Opinion
DOCKET NO. A-4298-12T2 DOCKET NO. A-5606-12T1 DOCKET NO. A-0329-13T1
01-19-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. JOHNEL D. DUNLAP, Defendant-Appellant. STATE OF NEW JERSEY, Plaintiff-Respondent, v. ERNEST BATES, a/k/a BATES DEMETRIUS and DARRYL JONES, Defendant-Appellant. STATE OF NEW JERSEY, Plaintiff-Respondent, v. WILLIAM NEWBILL, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellants (Michael J. Confusione, Designated Counsel, on the brief in A-4298-12; Alison Perrone, Designated Counsel, on the brief in A-5606-12; Gilbert G. Miller, Designated Counsel, on the briefs in A-0329-13). Andrew C. Carey, Middlesex County Prosecutor, attorney for respondent (Susan Berkow, Special Assistant Prosecutor, of counsel and on the brief). Johnel D. Dunlap, Ernest Bates and William Newbill filed pro se supplemental briefs.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Espinosa and Rothstadt. On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment Nos. 10-07-0983, 10-07-0995, 10-05-0270 and 09-06-1075. Joseph E. Krakora, Public Defender, attorney for appellants (Michael J. Confusione, Designated Counsel, on the brief in A-4298-12; Alison Perrone, Designated Counsel, on the brief in A-5606-12; Gilbert G. Miller, Designated Counsel, on the briefs in A-0329-13). Andrew C. Carey, Middlesex County Prosecutor, attorney for respondent (Susan Berkow, Special Assistant Prosecutor, of counsel and on the brief). Johnel D. Dunlap, Ernest Bates and William Newbill filed pro se supplemental briefs. PER CURIAM
After the denial of their motions to suppress evidence seized pursuant to search warrants and orders authorizing the interception of communications and data, each of the defendants entered a guilty plea pursuant to a plea agreement in this heroin conspiracy case. For the reasons that follow, we affirm their convictions and sentences.
We first address the issues raised by defendants in the briefs filed by their counsel.
Johnel D. Dunlap presents the following arguments for our consideration:
POINT I
THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION TO SUPPRESS EVIDENCE SEIZED BY POLICE.
POINT II
THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION TO DISMISS THE INDICTMENT.
POINT III
DEFENDANT'S SENTENCE IS IMPROPER AND EXCESSIVE.
In the brief submitted by his counsel, Ernest Bates presents the following issues:
POINT I
THE EVIDENCE SEIZED IN THIS MATTER SHOULD HAVE BEEN SUPPRESSED BECAUSE THE COURT ORDERED-INTERCEPTION OF CELL PHONE COMMUNICATIONS AND DATA AND THE SEARCHES OF VARIOUS VEHICLES AND HOUSES OF INTEREST LACKED SUFFICIENT BASIS.
POINT II
THE TRIAL COURT ABUSED ITS DISCRETION BY IMPOSING A MANIFESTLY EXCESSIVE SENTENCE.
William Newbill presents the following arguments in the brief submitted by his counsel:
POINT I
THE EVIDENCE SEIZED IN THIS MATTER SHOULD HAVE BEEN SUPPRESSED BECAUSE THE COURT ORDERED-INTERCEPTION OF
COMMUNICATIONS AND DATA OVER MALDONADO'S, DEFENDANT'S, LUSTER'S, DUNLAP'S AND MOSLEY'S CELL PHONES AND THE SEARCHES OF DUNLAP'S VEHICLES AND VARIOUS HOUSES OF INTEREST LACKED SUFFICIENT BASIS; MOREOVER, THE IMPROPER INTERCEPTION OF DATA OBTAINED FROM MALDONADO'S CELL PHONE IMPERMISSIBLY TAINTED THE ACQUISTION OF DATA FROM DEFENDANT'S AND LUSTER'S CELL PHONES, AND THE IMPROPER INTERCEPTION OF DATA FROM EACH AND ALL OF THESE THREE CELL PHONES IMPERMISSIBLY TAINTED THE INTERCEPTION OF DATA FROM DUNLAP'S AND MOSLEY'S CELL PHONES AND SURVEILLANCE OBSERVATIONS AND THE SEARCHES OF THE VARIOUS HOUSES AND VEHICLES IN THIS CASE.
A. INTERCEPTION OF COMMUNICATIONS AND DATA OVER CELL PHONE NUMBER 732-[XXX-XXXX] (MALDONADO).
B. INTERCEPTION OF COMMUNICATIONS AND DATA OVER CELL PHONE NUMBERS 973-[XXX-XXXX] (DEFENDANT) AND 201-[XXX-XXXX] (LUSTER).
C. CONTINUED INTERCEPTION OF COMMUNICATIONS AND DATA OVER DEFENDANT'S AND LUSTER'S CELL PHONE NUMBERS, INTERCEPTION OF COMMUNICATIONS AND DATA OVER CELL PHONE NUMBERS 973-[XXX-XXXX]
(DUNLAP) AND 732-[XXX-XXXX] (MOSLEY), AND EVIDENCE OBTAINED THROUGH THE EXECUTION OF SEARCH WARRANTS FOR VEHICLES AND HOUSES OF INTEREST.
Joseph Mosley was a co-defendant in Middlesex County Indictment No. 10-07-0983 but is not a party to this appeal.
The actual telephone numbers and license plates of vehicles were identified in the affidavits, trial court opinion and appellate briefs but are unnecessary to our decision.
Defendants did not challenge the continued interceptions over Newbill's and Luster's phones or the interception of communications over Dunlap's and Mosley's phones before the trial court. Accordingly, these arguments are not subject to our review. State v. Robinson, 200 N.J. 1, 19-20 (2009) ("The jurisdiction of appellate courts rightly is bounded by the proofs and objections critically explored on the record before the trial court by the parties themselves."); State v. Summers, 176 N.J. 306, 316 (2003).
I.
This case had its origin in an investigation into the heroin trafficking activities of Jose Maldonado in Somerset County. After a confidential informant disclosed prior purchases of heroin from Maldonado, an undercover detective purchased fifty bags of heroin from Maldonado on five different occasions during the period from October 2009 to January 2010. Maldonado changed his telephone number several times and, as of the last transaction before the wiretap order was sought, was using (732) XXX-XXXX. Maldonado drove to each transaction in a 1993 white Honda Accord bearing New Jersey license plate XXX-XXX. In January 2010, the first of the orders challenged on appeal authorized the interception of communications and data for Maldonado's cell phone and the installation of a GPS unit on the white Honda Accord.
Maldonado is a co-defendant in Indictment No. 10-07-0983 but is not a party to this appeal.
Conversations intercepted thereafter revealed that Maldonado had two principal sources for heroin. One was Tehron Luster. The second source was the partnership of defendants Newbill and Bates. During the course of their investigation, detectives observed meetings between Maldonado and both Luster and Newbill. Orders authorizing the interception of communications and data from the cellphones used by Luster and Newbill were issued in February 2010 and extended thereafter. Describing intercepted communications and coordinated surveillance through the lens of their experience, affiants later submitted affidavits in support of applications for the interception of communications and data over cellphones used by Dunlap and Mosley. Orders authorizing such interceptions were entered.
Luster is also a co-defendant who is not a party to this appeal.
The investigation came to fruition in late March 2010. A search warrant was issued for a 1997 white Chrysler minivan registered to Dunlap, with New Jersey license plate XXX-XXX, on March 24 at 3:35 p.m. When the search warrant was executed on March 26 from 9:55 a.m. until 3:00 p.m., fifteen bricks of heroin were recovered from the rear wheel well of the passenger side quarter panel of the minivan and wads of cash totaling $25,007 were found inside a black laptop bag. These seizures formed part of the basis for affidavits seeking search warrants for a 2004 blue Infiniti G35 registered to Dunlap, with New Jersey license plate XXX-XXX, and a green Honda Civic registered to M.H. The warrants for those automobiles were issued at 4:00 p.m. and executed fifteen minutes later. No property was recovered from the Honda. The search of the Infiniti resulted in the seizure of 551 bricks of heroin in three separate bags, a 9 mm Smith and Wesson handgun containing ten rounds of ammunition, and a piece of paper with Mosley's name and heroin stamp names written on it.
Initials are used to protect the privacy of individuals who were not charged.
Dunlap's residence on South Park Street in Elizabeth was searched pursuant to a search warrant, resulting in the recovery of $9,060 and fourteen decks, or approximately 2.8 bricks, of heroin. Search warrants executed at residences on Mitchell Avenue and Lawrence Street in New Brunswick resulted in the seizures of 34.4 bricks of heroin and 12.8 bricks of heroin, respectively.
In pretrial motions, Dunlap sought the dismissal of the indictment, the suppression of evidence seized from the three automobiles and a Driver hearing as to all wiretap evidence. Newbill sought the dismissal of count three of the indictment and the suppression of evidence obtained from: the wiretap and communications data warrants for the cellphones used by Maldonado, Luster and Newbill and the GPS unit installed on the white Honda Accord used by Maldonado. Bates joined in the motions filed by Dunlap and Newbill.
State v. Driver, 38 N.J. 255 (1962).
On appeal, Newbill argues that because all related surveillances, further warrants, communications interceptions, and seizures of physical evidence occurred as a direct result of the allegedly illegal interceptions pursuant to the initial wiretap orders, all resulting evidence should be suppressed as "fruit of the poisonous tree." This argument, which appears to be raised for the first time on appeal, lacks sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).
II.
We first consider defendants' challenges to the wiretap orders and search warrants.
Judge Bradley J. Ferencz authored a comprehensive fifty-four page memorandum decision, setting forth the reasons for the denial of defendants' motions to dismiss the indictment and to suppress the evidence obtained pursuant to the orders authorizing the interception of communications and data and the installation of a GPS unit (collectively, wiretap orders), and search warrants. His opinion includes a detailed review of the facts of the investigation and the contents of the affidavits, which need not be repeated here. We have reviewed the affidavits submitted in support of the applications for the wiretap orders and agree they satisfy the requirements of probable cause and special need under N.J.S.A. 2A:156A-10 and applicable judicial precedents. As for the search warrants, we also agree with Judge Ferencz's reasoned analysis that the warrants were supported by adequate showings of probable cause. Therefore, as to the arguments raised in Point I of each defendant's appeal, we affirm the orders denying the suppression motions substantially for the reasons set forth by Judge Ferencz in his written opinion.
III.
In Point II, defendant Dunlap argues the trial judge erred in failing to grant his motion to dismiss the indictment. He contends that, in its presentation to the grand jury, the State committed prosecutorial misconduct by: failing to question the grand jurors about possible bias or prejudice or whether they knew any of the persons involved in the case, and by failing to present purportedly exculpatory evidence, i.e., that the green Honda the State associated with Dunlap was actually a "dark colored Toyota" registered to M.H. In addition, Dunlap argues the State provided the grand jurors inadequate instructions on the essential elements of N.J.S.A. 2C:35-3. In his memorandum decision, Judge Ferencz set forth the arguments raised, the applicable principles of law and an analysis of the issues that applied the law to the facts of this case. However, we need not review the challenge to the indictment because Dunlap failed to preserve this issue for appeal when he entered his guilty plea.
"A plea of guilty amounts to a waiver of all issues, including constitutional claims, that were or could have been raised in prior proceedings." State v. Marolda, 394 N.J. Super. 430, 435 (App. Div.), certif. denied, 192 N.J. 482 (2007). In State v. Knight, 183 N.J. 449 (2005) the Court reviewed the three exceptions to the general rule of waiver:
First, Rule 3:5-7(d) and Rule 7:5-2(c)(2) permit a defendant to appeal the denial of a Fourth Amendment-based motion to suppress evidence after a conviction whether based on a guilty plea or a conviction. . . .
Second, Rule 3:28(g), permits a defendant to appeal the denial of admission into a pretrial intervention program. . . .
Third, . . . Rule 3:9-3(f), expressly authorizes a defendant to "enter a conditional plea of guilty reserving on the record the right to appeal from the adverse determination of any specified pretrial motion."
[Id. at 471.]
Defendant did not enter a conditional guilty plea in which he reserved the right to appeal the issues he raised regarding the indictment. In fact, defendant was explicitly advised and acknowledged that his guilty plea constituted a waiver of the right to challenge any pretrial motion other than the motion to suppress evidence. As we noted in Marolda, neither of the other exceptions apply to permit a challenge to non-jurisdictional defects in grand jury proceedings. 394 N.J. Super. at 434-36. Although we will not enforce Rule 3:9-3(f) in those limited situations where strict adherence would result in an injustice, State v. J.M., 182 N.J. 402, 410 (2005), we discern no grounds for the relaxation of the rule here.
IV.
Dunlap and Bates also challenge their sentences as excessive. On September 27, 2012, each defendant pled guilty pursuant to a plea agreement that disposed of all charges in Middlesex County Indictment No. 10-07-0983 as well as separate charges. The sentences were imposed in conformance with those plea agreements.
The general principles applicable to our review of the sentences imposed require us to accord deference to the sentencing decision when the trial court has engaged in a deliberative process, which requires the court to "identify the relevant aggravating and mitigating factors, determine which factors are supported by a preponderance of evidence, balance the relevant factors, and explain how it arrives at the appropriate sentence." State v. O'Donnell, 117 N.J. 210, 215 (1989); State v. M.A., 402 N.J. Super. 353, 370 (App. Div. 2008); N.J.S.A. 2C:43-2(e); R. 3:21-4(g).
A.
Indictment No. 10-07-0983 alleged thirty counts against these and other defendants who are not parties to this appeal. All three defendants were charged with the following offenses:
Dunlap was charged in eleven counts with: second-degree conspiracy to distribute heroin, N.J.S.A. 2C:5-2, N.J.S.A. 2C:35-5(a)(1) and -5(b)(1) (count one); first-degree leading a narcotics trafficking network, N.J.S.A. 2C:35-3 (count two); first-degree possession with intent to distribute heroin, N.J.S.A. 2C:35-5(a)(1) and -5(b)(1) (count three); first-degree distribution of heroin, N.J.S.A. 2C:35-5(a)(1) and -5(b)(1) (count four); third-degree possession of heroin, N.J.S.A. 2C:35-10(a)(1) (count five); first-degree possession with intent to distribute heroin, N.J.S.A. 2C:35-5(a)(1) and -5(b)(1) (count fourteen); a second count of third-degree possession of heroin, N.J.S.A. 2C:35-10(a)(1) (count fifteen); third-degree financial facilitation of criminal activity, N.J.S.A. 2C:21-25 (count eighteen) and third-degree receiving stolen property, N.J.S.A. 2C:20-7 (count nineteen); second-degree possession of a handgun without a permit, N.J.S.A. 2C:39-5 (count twenty); and second-degree possession of a firearm while in the course of committing, attempting to commit, or conspiring to commit a violation of N.J.S.A. 2C:35-5, N.J.S.A. 2C:39-4.1 (count twenty-one). He was also charged in Middlesex County Indictment No. 10-07-0995 with one count of second-degree certain persons not to have weapons, N.J.S.A. 2C:39-7(b).
Bates and Newbill were charged in counts one, three, four, five and eighteen of Middlesex County Indictment No. 10-07-0983; Middlesex County Indictment No. 10-07-0983 with third-degree possession with intent to distribute heroin, N.J.S.A. 2C:35-5(a)(1) and -5(b)(3) (count twelve); and a second count of third-degree possession of heroin, N.J.S.A. 2C:35-10(a)(1) (count thirteen), and in Somerset County Indictment No. 10-05-0270, with one count of second-degree conspiracy to distribute heroin, N.J.S.A. 2C:5-2, N.J.S.A. 2C:35-5(a)(1) and -5(b)(1).
Bates faced additional charges in another Middlesex County indictment which he resolved in a guilty plea to a disorderly persons offense.
B.
Pursuant to his plea agreement, Dunlap pled guilty to one count of first-degree leading a narcotics trafficking network (drug kingpin charge) and to a second-degree certain persons not to have weapons charge. The State agreed to recommend that Dunlap's exposure on the first-degree crime be limited to thirty years imprisonment with a fifteen year period of parole ineligibility, concurrent to ten years of imprisonment with five years of parole ineligibility on the second-degree crime.
At sentencing, Judge Ferencz found aggravating factors three, six, nine and eleven, N.J.S.A. 2C:44-1(a)(3),(6),(9) and (11), no mitigating factors, and that the aggravating factors proponderated. He sentenced Dunlap in accordance with the plea agreement to thirty years imprisonment with a fifteen year period of parole ineligibility on the drug kingpin offense, and a concurrent term of ten years and a minimum period of parole ineligibility on the certain persons offense.
In challenging his sentence, Dunlap argues the trial judge gave an inadequate explanation for his findings that aggravating factors three, six and nine applied. He also argues the judge erred in finding aggravating factor eleven and in failing to find mitigating factor eleven, N.J.S.A. 2C:44-1(b)(11), because defendant has young children.
On appeal, defendant has cited no evidence in the record that defendant's children will suffer "excessive" hardship, i.e., hardship beyond that commonly associated with the incarceration of a defendant. See State v. Dalziel, 182 N.J. 494, 505 (2005). We also conclude there was adequate support in the record for the trial judge's findings that aggravating factors three, six and nine applied.
The court also found applicable aggravating factor eleven, which states, "The imposition of a fine, penalty or order of restitution without also imposing a term of imprisonment would be perceived by the defendant or others merely as part of the cost of doing business, or as an acceptable contingent business or operating expense associated with the initial decision to resort to unlawful practices." Although this factor is not applicable in cases such as this, the court's finding cannot reasonably be interpreted as a fatal flaw to the overall findings that supported the imposition of the sentence here.
Pursuant to N.J.S.A. 2C:35-3, defendant's guilty plea to the drug kingpin charge subjected him to a mandatory term of life imprisonment with a twenty-five year period of parole ineligibility. N.J.S.A. 2C:35-12 provides the sole exception to that mandatory sentence where, as here, defendant has entered into a plea agreement in which the State has agreed to recommend a lesser term of imprisonment. Under those circumstances, the trial judge may not impose a sentence less than that called for by the plea agreement. Despite acknowledging this legislative restriction of the trial judge's discretion, Dunlap argues that the court erred in failing to reject the plea agreement as an alternative. We reject this argument, finding it lacks sufficient merit to warrant further discussion. R. 2:11-3(e)(2).
C.
Pursuant to a plea agreement that disposed of all outstanding charges, Bates pled guilty to one count of first-degree distribution of heroin and one count of second-degree conspiracy to distribute heroin, N.J.S.A. 2C:5-2, N.J.S.A. 2C:35-5(a)(1) and -5(b)(1). The State agreed to recommend that Bates' exposure be limited to eighteen years imprisonment with fifty months of parole ineligibility on the first-degree offense, and a concurrent seven year term on the second-degree offense. Defendant filed a motion to withdraw his guilty plea, which was denied. At sentencing, Judge Ferencz found aggravating factors three, five, six and nine, N.J.S.A. 2C:44-1(a)(3), (5), (6) and (9), and no mitigating factors. The judge sentenced Bates to eighteen years imprisonment with fifty months of parole ineligibility on the first-degree charge, a concurrent seven-year term on the second-degree offense, and a consecutive six-month term on a disorderly persons offense charged in Middlesex County Indictment 09-06-1075.
Bates does not challenge the factual basis for the aggravating factors found by Judge Ferencz, but contends the judge erred in according too much weight to factors (3), (6) and (9). We find no merit to this argument.
Bates also argues the court erred in failing to find mitigating factor eleven, N.J.S.A. 2C:44-1(b)(11), based upon the hardship imposed upon defendant's teenage son, and mitigating factor twelve, N.J.S.A. 2C:44-1(b)(12), based upon his willingness to cooperate by pleading guilty. However, on appeal, he cites no evidence in the record to support a finding that either his son will suffer an "excessive" hardship, Dalziel, supra, 182 N.J. at 505, or that he offered any assistance to law enforcement beyond entering his own guilty plea, a plainly inadequate basis for the application of N.J.S.A. 2C:44-1(b)(12). We therefore conclude Bates's challenge to his sentence lacks merit.
V.
We next turn to the arguments raised by defendants in their supplemental pro se briefs.
Dunlap presents the following argument:
THE DEFENDANT WAS SUBJECTED TO THE CONSTRUCTIVE DENIAL OF COUNSEL AT HIS PRETRIAL SUPPRESSION HEARING AND MOTION TO DISMISS THE INDICTMENT, AND HIS SIXTH AMENDMENT CONSTITUTIONAL RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL THEREFORE THE CONVICTION SHOULD BE REVERSED.
Newbill presents the following argument in his supplemental pro se brief:
THE TRIAL COURT ERRED IN ACCEPTING DEFENDANT'S GUILTY PLEA TO DISTRIBUTION OF HEROIN IN THE FIRST-DEGREE ON THE GROUND THAT THE STIPULATED QUANTITY OF HEROIN ATTRIBUTED TO DEFENDANT WAS LESS THAN 5 OUNCES.
A. THE STATE SHOULD NOT BE PERMITTED TO RELY UPON AGGREGATION OF INDIVIDUAL ACTS OF DISTRIBUTION FOR THE PURPOSES OF GRADING THE DISTRIBUTION OFFENSE BECAUSE SUCH A THEORY WAS NOT CHARGED IN THE INDICTMENT AND APPELLANT WAS NOT OTHERWISE PROVIDED NOTICE OF AN INTENTION BY THE STATE TO RELY UPON
AGGREGATION OF INDIVIDUAL ACTS IN GRADING THE OFFENSE.
In his supplemental pro se brief, Bates presents the following argument:
THE TRIAL COURT ERRED IN ACCEPTING DEFENDANT'S GUILTY PLEA TO DISTRIBUTION OF HEROIN IN THE FIRST-DEGREE ON THE GROUND THAT THE STIPULATED QUANTITY OF HEROIN ATTRIBUTED TO DEFENDANT WAS LESS THAN 5 OUNCES.
A. THE STATE SHOULD NOT BE PERMITTED TO RELY UPON AGGREGATION OF INDIVIDUAL ACTS OF DISTRIBUTION FOR THE PURPOSES OF GRADING THE DISTRIBUTION OFFENSE BECAUSE SUCH A THEORY WAS NOT CHARGED IN THE INDICTMENT AND APPELLANT WAS NOT OTHERWISE PROVIDED NOTICE OF AN INTENTION BY THE STATE TO RELY UPON AGGREGATION OF INDIVIDUAL ACTS IN GRADING THE OFFENSE.
After reviewing these arguments in light of the record and applicable principles of law, we conclude that they all lack merit.
A.
In his supplemental brief, Dunlap argues he suffered a "constructive denial of counsel" and ineffective counsel because counsel failed to file a motion to suppress the evidence seized from the Infiniti and Honda. He contends that the hearing conducted by the trial court regarding the suppression of such evidence was actually a Franks hearing, notwithstanding the fact that the trial court's memorandum of decision sets forth the arguments made by his counsel in support of a motion seeking to suppress the evidence obtained from the automobiles and rules on that motion. Although there were errors in the supporting affidavit that the State revealed to the court, the trial judge found defendant's allegation of falsity or reckless disregard for the truth to be "wholly groundless" and that no Franks hearing was required.
Franks v. Delaware, 438 U.S. 154, 98 S. Ct. 2674, 57 L. Ed. 2d 667 (1978). --------
Dunlap also alleges the Infiniti and Honda were searched by the police before a search warrant was obtained. He contends that trial counsel failed to subpoena two witnesses, L.E.G. and R.F., to support a suppression motion on that basis. He has included transcripts of statements taken from these witnesses in December 2011.
According to counsel's argument in the trial court, L.E.G. and R.F. were included on the defense witness list that was provided to the State. The record reveals that counsel did make efforts, albeit unsuccessful, to produce these witnesses for the suppression hearing. The suppression hearing was conducted over two days, January 19, 2012 and May 23, 2012. On the latter day, defense counsel advised the court his office had contacted two witnesses who provided information that contradicted the testimony of the police witness as to the search of the automobiles. He then stated:
[COUNSEL]: For whatever reason, and I'm trying to find out, their story has changed. I believed on information and belief that they were approached and questioned by members - - I don't know if it was the Prosecutor, what they indicated, it was police people who questioned them. They are ducking my subpoena.
I would ask the Court most respectfully - - I don't know the answer to the questions I'm raising, but their questions, in fairness to Mr. Dunlap, I have to investigate.
THE COURT: Okay.
[COUNSEL]: I would ask respectfully to allow me some time to, once again, speak to these people. I didn't speak to them myself. My Detective did at one point.
[Emphasis added.]
Upon inquiry from the court, counsel stated, "My information was that the vehicles, plural, was [sic] searched prior to obtaining the search warrants." The prosecutor acknowledged receiving transcripts of the witnesses' statements to the defense investigator in January 2012. The court asked counsel if he was alleging the prosecutor's investigators had intimidated the witnesses. Counsel responded:
Judge, all I'm telling you is I can't get the witnesses. I don't know if it was Prosecutors, they said law enforcement . . . went up to them and spoke to them about the case, I guess their statements. . . . As a result of what they were told by these people, they ain't coming around here.
The assistant prosecutor represented to the court that she had asked the investigator to "run the rap sheets" for the witnesses, but that she had not asked an investigator to interview them and did not believe any investigator had done so. Counsel persisted in his request for an adjournment of "a couple of weeks" to locate the witnesses and repeated that they had been "ducking" efforts to subpoena them. Although the trial judge denied this request, he advised counsel he could renew the motion for a continuance and receive additional time to locate the witnesses if he presented more specific testimony from his investigator that afternoon.
During the lunch recess, trial counsel sent an investigator, who was able to speak to one of the witnesses. He reported to the court that the witness "was not very happy with cooperating" and was not subpoenaed; counsel requested an opportunity to speak to the witness himself and represented he could report back to the court in a week. Counsel advised that he had no contact with the second witness. The court denied the motion, but stated the denial was subject to reopening "based upon a further investigation and affidavits from these parties." No issue has been raised in this appeal regarding the trial judge's ruling on the request for a continuance.
Because the record clearly shows that a motion to suppress evidence seized from the automobiles was filed and a hearing was conducted on defendant's motion, defendant's argument to the contrary lacks any merit. The record also shows that trial counsel attempted to secure the testimony of the witnesses described by defendant for the suppression hearing, that he requested additional time to speak to the one witness located to determine whether to subpoena him and recognized that, in light of the witness's unwillingness, a strategic decision was required as to whether to subpoena him.
Ordinarily, a claim of ineffective assistance of counsel is best presented within the context of a petition for post-conviction relief because it relies upon information that is not contained in the record. State v. Preciose, 129 N.J. 451, 460 (1992). A defendant must develop a record at a hearing at which counsel can explain the reasons for his conduct and inaction and at which the trial judge can rule upon the claims including the issue of prejudice. State v. Sparano, 249 N.J. Super. 411, 419 (App. Div. 1991).
Defendant contends the record is sufficient for us to decide his ineffective assistance claim. To present a prima facie case, he was required to establish (1) counsel's performance was deficient and he 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 v. Washington, 466 U.S. 668, 687, 694, 104 S. Ct. 2052, 2064, 2068, 80 L. Ed. 2d 674, 693, 698 (1984); State v. Fritz, 105 N.J. 42, 52 (1987).
To the extent that defendant relies upon the facts in the record before us, we are satisfied that defendant's proof of the first prong fails, particularly in light of the strategic decision that faced trial counsel. "As a general rule, strategic miscalculations or trial mistakes are insufficient to warrant reversal except in those rare instances where they are of such magnitude as to thwart the fundamental guarantee of [a] fair trial." State v. Castagna, 187 N.J. 293, 314-15 (2006) (citation omitted). To the extent defendant's argument rests upon information outside the record, it is best reserved for a petition for post-conviction relief.
We therefore conclude that the arguments raised by Dunlap in his pro se supplemental brief lack merit.
B.
In their pro se supplemental briefs, Newbill and Bates both argue that the court erred in accepting their guilty pleas because the factual basis provided for the plea was inadequate to support a first-degree distribution charge, and because they lacked notice that various amounts would be aggregated to reach the quantity necessary to support such a charge. A review of the indictment and their plea hearings reveals that these arguments are entirely lacking in merit.
Newbill and Bates each entered guilty pleas to count four of Indictment No. 10-07-0983, which charged them with first-degree distribution of heroin "between on or about February 17, 2010 and March 26, 2010, in the City of New Brunswick, in the County of Middlesex, in the City of Elizabeth, in the County of Union, [and] elsewhere." The count clearly charges defendants with multiple distributions on various dates in several locations and, by virtue of the degree of the offense, put them on notice as to the amount of heroin the State was required to establish to prove guilt.
During his plea hearing, Newbill admitting selling heroin to a number of people in quantities ranging from "bundles" to "bricks." The colloquy included the following:
Q. Okay. And so, all together, throughout this time period of February 17th through March 26th, if you added up all the bricks were you delivering more than five ounces worth of heroin?
A. Yes.
At his plea hearing, Bates also admitted to selling heroin with Newbill during the period from February 17, 2010 through March 26, 2010. He was also asked about the quantity sold in the following colloquy:
Q. Okay. And during that time period . . . were you selling more than five ounces of heroin all together?
A. Yes.
Thus, the plain language of the count to which Newbill and Bates entered guilty pleas provided notice that the first-degree quantity was based upon aggregate distributions and their testimony provided an adequate basis for their guilty pleas.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION