorney for respondent (Jennifer C. Fetterman, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Following a trial de novo in the Law Division, defendant, Arnold Borrero, appeals from his conviction of the disorderly persons offense of simple assault N.J.S.A. 2C:12-1(a)(1). On appeal, defendant presents the following arguments:

POINT ONE

I. BOTH TRIAL COUNSEL AND APPELLATE COUNSEL PROVIDED INEFFECTIVE ASSISTANCE TO THE DEFENDANT BY FAILING TO REPRESENT HIM IN A MANNER THAT WAS COMPETENT AND CREDIBLE. (Not Raised Below).

A. TRIAL COUNSEL'S FAILURE TO CALL JUAN CARLOS AVILEZ AS A WITNESS - AND APPELLATE COUNSEL'S FAILURE TO ARGUE SAME - WHO WOULD HAVE TESTIFIED THAT THE ALLEGED VICTIM ATTEMPTED TO SEEK HIS FALSE TESTIMONY CONSTITUTED INEFFECTIVE ASSISTANCE.

B. TRIAL COUNSEL'S FAILURE TO CALL A REPRESENTATIVE OF THE ESSEX COUNTY PROSECUTOR'S PROFESSIONAL STAND-ARD'S UNIT - AND APPELLATE COUNSEL'S FAILURE TO ARGUE SAME - CONSTITUTED INEFFECTIVE ASSISTANCE OF COUNSEL.

C. TRIAL COUNSEL'S FAILURE TO OBJECT TO UNCORROBORATED PHOTOGRAPHS - AND APPELLATE COUNSEL'S FAILURE TO ARGUE SAME - CONSTITUTED INEFFECT-IVE ASSISTANCE OF COUNSEL.

D. TRIAL COUNSEL'S FAILURE TO ESTABLISH SARAH LESENDE'S ULTERIOR MOTIVES - AND APPELLATE COUNSEL'S FAILURE TO ARGUE SAME - CONSTITUTED INEFFECTIVE ASSISTANCE OF COUNSEL.

Based upon our review of the record and applicable law, in light of defendant's contentions, we affirm, noting defendant's assertions of ineffective assistance with respect to failure to present witnesses are preserved and may be presented in a motion for post-conviction relief.

On October 18, 2004, defendant Arnold Borrero, a former Newark Police Officer, was driving to traffic court. Ahead of him was a vehicle driven by Sara Lesende. Lesende was driving slowly and periodically stopping her vehicle as she searched for a parking space. Defendant and other drivers were honking their horns. Defendant exited his van and approached Lesende's car, motioning her to pull over, but her vehicle moved forward. Lesende had noticed defendant's van behind her and once waved, signaling him drive around her vehicle. Lesende then turned right and intended to turn left when she spotted a parking spot. Defendant followed her and angled his van to prevent her from moving.

Defendant exited his van and strode toward Lesende, intending to give her a traffic citation for obstructing traffic. Lesende testified defendant was angry and uttering profanities. She suggests defendant never specifically identified himself as a police officer and she did not recognize his clothing as that of a police uniform. The two were yelling. Defendant testified he was requesting Lesende's license, registration and insurance. Lesende testified defendant was screaming obscenities and calling her derogatory names; she was confused and panicked. Using his cell phone, defendant called for a police car to assist him.

At this point the parties' stories diverge. Lesende testified she was trying to put the car in park and may have "mistakenly" put the car in reverse. Other witnesses stated Lesende's vehicle moved about six inches in reverse while defendant was adjacent to it. Suddenly, Lesende "felt a punch" on her left side. Defendant had opened her car door and began pulling her hair, scratching her neck, and punching her ribs. The blows knocked Lesende's braces off her upper teeth. When Luis Cal a bystander approached, defendant drew his gun, aimed it at Cal, and threatened him in course and obscene language.

Defendant testified Lesende was uncooperative and hysterical. When he called for another officer to assist, Lesende stated she was not sticking around. She placed the car in reverse and defendant believed she was going to drive off. To prevent Lesende's escape, defendant reached into her car and attempted to turn off the ignition and grab the keys. Lesende began to scream, slap and scratch defendant. Cal approached defendant, tapped him on the shoulder told defendant to leave Lesende alone. Cal took a boxing stance, causing defendant to draw his weapon. Defendant stated he did not aim his weapon or threaten Lesende, use profane language, strike her, or call her derogatory names.

Sergeant Ernest Grabowsky and Patrolman Allen Marfia of the Newark Police Department (NPD) responded to defendant's call. Marfia handcuffed Lesende, and placed her in a patrol car. Grabowsky noticed scratches on defendant's arms and face.

Lesende was cited for two traffic violations and given a summons for aggravated assault on a police officer, N.J.S.A. 2C:12-1(b), and resisting arrest, N.J.S.A. 2C:29-2. Based upon Lesende's complaint, defendant was charged under summonses S-2005-004606-0714 and S-2005-004609-0714. The initial charges were downgraded to two counts of simple assault, N.J.S.A. 2C:12-1(a)(1), simple assault, N.J.S.A. 2C:12-1(a)(3), and disorderly conduct, N.J.S.A. 2C:33-2(a)(1).

Defendant was tried by the Newark Municipal Court and found guilty of one count of simple assault, N.J.S.A. 2C:12-1(a)(1). The municipal court judge imposed a non-custodial, non-probationary sentence, fining defendant $250 and imposing $30 costs, a $50 Victims of Crime Compensation Board penalty and a $75 Safe Neighborhood Services assessment.

Defendant appealed to the Law Division. A de novo trial in the Law Division on the municipal court record, pursuant to Rule 3:23-8(a), was held. Judge Costello accepted the credibility determinations of the municipal court, made independent findings of fact and concluded defendant was guilty of simple assault and entered the same sentence as the municipal court.

Upon review of the Law Division decision, we must determine whether there is sufficient credible evidence present in the record to uphold the findings of the Law Division, not the municipal court. State v. Johnson, 42 N.J. 146, 162 (1964); State v. Loce, 267 N.J. Super 102, 104 (Law. Div. 1991), aff'd o.b., 267 N.J. Super. 10 (App. Div.), certif. denied, 134 N.J. 563 (1993), cert. denied, 510 U.S. 1165, 114 S. Ct. 1192. 127 L. Ed 2d 542 (1994). However, we may not weigh or make conclusions regarding the evidence. State v. Barone, 147 N.J. 599, 615 (1998). Also, like the Law Division, we de not judge credibility, but give due regard to the municipal court's credibility determinations. State v. Locurto, 157 N.J. 463, 470-71 (1999); State v. Cerefice, 335 N.J. Super. 374, 383 (App. Div. 2000).

Defendant argues his conviction must be overturned because of trial and appellate counsel's failure to call witnesses, object to evidence admitted, and effectively cross-examine the state's witnesses deprived him of effective representation. Before reviewing these contentions, we briefly state the applicable law.

To establish a claim of ineffective assistance of counsel, a defendant must satisfy the two-prong test formulated in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984), and adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987). First, he must demonstrate that his attorney's performance was deficient by "showing that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. Second, "'defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.'" State v. Marshall, 148 N.J. 89, 157 (quoting Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698), cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997).

"The burden to prove that incompetence of counsel had a prejudicial effect upon the outcome of the proceeding is squarely on the defendant." State v. Paige, 256 N.J. Super. 362, 377 (App. Div.), certif. denied, 130 N.J. 17 (1992). As noted in Strickland:

Judicial scrutiny of counsel's performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action "might be considered sound trial strategy."

[Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694-95 (internal citation omitted).]

Generally, we do not entertain ineffective-assistance-of-counsel claims on direct appeal. State v. Preciose, 129 N.J. 451, 460 (1992); State v. Dixon, 125 N.J. 223, 262 (1991). This is because ineffective assistance of counsel claims "involve allegations and evidence that lie outside the trial record." Ibid.; State v. Castagna, 187 N.J. 293, 313 (2006). However, the rule is not absolute. When the trial record is adequately developed to provide a basis to evaluate defendant's claims, we may consider the issue on direct appeal. State v. O'Neal, 190 N.J. 601, 634-635 (2007) (Rivera-Soto, J. concurring). With these principles in mind, we examine defendant's claims challenging the effectiveness of his representation.

First, defendant argues counsel failed to call trial witnesses. Defendant states Lesende identified Juan Carlos Avilez as an eye witness to the events. However, internal affairs officer, Sergeant Lillian Carpenter, confirmed Avilez was not present. Defendant suggests counsel should have called Avilez to undermine Lesende's credibility and expose her plan to develop a civil action against defendant. Additionally, defendant identifies Investigator Frank Herrmann, a member of the Professional Standards Bureau of the prosecutor's office responsible for conducting the NPD administrative investigation of the alleged misconduct. Defendant asserts Herrmann would have revealed evidence collected that proved Lesende's acts of false swearing.

During the municipal court trial, Carpenter testified and briefly mentioned Lesende identified Avilez as an eye witness. However, the conclusions drawn following her investigation of that claim were excluded, following objection. Defendant did not present evidence of Herrmann's testimony to the municipal court or the Law Division. Prior to sentencing in the municipal court, defendant's statements suggest he knew the internal investigation had cleared him of wrongdoing. However, the record is not clear as to the availability or substance of Herrmann's potential testimony. It is likely defendant had a reasonable opportunity to raise his claim in the earlier Law Division proceeding, which would have possibly supported a claim for the ineffectiveness of appellate counsel.

Lesende's credibility was vital to the State's case. Arguably, evidence challenging her truthfulness may have had significant impact on the weight of the evidence offered. Also of relevance is whether the proposed additional witnesses were available and not called as a matter of trial strategy, or whether their testimony, if presented, would have sufficiently altered the outcome of defendant's trial as he contends. The answers to these questions lie outside the record as they require presentation of additional evidence, and must await a post-conviction relief petition. Castagna, supra, 187 N.J. at 316.

Defendant next argues counsel was ineffective for failing to object to the authenticity of the photographic evidence of Lesende's injuries presented by the State. Lesende testified the pictures offered in evidence depicted injuries she suffered as a result of defendant's conduct. She stated her husband took the photographs shortly after the incident. Lesende's husband was not called at trial because counsel stipulated to the admissibility of the photographs. Defendant now asserts defense counsel should have objected to the introduction of the evidence at trial because the photographs were not authenticated.

We reject defendant's contention. Defendant also introduced photographs of Lesende taken by the NPD on the date of the incident, which contradicted the State's evidence. Second, the Law Division's support for the finding of simple assault resulted from the testimony of Cal and Lesende, and defendant's incredible explanation for Lesende's injuries. The photographic evidence merely corroborated Lesende's testimony of injury.

Reviewing counsel's performance as a whole, we cannot conclude the failure to object to the unauthenticated photographs meets either the performance or prejudice prongs of the Strickland/Fritz test. Counsel's decision did not rise to "'such magnitude as to thwart the fundamental guarantee of [a] fair trial.'" Castagna, supra, 187 N.J. at 315 (quoting State v. Buonadonna, 122 N.J. 22, 42 (1991)).

Defendant's final attack on counsel's competence asserts the failure to highlight Lesende's possible motive for testifying. Defendant argues Lesende's claims were in furtherance of a civil action against defendant and the City of Newark, and her student visa may have been "reneged or revoked" if she assaulted a police officer. We are hard pressed to understand the basis for the latter proposition in light of the fact that separate charges were pending against Lesende. As to a potential civil action, the record shows Lesende was cross-examined on her pursuit of a civil suit adequately attacking her motivation. Thus, we conclude defendant's argument lacks merit.

After reviewing the record and applicable law in light of the contentions advanced by defendant, we conclude the findings by the Law Division judge are firmly supported by sufficient credible evidence, and her conclusions, predicated on those findings, are legally sound. Id. Accordingly, we affirm defendant's conviction.

Affirmed.

 

Additional charges were issued against Lesende for knowingly making a false statement, N.J.S.A. 2C:28-2(a) and making a false police report, N.J.S.A. 2C:28-4(b). Lesende's downgraded charges were pending.

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A-5784-06T4

December 5, 2008