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N.J.S.A. 2C:12-1(a)(1). On appeal, defendant presents the following arguments: "> The status of this decision is unpublished

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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-5784-06T45784-06T4 STATE OF NEW JERSEY, Plaintiff-Respondent, v. ARNOLD BORRERO, Defendant-Appellant. ___________________________________

Submitted: October 16, 2008 - Decided: Before Judges Parrillo and Lihotz. On appeal from Superior Court of New Jersey, Law Division, Essex County, Municipal Appeal No. 2006-077. Alan M. Liebowitz, LLC, attorney for appellant (Mr. Liebowitz and Daniel P. McNerney, on the brief). Paula T. Dow, Essex County Prosecutor, attorney for respondent (Jennifer C. Fetterman, Assistant Prosecutor, of counsel and on the brief). PER CURIAM Following a trial de novo in the Law Division, defendant, Arnold Borrero, appeals from his conviction of the disorderly persons offense of simple assault 42 N.J. 146, 162 (1964); State v. Loce, 267 N.J. Super 102, 104 (Law. Div. 1991), aff'd o.b., 267 N.J. Super. 10 (App. Div.), certif. denied, 134 N.J. 563 (1993), cert. denied, 510 U.S. 1165, 114 S. Ct. 1192. 127 L. Ed 2d 542 (1994). However, we may not weigh or make conclusions regarding the evidence. State v. Barone, 147 N.J. 599, 615 (1998). Also, like the Law Division, we de not judge credibility, but give due regard to the

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municipal court's credibility determinations. State v. Locurto, 157 N.J. 463, 470-71 (1999); State v. Cerefice, 335 N.J. Super. 374, 383 (App. Div. 2000). Defendant argues his conviction must be overturned because of trial and appellate counsel's failure to call witnesses, object to evidence admitted, and effectively cross-examine the state's witnesses deprived him of effective representation. Before reviewing these contentions, we briefly state the applicable law. To establish a claim of ineffective assistance of counsel, a defendant must satisfy the two-prong test formulated in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed.2d 674, 693 (1984), and adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987). First, he must demonstrate that his attorney's performance was deficient by "showing that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. Second, "'defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.'" State v. Marshall, 148 N.J. 89, 157 (quoting Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698), cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed.2d 88 (1997). "The burden to prove that incompetence of counsel had a prejudicial effect upon the outcome of the proceeding is squarely on the defendant." State v. Paige, 256 N.J. Super. 362, 377 (App. Div.), certif. denied, 130 N.J. 17 (1992). As noted in Strickland: Judicial scrutiny of counsel's performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action "might be considered sound trial strategy." [Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694-95 (internal citation omitted).] Generally, we do not entertain ineffective-assistance-of-counsel claims on direct appeal. State v. Preciose, 129 N.J. 451, 460 (1992); State v. Dixon, 125 N.J. 223, 262 (1991). This is because ineffective assistance of counsel claims "involve allegations and evidence that lie outside the trial record." Ibid.; State v. Castagna, 187 N.J. 293, 313

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(2006). However, the rule is not absolute. When the trial record is adequately developed to provide a basis to evaluate defendant's claims, we may consider the issue on direct appeal. State v. O'Neal, 190 N.J. 601, 634-635 (2007) (Rivera-Soto, J. concurring). With these principles in mind, we examine defendant's claims challenging the effectiveness of his representation. First, defendant argues counsel failed to call trial witnesses. Defendant states Lesende identified Juan Carlos Avilez as an eye witness to the events. However, internal affairs officer, Sergeant Lillian Carpenter, confirmed Avilez was not present. Defendant suggests counsel should have called Avilez to undermine Lesende's credibility and expose her plan to develop a civil action against defendant. Additionally, defendant identifies Investigator Frank Herrmann, a member of the Professional Standards Bureau of the prosecutor's office responsible for conducting the NPD administrative investigation of the alleged misconduct. Defendant asserts Herrmann would have revealed evidence collected that proved Lesende's acts of false swearing. During the municipal court trial, Carpenter testified and briefly mentioned Lesende identified Avilez as an eye witness. However, the conclusions drawn following her investigation of that claim were excluded, following objection. Defendant did not present evidence of Herrmann's testimony to the municipal court or the Law Division. Prior to sentencing in the municipal court, defendant's statements suggest he knew the internal investigation had cleared him of wrongdoing. However, the record is not clear as to the availability or substance of Herrmann's potential testimony. It is likely defendant had a reasonable opportunity to raise his claim in the earlier Law Division proceeding, which would have possibly supported a claim for the ineffectiveness of appellate counsel. Lesende's credibility was vital to the State's case. Arguably, evidence challenging her truthfulness may have had significant impact on the weight of the evidence offered. Also of relevance is whether the proposed additional witnesses were available and not called as a matter of trial strategy, or whether their testimony, if presented, would have sufficiently altered the outcome of defendant's trial as he contends. The answers to these questions lie outside the record as they require presentation of additional evidence, and must await a post-conviction relief petition. Castagna, supra, 187 N.J. at 316. Defendant next argues counsel was ineffective for failing to object to the authenticity of the photographic evidence of Lesende's injuries presented by the State. Lesende testified the pictures offered in evidence depicted injuries she suffered as a result of defendant's conduct. She stated her husband took the photographs shortly after the incident. Lesende's husband was not called at trial because counsel stipulated to the admissibility of the photographs. Defendant now asserts defense counsel should have objected to the introduction of the evidence at

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trial because the photographs were not authenticated. We reject defendant's contention. Defendant also introduced photographs of Lesende taken by the NPD on the date of the incident, which contradicted the State's evidence. Second, the Law Division's support for the finding of simple assault resulted from the testimony of Cal and Lesende, and defendant's incredible explanation for Lesende's injuries. The photographic evidence merely corroborated Lesende's testimony of injury. Reviewing counsel's performance as a whole, we cannot conclude the failure to object to the unauthenticated photographs meets either the performance or prejudice prongs of the Strickland/Fritz test. Counsel's decision did not rise to "'such magnitude as to thwart the fundamental guarantee of [a] fair trial.'" Castagna, supra, 187 N.J. at 315 (quoting State v. Buonadonna, 122 N.J. 22, 42 (1991)). Defendant's final attack on counsel's competence asserts the failure to highlight Lesende's possible motive for testifying. Defendant argues Lesende's claims were in furtherance of a civil action against defendant and the City of Newark, and her student visa may have been "reneged or revoked" if she assaulted a police officer. We are hard pressed to understand the basis for the latter proposition in light of the fact that separate charges were pending against Lesende. As to a potential civil action, the record shows Lesende was cross-examined on her pursuit of a civil suit adequately attacking her motivation. Thus, we conclude defendant's argument lacks merit. After reviewing the record and applicable law in light of the contentions advanced by defendant, we conclude the findings by the Law Division judge are firmly supported by sufficient credible evidence, and her conclusions, predicated on those findings, are legally sound. Id. Accordingly, we affirm defendant's conviction. Affirmed.

Additional charges were issued against Lesende for knowingly making a false statement, wvWare/wvWare version 1.0.3 --> This archive is a service of Rutgers School of Law - Camden.

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