State v. Ross, 083016 NJSUP, A-2893-14T4

Docket Nº:A-2893-14T4
Opinion Judge:PER CURIAM
Party Name:STATE OF NEW JERSEY, Plaintiff-Respondent, v. ANDREW ROSS, Defendant-Appellant.
Attorney:Joseph E. Krakora, Public Defender, attorney for appellant (William Welaj, Designated Counsel, on the brief). Christopher J. Gramiccioni, Acting Monmouth County Prosecutor, attorney for respondent (Monica do Outeiro, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on t...
Judge Panel:Before Judges Simonelli and Carroll.
Case Date:August 30, 2016
Court:Superior Court of New Jersey
 
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STATE OF NEW JERSEY, Plaintiff-Respondent,

v.

ANDREW ROSS, Defendant-Appellant.

No. A-2893-14T4

Superior Court of New Jersey, Appellate Division

August 30, 2016

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted June 6, 2 016

On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 03-06-1187.

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

Christopher J. Gramiccioni, Acting Monmouth County Prosecutor, attorney for respondent (Monica do Outeiro, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).

Before Judges Simonelli and Carroll.

PER CURIAM

Defendant Andrew Ross appeals from the August 13, 2014 Law Division order, which denied his petition for post-conviction relief (PCR) without an evidentiary hearing. For the following reasons, we affirm.

We derive the following facts from the record. On April 11, 2003, Asbury Park Police Officers Jason LaRusso and April Bird responded to defendant's apartment building regarding a domestic dispute between defendant and his then-girlfriend, Tia Slocum, whom he later married. Defendant became irate and started walking toward LaRusso and raised his voice. LaRusso told defendant to step back away from him, but defendant did not withdraw. LaRusso then informed defendant he was being placed under arrest. When LaRusso attempted to handcuff defendant, defendant spun away and elbowed the officer. LaRusso called for backup and sprayed defendant with mace. Defendant walked to the door and walked out of the apartment and into the hallway. As LaRusso and Bird were attempting to stop and handcuff defendant, he struck Bird in the face. Throughout this encounter, LaRusso repeatedly told defendant that he was under arrest and to stop resisting.

Defendant struggled with the officers in the hallway until they reached the stairs. Defendant ran down the stairs and LaRusso followed him to the first landing, where LaRusso attempted to grab defendant, but defendant pulled away. LaRusso fell down a flight of stairs, suffering a large bruise to the underside of his arm. He pursued defendant outside the building and attempted to restrain defendant by twisting defendant's arm behind his back and pushing him up against a car. Defendant and LaRusso struggled and Bird came out of the building to assist LaRusso. LaRusso continued to instruct defendant to stop resisting arrest.

Police Officer Carl Christie arrived at the scene and saw LaRusso and Bird wrestling with defendant and trying to handcuff him. Christie tried to grab defendant's arm, but defendant pushed him away. Christie tried again, but defendant "yanked his arm away." Christie then grabbed defendant's arm and there were "a few punches." Defendant grabbed Christie around the waist and they fell to the ground, where punches were exchanged. Defendant was eventually handcuffed and transported to police headquarters.

A grand jury indicted defendant on two counts of third-degree aggravated assault of a law enforcement officer, N.J.S.A. 2C:12-1(b)(5)(a) (counts one and two); and one count of third-degree resisting arrest, N.J.S.A. 2C:2 9-2(a) (count three). Defendant claimed he did not resist arrest and was the subject of police brutality.

Prior to trial, on February 3, 2004, defense counsel requested that an investigator from the Public Defender's Office take a statement from Lionel Peterson, who allegedly saw the police beating defendant outside the apartment building when defendant was on the ground. The investigator advised defense counsel that he had mailed a contact letter to Peterson and left a message on his cellphone for Peterson to call back. After not hearing from Peterson, the investigator went to his home, spoke to his brother, and gave the brother another contact letter to give to Peterson. The investigator made several subsequent attempts to contact Peterson on his cellphone, but as of May 4, 2004, the investigator had not heard from him. The investigator advised defense counsel that he would notify counsel if Peterson made contact in the future. Having not heard from Peterson, defense counsel did not place him on defendant's witness list.

Trial was scheduled for May 17, 2004, but was twice adjourned. The trial began on July 27, 2004. After the State had rested, defense counsel informed the trial judge that defendant gave him a note, purportedly from Peterson, which stated: To whom it may concern, my name is Lionel Peterson. I witnessed the events on 4/11/03. I am willing to come in and give a statement as to what I saw.

I am unable to be excused from work. I'm asking to be subpoenaed from work to be able to come in. If you have any questions, please contact me at work or home. . . . P.S., I did speak to one of the investigators and I explained to him I need to be subpoenaed by [a] subpoena so I could still be paid for my absence.1

Defense counsel requested time to call Peterson and subpoena him, but the judge denied the request. The judge found that the trial had twice been adjourned; defense counsel attempted to contact Peterson; Peterson was uncooperative; defendant had time to obtain Peterson's cooperation; and the State would be prejudiced.

The jury found defendant guilty of resisting arrest and not guilty on the two aggravated assault charges. The judge sentenced defendant to a one-year probationary term conditioned on forty-two days in the county jail with credit for time served. The judge entered a judgment of conviction (JOC) on November 5, 2 004.

Defendant...

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