STATE OF NEW JERSEY VS. ROBERT A. TERC (11-05-0536, MORRIS 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NOT FOR PUBLICATION WITHOUT THE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-4730-16T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
ROBERT A. TERC,
Defendant-Appellant.
________________________________
Submitted May 31, 2018 – Decided July 9, 2018
Before Judges Nugent and Currier.
On appeal from Superior Court of New Jersey,
Law Division, Morris County, Indictment No.
11-05-0536.
Joseph E. Krakora, Public Defender, attorney
for appellant (Craig S. Leeds, Designated
Counsel, on the brief).
Fredric M. Knapp, Morris County Prosecutor,
attorney for respondent (Erin Smith Wisloff,
Supervising Assistant Prosecutor, on the
brief).
PER CURIAM
Defendant Robert A. Terc appeals from the denial of his
petition for post-conviction relief (PCR). After reviewing the
contentions in light of the record and applicable legal principles,
we affirm.
Defendant was charged in an indictment with two counts of
first-degree attempted murder, N.J.S.A. 2C:5-1(a)(1) and N.J.S.A.
2C:11-3(a)(1); two counts of second-degree aggravated assault,
N.J.S.A. 2C:12-1(b)(1); two counts of third-degree aggravated
assault, N.J.S.A. 2C:12-1(b)(2); two counts of third-degree
aggravated assault, N.J.S.A. 2C:12-1(b)(7); two counts of second-
degree burglary, N.J.S.A. 2C:18-2(a)(1) and N.J.S.A. 2C:18-
2(b)(1); one count of third-degree possession of a weapon for an
unlawful purpose, N.J.S.A. 2C:39-4(d); one count of fourth-degree
possession of a weapon for an inappropriate purpose, N.J.S.A.
2C:39-5(d); and one count of fourth-degree possession of an
imitation firearm for an unlawful purpose, N.J.S.A. 2C:39-4(e).
The charges arose out of the stabbing of defendant's former
girlfriend and her male friend. A jury found defendant guilty on
all counts of the indictment. He was sentenced to an aggregate
twenty-five year term of imprisonment, subject to the No Early
Release Act, N.J.S.A. 2C:43-7.2. We affirmed defendant's
convictions in the direct appeal. State v. Terc, No. A-2674-11
(App. Div. Apr. 1, 2014) (slip op. at 31).
Defendant filed a petition for PCR in 2016. He asserted
trial counsel provided ineffective representation by failing to:
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prepare defendant to testify, object to the introduction of certain
evidence, challenge one of the jurors, subpoena a fact witness,
request a self-defense jury charge, and request a change of venue.
Defendant contended appellate counsel failed to argue on appeal
that certain evidence was overly prejudicial and, therefore,
improperly admitted. After hearing defendant's arguments, Judge
Thomas J. Critchley, Jr. denied the PCR petition without an
evidentiary hearing.
The following issues are raised on appeal:
POINT I: DEFENDANT WAS DENIED THE EFFECTIVE
ASSISTANCE OF TRIAL COUNSEL IN VIOLATION OF
THE UNITED STATES AND NEW JERSEY CONSTITUTIONS
AND THE LOWER COURT ERRED IN CONCLUDING
OTHERWISE.
POINT II: DEFENDANT WAS DENIED THE EFFECTIVE
ASSISTANCE OF APPELLATE COUNSEL.
POINT III: DEFENDANT WAS DENIED THE EFFECTIVE
ASSISTANCE OF POST CONVICTION RELIEF COUNSEL
(not raised below).
POINT IV: THE CUMULATIVE EFFECT OF THE ERRORS
COMPLAINED OF RENDERED THE TRIAL UNFAIR.
POINT V: THE LOWER COURT ERRED IN DENYING
DEFENDANT'S PETITION FOR POST-CONVICTION
RELIEF WITHOUT AFFORDING HIM AN EVIDENTIARY
HEARING.
The standard for determining whether counsel's performance
was ineffective for purposes of the Sixth Amendment was formulated
in Strickland v. Washington, 466 U.S. 668 (1984), and adopted by
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our Supreme Court in State v. Fritz, l05 N.J. 42, 58 (l987). In
order to prevail on a claim of ineffective assistance of counsel,
defendant must meet the two-prong test of establishing both that:
(l) counsel's performance was deficient and he or she made errors
so egregious 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 exists a
"reasonable probability that, but for counsel's unprofessional
errors, the result of the proceeding would have been different."
Strickland, 466 U.S. at 687, 694.
Judge Critchley considered all of defendant's arguments in a
comprehensive oral decision. We are satisfied from our review of
the record that defendant failed to meet his burden of proof to
establish an ineffectiveness of trial and appellate counsel within
the Strickland-Fritz test and conclude that defendant's arguments
lack sufficient merit to warrant discussion in a written opinion.
R. 2:11-3(e)(2). We, therefore, affirm substantially for the
reasons stated in Judge Critchley's well-reasoned opinion and add
only the following brief comments.
There is no support for defendant's contention he was coerced
by counsel not to testify at trial. To the contrary, the trial
judge asked counsel, on two occasions, whether he discussed with
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defendant the right to testify. Counsel responded he discussed
the issue with his client, and added: "We spoke a great deal about
it." The court inquired the following day again whether defendant
intended to testify. At no point during either of these colloquies
did defendant contradict his counsel or advise he wished to testify
or was uninformed of his rights.1
Defendant's criticism of appellate counsel also lacks merit.
A trial judge's decision to admit photographs into evidence rests
within his discretion, and "will not be reversed in the absence
of palpable abuse." State v. Rose, 112 N.J. 454, 535-36 (1988)
(quoting State v. Thompson, 59 N.J. 396, 420 (1971)). Defendant
has not demonstrated that appellate counsel was ineffective for
failing to raise an issue where the issue was not error.
There was also overwhelming evidence to support the
convictions. The victims, who were asleep at the time of the
initial stabbing, testified as to what was occurring upon
awakening, and subsequently, including their struggle with
defendant. The victims' blood was found on defendant when he was
apprehended in the woods a short distance from the scene of the
1
Defendant asserts on appeal he was not prepared by trial counsel
to testify regarding his claim of self-defense. However, we
determined in the direct appeal that self-defense was not available
to defendant in light of the presented evidence. Terc, slip op.
at 19-20.
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attack. As Judge Critchley noted, "it's hard to know what an
attorney could have done differently. And . . . I find that
nothing . . . could have been done that would have altered these
fundamental facts."
Affirmed.
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