On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 03-07-1396.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 22, 2010
Before Judges R. B. Coleman, Lihotz, and J. N. Harris.
Defendant Rufus Young appeals from an order entered on April 30, 2009, denying his application for post-conviction relief (PCR). We affirm.
Monmouth County grand jury returned an indictment charging defendant with second-degree aggravated assault, N.J.S.A. 2C:12-1(b) (count one); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count two); third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b) and 2C:58-4 (count three); third-degree terroristic threats, N.J.S.A. 2C:12-3(b) (count four); fourth-degree aggravated assault, N.J.S.A. 2C:12-1(b)(4) (count five); and second-degree certain persons not to have weapons, N.J.S.A. 2C:39-7(b) (count six). Defendant was tried before Judge Bette E. Uhrmacher and a jury, which resulted in a verdict of guilty on counts two, three, and six. The balance of the indictment was dismissed.
The court imposed an aggregate sentence of fifteen years, with five years of parole ineligibility. In an unpublished opinion, State v. Young, A-5231-03T4 (App. Div. May 31, 2005), we affirmed defendant's conviction and his aggregate sentence.
Thereafter, defendant filed an application for PCR alleging -- among numerous other putative deficiencies -- that he did not receive a fair trial because his attorney was ineffective. Following oral argument, Judge Ronald L. Reisner rejected the need for an evidentiary hearing and denied defendant's application in a well-reasoned twenty-one page written opinion. This appeal followed.
The facts underlying defendant's conviction primarily occurred on May 2, 2003, when defendant was hosting a party at a recording studio in Asbury Park. One of the partygoers, Bridgette Haines, observed a fight break out between defendant and the father of her unborn child, Curtis Pearson, a.k.a. "Justice." When Haines attempted to intervene to stop the fisticuffs, she was struck in the face by someone who she thought was defendant. Distressed by this ugly turn of events and irritated that his party was interrupted, defendant blamed Haines for being the cause of the fight. Then, according to Haines's trial testimony, defendant pulled out the gun. He took it with his right hand, facing me. Took it from his right hand put it on the side of my head and cocked it a few times in the air.
Haines further described the immediate events as follows:
[Defendant] [p]ulled the gun out from his left side. Just laid it on my head like this and he shot it three times in the air real fast. He didn't have to pull it back. He did it a few times.
Asbury Park police responded to reports that shots were fired at the recording studio. The party was still in full swing when the officers arrived. Upon investigation, Sergeant Amir Bercovicz found a fresh bullet hole in the wall and a single shell casing. A firearm was neither found nor recovered. Nevertheless, defendant was placed under arrest and given his Miranda*fn1 warnings. He voluntarily gave a statement to the police, stating, "I can't take aggravated assault, besides I didn't try to hurt anyone."
At trial, defendant presented six witnesses who all testified that defendant attempted to break up the fight, and that none of them saw who actually shot the gun. None of these witnesses claimed to have seen defendant with a gun in his possession that night. The jury's determination turned on the credibility of the cascade of State and defense witnesses. The jury found defendant guilty of the three weapons' possession charges.
When defendant appeared for sentencing before Judge Uhrmacher, his new counsel -- trial counsel had passed away shortly after the jury's verdict -- requested that two unauthenticated letters from additional eyewitnesses at the party, Michael Brown and David Martinez, be included in the pre- sentence report. After reviewing the contents of the letters, the court declined to include the letters as part of the presentence investigation, but stated, "[the letters] will be part of the record here if you choose to make [them] part of the record." ...