Opinion
DOCKET NO. A-5074-09T3
04-13-2012
STATE OF NEW JERSEY, Plaintiff-Respondent, v. SHAWN CORNELIUS PRESSLEY, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Stephen A. Caruso, Assistant Deputy Public Defender, of counsel and on the brief). Paula T. Dow, Attorney General, attorney for respondent (Natalie A. Schmid Drummond, Deputy Attorney General, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges A. A. Rodríguez and Sabatino.
On appeal from the Superior Court of New
Jersey, Law Division, Mercer County,
Indictment No. 06-10-1064.
Joseph E. Krakora, Public Defender, attorney
for appellant (Stephen A. Caruso, Assistant
Deputy Public Defender, of counsel and on
the brief).
Paula T. Dow, Attorney General, attorney for
respondent (Natalie A. Schmid Drummond,
Deputy Attorney General, of counsel and on
the brief).
PER CURIAM
Tried by a jury, defendant Shawn Cornelius Pressley was found guilty of third-degree possession of cocaine, a controlled dangerous substance ("CDS"), N.J.S.A. 2C:35-10a(1); third-degree possession of CDS with intent to distribute, N.J.S.A. 2C:35-5a(1) and 2C:35-5b(3); and third-degree possession of CDS with intent to distribute it in a school zone, N.J.S.A. 2C:35-5b(3) and 2C:35-7. The trial court also found defendant guilty of the disorderly persons offense of resisting arrest, N.J.S.A. 2C:29-2a(1). With the State's consent, the trial court dismissed an additional count in the indictment that had charged defendant with the second-degree offense of possession of CDS with intent to distribute it within five-hundred feet of a public housing zone.
At sentencing, the trial court imposed an extended term of seven years, with a three-year period of parole ineligibility, on the school zone offense. The court merged the two other indictable convictions into the school zone offense. Lastly, the court imposed a concurrent ninety-day jail term on the disorderly persons offense. Customary fines and penalties were also imposed.
The sole claim that defendant now raises on appeal is that his trial counsel was constitutionally ineffective in failing to move to suppress a plastic bag containing cocaine, which a detective had observed defendant drop to the ground when he approached defendant on the street. We reject that contention because such a motion to suppress would not have had merit.
The trial proofs reflect that at about 7:00 p.m. on July 1, 2006, two Trenton police detectives were on patrol in the area of East Trenton when they encountered defendant. According to the testimony of one of those detectives, Ryan Burger, he saw defendant leaning into a blue van that was occupied by a white male and a white female. Defendant appeared to be speaking with the white female passenger, who was holding paper currency. Based on his training and experience, Detective Burger suspected that defendant was engaged in a drug transaction.
Seeking to investigate the situation, Detective Burger pulled up his patrol car and approached defendant. According to Burger's testimony, at that point defendant "became visibly nervous[,] placed both of his hands into his pockets[,] and began to walk away from the van[.]" Burger ordered defendant to stop walking and to turn around. Burger then observed defendant take his left hand from his pocket and drop a white object on the ground. Burger immediately picked up the white object, which turned out to be a plastic bag containing crack cocaine.
After defendant dropped the bag, he started moving away at a faster pace. Burger caught up with defendant. He subdued defendant with pepper spray and made an arrest. No drugs were recovered from defendant, but he was found to be carrying $186 in cash.
Meanwhile, the van was searched, and a stash of crack cocaine was recovered from the car door handle. The female passenger also had a crack cocaine pipe in her right front pants pocket. She placed the money that had been in her hand on the console. The male passenger later took the money.
At trial, the recovered cocaine and the crack pipe were admitted into evidence, without objection by defense counsel. The quantity of cocaine was determined to be 0.85 grams.
Defendant contends that his trial attorney should have objected to the admission of the cocaine and, in particular, should have filed a pretrial motion to suppress the drugs because they had been recovered by the police without a warrant. He contends that the failure of his attorney to resist the admission of this evidence deprived him of his constitutional right to the effective assistance of counsel.
In evaluating these contentions, we are guided by well-established legal principles. Pursuant to the Sixth Amendment of the United States Constitution, a person accused of crimes is guaranteed the effective assistance of legal counsel in his defense. Strickland v. Washington, 466 U.S. 668, 685-87, 104 S. Ct. 2052, 2063-64, 80 L. Ed. 2d 674, 692-93 (1984). To establish a deprivation of that right, a convicted defendant must satisfy the two-part test enunciated in Strickland by demonstrating that: (1) counsel's performance was deficient, and (2) that deficient performance actually prejudiced the accused's defense. Id. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693; see also State v. Fritz, 105 N.J. 42, 58 (1987) (adopting the Strickland two-part test in New Jersey). In reviewing such claims, courts apply a strong presumption that defense counsel "rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Strickland, supra, 466 U.S. at 690, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695.
Neither prong of the two-part Strickland/Fritz test of ineffectiveness has been established here because, for the reasons we shall explain, a motion to suppress the cocaine would not have been meritorious under the applicable search-and-seizure principles. Hence, defense counsel's failure to file a suppression motion was not deficient, and defendant suffered no actual prejudice from his counsel's acquiescence to the admission of the cocaine at trial.
The police officers' recovery of the plastic bag from the ground, where defendant had dropped it in their presence, was justified under the "plain view" exception to the general constitutional requirement for a warrant. A warrant is not required to perform a search when a police officer is (1) lawfully present in the viewing area, (2) the officer inadvertently discovers the evidence in plain view, and (3) it is "'immediately apparent'" to the police officer that the "items in plain view were evidence of a crime, contraband, or otherwise subject to seizure." State v. Johnson, 171 N.J. 192, 207 (2002) (quoting State v. Bruzzese, 94 N.J. 210, 236-38 (1983), cert. denied, 465 U.S. 1030, 104 S. Ct. 1295, 79 L. Ed. 2d 695 (1984)). All of these elements are satisfied here.
Defendant argues that the plain view doctrine should not be applied here because it resulted from an allegedly-illegal investigatory stop. We disagree.
Based upon their observation of defendant's interactions with the van's female passenger and her visible possession of currency, while they were in an area known for illegal drug activity, the police officers had, at the very least, a reasonable basis to conduct a field inquiry into what was transpiring. See State v. Pineiro, 181 N.J. 13, 20-21 (2004). As the officers approached, defendant looked "visibly nervous" and began to walk away. His evasive behavior at that point justified Detective Burger's command that defendant stop, as the situation escalated into one of "particularized suspicion" that a drug transaction had been or was being committed. See Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 1880, 20 L. Ed. 2d 889, 906 (1968); see also State v. Rodriguez, 172 N.J. 117, 126-27 (2002).
Rather than comply with the officer's command, defendant dropped the plastic bag and continued to walk away. Having done so, defendant had no constitutional right to object to the police seizure of the plastic bag and an inspection of its contents. See State v. (Marcellus) Williams, 192 N.J. 1, 11-14 (2007) (noting that a defendant generally has no right to disobey a police officer's command to stop by fleeing); see also State v. Crawley, 187 N.J. 440, 458-59 (2006), cert. denied, 549 U.S. 1078, 127 S. Ct. 740, 166 L. Ed. 2d 563.
In an effort to show that the officers' investigatory stop was impermissible, defendant relies upon State v. (Robert) Williams, 410 N.J. Super. 549 (App. Div. 2009), certif. denied, 201 N.J. 440 (2010). That case is not factually on point. In Williams, the defendant, who had been pedaling his bicycle through the courtyard of a public housing complex, was ordered by police officers to stop. Id. at 553. He disobeyed the command and was apprehended. Ibid. In concluding that the investigatory stop in Williams was not justified, we noted that the officers had "no reason to focus upon" the bicyclist as the "possible perpetrator" of a crime. Id. at 556. Unlike the present case, the officers in Williams had not observed the defendant, prior to his flight, do anything suggestive of illegal conduct. Id. at 556-57. Here, the observations of defendant with the female van passenger engaged in a suspected drug transaction provided a different and sufficient context for the police to conduct a brief investigatory detention of defendant. Cf. State v. Tucker, 136 N.J. 158, 166-70 (1994) (invalidating, in distinguishable circumstances, an investigatory stop of a defendant, where the police had immediately pursued a youth, without reasonable, articulable suspicion or probable cause that he had committed a crime and without first directing him to stop).
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION