On appeal from Superior Court of New Jersey, Law Division, Essex County, Municipal Appeal No. 2006-077.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: October 16, 2008
Before Judges Parrillo and Lihotz.
Following a trial de novo in the Law Division, defendant, Arnold Borrero, appeals from his conviction of the disorderly persons offense of simple assault N.J.S.A. 2C:12-1(a)(1). On appeal, defendant presents the following arguments:
I. BOTH TRIAL COUNSEL AND APPELLATE COUNSEL PROVIDED INEFFECTIVE ASSISTANCE TO THE DEFENDANT BY FAILING TO REPRESENT HIM IN A MANNER THAT WAS COMPETENT AND CREDIBLE. (Not Raised Below).
A. TRIAL COUNSEL'S FAILURE TO CALL JUAN CARLOS AVILEZ AS A WITNESS -AND APPELLATE COUNSEL'S FAILURE TO ARGUE SAME - WHO WOULD HAVE TESTIFIED THAT THE ALLEGED VICTIM ATTEMPTED TO SEEK HIS FALSE TESTIMONY CONSTITUTED INEFFECTIVE ASSISTANCE.
B. TRIAL COUNSEL'S FAILURE TO CALL A REPRESENTATIVE OF THE ESSEX COUNTY PROSECUTOR'S PROFESSIONAL STAND-ARD'S UNIT - AND APPELLATE COUNSEL'S FAILURE TO ARGUE SAME -CONSTITUTED INEFFECTIVE ASSISTANCE OF COUNSEL.
C. TRIAL COUNSEL'S FAILURE TO OBJECT TO UNCORROBORATED PHOTOGRAPHS -AND APPELLATE COUNSEL'S FAILURE TO ARGUE SAME - CONSTITUTED INEFFECTIVE ASSISTANCE OF COUNSEL.
D. TRIAL COUNSEL'S FAILURE TO ESTABLISH SARAH LESENDE'S ULTERIOR MOTIVES - AND APPELLATE COUNSEL'S FAILURE TO ARGUE SAME -CONSTITUTED INEFFECTIVE ASSISTANCE OF COUNSEL.
Based upon our review of the record and applicable law, in light of defendant's contentions, we affirm, noting defendant's assertions of ineffective assistance with respect to failure to present witnesses are preserved and may be presented in a motion for post-conviction relief.
On October 18, 2004, defendant Arnold Borrero, a former Newark Police Officer, was driving to traffic court. Ahead of him was a vehicle driven by Sara Lesende. Lesende was driving slowly and periodically stopping her vehicle as she searched for a parking space. Defendant and other drivers were honking their horns. Defendant exited his van and approached Lesende's car, motioning her to pull over, but her vehicle moved forward. Lesende had noticed defendant's van behind her and once waved, signaling him drive around her vehicle. Lesende then turned right and intended to turn left when she spotted a parking spot. Defendant followed her and angled his van to prevent her from moving.
Defendant exited his van and strode toward Lesende, intending to give her a traffic citation for obstructing traffic. Lesende testified defendant was angry and uttering profanities. She suggests defendant never specifically identified himself as a police officer and she did not recognize his clothing as that of a police uniform. The two were yelling. Defendant testified he was requesting Lesende's license, registration and insurance. Lesende testified defendant was screaming obscenities and ...