On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. S-2104-02.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Rodriguez and LeWinn.
Defendant appeals from an order denying his petition for
post-conviction relief (PCR) and his motion to withdraw his
guilty plea entered pursuant to a negotiated agreement.*fn1
The gravamen of both applications was that at the time of the
offenses charged he was suffering from certain psychological disorders
which contributed to his behavior and which his attorney failed to
explore as a possible diminished capacity defense. We affirm.
In 2002, defendant was indicted on two counts of third-degree assault on sheriff's officers, N.J.S.A. 2C:12-1(b)(5), and third-degree resisting arrest, N.J.S.A. 2C:29-2(a)(3)(a). The charges stemmed from his municipal court trial on a motor vehicle violation, namely failing to stop at a stop sign, in violation of N.J.S.A. 39:4-144. Defendant appeared pro se at that trial, which was held at the Bergen County Courthouse on June 12, 2002. During the proceedings, defendant became emotional in his testimony to a degree that led the judge to tell him to "take a little emotion out of this" and to "calm down." A short time later, while addressing the judge, defendant apparently became agitated and the following colloquy ensued:
UNIDENTIFIED*fn2 Quiet down.
THE COURT: Hold it, hold it, both of you please.
UNIDENTIFIED: Now I told you to quiet down. Don't be yelling when the judge says no, okay?
THE COURT: Mr. Hill, --[DEFENDANT]: You get out of my face. UNIDENTIFIED: He said quiet down. [DEFENDANT]: You get out of my face. THE COURT: Mr. Hill, --UNIDENTIFIED: He said quiet down. [DEFENDANT]: I am not intimidated because you wear that badge. UNIDENTIFIED: Easy, easy --THE COURT: All right, hold it, hold it, hold it --UNIDENTIFIED: -- easy, easy --[DEFENDANT]: Get off [of] me.
THE COURT: Where's the button? [DEFENDANT]: Get off [of] me.
THE COURT: I'm going off. (Judge leaves the court at this point)
When the judge returned to the bench, he held a contempt proceeding pursuant to Rule 1:10-1 and described what had transpired; the judge stated that after he had twice advised defendant to calm down,
[at] this point the sheriff's officer approached the defendant in [an] attempt to calm him down and told him to be quiet, that the judge had told him to . . . calm down. At this point [defendant] began arguing with the sheriff's officer with words to the effect of get out of my face. This escalated. The sheriff's officer told [defendant] to be seated and be quiet. That did not happen. And the next thing I observed from the bench was that the defendant and the sheriff's officer were physically interacting with each other. The
[t]one of the voice and the agitation w[ere] rapidly escalating.
At this point the witness, who is also a sheriff's officer, he was the complaining witness, intervened in an attempt to have [defendant] calm down, sit down and be quiet so that the order of the trial could be continued. At that point a full fledged brawl started. The officers tried to restrain [defendant]. [He] resisted.
Wrestling started to control [defendant]. Chairs started flying. Benches were being knocked over. And at that point I pushed the emergency button on the bench and . . . left the bench. . . .
Shortly thereafter I observed from my office several other sheriff's officers enter the courtroom to assist in subduing [defendant].
During the contempt proceeding, defendant apologized to the judge stating that "prior to coming to . . . [c]court today, [he was] disturbed at the issuance of the . . . ticket[,]" adding that he "tend[s] to be an emotional person."
On December 16, 2002, defendant pled guilty to one count of third-degree assault on a sheriff's officer; the State recommended a non-custodial sentence and dismissal of the other two counts. Defendant testified that he was forty-eight years old, a certified public accountant with a degree from Columbia University, and had no prior criminal history. He stated he was voluntarily entering his guilty plea and gave a factual basis in which he admitted striking a sheriff's officer as he was being taken out of the courtroom on June 12, 2002.
On February 14, 2003, defendant was sentenced to a one-year term of probation conditioned upon his attending anger management counseling. At the hearing, defendant's attorney told the judge that "throughout all of these years, [defendant has] never had a problem until this arose," adding that defendant is "a youngster who grew up in a very difficult community, he has no problems."
The pre-sentence report (PSR) included defendant's statement to the probation officer preparing the report that "he has never been hospitalized with any serious illness or injury . . . [and] further state[d] that he has never been under the care of a mental health official." Defendant described his "overall health" as "excellent." The PSR contained the probation officer's observation that defendant "admitted . . . that he did not want to be present for the . . . interview and was clearly upset and angry at the nature of the questions posed to him." This led the officer to "certainly agree with the need for anger management for [defendant]. His anger, for whatever reason, was clearly visible to this officer." Defendant made no comment on these portions of the PSR at sentencing.
Sometime in April 2003, defendant was charged with violating his probation for failing to (1) attend anger management counseling and (2) verify his employment. The violation report noted that defendant is "highly volatile and hostile[,]" and "does not appear willing to take responsibility for the actions that brought him here, rather he chooses to project his internal anger towards this [o]fficer as well as ...