Opinion
DOCKET NO. A-4494-13T1
10-26-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. RODNEY HARRIS, a/k/a BOOST HARRIS, JEROME HARRIS, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Louis H. Miron, Designated Counsel, on the brief). Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Lucille M. Rosano, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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. Before Judges Simonelli and Carroll. On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 05-08-1983. Joseph E. Krakora, Public Defender, attorney for appellant (Louis H. Miron, Designated Counsel, on the brief). Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Lucille M. Rosano, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Rodney Harris appeals from the March 4, 2014 Law Division order, which denied his petition for post-conviction relief (PCR) following an evidentiary hearing. We affirm.
A grand jury indicted defendant and nineteen other individuals on numerous drug charges stemming from a five-month undercover narcotics investigation. Defendant was tried jointly with his father, Rodney Coleman; his step-mother, Kelly Felder; and Coleman's neighbor, Donald Scott.
Coleman was the primary target of the narcotics investigation. See State v. Coleman, No. A-5208-06 (App. Div. Sept. 8, 2010) (slip op. at 5), certif. denied, 205 N.J. 99 (2011). Coleman maintained two apartments in Irvington, one located on 40th Street and the other located on Stuyvesant Avenue. Id. at 4. On September 16, 2004, Detective Sergeant John Cerefice from the New Jersey State Police and other police officers began surveillance of the 40th Street apartment in order to corroborate the information they had received about Coleman's narcotics activities. Ibid.
To initiate contact with Coleman, Cerefice gave his cell phone number to an informant, who then gave it to Coleman. Id. at 5. Coleman called Cerifice and gave the detective his cell phone number. Ibid. Thereafter, Coleman arranged narcotics transactions with a State Police Detective via his cell phone. Id. at 5-6.
On October 19, 2004, the police obtained a dialed number retriever (DNR) or "pen register" for Coleman's cell phone. Id. at 7. A DNR identifies incoming and outgoing calls to the phone number along with the date, time and length of the calls. Ibid. The length of each call is significant because calls of a short duration may indicate the phone owner's involvement in CDS distribution. Id. at 7-8. The DNR revealed that Coleman had over one-hundred-and-fifty pen register calls with codefendants or clients during the month the DNR was in place. Id. at 8.
On December 9, 2004, an undercover police officer called Coleman's cell phone and arranged to meet him at the 40th Street apartment to purchase cocaine. Id. at 7. Defendant was at the apartment when the officer arrived, and gave the officer fifteen grams of cocaine in exchange for $450. Ibid.
The police obtained search warrants for Coleman's cell phone, and conducted wiretap monitoring of the cell phone in conjunction with the surveillance of the two apartments during which they observed numerous narcotics transactions. Id. at 8. The police recorded over sixty wiretap conversations, the majority of which involved narcotics transactions. Ibid. There were several recorded conversations between Coleman and defendant involving drug transactions. Ibid.
The police obtained search warrants for Coleman's two apartments, and arrest warrants for Coleman, defendant, Felder, and two other codefendants. Ibid. On December 30, 2004, the police executed the warrants at the 40th Street apartment and arrested defendant and another codefendant. Id. at 9. A search revealed twelve bags of cocaine behind a picture in the bedroom, a Black Point drug scale on the floor of a closet, a crusher, sixty-five small yellow glassine baggies on a shelf in the bedroom, and five cell phones in the bedroom. Ibid.
Following a Driver hearing, the court granted the State's motion to admit the electronically recorded wiretap phone conversations and various surveillance videos. Coleman then filed a motion to suppress the contents of the wiretaps, arguing there was no probable cause for issuance of a warrant for his cell phone. The court denied the motion.
State v. Driver, 38 N.J. 255 (1962).
The record does not indicate that defendant filed a motion to suppress or joined in Coleman's motion.
Trial was held before Judge Dennis F. Carey, III and a jury. The jury heard the wiretap conversations and had the transcripts available for their review. An expert in narcotics distribution summarized the content and meaning of the wiretap conversations and explained the narcotics terminology that Coleman and the codefendants used in those conversations.
The jury found defendant guilty of second-degree conspiracy to possess a controlled dangerous substance (CDS) and/or possession of a CDS with intent to distribute, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:35-5 (count one); third-degree manufacturing, distributing or dispensing a CDS, N.J.S.A. 2C:35-5(a) (count four); third-degree distribution of a CDS within 1,000 feet of school property, N.J.S.A. 2C:35-7 (count five); and third-degree manufacturing, distributing or dispensing a CDS, N.J.S.A. 2C:35-5(a)(1) (count seven). The trial judge imposed a mandatory extended-term of seven years on count one; merged count four with count five; imposed a concurrent five-year term of imprisonment with three years of parole ineligibility on count five; and imposed a concurrent mandatory extended-term sentence of seven years with three years of parole ineligibility on count seven.
The jury found defendant not guilty of third-degree possession of a CDS, N.J.S.A. 2C:35-10(a)(1) (count twelve); third-degree manufacturing, distributing or dispensing a CDS, N.J.S.A. 2C:35-5(a)(1) (count thirteen); and third-degree distributing, dispensing or possessing a CDS within 1,000 feet of school property, N.J.S.A. 2C:35-7 (count fourteen). The trial judge dismissed the disorderly persons offense of use or possession with intent to use drug paraphernalia, N.J.S.A. 2C:36-2.
Defendant appealed his conviction and sentence. We affirmed, and our Supreme Court denied certification. State v. Harris, No. A-3125-07 (App. Div. Sept. 8, 2010), certif. denied, 205 N.J. 99 (2011).
Defendant filed a PCR petition, contending that trial counsel rendered ineffective assistance; however, he asserted no facts demonstrating counsel's alleged deficiencies. From the transcripts submitted on appeal, we discern that Coleman filed a PCR petition, contending that his trial counsel rendered ineffective assistance by failing to investigate and properly challenge the affidavits submitted in support of the application to obtain the wiretap search warrant. Coleman argued that trial counsel failed to obtain his cell phone records, which when compared to the affidavits, would have demonstrated the affidavits contained false, exaggerated and fabricated information about the number and length of calls attributed to Coleman. Coleman posited that these records would have led the court to grant his motion to suppress.
Judge Carey held an evidentiary hearing as to both PCR petitions, at which only Coleman and his trial counsel testified. Coleman testified that he asked trial counsel to obtain his cell phone records and compare them to the affidavits, but counsel failed to do so. Coleman also testified that he obtained the records after the trial, compared them to the affidavits, and saw that some of the calls were inflated. He specifically pointed to the calls involving his brother, codefendant Ulysses Coleman, stating they were inflated to make it appear that Ulysses was involved in the narcotics enterprise, but he was not involved. Coleman admitted, however, that in addition to the cell phone calls, the affidavits contained information about the surveillance that showed him engaging in narcotics transactions and selling narcotics to an informant and undercover police officer. Coleman did not testify that the cell phone calls involving defendant were fabricated or inflated, and there was no testimony about defendant's trial counsel.
Defendant's PCR counsel appeared and waived defendant's appearance. --------
Judge Carey found that Coleman's trial counsel should have been more aggressive in obtaining the cell phone records, but ultimately held that counsel was not ineffective. The judge found that even if counsel had obtained the cell phone records, it would not have resulted in the grant of the motion to suppress, as there was no showing the police intentionally exaggerated the number of calls.
The judge also reviewed the number of calls listed in the affidavits, compared them to the cell phone records, and found there were some discrepancies in the number of calls made to certain individuals. However, the judge concluded that these discrepancies would not have resulted in the grant of the motion to suppress. None of the discrepancies pertained to defendant.
On appeal, defendant argues that trial counsel rendered ineffective assistance by failing to: (1) investigate possible infirmities in the State's case against him and prepare for trial; (2) locate witnesses to support an alibi defense or other affirmative defenses; and (3) challenge the affidavit the police submitted in support of the application to obtain a wiretap. Defendant also argues that counsel rendered ineffective assistance by coercing him not to testify and failing to obtain Coleman's cell phone records.
To establish a prima facie claim of ineffective assistance of counsel, the defendant
must satisfy two prongs. First, he must demonstrate that counsel made errors so serious that counsel was not functioning as the counsel guaranteed the defendant by the Sixth Amendment. An attorney's representation is deficient when it [falls] below an objective standard of reasonableness.
Second, a defendant must show that the deficient performance prejudiced the defense. A defendant will be prejudiced when counsel's errors are sufficiently serious to deny him a fair trial. The prejudice standard is met if there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been
different. A reasonable probability simply means a probability sufficient to undermine confidence in the outcome of the proceeding.
[State v. O'Neil, 219 N.J. 598, 611 (2014) (citations omitted).]
"[I]n order to establish a prima facie claim, [the defendant] must do more than make bald assertions that he was denied the effective assistance of counsel. He must allege facts sufficient to demonstrate counsel's alleged substandard performance." State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). The defendant must establish, by a preponderance of the credible evidence, that he or she is entitled to the requested relief. State v. Nash, 212 N.J. 518, 541 (2013).
Here, defendant did not allege any facts in his PCR petition demonstrating trial counsel's alleged substandard performance. He merely made bald assertions in his merits brief that trial counsel rendered ineffective assistance that are not supported by the record.
Even if defendant had demonstrated that trial counsel failed to obtain Coleman's cell phone records, this would not change the outcome. Because neither Coleman nor defendant denied there were several recorded cell phone conversations between them involving drug transactions, and because none of the complained-of calls pertained to defendant, there was no basis for defendant's trial counsel to challenge the affidavit. "The failure to raise unsuccessful legal arguments does not constitute ineffective assistance of counsel." State v. Worlock, 117 N.J. 596, 625 (1990).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION