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State v. Pfleeger

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


June 28, 2007

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
LUCILLE PFLEEGER, DEFENDANT-APPELLANT.

On appeal from Superior Court of New Jersey, Law Division, Gloucester County, No. A-28-06.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted June 13, 2007

Before Judges Wefing and Weissbard.

Defendant appeals from an order entered following a trial de novo in the Law Division, finding her guilty of violating N.J.S.A. 39:4-129, leaving the scene of an accident. After reviewing the record in light of the contentions advanced on appeal, we affirm.

On January 17, 2006, Andrea Feliciano was in line to do her banking at the drive-up window of the Wachovia Bank in Glassboro. Defendant was the driver of the car in front of Ms. Feliciano. Defendant finished her banking and put her car in gear. Instead of heading forward, however, she backed up. Ms. Felicino sounded her horn to no avail; defendant's car struck Ms. Feliciano's with a jolt. Defendant did not stop to inquire but drove off.

Ms. Feliciano was pregnant at the time and felt pain in her abdomen. When she pulled up to teller's window, the teller, who had witnessed the incident, inquired how she was. When the teller learned she was pregnant, she told Ms. Feliciano to come into the bank's building. An ambulance was summoned. Ms. Feliciano was examined at the hospital, where it was determined she had suffered a pulled muscle under her stomach. She wore a muscle brace for the balance of her pregnancy.

Defendant testified at the trial in municipal court. She admitted that she knew her car had touched the car behind her in line. She said she did not stop because she believed the impact was so slight. There was no damage to either car in the incident.

On appeal, defendant raises the following arguments:

POINT I

APPELLANT WAS NOT IN AN ACCIDENT WITHIN THE MEANING OF THE STATUTE, AND DID NOT KNOW THAT SHE WAS IN AN ACCIDENT AS THAT TERM IS DEFINED IN THE STATUTE.

POINT II

THERE WAS NO PROOF OF INJURY. POINT III THE APPELLANT RECEIVED INEFFECTIVE ASSISTANCE AT THE TRIAL LEVEL.

Defendant's first argument is premised upon her contention that the statute draws a distinction between an "accident" and a "collision." She was involved in a collision, she says, not an accident. We perceive no meaningful distinction between the terms. The section of the statute, moreover, to which defendant points, deals with a driver colliding with an unattended vehicle or property. That is clearly not the situation presented here.

We also reject defendant's second argument. There was no objection at trial to Ms. Feliciano's testimony that she was required to wear a muscle brace following this incident. We see no reversible error in the admission of her testimony.

Finally, we see no substantive merit to defendant's post-trial challenge to the strategic choice of her then-attorney to have defendant testify. A choice in trial strategy, when scrutinized under a presumption that counsel's conduct falls within a wide range of reasonable behavior, may not be the basis for a charge of ineffective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 689, 104 S.Ct. 2052, 2065, 80 L.Ed. 2d 674, 694-95 (1984). Hence, "the decision at trial as to what testimony to present is clearly a matter of trial strategy which is entrusted to the sound discretion of competent trial counsel." State v. Coruzzi, 189 N.J. Super. 273, 321 ( App. Div.), certif. denied, 94 N.J. 531 (1983).

Affirmed.

20070628

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