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

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

NOT FOR PUBLICATION WITHOUT THE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.

June 6, 2018
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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.
4 A-0421-16T3

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. 
5 A-0421-16T3

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 
7 A-0421-16T3

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.