April 27, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
JOSEPH TETELMAN, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Morris County, Indictment No. 98-05-0574.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 21, 2009
Before Judges Fuentes and Gilroy.
Defendant Joseph Tetelman appeals from the order of the Law Division, Criminal Part denying his post-conviction relief (PCR) petition. We affirm.
A jury convicted defendant of third-degree theft of a motor vehicle after a three-day trial that began on December 15, 1998, and ended on December 17, 1998.*fn1 The court sentenced defendant on February 19, 1999, to a term of four years to run concurrent with any other sentence defendant was then serving. On defendant's direct appeal, we affirmed the sentence and conviction. State v. Joseph Tetelman, A-4933-99T4, (App. Div. March 14, 2002). The Supreme Court denied defendant's petition for certification. State v. Tetelman, 174 N.J. 40 (2002).
On August 23, 2002, just over two months after the Supreme Court denied certification, defendant filed a pro se PCR petition arguing that:
(1) he was denied a speedy trial;
(2) he was denied a fair trial because the jury was aware that he was incarcerated and serving a State prison sentence based on seeing State correction officers in the courtroom;
(3) he was denied effective assistance of trial counsel: (i) because his attorney failed to raise these two arguments, and (ii) by defense counsel conceding that defendant had stolen the vehicle that formed the basis of the theft charge on which he was convicted;
(4) the trial court gave erroneous instructions to the jury concerning oral statements used as evidence against him;
(5) sidebar conferences were conducted outside of his presence; and
(6) he was denied effective assistance of appellate counsel by appellate counsel not raising the above issues on direct appeal.
PCR counsel filed a supplemental brief raising the following additional arguments: (1) defendant's claims were not procedurally barred by R. 3:22 as they raise constitutional issues; and (2) petitioner has raised a prima facie claim that he was denied effective assistance of trial and appellate counsel.
On December 14, 2006, the PCR petition came before Judge Falcone for adjudication. After reviewing the record, Judge Falcone rejected all of the arguments raised by defendant, as well as those raised by PCR counsel. As a threshold issue, the judge found defendant's claims of ineffective assistance of counsel to be procedurally barred under R. 3:22-12, because these arguments had been addressed and rejected by the panel that decided defendant's direct appeal.
Notwithstanding this procedural impediment, and in the interest of completeness, Judge Falcone decided to address the merits of defendant's arguments. After articulating the relevant legal principles,*fn2 Judge Falcone found that defendant failed to establish a prima facie claim of ineffective assistance of counsel.
With respect to the trial counsel's concession to the charge of theft of a motor vehicle, Judge Falcone noted, (as did the panel on direct appeal, State v. Joseph Tetelman, supra, slip op. at 2-3), that this was a tactical decision, intended to undermine the State's case on the other three charges. Judge Falcone found the claims of prejudice based on the presence of Department of Corrections officers to be equally without merit. The record shows that the trial judge had found defendant to be a security risk based on his violent behavior against Morris County detention facility staff. The trial judge raised this issue sua sponte during the charge conference, and specifically instructed the jury not to draw any adverse inferences from the presence of additional security staff in the courtroom.
Finally, with respect to the alleged denial of a speedy trial, Judge Falcone found defendant had failed to come forward with any evidence showing how he was prejudiced by the delay.
As to the remaining argument concerning the trial court's failure to instruct the jury on defendant's oral statements, the judge found such error to be harmless, given the overwhelming evidence of defendant's guilt.
Defendant now appeals, raising the following arguments.
THE COURT BELOW ERRED IN FAILING TO CONDUCT AN EVIDENTIARY HEARING ON DEFENDANT'S CLAIMS OF INEFFECTIVE ASSISTANCE OF COUNSEL.
THE DEFENDANT'S CLAIMS ARE NOT BARRED BY THE PROVISIONS OF NEW JERSEY COURT RULE R. [sic]3:22 AS THEY ASSERT CONSTITUTIONAL ISSUES ARISING UNDER THE STATE AND FEDERAL CONSTITUTIONS.
DEFENDANT PROVIDED PRIMA FACIE PROOF THAT HE SUFFERED INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL AND SHOULD HAVE BEEN GRANTED AN EVIDENTIARY HEARING.
Defendant's arguments lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We affirm substantially for the reasons expressed by Judge Falcone in his oral opinion delivered from the bench on December 14, 2006.