STATE OF NEW JERSEY VS. MICHAEL J. GREEN (12-08-0519, SALEM COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0421-16T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MICHAEL J. GREEN,

Defendant-Appellant.

Submitted February 28, 2018 – Decided June 6, 2018

Before Judges Alvarez and Geiger.

On appeal from Superior Court of New Jersey,
Law Division, Salem County, Indictment No. 12-
08-0519.

Joseph E. Krakora, Public Defender, attorney
for appellant (Richard Sparaco, Designated
Counsel, on the brief).

John T. Lenahan, Salem County Prosecutor,
attorney for respondent (David M. Galemba,
Assistant Prosecutor, of counsel and on the
brief).

PER CURIAM
 Defendant Michael Green appeals from the August 4, 2016 Law

Division denial of his petition for post-conviction relief (PCR).

We affirm.

A jury found defendant guilty of third-degree aggravated

assault with a deadly weapon, N.J.S.A. 2C:12-1(b)(2) (count one);

fourth-degree tampering with evidence, N.J.S.A. 2C:28-(6)(1)

(count three); fourth-degree resisting arrest, N.J.S.A. 2C:29-2(a)

(count four); second-degree unlawful possession of a firearm,

N.J.S.A. 2C:39-5(b) (count five); third-degree criminal restraint,

N.J.S.A. 2C:13-2 (count seven); and second-degree certain persons

not to have weapons, N.J.S.A. 2C:39-7(b) (count eight). Defendant

was acquitted of count two, which charged fourth-degree aggravated

assault by pointing a firearm, N.J.S.A. 2C:12-1(b)(4) (count two),

and count six, which charged him with second-degree possession of

a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count six).

On June 19, 2013, defendant was sentenced to an aggregate term of

nine years, subject to five years of parole ineligibility. On

appeal, we affirmed the judgment of conviction. State v. Green,

No. A-5751-12 (App. Div. Apr. 9, 2015).

The convictions arose from an incident that occurred at the

home of defendant's estranged wife. After unsuccessfully trying

to convince the victim to reconcile with him, defendant gained

entry into her home by requesting to use the bathroom. Once

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inside, they argued and defendant blocked the victim from leaving.

When the victim tried to escape through an open window, defendant

yanked her off the couch by the ankles. She unsuccessfully

attempted to call 911 while defendant pulled out clumps of her

hair and grabbed her cell phone. As this was happening, she

received a text message from a male friend. Defendant ordered the

victim to call her friend on speaker phone, which she did. The

friend overheard defendant choking the victim because she did not

disconnect the call. The friend drove to her apartment and began

yelling and kicking the door as defendant grabbed the victim and

put a gun to her head. The victim broke free as defendant braced

himself against the door, and she tried to escape through a dining

room window.

Police responded after receiving a call from the friend's

mother. As they approached, they saw the victim leaning out of a

first-floor window screaming. Police described the victim as

visibly injured, and photographs admitted at trial depicted blood

spatters in the victim's kitchen and living room.

A man ran from the back door. Officers chased after him;

defendant was arrested in front of his home. Police located a

handgun while searching the pathway between the two residences.

The victim identified it as defendant's gun.

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 At trial, defendant testified that he had gone to the

residence only to make repairs. When his cell phone rang, the

victim answered it and would not return it to him. He said that

the victim's friend pulled up in front of the house, came onto the

porch, and out of the blue punched him in the back of the head,

after which they began wrestling. The victim jumped on his back

as he attempted to free himself. He pushed her friend, who ran

away. Defendant also said that the victim struck him with her

nebulizer, hitting him on the side of his head. When she began

to have an asthma attack, he helped her and then walked home.

Defendant argued the issues he raises on appeal, and others,

before Judge Linda L. Lawhun. The judge denied the petition,

concluding that defendant's points were either not supported by

the record, not supported by any "affidavits or certifications

based upon the personal knowledge of the affiant or the person

making the certification," State v. Cummings, 321 N.J. Super. 154,

170 (App. Div. 1999), not supported by applicable precedent, barred

by Rule 3:22-4(a), or barred by Rule 3:22-3.

The judge found no merit in the claim that the failure to

call the victim's friend was ineffective assistance of counsel.

Based on the information presented at trial, it was likely that

his testimony would not be favorable to defendant and his

appearance could not be compelled as a material witness anyway.

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The record did not support defendant's assertion that even if he

possessed the gun, the possession was exempted from prosecution

by the statute because he possessed it in his home. See N.J.S.A.

2C:39-6(e). Defendant never resided in the victim's home, just

occasionally spent the night, and had not done so for some time.

Counsel was not ineffective for failing to request such an

instruction because no evidence supported it.

Also lacking in merit was defendant's contention that

appellate counsel was ineffective for failing to raise denial of

the motion for directed verdict with regards to the tampering

charge. The judge disagreed that State v. Sharpless, 314 N.J.

Super. 440 (App. Div. 1998), compelled or offered any basis for

the charge to be given. Here, defendant was charged with more

than mere possession of the weapon. He discarded the weapon in

order to hide evidence pertaining to the crime of assault. Thus,

the judge concluded defendant had not established a prima facie

case of ineffective assistance of counsel, and was not entitled

to an evidentiary hearing. She also noted that the issues raised

by petitioner "could be resolved by reference to the existing

record."

On this appeal, defendant argues:

POINT I – DEFENDANT WAS ENTITLED TO AN
EVIDENTIARY HEARING WHERE HE ESTABLISHED PRIMA
FACIE CASE OF INEFFECTIVE ASSISTANCE OF

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 COUNSEL IN THE FAILURE OF TRIAL COUNSEL TO
CALL AN ESSENTIAL WITNESS TO TESTIFY AT TRIAL.

POINT II – DEFENDANT WAS DENIED HIS
CONSTITUTIONAL RIGHT TO EFFECTIVE ASSISTANCE
OF COUNSEL DUE TO THE FAILURE OF TRIAL COUNSEL
TO REQUEST APPROPRIATE JURY INSTRUCTIONS
REGARDING THE UNLAWFUL POSSESSION OF A WEAPON
CHARGE.

POINT III – DEFENDANT WAS DENIED EFFECTIVE
ASSISTANCE OF APPELLATE COUNSEL DUE TO FAILURE
TO ARGUE ERROR IN THE DENIAL OF DEFENDANT'S
MOTION FOR A DIRECTED VERDICT OF NOT GUILTY
WITH REGARD TO THE TAMPERING WITH WITNESS
CHARGE.

We rely on the judge's thorough and detailed decision as the basis

for our affirmance. The arguments lack merit. R. 2:11-3(e)(2).

In order to obtain relief based on ineffective assistance

grounds, a defendant must show that counsel's alleged deficiency

prejudiced his right to a fair trial. Strickland v. Washington,

466 U.S. 668, 687 (1984); State v. Fritz, 105 N.J. 42, 58 (1987).

For the reasons stated by Judge Lawhun, defendant has failed to

meet either the performance or prejudice prongs of the Strickland

test. We only comment as to the tampering charge.

In Sharpless, the defendant discarded heroin that he was also

charged with possessing. Id. at 459-60. He was charged with

tampering, possession, and possession with intent to distribute.

In this case, defendant was indicted for assault with a deadly

weapon. The State, in order to prove the offense beyond a

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reasonable doubt, was required to demonstrate that he caused or

attempted to cause bodily injury to the victim with a deadly

weapon. Obviously, this is an entirely separate offense. That

defendant was also charged with the unlawful possession of the gun

does not diminish the significance of the fact that, unlike in

Sharpless, this defendant's act of discarding the gun was intended

to hinder a non-possessory prosecution. Thus, counsel was not

ineffective for seeking a directed verdict on that count, as the

law would not have supported the request. Jones v. Barnes, 463

U.S. 745, 751 (1983).

Affirmed.

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