Opinion
DOCKET NO. A-2670-12T1
01-05-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. JAMES SMITH, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Kevin G. Byrnes, Designated Counsel, on the brief). Grace H. Park, Acting Union County Prosecutor, attorney for respondent (Sara B. Liebman, Special Deputy Attorney General/ Acting Assistant Prosecutor, of counsel and on the brief). Appellant, filed a pro se supplemental brief.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Ashrafi and O'Connor. On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 07-04-0320. Joseph E. Krakora, Public Defender, attorney for appellant (Kevin G. Byrnes, Designated Counsel, on the brief). Grace H. Park, Acting Union County Prosecutor, attorney for respondent (Sara B. Liebman, Special Deputy Attorney General/ Acting Assistant Prosecutor, of counsel and on the brief). Appellant, filed a pro se supplemental brief. PER CURIAM
Defendant appeals from the denial of his petition for post-conviction relief (PCR) without an evidentiary hearing. For the reasons that follow, we affirm.
Defendant was indicted for first-degree possession of cocaine with the intent to distribute, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(1), and third-degree possession of a controlled dangerous substance, N.J.S.A. 2C:35-10(a)(1). Following an evidentiary hearing, the trial court denied defendant's motion to suppress evidence police discovered after a warrantless entry and search of his home. Defendant then pled guilty to possession of cocaine with the intent to distribute and was sentenced to a fifteen-year term of imprisonment, with five years of parole ineligibility.
Defendant filed a direct appeal of the denial of his motion to suppress, arguing the police searched his home based only upon an uncorroborated tip from an unknown informant and, therefore, the search was unlawful. We disagreed and affirmed the denial of the motion in an unpublished opinion. State v. Smith, No. A-6214-07T4 (App. Div. May 5, 2010).
Defendant filed a PCR petition pro se; subsequently, an amended petition was submitted by counsel. Defendant contended his attorney rendered ineffective assistance during the suppression hearing because he failed to call defendant and other witnesses, as well as seek the admission of photographs. Defendant claims his and the other witnesses' testimony, as well as the photographs, would have discredited the State's evidence. Following argument from counsel, the trial court denied defendant's petition.
Defendant presents the following issues for our consideration in his appeal.
POINT I - THE DEFENDANT WAS DENIED THE RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 10 OF THE NEW JERSEY CONSTITUTION.A review of the pertinent evidence adduced at the suppression hearing is required to put defendant's arguments in context.
POINT II - THE MATTER SHOULD BE REMANDED FOR AN EVIDENTIAL HEARING.
POINT III - THE DEFENDANT INCORPORATES BY REFERENCE THE ARGUMENTS ADVANCED IN HIS AMENDED VERIFIED PETITION IN SUPPORT OF POST-CONVICTION RELIEF.
On December 30, 2006, the Elizabeth Police Department received a tip from a citizen informant that drugs were being sold in the common hallway of an apartment complex on West Jersey Street. Police officer Michael Gonzalez and his partner, who were in the area of the complex on another matter, parked near the complex and got out of their car. They were then approached by the informant, who said that drugs were "coming out of Apartment 12" of the complex and mentioned a person named "ET." Gonzalez knew from prior encounters with defendant that he was also known as ET, and that he lived in that apartment. Gonzalez was also aware from various individuals he had arrested in the past that they had purchased drugs from defendant.
Gonzalez and his partner went to the apartment and, being in plainclothes, planned to buy drugs undercover. Gonzalez knocked on the door and a male voice asked "Who is it?" The police did not respond. Defendant abruptly opened the door. Gonzalez observed him holding two, tied—up baggies containing a white, rock-like substance in his right hand, palm up. Based upon his training and experience, Gonzalez suspected the substance was cocaine.
Gonzalez said "Police, stop!" and showed his badge. Defendant closed his hand and attempted to shut the door, but Gonzalez thwarted him by sticking his arm between the door and the door frame. Once inside, Gonzalez saw defendant putting his hand into his right jean pocket. Defendant attempted to retreat but Gonzalez and his partner were able to apprehend and handcuff him. In a search incident to his arrest, the police found fourteen bags of suspected cocaine in defendant's right pants pocket.
In the one-room apartment, Gonzalez saw two people sitting on a bed. He told them to stand up and, as they did, one dropped a hypodermic needle to the floor. When Gonzalez knelt down to pick up the needle, a large plastic bag came into view to his right. The bag was torn open, exposing six smaller bags that contained what appeared to be crack cocaine. The other two individuals were placed under arrest. Gonzalez was familiar with one of the two individuals and aware he had a reputation for carrying knives. Therefore, Gonzalez did a protective sweep for weapons and found under the pillow three folds of currency bound by rubber bands. Gonzalez also noticed an open box of homemade crack pipes next to the refrigerator.
At the end of the State's case, defense counsel told the court that, against his advice, defendant wanted to testify. The court cautioned defendant that his testimony could be used against him if he testified at trial, and suggested that he speak to his attorney. Defendant privately conferred with his attorney, who then reported defendant did not wish to testify at the hearing. The court directly addressed defendant and confirmed he did in fact make such decision. At the conclusion of the suppression hearing, the trial court found Gonzalez credible and denied the motion to suppress.
On appeal, defendant argues his attorney was ineffective because he failed to call him as a witness. Defendant claims he would have testified as follows. The evening his home was searched defendant heard a knock on the door. He opened the door and was confronted with the police, who claimed to have a warrant. Defendant reacted by trying to shut the door. The police then kicked and smashed in the door. Defendant asserts that when he opened the door, he was not holding and there were no drugs in plain view in the apartment to justify the police's entry into his home without a search warrant.
Defendant also faults his attorney for failing to seek the admission of photographs that show damage to the door and door frame, thus corroborating the police forced their way into his home. Finally, the other witnesses his attorney failed to call would have testified about the damage to his door and door frame, as well as authenticated the photographs.
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, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), and adopted by our Supreme Court in State v. Fritz, 105 N.J. 42 (1987). In order to prevail on a claim of ineffective assistance of counsel, defendant must meet the two-prong test of establishing both that: (1) counsel's performance was deficient and he or she made errors that were 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, supra, 466 U.S. at 687, 694, 104 S. Ct. at 2064, 2068, 80 L. Ed. 2d at 693, 698. The defendant bears the burden of establishing his right to relief "by a preponderance of the credible evidence." State v. Nash, 212 N.J. 518, 541 (2013).
In assessing whether counsel's assistance was ineffective under the Strickland-Fritz test, "there is a strong presumption that counsel's performance fell within the wide range of reasonable representation." Pressler & Verniero, Current N.J. Court Rules, comment 1.1 on R. 3:22-2 (2014). Strategic decisions that are objectively reasonable, albeit debatable or unsuccessful, are "'within the wide range of reasonable professional assistance' to which an accused is entitled . . . ." State v. Arthur, 184 N.J. 307, 333 (2005) (quoting Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694).
The record reveals defendant failed to make a prima facie showing of ineffectiveness of trial counsel within the Strickland-Fritz test. First, the record is clear it was no oversight that defense counsel did not call defendant as a witness. For strategic reasons, the attorney made a calculated determination defendant should not testify at the suppression hearing and so advised defendant of his decision. After conferring with his attorney, defendant also agreed he should not testify, a decision he confirmed on the record.
Second, the damage to the door and door frame is not inconsistent with the State's position. The State does not dispute the police used force to get through the door. Once Gonzalez spotted what he believed was cocaine in defendant's hand and announced he was with the police, defendant tried to shut the door. Gonzalez put his arm between the door and the frame and pushed back to gain entry. That there was damage to the door or the frame does not detract from Gonzalez' credibility. Defendant chose not testify, and thus Gonzalez' testimony that defendant was holding what he suspected was cocaine went unrefuted.
Third, the other witnesses defendant claims should have been called did not see the encounter between the police and defendant at the door. The proffered testimony of these witnesses was limited to the damage they observed to the door and door frame. In the final analysis, their testimony would not have been material.
Accordingly, the PCR court correctly concluded that an evidentiary hearing was not warranted. See State v. Preciose, 129 N.J. 451, 462-63 (1992). Defendant did not make out a prima facie case that his attorney's performance was deficient and that, but for that deficiency, there existed a reasonable probability the outcome of the hearing would have been different.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION