STATE OF NEW JERSEY v. ANDRE PARRISH

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ANDRE PARRISH,

Defendant-Appellant.

______________________________

April 2, 2014

Submitted December 3, 2013 Decided

Before Judges Ostrer and Carroll.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 10-10-2527.

Andre Parrish, appellant pro se.

Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Lucille M. Rosano, Special Deputy Attorney General/ Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Andre Parrish appeals from his conviction after a guilty plea to committing simple assault, N.J.S.A. 2C:12-1(a)(1), against Jackeeja Motley. We affirm.

At the plea hearing on September 26, 2011, defendant admitted that he "struck [Motley] against her will" while he was in his home on May 11, 2010. In return for his plea, the State dismissed an indictment charging second-degree aggravated assault of Motley involving serious bodily injury, N.J.S.A. 2C:12-1(b)(1); third-degree aggravated assault of Tamika Paton involving significant bodily injury, N.J.S.A. 2C:12-1(b)(7); two counts of third-degree possession of a weapon, a baseball bat, for an unlawful purpose, N.J.S.A. 2C:39-4(d); and two counts of fourth-degree unlawful possession of a weapon, a baseball bat, N.J.S.A. 2C:39-5(d). With the parties' consent, the court immediately proceeded to sentencing without a pre-sentence investigation, and imposed a six-month period of probation, in accord with the plea agreement. The court imposed no special conditions of probation.

Underlying defendant's appeal is his claim that he struck Motley in self-defense. He alleged that he was attacked inside his home by the victims, whom he characterized as drunken unlawful intruders who had previously burned his clothing, stalked and harassed him, and threatened him. The record reflects that defendant moved to admit evidence of those prior incidents under N.J.R.E. 404(b).

We reviewed the incident in a separate appeal from a civil judgment obtained by Motley's cohort, Paton, after defendant's guilty plea. Paton v. Parrish, No. A-4997-11 (App. Div. September 13, 2013) (slip op. at 1). In the civil appeal, we noted that Paton and Motley were both former girlfriends of defendant. Motley was also the mother of defendant's child. Both went to defendant's home and started an altercation. Paton obtained a Special Civil Part judgment for the reimbursement of certain medical expenses. Id. at 4.

In affirming, we reviewed the trial court's findings. Notwithstanding that Paton and Motley did not come to defendant's house "'for good reasons,'" the trial court found that defendant did not use "'proper force.'" The victims were unarmed when defendant struck them, and police found no bleach or frying pan weapons defendant asserted the women intended to use against him. Id. at 3. We considered at some length, but rejected defendant's claim that he used justifiable force. Id. at 7-9.1

Defendant filed his initial notice of appeal of his conviction on October 5, 2011, and sought a free transcript and permission to proceed as an indigent. We dismissed the appeal and denied the motions without prejudice as defendant was still seeking relief from the trial court.2 In January 2012, the trial court granted defendant's motion for free transcripts. Defendant then filed a formal motion to withdraw his guilty plea in March 2012. He alleged that his attorney failed to properly investigate his case and was ill-prepared to present trial witnesses and evidence to support defendant's claim that he acted in self-defense. He claimed that he entered the plea to simple assault because he was unable to retain another lawyer prepared to try the case.

On May 22, 2012, the court denied defendant's motion to withdraw his guilty plea, after separately denying a motion for discovery of various police records. A transcript of the trial court's decision has not been provided to us.

Upon defendant's motion, we reinstated his appeal in July 2012. We later granted a motion to include the May 22, 2012, orders as part of defendant's appeal. Defendant presents the following points for our consideration:

POINT I: Discovery Evidence was suppressed by the prosecutor and the court. (Not raised below).

POINT II: Appellant had ineffective assistance of counsel. (Not raised below).

POINT III: Plea Was Accepted Without Adequate Factual Basis. (Not raised below).

POINT IV: Newark police internal affairs letter exonerating Officers of misconduct or violating New Jersey law on May 11, 2010 at defendant[']s home, also proves that defendant did not violate New Jersey domestic violence law. (Not raised below).

We have carefully and indulgently reviewed defendant's arguments in light of the record and applicable principles of law, recognizing that defendant is proceeding pro se. Nevertheless, we conclude that none of the arguments raised justify discussion in a written opinion. R. 2:11-3(e)(2). We add the following comments.

Defendant's admission that he struck Motley against her will provided a sufficient factual basis for his plea to simple assault. N.J.S.A. 2C:12-1(a)(1) (stating that a person commits assault when he purposefully, knowingly, or recklessly causes bodily injury to another).

Defendant also argues he was denied pre-trial discovery in violation of his constitutional rights under Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963). However, once defendant entered his plea of guilty, he waived any Brady violation unless he could show, on a motion to withdraw his plea, "a reasonable probability that but for the State's failure to disclose, [he] would not have pled guilty." State v. Parsons, 341 N.J. Super. 448, 452 (App. Div. 2001); see also State v. Crawley, 149 N.J. 310, 316 (1997) ("Generally, a defendant who pleads guilty is prohibited from raising, on appeal, the contention that the State violated his constitutional rights prior to the plea."). Although defendant filed a motion to withdraw his plea, he asserted that his plea was the product of his attorney's lack of preparation, not the State's discovery violations. Moreover, he has not provided us with the court's decision denying his withdrawal motion, nor directly challenged the court's ruling. Therefore, we need not reach the issue of whether there was a Brady violation.

Defendant also waived any claim of innocence by entering his plea of guilty. Although defendant admitted that Motley was present in his home at the time of the assault, that fact alone did not justify his assault, as he contends, nor establish a claim of self-defense. Therefore, we do not consider whether a pleading defendant's assertion of facts that he acted in self-defense renders a factual basis inadequate an issue now before the Supreme Court in the context of a plea to manslaughter. See State v. Urbina, No. A-1761-11 (App. Div. July 19, 2013), appeal docketed, No. A-49-13 (Aug. 30, 2013).

Finally, we also do not reach defendant's argument that his attorney was ineffective by failing to conduct an adequate investigation, and by being unprepared to try the case based on defendant's claim of self-defense. That claim is appropriately raised on a petition for post-conviction relief. See State v. Preciose, 129 N.J. 451, 460 (1992) ("Our courts have expressed a general policy against entertaining ineffective-assistance-of-counsel claims on direct appeal because such claims involve allegations and evidence that lie outside the trial record.").

1 We do not mean to imply that the civil court's rejection of defendant's self-defense claim would have been binding in a criminal trial; it would not, given the State's higher burden to disprove beyond a reasonable doubt that defendant was justified. See State v. Kelly, 97 N.J. 178, 200 (1984). We review the civil case to provide background not present in the sparse record before us in the present appeal.

2 The record before us does not indicate the subject of those proceedings, but we presume they pertained generally to his efforts to challenge his guilty plea.