STATE OF NEW JERSEY v. PATRICK FLYNN

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1972-10T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

PATRICK FLYNN,

Defendant-Appellant.

_________________________________________________

November 22, 2011

Argued November 9, 2011 - Decided

Before Judges Carchman and Fisher.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Accusation No. 06-09-09180.

Alessandro Di Stefano argued the cause for appellant(Stephen M.Pascarella, attorney).

Monica do Outeiro, Assistant Monmouth County Prosecutor, argued the cause for respondent (Peter E. Warshaw, Jr., Monmouth County Prosecutor, attorney; Ms. do Outeiro, of counsel and on the brief).

PER CURIAM

In entering a guilty plea on September 11, 2006, to two counts of second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1), and two counts of third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(7), defendant Patrick Flynn, a Point Pleasant Beach police officer, admitted he was intoxicated, with a blood alcohol content of .229, while driving well in excess of the speed limit through Brielle late one evening in June 2005, when he caused a multi-vehicle collision, which, in his words, "caused serious bodily injury to two people and significant bodily injury to another two." Pursuant to a plea agreement, Judge Patricia Del Bueno Cleary sentenced defendant, on January 5, 2007, to a five-year prison term subject to an 85% period of parole ineligibility, pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2, on one count of second-degree aggravated assault, and concurrent terms on the others.

Defendant appealed the judgment of conviction, arguing the sentence was excessive. We rejected that contention and affirmed. State v. Flynn, No. A-4750-06 (App. Div. Nov. 14, 2007).

Defendant filed a petition for post-conviction relief (PCR) on April 17, 2010, arguing, among other things, that his attorney failed to inform him of the nature and extent of the injuries the State claimed were suffered by his victims. He alleged in his petition that "[a]t the time of the plea I was required to stipulate that my actions resulted in serious bodily injury, yet I was neither apprised by [c]ounsel or, for that matter, anyone else, as to what constituted serious bodily injury nor was I advised as to certain other details concerning the alleged victims and their medical records." After hearing the argument of counsel, Judge Francis J. Vernoia denied relief, explaining by way of a thorough oral decision that defendant failed to sustain his burden of demonstrating the ineffectiveness of his trial attorney.

Defendant has appealed the denial of his PCR petition, presenting the following arguments for our consideration:

THE LOWER COURT ERRED IN DENYING DEFENDANT'S PETITION FOR POST CONVICTION RELIEF.

A. Defendant's Plea Was Neither Voluntary Nor With The Requisite Knowledge Of The Nature Of Charges For Which He Was Pleading Guilty.

B. Defendant Was Denied His Con-stitutional Right To Effective Assistance Of Counsel.

We find insufficient merit in these arguments to warrant discussion in a written opinion, R. 2:11-3(e)(2), and affirm. We add only the following brief comments.

In determining whether there has been a deprivation of an accused's Sixth Amendment right to the effective assistance of counsel, the Supreme Court of the United States constructed a two-pronged deficiency-and-prejudice standard. Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). When considering the deprivation of the state constitutional right to the effective assistance of counsel, we apply the same standard. See State v. Fritz, 105 N.J. 42, 58 (1987). When applied to challenges regarding the effective assistance of counsel at the plea stage, the Supreme Court has applied the same two-prong standard, see Hill v. Lockhart, 474 U.S. 52, 58, 106 S. Ct. 366, 371, 88 L. Ed. 2d 203, 210 (1985), as do our courts in considering whether the state constitution has been violated in that same circumstance, State v. DiFrisco, 137 N.J. 434, 456-57 (1994). To obtain relief from a guilty plea based on the ineffective assistance of counsel, "a defendant must show that (i) counsel's assistance was not 'within the range of competence demanded of attorneys in criminal cases,' Tollett v. Henderson, 411 U.S. 258, 266, 93 S. Ct. 1602, 1608, 36 L. Ed. 2d 235, 243 (1973); and (ii) 'that there is a reasonable probability that, but for counsel's errors, [the defendant] would not have pled guilty and would have insisted on going to trial,' Hill, supra, 474 U.S. at 59, 106 S. Ct. at 370, 88 L. Ed. 2d at 210." DiFrisco, supra, 137 N.J. 457.

The record before Judge Vernoia revealed that in discovery the State provided hundreds of pages of medical records concerning the injuries sustained by defendant's victims. The crux of defendant's argument is that he was not informed of the contents of the discovery in this regard and that he was not instructed about the meaning of a "serious bodily injury" necessary to sustain a conviction of second-degree aggravated assault. See N.J.S.A. 2C:12-1(b)(1). The testimony given by defendant at his plea hearing in response to Judge Cleary's questions, however, demonstrates he was informed of the contents of the discovery and freely acknowledged the injuries sustained by two victims constituted serious bodily injuries:

Q. Okay. What kind of injuries were there? Do you know?

A. I believe they were a pelvis injury and a head trauma to one of the victims.

Q. So you agree that those were serious bodily injuries?

A. Yes, I do.

Q. And what about the other count? There's another serious bodily injury. Do you know what those injuries were?

A. No, I don't know.

Q. Well, didn't [your defense counsel] give you some discovery to read, the police reports?

A. Yes, I have that.

Q. Okay. And what did they show?

A. That they were hurt. I don't recall exactly their injuries. I think it was a knee and an elbow, but I'm not too sure.

The assistant prosecutor then summarized in the following way the injuries sustained by the four persons injured in the accident caused by defendant:

Count one . . . was the fractured left arm, broken right leg, lacerations to head and face, loss of range of motions in both the arm and leg. For count two, which is L.I., the injury was a grade two liver laceration, fractures to the wrist, to the forearm, also a fracture to the tailbone and pelvic bone and permanent scars.

To . . . J.B.F[.], which I think is count 3, Judge, the significant bodily injury, the individual had a sprained neck and a forearm laceration. And for C.A., which is count 4, is a cervical sprain, lacerations to the right forearm and not permanent but temporary loss of range of motions to body and arms.

Immediately after that explanation, the following testimony was given by defendant in response to Judge Cleary's questions:

Q. So you agree that two of them were serious bodily injury?

A. Yes, I do.

Q. And that you caused that?

A. Yes.

Q. And that the other two were significant and you caused that also?

A. Yes, I did.

. . . .

Q. So you agree that your actions caused serious bodily injury and also significant bodily injury?

A. Yes, I do.

Clearly, the judge's question delineated between those victims that had been caused serious bodily injury and those that had suffered significant bodily injury. Defendant expressed no confusion or uncertainty about those two terms and freely acknowledged two victims suffered serious bodily injuries and two victims sustained significant bodily injuries.

This testimony belies both the contention that defense counsel did not adequately inform defendant of the nature of the charges and the argument that defendant did not understand the meaning of "serious bodily injury"; as a result, these arguments were rightly rejected by Judge Vernoia. Absent a genuine dispute about these circumstances, Judge Vernoia was not obligated to conduct an evidentiary hearing and correctly concluded that defendant failed to satisfy his burden of proving both prongs of the Strickland/Fritz test.