July 23, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
PAUL JONES, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Criminal Part, Essex County, Indictment No. 99-12-3717.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 1, 2009
Before Judges Rodríguez and Newman.
Defendant Paul Jones appeals from the denial of his petition for post-conviction relief (PCR). We affirm.
Following a jury trial, defendant was found guilty of first-degree armed robbery, N.J.S.A. 2C:15-1 and second-degree aggravated assault, N.J.S.A. 2C:12-1b(1). Judge Peter Vazquez imposed a sixteen-year term with a NERA*fn1 disqualifier on the armed robbery and a concurrent eight-year term with a NERA disqualifier on the aggravated assault. We affirmed on direct appeal. State v. Paul D. Jones, A-4586-00T4 (App. Div. April 3, 2003), certif. denied, 177 N.J. 577 (2003).
These are the salient facts. On October 16, 1999, at approximately 6:00 p.m. on Clinton Avenue in Newark, Charles Richard was waiting for a bus. Richard testified that "a couple of gentlemen approached me and hit me and I went down. . . . And I was drifting in and out of consciousness. . . . I woke up, I said I'll give you my money and he was ripping my left pocket, trying to get my money." Richard was struck at least three times and was bleeding from his lip, chin, eye and nose. As a result of the attack, Richard lost all his top teeth, and his jaw was broken in three places requiring his hospitalization and surgical procedures. The jaw was wired in three places. Richard still has difficulty speaking. Medical records, which were stipulated into evidence, corroborate Richard's testimony.
Newark Police Officers James Figueroa and Kenneth Lee were on routine patrol in their marked patrol car. They observed the attack upon Richard. Both officers recognized one of the assailants as defendant. They both saw defendant punching Richard, who fell to the ground. Figueroa also saw defendant slam Richard's face into the concrete of the sidewalk, and then rummage through Richard's pockets. Defendant attempted to run away. However, Figueroa apprehended him.
Two witnesses, Medina Jones and Anthony Brown, testified on behalf of defendant. They contradicted the testimony of Figueroa and Lee. There was no dispute as to the seriousness of the injuries inflicted.
Following his conviction defendant filed, pro se, a timely first PCR petition. Counsel, who was appointed, submitted defendant's certification in support of the petition. The principal allegation was ineffective assistance of trial counsel as follows:
My trial attorney failed to adequately question Anthony Brown. He also failed to have a doctor examine the victim to determine whether his injuries reached the level of aggravated assault.
My trial attorney failed to provide me with discovery in order to help prepare. He did not make a motion for a change of venue.
My trial attorney failed to investigate any further witnesses to the incident including employees of the store in which I was a patron.
Defendant also contended that trial counsel should have moved for a change of venue.
Judge Nancy Sivilli determined that an evidentiary hearing was not necessary. Following oral argument, she denied the petition and issued an oral opinion on August 17, 2007. After identifying the Strickland/Fritz*fn2 standard, the judge found that the claim that trial counsel failed to adequately question defense witness Anthony Brown was without merit. She noted that a review of the transcripts showed that Brown, during his testimony, referred to the defendant by a different name; and, while describing his observation of the incident, placed the incident on the wrong side of the street. The judge found that those discrepancies went to the witnesses' credibility, which was the province of the jury.
Judge Sivilli also rejected defendant's argument that trial counsel failed to investigate the existence of other witnesses. She found this "argument is specious at best." She identified the standard set by State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999); and then determined:
Petitioner here does not set forth any specific facts. There's no affidavits or identity of any witnesses. He basically makes a vague assertion that other witnesses could have been found and would have helped his case.
However, those vague assertions do not rise to the level of burden that he must establish in seeking this type of relief. Petitioner also argues that defense counsel committed an error by failing to make a motion for a change of venue. He makes general assertions that he was prejudiced by the trial Judge who heard the case, before whom the case was tried because that Trial Judge apparently had been the Judge when the Defendant was a juvenile. And that the Trial Judge had instructed the Defendant at the time not to come back to his Court.
However, the Defendant does not point to any substantive for [sic] concrete evidence that supports that argument or gives that argument any weight. He fails to assert any instances where the trial Judge prejudiced the trial or his rights by acting in a biased and unfair manner.
And number two the Trial Judge merely acts in a Jury Trial as the Judge of the law and the [sic] not the trier of the fact that that burden is with the Jury. And the Jury had no knowledge and was never advised that this Defendant had appeared before the Trial Judge as a juvenile. So for those reasons I find that that argument is without any merit.
From our careful review of the record, we conclude that Judge Sivilli properly denied this petition. She noted that the argument that trial counsel failed to adequately question defense witness, Anthony Brown, was without merit; and that trial counsel was not ineffective for failing to investigate the existence of other witnesses. A change of venue motion, even if it had been brought, would have been denied because there were no grounds to change the venue. Moreover, there was no ineffectiveness for failing to secure an expert witness to evaluate the victim's medical condition.
On appeal, defendant contends:
THE TRIAL COURT'S DENIAL OF DEFENDANT'S MOTION FOR [PCR] MUST BE REVERSED BECAUSE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL IN CONNECTION WITH THIS APPLICATION.
Judged against the standard set by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed. 2d 674, 693 (1984) and adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987), we conclude that no showing has been made that PCR counsel rendered ineffective assistance.
Affirmed substantially for the reasons expressed by Judge Sivilli in her August 17, 2007 oral opinion.