On appeal from the Superior Court of New Jersey, Law Division, Criminal Division, Monmouth County, Indictment No. 00-10-1644.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 5, 2006
Before Judges Parrillo and Sapp-Peterson.
In this consolidated appeal, defendant Michael Blacknall challenges the denials of his petition for post-conviction relief (PCR) and motion for a new trial. We affirm.
Tried by a jury, defendant was convicted of third-degree aggravated assault on a corrections officer, N.J.S.A. 2C:12-1b(5)(a), and with third-degree resisting arrest, N.J.S.A. 2C:29-2a. These charges arise out of an incident on April 29, 2000 in the parking lot of a VFW in Freehold, where corrections officers on duty at the nearby county jail had been summoned on reports of gunshots. Upon arrival, Officers Citarella and Georgalas observed defendant acting belligerently and yelling obscenities at the corrections officers while seated on the hood of his car. When told to get off the car and place his keys on the hood, defendant responded with an obscenity as he did when later ordered to put his hands on the hood, and then to submit to a pat down. Although he eventually complied, during the pat down defendant immediately removed his hands from the hood twice, causing Citarella to place him under arrest. When told to put his hands behind his back, defendant spun around and struck Citarella in the nose to chin area with the back of his arm close to the elbow. Citarella grabbed defendant, swept his legs out from under him, and wrestled him to the ground. After a brief struggle, Citarella finally was able to handcuff defendant with the assistance of another officer. Citarella later went to Jersey Shore Hospital to treat injuries sustained in the incident. According to Citarella, he suffered lacerations to his knee, a pulled hip, scrapes and bruises to the left elbow, a cut lip, and a small chip on one tooth.
Defendant offered a different version at trial. According to defendant, he was peaceably attempting to leave, became confused when faced with conflicting orders from the officers and scared because a gun was pointed at him, and did nothing to provoke Citarella's takedown. Defendant denied elbowing or punching Citarella and stated that during the ensuing scuffle, his face was scratched, his head pressed into the gravel, and he was left on the cold ground for five minutes before being escorted to a police vehicle.
Evidently crediting the State's account, the jury convicted defendant of both crimes charged. Denying the State's motion for an extended term, the judge sentenced defendant to two concurrent five-year terms with two years of parole ineligibility. Defendant appealed, and we affirmed in an unpublished opinion. State v. Blacknall, A-4318-00T4 (App. Div. Nov. 14, 2002). The Supreme Court denied defendant's petition for certification. State v. Blacknall, 175 N.J. 547 (2003).
Subsequently, defendant moved for a new trial on the grounds of newly discovered evidence. He argued that a recent affidavit of Citarella's treating physician, Dr. McDermott, describing injuries only to the officer's knee and hip, controverted Citarella's testimony as to the extent of his injuries. The court denied the motion finding the affidavit, based on medical records reasonably discoverable before trial and in fact received by counsel shortly before trial, did not constitute newly discovered evidence; was merely impeaching, and not material evidence; and would not, in all likelihood, have affected the outcome.
Defendant's appeal from the denial of his motion for a new trial was dismissed without prejudice to allow his PCR petition to proceed. In the instant petition, defendant claimed that counsel was ineffective for failing to: (1) obtain Citarella's emergency room medical records before trial; (2) object to their admission at trial because they were illegible; (3) use them to attack Citarella's credibility; and (4) present Dr. McDermott to explain his emergency room medical report. In requesting an evidentiary hearing, defendant posited that had the jury been able to read the medical records or hear corroborating testimony from Dr. McDermott, the outcome would have been different. The PCR judge disagreed and denied defendant's petition, reasoning:
The definition of a simple assault is just a minimal injury. It is not a significant injury, a third degree offense. It is not a serious bodily injury, a second degree offense where there need be some rather serious injuries in both of those cases. This is not that.
Both Georgalis and Cittarella [sic] testified this defendant assaulted the officer. The injury that the officer sustained to his mouth was minimal. He had a little cut. The chip to his tooth was a minimal thing. He didn't go to a dentist for it. The jury knew that.
First of all, I don't find that [defense counsel's] performance was ineffective. I don't find it was below standard. He did a very good job on this case. He worked very hard on this case.
The reason that the blows to the mouth were referred to so many times was [defense counsel] was questioning the officer about it, both officers. He got the other officer to admit that what he saw was different from what Cittarella [sic] testified to. The credibility of Cittarella [sic] was an issue. It was something for the jury to determine. And that was brought out not by [the prosecutor] but by ...