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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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, ...