On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 99-03-0448.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 15, 2007
Before Judges Parrillo and Graves.
Defendant Robert Michaels appeals from an order denying his petition for post-conviction relief (PCR) entered on March 24, 2006. We affirm.
A jury found defendant guilty of second-degree aggravated assault for purposely or knowingly causing serious bodily injury to another, N.J.S.A. 2C:12-1(b)(1) (count two); third-degree aggravated assault for purposely or knowingly causing bodily injury to another with a deadly weapon, N.J.S.A. 2C:12-1(b)(2) (count three); third-degree aggravated assault for causing significant bodily injury to another purposely or knowingly, N.J.S.A. 2C:12-1(b)(7) (count five); third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(d) (count six); and third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d) (count seven). On direct appeal, we affirmed defendant's judgment of conviction, however, we remanded for resentencing because the court had imposed an eighty-five percent parole ineligibility term "based on defendant's fifteen-year extended sentence, rather than the ten- year maximum ordinary sentence as then required." State v. Michaels, No. A-5628-00T4 (App. Div. October 29, 2002) (slip op. at 2), certif. denied, 178 N.J. 375 (2003). Subsequently, on November 22, 2002, the trial court amended defendant's sentence from fifteen years to ten years with an eighty-five percent period of parole ineligibility, pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2. Defendant was released on parole in April 2007.
In our unpublished opinion affirming defendant's judgment of conviction, we summarized the pertinent facts of the case as follows:
This criminal episode arose in the aftermath of a semi-formal fundraiser on October 16, 1998[,] at the Tropicana Club in North Bergen. The event, to benefit victims of Hurricane Mitchell, was hosted by thirteen fraternities from Saint Peter's College in Jersey City. According to the State's proofs, around 1:00 a.m. defendant and a group of individuals entered the club uninvited and began arguing with the bouncers and fighting with other guests at the party and were "bounced" from the club. Sometime between 2:30 and 3:00 a.m. when the club was closing, patrons were ushered by the bouncers outside into the parking lot where a large crowd was then forming, numbering in the hundreds. The scene turned chaotic as a number of fights broke out in the crowd. Defendant was observed walking around the parking lot, shoving people and engaging them in fights. In one instance, he "sucker punched" an individual and knocked him down. At some point, bouncers Augustine Torres and Mohamed Rodriquez, and fraternity brothers Francisco Guzman and Marcus Arroyo, all observed defendant and another individual reach into the trunk of a car and pull out aluminum bats. Torres, Rodriguez[,] and Arroyo then each observed defendant take a full swing at the first person he saw, who happened to be the victim in this case, Bryant Salavarrieta (Bryant).
At the time, Bryant then nineteen years old and a sophomore at Saint Peter's College, was trying to avoid the fights while walking to his friend's car parked all the way across the parking lot. As he reached the car and was just about to knock on the window to be let in, Bryant turned around and was struck in the head with an aluminum baseball bat wielded by defendant. Arroyo witnessed defendant strike Bryant with the bat. Both Torres and Rodriquez saw defendant wielding the bat. As a result of being hit, Bryant lost all feeling in his legs and arms and collapsed to the ground.
Torres and Rodriquez then saw defendant swing at another individual and drop the bat. That individual picked up the bat and struck defendant, causing him to stagger a bit. Nevertheless, at the sound of police sirens, defendant managed to get into a silver Infinity and attempted to drive away. As defendant was about to exit the parking lot, police, alerted by Torres to defendant's actions and location, "lock blocked" his car. At this point, defendant jumped out of the vehicle and fled on foot. He was apprehended up the street.
As a result of being struck with the baseball bat, Bryant sustained serious injuries. The outer part of his forehead was crushed into his sinus membrane. He had to undergo nearly four hours of surgery to reconstruct his forehead with nine plates and forty-four screws. Bryant was hospitalized for more than a week and now suffers from Fourth Nerve Palsy, which causes double vision, a condition that is permanent. He also suffers from terrible headaches, he can no longer participate in sports, and sees a psychiatrist for his nightmares caused by post-traumatic stress syndrome.
In his PCR petition, defendant claimed he did not receive a fair trial because he was denied effective assistance of counsel, and, on appeal, defendant makes the following arguments:
THE TRIAL COURT ERRED WHEN IT DENIED DEFENDANT-APPELLANT'S PETITION FOR POST CONVICTION RELIEF BECAUSE DEFENDANT-APPELLANT MADE A PRIMA FACIE CASE OF INEFFECTIVE ASSISTANCE OF COUNSEL AND SHOULD HAVE BEEN GRANTED AN EVIDENTIARY HEARING[.]
A. DEFENDANT-APPELLANT ESTABLISHED THAT HE WAS NOT GIVEN ADEQUATE TIME TO COMMUNICATE WITH HIS COUNSEL ...