NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 24, 2013.
On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 06-05-1356.
Joseph E. Krakora, Public Defender, attorney for appellant (Steven E. Braun, Designated Counsel, on the brief).
Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (John E. Anderson, Special Deputy Attorney General/ Acting Assistant Prosecutor, of counsel and on the brief).
Before Judges Grall and Koblitz.
Defendant J.I. appeals from the August 29, 2011 order denying his petition for post-conviction relief (PCR) after an evidentiary hearing as to one of the five issues he raised against his trial counsel. Defendant claims that he was deprived of the effective assistance of trial and appellate counsel. After reviewing the record in light of the contentions advanced on appeal, we affirm.
On August 6, 2005, defendant became enraged and assaulted his thirteen-year-old son with a piece of wood and a crowbar causing a skull fracture, as well as cranial bleeding. The child was helping his father set up an above-ground pool and install a fence in their backyard at the time. At trial, defendant claimed that he was unable to form the requisite intent for conviction because of a psychiatric condition. His wife, son, and a defense psychiatrist testified at trial in support of this defense. Defendant's wife testified that defendant had changed since the recent death of his brother. She mentioned that he was in jail in response to the State's questions about whether she was still married and "with" defendant. Defense counsel did not seek a curative instruction or mistrial after this brief comment. Defendant's wife stated that she had seen defendant become violent only once before, on Christmas Eve 2002, when he threw a vase at the wall. She stated that she was not hurt in the incident, but the State confronted her with information contained in a police report indicating that she had been injured when hit with the vase. The judge did not permit the State to admit this police report and stopped further questioning on this topic because he deemed it a discovery violation not to have provided the report to defense counsel, who was unaware of its existence. Defense counsel asked that the judge not give a curative charge to the jury as it would only draw more attention to the State's earlier questions.
The defense psychiatrist diagnosed defendant with generalized anxiety disorder and intermittent explosive disorder (IED). He relied in part on defendant's physical symptoms related to anxiety, including gastrointestinal and skin disorders. He said that due to his psychiatric condition, defendant had not intended to hurt his son and was unaware of the consequences of his actions. The State called a psychiatrist in rebuttal who testified that defendant did not suffer from mental illness.
A jury convicted J.I. of second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1); second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a); fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(d); and third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d). The jury found defendant not guilty of first-degree attempted murder, N.J.S.A. 2C:11-3 and 2C:5-1. He received an aggregate sentence of seven years subject to an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.
We affirmed the convictions and sentence on direct appeal. State v. J.I., No. A-5819-06 (App. Div. Apr. 15), certif. denied 200 N.J. 369 (2009).
Defendant filed a timely PCR petition, claiming that his trial counsel was ineffective in five respects and appellate counsel was ineffective in not ordering a transcript of jury selection. In a twenty-four page written opinion, Judge Michael L. Ravin denied relief on the basis of four of the claims made against trial counsel and the claim against appellate counsel. He ordered an evidentiary hearing only with regard to the first issue, that counsel failed to investigate the 2002 incident.
At the evidentiary hearing, defense counsel testified that she had spoken to defendant's wife multiple times and that she and defendant were consistent in their versions of the 2002 incident. The lawyer said she had been told that the police responded in 2002. The attorney indicated that the defense psychiatrist did rely on the 2002 incident as a basis of his diagnosis, but for ...