Opinion
DOCKET NO. A-5281-13T2
07-25-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. CURTIS JONES, a/k/a CURTIS LEE JONES, CURTIS L. JONES, CURTIS L. JONES, SR., and RONNIE R. JONES, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Thomas G. Hand, Designated Counsel, on the brief). Grace H. Park, Acting Union County Prosecutor, attorney for respondent (Milton S. Leibowitz, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Yannotti and Haas. On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment Nos. 07-03-0180, 08-05-0371, 08-08-0652, and Accusation No. 08-10-1557. Joseph E. Krakora, Public Defender, attorney for appellant (Thomas G. Hand, Designated Counsel, on the brief). Grace H. Park, Acting Union County Prosecutor, attorney for respondent (Milton S. Leibowitz, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Curtis Jones appeals from an order entered by the Law Division on February 28, 2014, which denied his petition for post-conviction relief (PCR) without an evidentiary hearing. We affirm.
In March 2007, defendant was charged under Union County Indictment No. 07-03-0180, with third-degree possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10(a)(1) (count one); second-degree possession of CDS with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and -5(b)(2) (count two); fourth-degree possession of CDS, N.J.S.A. 2C:25-5(a)(1) and -5(b)(12) (count three); third-degree possession of CDS with intent to distribute within 1000 feet of school property, N.J.S.A. 2C:35-7 (count four); and second-degree possession of CDS with intent to distribute within 500 feet of a public park, N.J.S.A. 2C:35-7.1 (count five).
In May 2008, defendant was charged under Union County Indictment No. 08-05-0371 with third-degree possession of CDS, N.J.S.A. 2C:35-10(a)(1) (count one); third-degree possession of CDS with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and -5(b)(3) (count two); and second-degree possession of CDS with intent to distribute within 500 feet of a public park, N.J.S.A. 2C:35-7.1 (count three).
Furthermore, in August 2008, defendant was charged under Union County No. 08-08-0652 with third-degree distribution of CDS, N.J.S.A. 2C:35-5(a)(1) and -5(b)(3) (count one); third-degree distribution of CDS within 1000 feet of school property, N.J.S.A. 2C:35-7 (count two); and second-degree distribution of CDS within 500 feet of a public park, N.J.S.A. 2C:35-7.1 (count three).
In addition, in October 2008, defendant was charged in Union County Accusation No. 08-10-1557 with third-degree possession of CDS, N.J.S.A. 2C:35-10(a)(1) (count one).
Defendant thereafter filed a motion to suppress certain evidence obtained pursuant to a search warrant. The trial court conducted an evidentiary hearing on the motion, and on April 8, 2008, the court filed an opinion and order denying the motion.
On September 29, 2008, defendant pleaded guilty to count one (third-degree possession of CDS), and count two (second-degree possession of CDS with intent to distribute) of Indictment No. 07-03-0180; count two of Indictment No. 08-05-0371 (third-degree possession of CDS with intent to distribute); and count three under Indictment No. 08-08-0652 (second-degree distribution of CDS within 500 feet of a public park). The State agreed to recommend an aggregate sentence of nine years of incarceration, with four and one-half years of parole ineligibility. The State also agreed to dismiss the other charges.
On October 27, 2008, defendant pleaded guilty to count one (possession of CDS) of Accusation No. 08-10-1557. The State agreed to recommend a five-year prison sentence, to run concurrently with the sentences imposed on Indictment Nos. 07-03-0180, 08-05-0371, and 08-08-0652.
The trial court sentenced defendant in accordance with the plea agreements to an aggregate term of nine years of incarceration, with a four and one-half year period of parole ineligibility. The court ordered a seven-month suspension of defendant's driver's license, and imposed appropriate fees and penalties. The court entered judgments of conviction dated June 18, 2009.
Defendant appealed and raised the following argument:
[POINT I]
The trial court should have granted defendant's motion to suppress and excluded the evidence seized from defendant, warranting vacation of the subsequent plea based on the evidence.
[POINT II]
The trial court erred in denying defendant's motion to withdraw his guilty plea before sentencing.
[POINT III]
Defendant's sentence is improper and excessive.
Defendant filed pro se supplemental briefs in which he argued:
POINT I
THE ARREST WARRANT COMPLAINT SHOULD BE DISMISSED ON THE GROUNDS IT VIOLATES U.S.C.A. 4, 14.
POINT II
THE COURT[] DEVIATED FROM THE WRITTEN PLEA AGREEMENT. [THE] PLEA AGREEMENT IS AMBIGUOUS IN [ITS] STATEMENT OF SENTENCE AND DEFENDANT WAS SENTENCED OUTSIDE OF [THE] STATUTORY MAXIMUM STATED ON [THE] PLEA AGREEMENT.
[POINT III]
[THE] COURT DEVIATED FROM DEFENDANT'S UNDERSTANDING OF THE WRITTEN PLEA AGREEMENT, SENTENCING DEFENDANT BEYOND DEFENDANT'S EXPECTATION.
[POINT IV]
THE ARREST WARRANT COMPLAINT SHOULD BE DISMISSED ON THE GROUNDS IT VIOLATES U.S.C.A. 4, 14.
We rejected these arguments and affirmed. State v. Jones, No. A-1138-09 (App. Div. March 28, 2012). The Supreme Court thereafter denied defendant's petition for certification. State v. Jones, 212 N.J. 288 (2012). Defendant also filed a motion in trial court seeking to "correct or amend" his sentence. The court entered an order dated November 8, 2012, denying the motion. It appears that defendant filed an appeal from the court's November 8, 2012 order; however, defendant withdrew the appeal.
On June 11, 2013, defendant filed a pro se PCR petition in the trial court. The court appointed counsel to represent defendant, and counsel filed an amended petition. In a supporting certification, defendant alleged that he was denied the effective assistance of trial and appellate counsel.
The court heard oral argument on February 28, 2014, and placed an oral decision on the record. The court determined that defendant's claims were either barred by Rule 3:22-5 because they had been previously adjudicated, or were without merit. The court entered an order dated February 28, 2014, denying the petition. This appeal followed.
On appeal, defendant argues:
THE PCR COURT ERRED IN DENYING PETITIONER AN EVIDENTIARY HEARING.
A hearing on a PCR petition is required only when a defendant establishes a prima facie case in support of PCR, the court determines that there are disputed issues of material fact that cannot be resolved by review of the existing record, and the court determines that an evidentiary hearing is required to resolve the claims asserted. State v. Porter, 216 N.J. 343, 354 (2013) (citing R. 3:22-10(b)). "A prima facie case is established when a defendant demonstrates 'a reasonable likelihood that his or her claim, viewing the facts alleged in the light most favorable to the defendant, will ultimately succeed on the merits.'" Id. at 355 (quoting Rule 3:22-10(b)).
To prevail on a claim of ineffective assistance of counsel raised under the United States Constitution, a defendant must satisfy the two-part test established by the Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), and adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987), for consideration of claims of ineffective assistance raised under the New Jersey Constitution. Therefore, a defendant must show that his attorney's performance was deficient, and that his attorney's deficient performance prejudiced his defense. Id. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693.
We are convinced that the PCR court correctly found that defendant had not presented a prima facie case of ineffective assistance of trial counsel. Here, argues that his attorney should have sought dismissal of the indictments on the ground that the arrest warrant was invalid. He contends the warrant should have been sworn before a judicial officer rather than a police officer. However, even if counsel erred by failing to raise the issue regarding the arrest warrant, defendant has not shown that he was prejudiced by any such error. He has not established that the result of this proceeding would have been different if the issue had been raised. Therefore, the PCR court correctly found that defendant had not been denied the effective assistance of counsel with regard to the alleged technical defect in the arrest warrant.
The PCR court also correctly found that defendant had not been denied the effective assistance of appellate counsel. Defendant argues that counsel erred by failing to raise on appeal issues regarding the State's failure to disclose the CI's identity and produce laboratory reports confirming that the drugs the CI purchased from defendant were CDS. He argues that the State's failure to provide this evidence violated Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963).
We note initially that defendant has not established that he was entitled to disclosure of the CI's identity. N.J.R.E. 516 provides that:
A witness has a privilege to refuse to disclose the identity of a person who has furnished information purporting to disclose a violation of a provision of the laws of this State or of the United States to a representative of the State or the United States or a governmental division thereof, charged with the duty of enforcing that provision, and evidence thereof is inadmissible, unless the judge finds that (a) the identity of the person furnishing the information has already been otherwise disclosed or (b) disclose of his identity is essential to assure a fair determination of the issues.Defendant has not established that disclosure of the identity of the CI was essential to assure a fair determination of any issue in this case.
Here, the CI provided the police with a tip that defendant was distributing CDS from two residences and two vehicles. When seeking the search warrant, one of the officers provided an affidavit, which indicated that the CI had provided law enforcement with information regarding narcotics trafficking in the past, and the reliability of that information had been confirmed through independent investigations.
In addition, when ruling on defendant's motion to suppress, the motion judge noted that although the CI did not indicate how he had obtained the information about defendant, the information provided was very specific, which indicated that it was reliable. Moreover, the information that the CI provided had been confirmed with three controlled drug purchases that the CI made from defendant.
The motion judge found that the information provided by the CI, as confirmed by the police, provided probable cause for issuance of the search warrant, which resulted in the seizure of evidence that formed the basis for the charges. Defendant has not shown how disclosure of the identity of the CI was essential to a fair determination on the validity of the search warrant or any other issue in this case.
Furthermore, defendant has not established that production of the laboratory reports was necessary for his defense. In the trial court, defendant argued that the search warrant was invalid because the State did not present laboratory reports establishing that the drugs the CI purchased from him were in fact CDS. The motion judge rejected this argument, noting that while test results would have provided additional evidence to support the issuance of a search warrant, such reports were not required because the other evidence was sufficient to establish probable cause.
Accordingly, the State was not required to produce laboratory reports concerning the drugs that defendant sold to the CI in the controlled purchases. Defendant does not argue the State improperly failed to produce any laboratory reports relative to the CDS obtained in the searches, which formed the basis of the charges. In addition, defendant did not present any evidence to the PCR court showing that the drugs obtained in the execution of the search warrant were not, in fact, CDS.
Thus, defendant has not shown that appellate counsel erred by failing to raise issues regarding disclosure of the CI and the laboratory reports on appeal. Moreover, the appeal would not have been decided differently if those issues had been resolved.
Since defendant failed to establish a prima facie case of ineffective assistance of trial or appellate counsel, and the existing record was sufficient to resolve defendant's claims, an evidentiary hearing was not required on the petition.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION