STATE OF NEW JERSEY v. BRIAN HOFFMAN

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1830-11T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

BRIAN HOFFMAN,

Defendant-Appellant.

___________________________________________________________

October 29, 2013

Submitted March 18, 2013 - Decided

Before Judges Graves and Espinosa.

On appeal from Superior Court of New Jersey,

Law Division, Atlantic County, Indictment No.

05-11-2403.
 

Joseph E. Krakora, Public Defender, attorney

for appellant (Michele C. Buckley, Designated

Counsel, on the brief).

James P. McClain, Acting Atlantic County

Prosecutor, attorney for respondent (Jack J.

Lipari, Special Deputy Attorney General/

Acting Chief Assistant County Prosecutor,

of counsel and on the brief).

Appellant filed a pro se supplemental

brief.

The opinion of the court was delivered by

GRAVES, J.A.D.

Defendant Brian Hoffman appeals from an April 11, 2011 order denying his petition for post-conviction relief (PCR) without an evidentiary hearing. We affirm.

Following a jury trial, defendant was found guilty of: first-degree attempted murder, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3(a)(1) and (2) (count one); second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1) (count two); third-degree threat to kill, N.J.S.A. 2C:12-3(b) (count three); fourth-degree unlawful possession of a weapon (a knife), N.J.S.A. 2C:39-5(d) (count four); third-degree possession of the same knife for an unlawful purpose, N.J.S.A. 2C:39-4(d) (count five); and fourth-degree contempt for violating a domestic violence restraining order, N.J.S.A. 2C:29-9(b) (count six). The victim was defendant's former wife.

At sentencing on May 4, 2007, the victim stated that the "heroic efforts" of a trauma physician at the Atlantic City Medical Center saved her life. The court described the brutal attack upon the victim as follows:

On the day in question, the victim was working outside in her front yard when the defendant abruptly pulled up in his motor vehicle, got out and pursued her with a knife, telling her that he was going to kill her and her children. He stabbed her several times about the neck and back area, kicked her and when a neighbor responded to the victim's calls for help, was seen to be standing over her banging her head on the concrete as she laid prone. The victim suffered life-threatening injuries and injury to the larynx causing her temporarily [to lose] her ability to speak and to the present day causing her difficulty in swallowing.

The court merged count two into count one and sentenced defendant to a twenty-year term of imprisonment for attempted murder with seventeen years of parole ineligibility under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. The court imposed concurrent five-year terms on counts three and five; a concurrent eighteen-month term on count four; and a consecutive eighteen-month term for violating the domestic violence restraining order (count six) with nine months of parole ineligibility. Thus, the court sentenced defendant to an aggregate term of twenty-one-and-one-half years in prison with seventeen years and nine months of parole ineligibility.

On his direct appeal, defendant presented four arguments:

POINT I

THE COURT ERRED IN ADMITTING HIGHLY PREJUDICIAL STATEMENTS THAT DEFENDANT MADE TO A PSYCHOLOGIST IN 1992 WHILE INCARCERATED.

POINT II

THE COURT ERRED IN FAILING TO CHARGE THE LESSER-INCLUDED OFFENSES OF AGGRAVATED ASSAULT.

POINT III

WHEN IN SUMMATION THE PROSECUTOR CALLED THE DEFENDANT A MANIACAL WOULD-BE MURDERER, LABELED THE DEFENSE PREPOSTEROUS, AND MISSTATED THE LAW, HE EXCEEDED THE BOUNDS OF PROPRIETY AND DEPRIVED THE DEFENDANT OF A FAIR TRIAL. (NOT RAISED BELOW).

POINT IV

THE DEFENDANT WAS SENTENCED TO A MANIFESTLY EXCESSIVE TERM OF 20 YEARS WITH A 85% PAROLE BAR UNDER NERA, AND A CONSECUTIVE EIGHTEEN-MONTH TERM WITH A NINE-MONTH PAROLE BAR.

We rejected these arguments in an unpublished opinion. State v. Hoffman, No. A-6196-06 (App. Div. Mar. 18, 2009), certif. denied, 199 N.J. 515 (2009). In that opinion, we stated the victim was "outside doing light yard work" when defendant approached her with "a knife in his hand" at approximately 10:00 a.m. on September 7, 2005. Id., slip op. at 4. The victim began to run but defendant caught her, grabbed her by the hair and stabbed her. The victim testified she "felt a total of seven stab wounds, three to her neck and four to her back. While defendant stabbed her, he stated he was going to kill the rest of the family after he killed her." Ibid.

In our prior opinion, we noted that the surgeon who treated the victim testified "the three stab wounds to her neck were the most significant," and he "described the wounds as life threatening." Id., slip op. at 5-6. We also stated:

In addition to stabbing [his former wife], defendant beat her brutally. He kicked her, ripped both hoop earrings from her earlobes, and smashed her head on the curb. She sustained numerous bruises, including broken ribs.

The attack lasted between five and ten minutes. While it was happening, [the victim] was screaming and bleeding profusely. Michael Caiazza, who lived across the street, heard her screams and came to her aid. When Caiazza yelled, "Get away from her," defendant turned, looked, ran to his truck, and fled.

. . . .

As to the September 7, 2005 attack, defendant testified that he initially thought it was one of his daughters in the yard. Then, he realized it was his former wife and she had a knife in her hand. He insisted that his former wife approached him and he grabbed her arm because he thought she intended to stab him. He conceded that once he wrestled the knife from her, anger consumed him.

[Id., slip op. at 4-6.]

We concluded "the evidence of defendant's guilt was overwhelming." Id., slip op. at 14. We also concluded that the court imposed a reasonable sentence.

Defendant filed a petition for PCR alleging, among other things, that his trial attorney was ineffective for failing to: adequately prepare for trial, competently argue that statements he made to a psychologist were inadmissible, object to comments by the prosecutor during closing arguments, make a motion to recuse the trial judge, and employ an effective trial strategy.

Following the assignment of counsel, the submission of briefs, and oral argument on January 31, 2011, the PCR court denied the application. The court explained its reasoning for denying defendant's petition in a sixty-seven page written decision, which addressed each of defendant's arguments. The court concluded defendant failed to establish a prima facie claim of ineffective assistance of counsel because none of the alleged deficiencies in performance would have made a difference in the result.

On appeal from the order denying his petition, defendant presents the following arguments through counsel:

POINT I

THE TRIAL COURT ERRED IN DENYING MR. HOFFMAN'S PETITION FOR POST-CONVICTION RELIEF BASED ON HIS CLAIM OF INEFFECTIVE ASSISTANCE OF COUNSEL WHERE IT WAS SHOWN THAT COUNSEL FAILED TO ADEQUATELY PREPARE FOR TRIAL.

POINT II

MR. HOFFMAN WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL WHERE TRIAL COUNSEL FAILED TO COMPLETELY AND PROPERLY ARGUE THAT THE TESTIMONY OF [A PSYCHOLOGIST] WAS INADMISSIBLE.

POINT III

MR. HOFFMAN WAS DENIED HIS CONSTITUTIONAL RIGHT TO EFFECTIVE ASSISTANCE OF TRIAL COUNSEL WHERE TRIAL COUNSEL FAILED TO OBJECT TO THE PROSECUTOR'S IMPROPER COMMENTS DURING CLOSING ARGUMENTS.

POINT IV

MR. HOFFMAN WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL AND A FAIR TRIAL WHEN TRIAL COUNSEL FAILED TO MAKE A MOTION FOR THE JUDGE TO RECUSE HIMSELF BECAUSE OF HIS BIAS AGAINST THE DEFENDANT.

POINT V

THE PCR COURT IMPROPERLY DENIED MR. HOFFMAN'S PETITION FOR POST-CONVICTION RELIEF WITHOUT CONDUCTING AN EVIDENTIARY HEARING IN THIS MATTER.

Additionally, defendant argues in a pro se supplemental brief that he was "denied the effective assistance of counsel, due process of law, and [the] right to a fair trial." Defendant also contends he "received an illegal sentence."

Based on our examination of the record, we are convinced that defendant's arguments are clearly without merit. R. 2:11-3(e)(2). We affirm substantially for the reasons stated by Judge Charles Middlesworth, Jr., in his comprehensive written decision with these brief comments.

Pursuant to the Sixth Amendment of the United States Constitution, the right to counsel is recognized as the right to the effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 684-86, 104 S. Ct. 2052, 2063-64, 80 L. Ed. 2d 674, 691-92 (1984). In Strickland, the United States Supreme Court created a two-part test to determine whether a defendant received ineffective assistance of counsel. Id. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. "First, the defendant must show that counsel's performance was deficient" by establishing "that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Ibid. "Second, the defendant must [demonstrate] that the deficient performance prejudiced the defense" by "showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Ibid. Under this prong, "[t]he 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." Id. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698; see also State v. Fritz, 105 N.J. 42, 58 (1987) (adopting the Strickland test and applying it to the guarantee of effective assistance of counsel in Article I, Paragraph 10 of the New Jersey Constitution).

In the present matter, Judge Middlesworth found that defendant failed to establish a prima facie case of ineffective assistance, and the record fully supports that determination. See State v. Velez, 329 N.J. Super. 128, 133 (App. Div. 2000) ("Neither the Sixth Amendment nor our rules call for an attorney to be 'effective' in terms of crafting a defense when none actually exists.").

A