February 17, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
JOSEPH TETELMAN, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Sussex County, Indictment No. 96-12-0306.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 19, 2011
Before Judges Wefing and Koblitz.
Defendant appeals from the trial court order denying his petition for post-conviction relief. After reviewing the record in light of the contentions advanced on appeal, we affirm.
A jury convicted defendant of aggravated assault under N.J.S.A. 2C:12-1b(5), which elevates to a crime of the third degree a simple assault committed upon "[a]ny law enforcement officer acting in the performance of his duties while in uniform or exhibiting evidence of his authority or because of his status as a law enforcement officer . . . ." Defendant appealed, and we affirmed his conviction and sentence. State v. Tetelman, No. A-1861-98T4 (App. Div. Jan. 26, 2000), certif. denied, 174 N.J. 40 (2002).
In that opinion, we set forth the underlying factual basis to defendant's conviction:
In June 1995, the victim in this case, Trooper Guidi, arrested defendant on an unrelated matter. At that time defendant was in Guidi's presence about five hours. Although on vacation at the time, Guidi appeared in court on August 6, 1996[,] with respect to that matter. Guidi was paid for the appearance although it was adjourned by the judge. As defendant was being escorted out of the courtroom, he "jerked  or pulled away" and "kneed [Guidi] or kick[ed] [him] in the groin."
On cross-examination Trooper Guidi acknowledged that he was "not in uniform nor wearing his badge at the time of the appearance. However, he was referred to on the record as "trooper" or "Trooper Guidi." [slip op. at 2].
The Supreme Court denied defendant's petition for certification. State v. Tetelman, 174 N.J. 40 (2002).
Defendant thereafter filed a timely petition for post-conviction relief. Counsel was assigned to represent defendant in connection with this petition, and he prepared and filed a brief on defendant's behalf and argued orally in support of defendant's position. The trial court denied defendant's petition without conducting a plenary hearing, and this appeal followed. Defendant raises the following contentions on this appeal.
POINT I: DEFENDANT WAS DENIED HIS FEDERAL AND STATE CONSTITUTIONAL RIGHTS TO THE EFFECTIVE ASSISTANCE OF COUNSEL AT TRIAL DUE TO TRIAL COUNSEL'S FAILURE TO CROSS-EXAMINE STATE WITNESSES ON THE ISSUE OF INJURY. (NOT RAISED BELOW).
A. TRIAL COUNSEL'S FAILURE TO CROSS EXAMINE WITNESSES REGARDING MEDICAL RECORDS OR EVIDENCE OF ANY INJURIES SUFFERED BY TROOPER GUIDI AS A RESULT OF THE ALLEGED ATTACK ON AUGUST 6, 1996, CONSTITUTED INEFFECTIVE ASSISTANCE OF COUNSEL. (NOT RAISED BELOW).
B. TRIAL COUNSEL'S FAILURE TO CROSS EXAMINE WITNESSES REGARDING MEDICAL RECORDS OR EVIDENCE OF ANY INJURIES SUFFERED BY TROOPER GUIDI AS A RESULT OF THE ALLEGED ATTACK ON AUGUST 6, 1996, PREJUDICED DEFENDANT. (NOT RAISED BELOW).
POINT II: DEFENDANT WAS DENIED HIS FEDERAL AND STATE CONSTITUTIONAL RIGHTS TO THE EFFECTIVE ASSISTANCE OF COUNSEL AT TRIAL DUE TO TRIAL COUNSEL'S FAILURE TO MAKE A TIMELY MOTION FOR A SPEEDY TRIAL.
A. TRIAL COUNSEL'S FAILURE TO MAKE A TIMELY MOTION FOR A SPEEDY TRIAL CONSTITUTED INEFFECTIVE ASSISTANCE OF COUNSEL.
B. TRIAL COUNSEL'S FAILURE TO FILE A TIMELY MOTION FOR A SPEEDY TRIAL PREJUDICED DEFENDANT.
POINT III: DEFENDANT WAS DENIED HIS FEDERAL AND STATE CONSTITUTIONAL RIGHTS TO THE EFFECTIVE ASSISTANCE OF COUNSEL AT TRIAL DUE TO TRIAL COUNSEL'S FAILURE TO PRESENT ALL APPLICABLE MITIGATING FACTORS ON BEHALF OF DEFENDANT THEREBY EXPOSING DEFENDANT TO AN UNREASONABLE TERM OF YEARS.
A. TRIAL COUNSEL'S FAILURE TO PRESENT ALL APPLICABLE MITIGATING FACTORS CONSTITUTED INEFFECTIVE ASSISTANCE OF COUNSEL.
B. TRIAL COUNSEL'S FAILURE TO PRESENT ALL APPLICABLE MITIGATING FACTORS PREJUDICED DEFENDANT.
The legal principles that govern our analysis of defendant's claim that he was deprived of the effective assistance of counsel are settled and well-known. To prevail on a claim of ineffective assistance of counsel, not only must a defendant overcome a presumption that defense counsel's "conduct falls within the wide range of reasonable professional assistance," Strickland v. Washington, 466 U.S. 668, 689, 104 S. Ct. 2052, 2065, 80 L. Ed. 2d 674, 694 (1984), but defendant must also prove that counsel's performance was "deficient" and that "the deficient performance prejudiced the defense." Id. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. See also United States v. Cronic, 466 U.S. 648, 653-58, 104 S. Ct. 2039, 2043-46, 80 L. Ed. 2d 657, 664-67 (1984) (discussing generally the requirement of effective counsel.)
A defendant claiming that his attorney was ineffective in his representation of the defendant must demonstrate first, that counsel's performance was deficient, i.e., that "counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment. Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. A showing that the error complained of had some conceivable effect on the outcome of the trial is insufficient. "The defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S. Ct. at 2064, 80 L. Ed. 2d at 698. This two-pronged standard has been expressly adopted in New Jersey. State v. Fritz, 105 N.J. 42, 58 (1987); State v. Cooper, 410 N.J. Super. 43, 58 (App.Div. 2009).
We turn now to defendant's contentions. We reject defendant's first argument. A conviction under N.J.S.A. 2C:12-1b(5) requires proof that a defendant committed a simple assault, which in turn requires proof that a defendant "purposely, knowingly or recklessly cause[d] bodily injury . . . ." N.J.S.A. 2C:12-1a. Bodily injury is defined as including "physical pain, illness or any impairment of physical condition . . . ." N.J.S.A. 2C:11-1. Cases construing the term "bodily injury" include State v. Sewell, 127 N.J. 133, 135-36 (1992), holding that a sore leg, back, hip and chest caused by a collision with a fleeing thief constitute bodily injury; and State in the interest of S.B., 333 N.J. Super. 236, 243-44 (App. Div. 2000), holding that pain caused by a kick constitutes bodily injury.
We have reviewed the transcript of defendant's trial, as we did in connection with his direct appeal. The municipal court judge in whose court room the incident occurred said that Trooper Gaudi "buckled over" after defendant kneed him in the groin. On direct examination, the prosecutor asked Trooper Gaudi his "sensation or reaction to that." The trooper responded, "It's embarrassing. But as it would happen to anybody, it hurt. I fell to the ground." In our judgment, defendant's attorney exhibited sound judgment in not giving Trooper Guadi the opportunity on cross-examination to expound on the distress he felt after being assaulted in such a fashion.
This incident occurred in August 1996. Defendant's trial did not take place until June 1998. Based upon this nearly two year interval, defendant argues his attorney was ineffective for not filing a motion seeking a speedy trial. There is no basis in this record to reach such a conclusion.
At the time of the August 1996 incident, defendant was in custody in Sussex County following his arrest in Morris County. At the time of that arrest, California had outstanding warrants for defendant on a charge of attempted murder. Defendant was extradited to California and tried there on the charges pending against him. Defendant was acquitted in California and then waived extradition and was returned here to face this charge of aggravated assault.
In assessing a defendant's claim that his right to a speedy trial has been violated, a court must look at four factors: the length of the delay encountered, the reason for that delay, whether the defendant asserted his right to a speedy trial, and whether the delay resulted in any prejudice to the defendant. State v. Szima, 70 N.J. 196, 201 (1976); State v. Gaikwad, 349 N.J. Super. 62, 88 (App. Div. 2002). Here, the explanation for not bringing this matter to trial is reasonable; New Jersey permitted California to try defendant on the more serious charges he faced in that state before proceeding here. Defendant, moreover, is entirely unable to establish that he suffered any prejudice from this delay.
Defendant's final argument, that his attorney was ineffective for not contending that certain mitigating factors should lead to the imposition of a lesser sentence, is similarly unavailing. We already rejected on defendant's direct appeal his contention that his sentence, which fell at the mid-range for a third-degree conviction, was excessive. In addition, we noted that at the time sentence was imposed, defendant was subject to a discretionary extended term in light of his extensive criminal record.
The order under review is affirmed.
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