October 26, 2007
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
ROBERT THOMAS MICHAELS, DEFENDANT-APPELLANT.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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In our unpublished opinion affirming defendant's judgment of conviction, we summarized the pertinent facts of the case as follows: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 ABOUT PLEA DEALS BEING OFFERED[.]
B. DEFENDANT-APPELLANT ESTABLISHED THAT TRIAL COUNSEL'S CONDUCT AND DEMEANOR PREVENTED HIM FROM RECEIVING A FAIR TRIAL.
C. TRIAL COUNSEL FAILED TO ADEQUATELY CROSS-EXAMINE THE STATE'S WITNESSES[.]
After considering these contentions in light of the record, the applicable law, and the trial court's findings and conclusions, we conclude that defendant's arguments are without sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(2). We add only the following comments.
Following oral argument on March 23, 2006, the trial court concluded that defendant failed to demonstrate he was prejudiced "by the amount of time he got to confer with counsel," and its reasons for denying defendant's PCR petition included the following:
There are complaints about cross-examinations of the State's witnesses. Now, it appears to me from the transcripts, that trial counsel did question the witnesses and . . . did what she could in terms of impeaching these witnesses. For example, with Torres, she impeached him with his prior convictions for aggravated assault and criminal mischief. She questioned him as to any discrepancies as to what he said in the police report and what he said at trial. She cross-examined him about not giving a description of the defendant. She questioned him about how crowded the parking lot was that night.
She cross-examined Guesmond about how he didn't go to the police for at least three weeks to give a statement. She questioned him about where he was, and his ability to see since he was within his car when he said he saw the events, and she also questioned Rodriguez about the conditions of the parking lot and his ability to witness the events.
Now, Arroyo also was . . . cross-examined, but Arroyo testified that he was only about ten feet away when he saw the defendant strike the victim. So with that being his testimony, and with her being unable to question him about vantage points and things like that, I can't say . . . that she did . . . a poor job in not questioning him further. She may well have wanted to get him off the stand since he was a very damaging witness, and of course, she brought out that the victim was unable to identify his . . . assailant, but you can't criticize a strategic decision to not vigorously cross-examine a victim who has had such substantial injuries. That's the kind of thing that . . . can rebound against the client, when someone clearly is blameless . . . and is doing nothing wrong and suffers . . . severe and permanent injuries. The most you want to do is . . . perhaps make the strategic decision to get that witness out of the courtroom as quickly as possible.
So, I think the record reflects that the trial counsel did . . . cross-examine the State's witnesses and try to bring out whatever inconsistencies she could with the . . . testimony. She did not make any kind of serious error that would deny the petitioner counsel that is guaranteed to him under the [C]onstitution.
I don't really see any legal errors, and therefore I don't find that cumulatively the defendant was denied a right to a fair trial. It appears from my review of the transcripts that the evidence was very, very strong, that counsel was proactive and aggressive in her defense. She was successful on a number of things, in keeping out certain photographs . . . of the injuries, and things like that, and there's no indication that this defendant was denied . . . his right to a fair trial. So I'm going to deny this petition for post conviction relief. . . . [B]ased on the record I have in front of me now, I see no reason to grant an evidentiary hearing.
We are satisfied Judge Kenny's findings and conclusions are fully supported by the record. Accordingly, we affirm substantially for the reasons set forth by Judge Kenny in her comprehensive oral decision rendered on March 23, 2006.
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