December 15, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
BARRY BROWN, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 05-09-2301.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: November 30, 2011 -
Before Judges Axelrad and Ostrer.
Defendant Barry Brown appeals from the Law Division's December 9, 2009 order denying his petition for post-conviction relief (PCR), which alleged ineffective assistance of trial counsel and requested an evidentiary hearing.
The record reflects that defendant was indicted for second-degree burglary, N.J.S.A. 2C:18-2, and second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1). A jury found him guilty of burglary and the lesser-included offense of third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(7). The trial judge, John C. Kennedy, sentenced defendant to a nine-year term of imprisonment for the burglary, subject to the 85% period of parole ineligibility mandated by the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, and merged defendant's conviction for aggravated assault with his conviction for burglary.
We affirmed defendant's conviction and sentence in an unreported opinion. State v. Brown, No. A-1932-06T4 (App. Div. Jan. 9, 2009). As recited in our opinion, the victim was defendant's former girlfriend, Tonya Peterson, with whom he had two young children. The parties were not living together at the time of the offenses. Peterson testified that on the morning of July 1, 2005, as she was getting ready to go to school and take the children to daycare, defendant broke into her apartment, using a butter knife to pry loose the lock to the front door. Defendant then attacked her for about five minutes, punching and kicking her, stomping on her face and chest, putting his fingers in her throat, and trying to strangle her. After defendant left the apartment, Peterson called the police, and they brought her to the emergency room for treatment. Peterson did not suffer serious injuries as a result of the assault.
In affirming defendant's conviction, we rejected his challenge to the trial court's pretrial ruling allowing Peterson to testify about the alleged assault defendant committed upon her three days before the subject incident under N.J.R.E. 404(b). State v. Brown, supra, slip op. at 3-4, 7-10. We described Peterson's testimony as follows:
In that prior incident, which also occurred in the early morning when Peterson was going to school, defendant was standing outside her apartment when she left with the children to walk to a bus stop a block away. Defendant walked alongside Peterson and when they arrived at the bus stop, he started threatening her and gesturing as if he was going to punch her. He allegedly said: "Next time you try to leave that apartment I'm going to have those doors jammed up, and I'll set that whole house on fire." Peterson then called the police on her cell phone. At this point defendant struck her, knocking her and her infant daughter, who was strapped to the front of her body, to the ground. Defendant also allegedly smashed Peterson's cell phone. The police responded to the scene, but no criminal charges were filed as a result of this incident. [Id. at 3.]
The Supreme Court denied certification. State v. Brown, 199 N.J. 129 (2009). Defendant thereafter filed a PCR petition by a pro se submission and through counsel. He argued trial counsel was ineffective in failing to utilize additional materials and inadequately cross-examining the State's witnesses concerning the first incident. Specifically, defendant contended Peterson fabricated the incident and claimed that if trial counsel had utilized the police report, hospital assessment form, and doctor's discharge report to cross-examine Peterson, the police officers, and the doctor, defendant would have been able to demonstrate that Peterson fabricated the first incident and that the injuries from the July 1, 2005 incident were self-inflicted as a ploy to get defendant out of her life.
Following oral argument on December 9, 2009, with defendant present, Judge Kennedy denied defendant's petition and issued an order on the same date. With reference to the transcript of the trial, over which he presided, Judge Kennedy found that defense counsel ably cross-examined the State's witnesses, both attempting "to develop facts that were helpful" to defendant and "to impair the credibility of the witnesses." The judge also found defense counsel "skillfully" and "thoroughly" cross-examined the State's witnesses with respect to the nature of the alleged injuries suffered by Peterson, and caused the doctor to concede that there was bruising but no abrasions and the injuries were not of a serious nature. Moreover, the judge noted that in summation, defense counsel argued the wounds were self-inflicted. Judge Kennedy was also satisfied defense counsel appropriately cross-examined the witnesses regarding the police report, hospital admission, and doctor's discharge, "and made great efforts to try to convince the jury that the wounds were not so serious that they could not have been self-inflicted by the alleged victim in this case."
The court concluded that "not only was there no evidence that [defendant's trial counsel] failed to function effectively," but found the record demonstrated "very dramatically" he "performed as a defense counsel in a very professional and competent fashion and gave [defendant] a very competent defense." Accordingly, the court found defendant failed to present a prima facie case that he was entitled to PCR relief on his ineffectiveness of counsel claim. See Strickland v. Washington, 466 U.S. 668, 687, 694, 104 S. Ct. 2052, 2064, 2068, 80 L. Ed. 2d 674, 693, 698 (1984) (holding that in order to prevail on a claim of ineffective assistance of counsel, a defendant must meet the two-prong test of establishing both that: (1) counsel's performance was deficient and he or she made errors so serious that counsel was not functioning effectively as guaranteed by the Sixth Amendment to the United States Constitution and (2) the defect in performance prejudiced defendant's rights to a fair trial such that there existed a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different"); State v. Fritz, 105 N.J. 42, 58 (1987) (adopting the Strickland test in New Jersey). See also State v. Preciose, 129 N.J. 451, 462-63 (1992) (holding that to establish a prima facie claim of ineffectiveness of counsel within the Strickland/Fritz test warranting an evidentiary hearing, a defendant must demonstrate a reasonable likelihood that his or her claim will ultimately succeed on the merits).
Defendant appealed, arguing he established a prima facie case of ineffective assistance of trial counsel and asserting error by the court in denying his petition for PCR relief without affording him an evidentiary hearing. Defendant's arguments on appeal are mere reiterations of his gossamer claims made to the trial court on PCR. They are without sufficient merit to warrant further discussion. R. 2:11-3(e)(2). We affirm substantially for the reasons articulated by Judge Kennedy in his comprehensive oral opinion.
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