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State v. Parsons

July 16, 2008

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
DANIEL PARSONS, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Salem County, Indictment No. 05-10-0340.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted January 14, 2008

Before Judges A. A. Rodríguez and C. L. Miniman.

Following a jury trial, defendant Daniel Parsons was convicted of third-degree aggravated assault against a police officer acting in the performance of his duties, N.J.S.A. 2C:12-1b(5)(a), and third-degree resisting arrest, N.J.S.A. 2C:29-2a. He was acquitted of a related count of second-degree disarming a police officer, N.J.S.A. 2C:12-11a. The judge granted the State's motion to impose an extended term as a persistent offender, merged the convictions and imposed a ten-year term with a five-year parole disqualifier. Defendant agreed to pay $15,000 restitution to the officer's workers' compensation carriers.

Two witnesses testified at trial, both for the State. Penns Grove Police Officer Jason Spera testified that on August 6, 2005 at 1:00 a.m., he was in uniform on patrol in a marked police vehicle near Penn and Pitman Avenues in Penns Grove, a residential area. He saw two people sitting in a parked car with the lights on. Spera wanted to investigate because there had been "multiple complaints" in the neighborhood of trespassers, drug distribution and/or burglaries. Spera exited his vehicle and walked toward the other vehicle. The other vehicle went in reverse down the street. Spera shouted for them to stop, which they did. As Spera approached the vehicle on the driver's side, he saw that the driver was a female. He recognized defendant as the passenger. He knew that defendant had an open arrest warrant. Defendant opened the passenger door and tried to exit quickly. Spera shouted that defendant was not free to leave. Spera confronted defendant, who threw out his arms and pushed Spera backwards.

Defendant fled. Spera caught up to him within a few feet. Defendant resisted. Spera tripped on the curb, falling backwards and hitting his head. Defendant fell on top of Spera and punched him several times with a closed fist in the face. Spera moved his hand up to protect his face. He felt defendant move his hand toward the officer's waist. Spera then moved his hand down to protect his handgun. Eventually, Spera was able to get on top of defendant.

Penns Grove Police Officer Burt Torres testified that he came on the scene and sprayed defendant in the face with pepper spray. After some difficulty, Torres eventually got sufficient control over defendant to handcuff him. At this point, Spera noticed that his holster was empty. He found his handgun on the ground underneath defendant's chest area. Torres also testified that he saw Spera's handgun on the ground where defendant had been laying. As the result of this incident, Spera sustained: a cut to his upper lip, which needed two stitches; a bite mark on his left bicep; a torn ligament in his pinky finger, which was in a splint for eight weeks; abrasions to the back of his head, his shin and knees; and soft tissue injuries to the lower part of his nose.

On appeal, defendant contends:

THE TRIAL COURT'S REFUSAL TO EXTEND THE TRIAL DATE WAS REVERSIBLE ERROR BECAUSE PARSONS WAS RENDERED INEFFECTIVE ASSISTANCE OF MULTIPLE TRIAL COUNSEL WHO FAILED TO INVESTIGATE THE FACTS UNDERLYING HIS DEFENSE AND WHO FAILED TO FILE TIMELY PRE-TRIAL MOTIONS (1) TO HAVE THE STATE PRODUCE ALL OF OFFICER SPERA'S MEDICAL RECORDS FOR THE BODILY INJURIES THAT HE ALLEGEDLY RECEIVED AS THE RESULT OF THE INCIDENT AND (2) FOR SUPPRESSION OF THE TESTIMONY AS TO EVENTS RESULTING FROM THE ILLEGAL STOP THEREBY NOT BEING READY TO PROCEED AT TRIAL WITH HIS DEFENSE. (U.S. CONST. AMENDS. VI & XIV; N.J. CONST. ART. I, PARAS. 7 & 10).

We disagree.

The contention is based on the fact that defendant had three assigned attorneys prior to trial. According to defendant, the first one did not make a motion that Parsons requested. The second never met with him. The third was assigned approximately four days before the trial. Defendant moved for a continuance because he believed that his attorneys had not properly prepared for trial. Designated trial counsel indicated that he was ready to go. The judge denied the motion.

Defendant wanted trial counsel to request a preliminary probable cause hearing and file a motion to suppress evidence resulting from the stop. We reject these contentions. The decision to deny a motion for an adjournment rests with the sound discretion of the trial judge. State v. D'Orsi, 113 N.J. Super. 527, 532 (App. Div.), certif. denied, 58 N.J. 335 (1971). This applies to a decision on a request for an adjournment for a criminal defendant to obtain new counsel. State v. McLaughlin, 310 N.J. Super. 242, 259 (App. Div.), certif. denied, 156 N.J. 381 (1998).

Here, we find no abuse of discretion. The third trial counsel indicated that he was ready to proceed. The judge relied on that representation and properly rejected ...


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