Opinion
DOCKET NO. A-3307-12T1
09-16-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. MAURICE SPAGGERY, a/k/a STAGGERY MAURICE, a/k/a PETE BROWN, a/k/a PHIL BROWN, a/k/a PHILLIP F. BROWN, a/k/a SPAGGERY MARUICE, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (William P. Welaj, Designated Counsel, on the brief). Grace H. Park, Acting Union County Prosecutor, attorney for respondent (Christopher L. DeSimone, 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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Guadagno and Leone. On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 05-02-0254. Joseph E. Krakora, Public Defender, attorney for appellant (William P. Welaj, Designated Counsel, on the brief). Grace H. Park, Acting Union County Prosecutor, attorney for respondent (Christopher L. DeSimone, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). Appellant filed a pro se supplemental brief. PER CURIAM
Defendant Spaggery Maurice, misnamed in the caption as Maurice Spaggery, appeals the denial of his petition for post-conviction relief (PCR), claiming ineffective assistance of counsel. We affirm.
I.
The following facts were elicited at trial. On September 5, 2004, at approximately 1:40 p.m., Elizabeth Nwanonyiri drove to the drive-thru ATM at a Fleet Bank on Chancellor Avenue in Irvington. While waiting in her Toyota to get $40 from the ATM, she saw a parked car containing two males in the lot behind her. A black male exited the car's passenger side, walked in between Nwanonyiri and the ATM, and asked "what are you getting?" He asked again in a hostile and fierce tone, and pulled a black gun. Frightened, Nwanonyiri told defendant, "you can have it," and sped out of the drive-thru before she could get the $40 that had been dispensed by the ATM.
On her way home, Nwanonyiri saw an Irvington patrol car. She briefly stopped and told the officers there was somebody at the Fleet ATM with a gun who had robbed her and who was "gonna hurt somebody." She did not tell the officers anything about the car. At trial, she remembered only that the car was old, and could not remember the car's make, color, or license plate number.
Just before 2:00 p.m., Hillside Police Officer Larkin Combs received a radio transmission to be on the lookout for a specific vehicle. Around 2:00 p.m., he saw a vehicle matching that description exiting a Burger King parking lot. The vehicle was approximately one-and-a-half miles and a few minutes' drive from the Fleet Bank. He stopped the vehicle based on the description in the radio transmission. Combs recognized the driver of the vehicle, Brandon Leath, but did not recognize the passenger, defendant, who identified himself as Phillip Brown.
Hillside Police Officer Eduardo Teixeira was backing up Officer Combs. He had defendant exit the gold Infiniti. Defendant told Teixeira he had a gun in his pocket. Teixeira arrested defendant and recovered a loaded .32 caliber revolver. A pat-down of defendant revealed a black ski mask and $29 in his pockets.
At about 2:30 p.m. on September 6, 2004, defendant was interviewed by Hillside Police Detective Terence Clerk. After being advised of his rights, defendant gave a voluntary statement as follows. On September 5, he was at the Fleet Bank in Irvington, walked up to a woman taking money out of the ATM, and asked her for her money. She said "take it" and drove off, and he took her $40. Defendant said he was holding a handgun in his pocket. He walked away, flagged down Leath's car, and they went to Burger King. After they bought food, defendant had $29 left when they were stopped by the police.
Prior to trial, defendant filed a motion to suppress his statement to Detective Clerk, claiming it was coerced. The court denied that motion, finding the statement voluntary. Defendant did not file a motion to suppress based on the vehicle stop.
At trial, defendant testified as follows. He did not commit a robbery. He just went from home to the Burger King with Leath. He was holding the gun for a friend, and he always kept the mask in his pocket for cold weather. He gave a fake name, and confessed to the robbery, out of fear of being deported.
The jury found defendant guilty of first-degree armed robbery, N.J.S.A. 2C:15-1(b) (count one); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count two); third-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b) (count three); and third-degree hindering apprehension or prosecution, N.J.S.A. 2C:29-3(b)(4) (count four). The trial court merged count two into count one, sentenced defendant on count one to eighteen years in prison with an 85% period of parole ineligibility and a five-year period of parole supervision, imposed fully concurrent five-year state prison terms on counts three and four, and made the sentence on count one consecutive to a sentence defendant was serving for an Essex County offense.
Defendant appealed his judgment of conviction dated June 2, 2006. One of his appellate claims was that trial counsel was ineffective by not filing a pre-trial motion to suppress evidence based on an allegedly unconstitutional motor vehicle stop. We ruled that, because evidence outside the trial record would have to be developed to resolve defendant's ineffectiveness claim, the claim must first be presented to the trial court in a PCR petition. We affirmed defendant's conviction and sentence, and the Supreme Court denied certification. State v. Spaggery, No. A-6400-05 (App. Div. May 19, 2009), certif. denied, 200 N.J. 369 (2009).
On December 21, 2010, defendant filed a pro se PCR petition. PCR counsel later filed an amended PCR petition. Defendant asserted trial counsel was ineffective, including because she did not file a motion to suppress the evidence from the vehicle stop. The trial court denied the PCR petition without an evidentiary hearing on October 19, 2012.
Defendant appeals. His counseled brief raises the following arguments:
THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST CONVICTION
RELIEF WITHOUT AFFORDING HIM AN EVIDENTIARY HEARING TO FULLY ADDRESS HIS CONTENTION THAT HE FAILED TO RECEIVE ADEQUATE LEGAL REPRESENTATION AT THE TRIAL LEVEL.
A. THE PREVAILING LEGAL PRINCIPLES REGARDING CLAIMS OF INEFFECTIVE ASSISTANCE OF COUNSEL, EVIDENTIARY HEARINGS AND PETITIONS FOR POST CONVICTION RELIEF.
B. TRIAL COUNSEL DID NOT ADEQUATELY REPRESENT THE DEFENDANT AS A RESULT OF HER FAILURE TO PURSUE A MOTION TO SUPPRESS EVIDENCE ARISING OUT OF THE IMPROPER STOP OF THE VEHICLE IN WHICH THE DEFENDANT WAS A PASSENGER.
1. Factual Background
2. The prevailing legal principles regarding claims of ineffective assistance of counsel based upon a failure to pursue a claim involving a motion to suppress.
3. The police lacked a reasonable and particularized basis upon which to justify stopping the vehicle in which the defendant was a passenger.
4. The improper investigatory stop of the vehicle in question necessarily tainted the ensuing search and seizure of the items taken from the defendant as well as the statement obtained from him by the police at headquarters.
5. An evidentiary hearing is warranted to fully develop the circumstances surrounding trial counsel's failure to pursue a motion to suppress.
C. TRIAL COUNSEL DID NOT ADEQUATELY REPRESENT THE DEFENDANT AS A RESULT OF HER FAILURE TO REQUEST A MISTRIAL ARISING OUT OF TESTIMONY GRATUITOUSLY VOLUNTEERED BY A POLICE OFFICER CONNECTING THE DRIVER OF THE VEHICLE IN WHICH THE DEFENDANT WAS A PASSENGER WITH PRIOR CRIMINAL CONDUCT.
Defendant also filed a pro se brief, arguing:
POINT ONE: INEFFECTIVE ASSISTANCE OF PCR COUNSEL FOR FAILURE TO ADVANCE DEFENDANT'S MERITORIOUS CLAIM. IN ADDITION TO ILL-ADVISING DEFENDANT TO WAIVE THE SAME.
POINT TWO: INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL FOR FAILING TO FILE A SUPPRESSION MOTION.
II.
A PCR court need not grant an evidentiary hearing unless "'a defendant has presented a prima facie [case] in support of post-conviction relief.'" State v. Marshall, 148 N.J. 89, 158 (citation omitted), cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997). "To establish such a prima facie case, the defendant must demonstrate a reasonable likelihood that his or her claim will ultimately succeed on the merits." Ibid. If the PCR court has not held an evidentiary hearing, we "conduct a de novo review" of its ruling. State v. Harris, 181 N.J. 391, 421 (2004), cert. denied, 545 U.S. 1145, 125 S. Ct. 2973, 162 L. Ed. 2d 898 (2005). We must hew to that standard of review.
To show ineffective assistance of counsel, a defendant must satisfy the two-pronged test of Strickland v. Washington, 4 66 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), and State v. Fritz, 105 N.J. 42 (1987). "The defendant must demonstrate first that counsel's performance was deficient, i.e., that 'counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment.'" State v. Parker, 212 N.J. 269, 279 (2012) (quoting Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693). The defendant must overcome a "strong presumption that counsel rendered reasonable professional assistance." Ibid.
Defendant asserts that trial counsel was ineffective because counsel failed to file a motion to suppress challenging the propriety of stopping the gold Infiniti. "In order to satisfy the Strickland standard when an ineffective assistance of counsel claim is based on the failure to file a suppression motion, a defendant must establish 'that his Fourth Amendment claim is meritorious.'" State v. O'Neal, 190 N.J. 601, 618-19 (2007) (quoting State v. Fisher, 156 N.J. 494, 501 (1998)).
Second, "a defendant must also establish that the ineffectiveness of his attorney prejudiced his defense. 'The defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" Parker, supra, 212 N.J. at 279-80 (quoting Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698). When alleging trial counsel was ineffective for failing to file a suppression motion, the defendant must demonstrate that "'there is a reasonable probability that the verdict would have been different absent the excludable evidence in order to demonstrate actual prejudice.'" State v. Johnson, 365 N.J. Super. 27, 35 (App. Div. 2003) (quoting Kimmelman v. Morrison, 477 U.S. 365, 375, 106 S. Ct. 2574, 2583, 91 L. Ed. 2d 305, 319 (1986)), certif. denied, 179 N.J. 372 (2004).
Thus, we examine defendant's suppression claim. The United States and New Jersey Constitutions permit a brief investigative stop of a vehicle if the officer has reasonable suspicion of criminal activity. Navarette v. California, ___ U.S. ___, ___, 134 S. Ct. 1683, 1687, 188 L. Ed. 2d 680, 686 (2014); State v. Amelio, 197 N.J. 207, 211 (2008). Defendant emphasizes Nwanonyiri did not give the police any information about the car which she saw in the Fleet Bank parking lot. Rather, Officer Combs stopped the gold Infiniti based solely on a radio call giving a description of the vehicle.
Defendant's PCR petition attached police reports. Officer Combs' police report stated: that he "learned from Sgt. Lamonte via [Headquarters] that a robbery had just transpired at the Fleet Bank in Irvington on Chancellor Ave. and the two black male suspects were last seen fleeing west on Chancellor Ave. in a gold Infiniti Partial NJ Reg. of PPV-"; that "Irvington broadcast over [the Statewide Police Emergency Network] that one black male brandished a handgun to a woman in the drive thru Mac machine of Fleet Bank then snatching her money and fleeing in a gold Infiniti;" and that Combs saw and stopped "a gold Infiniti with NJ Reg[.] PPU-83B." Hillside Detective Jamie Howell's report stated that Combs learned from "headquarters of an armed robbery that had occurred in Irvington involving a gold colored Infiniti," and that Combs observed and stopped "a gold colored Infiniti bearing NJ/PPU83B." The Hillside Police Vehicle Report described Leath's car as a gold-colored 1994 Infiniti with plate number PPU83B stopped "after description given by Irvington PD."
Trial counsel asked for some documentation about the radio call. The prosecutor responded:
[A]ll I know is that the victim did not communicate the partial plate. I think the best I can gather [is] this was an anonymous call and it went from Irvington on the scanner, Hillside picked it up and relayed out to their patrol cars the license plate PPV and that's why the stop was made. We
don't know where that call was originated from.
At trial, trial counsel elicited from Nwanonyiri that she did not tell the police the car in the bank parking lot was gold-colored, nor did she provide a partial license plate number. Based on the record before us, we must assume that the description of the vehicle came not from Nwanonyiri but from an anonymous call. Defendant asserts that Officer Combs' reliance on an anonymous call gave rise to a meritorious suppression claim.
Defendant also questions whether the anonymous call actually occurred. However, he failed to proffer any evidence that the officers' reports or the prosecutor's representations were incorrect. "'[I]n order to establish a prima facie claim, a petitioner must do more than make bald assertions;'" he "must allege specific facts and evidence supporting his allegations, . . . 'supported by affidavits or certifications.'" State v. Porter, 216 N.J. 343, 355 (2013) (quoting State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999)). "There is no affidavit or certification outlining whether any of the police officers involved in the pursuit and arrest of defendant had any knowledge" contrary to the police reports or the prosecutor's representation. State v. Gaither, 396 N.J. Super. 508, 514 (App. Div. 2007), certif. denied, 194 N.J. 444 (2008).
"[A]s a general rule, '[a]n anonymous tip, standing alone, is rarely sufficient to establish a reasonable articulable suspicion of criminal activity.'" State v. Golotta, 178 N.J. 205, 228 (2003) (citation omitted). "'[A]n anonymous tip alone seldom demonstrates the informant's basis of knowledge or veracity.'" State v. Gamble, 218 N.J. 412, 428 (2014) (quoting Alabama v. White, 496 U.S. 325, 329, 110 S. Ct. 2412, 2415, 110 L. Ed. 2d 301, 308 (1990)). Moreover, anonymity may enable the tipster to escape "'being held accountable for a false tip.'" State v. Hathaway, ___ N.J. ___, ___ (2015) (slip op. at 20) (citation omitted).
"[H]owever, there are situations in which an anonymous tip, suitably corroborated, exhibits 'sufficient indicia of reliability to provide reasonable suspicion to make the investigatory stop.'" Florida v. J.L., 529 U.S. 266, 270, 120 S. Ct. 1375, 1378, 146 L. Ed. 2d 254, 260 (2000) (quoting White, supra, 496 U.S. at 326, 110 S. Ct. at 2414, 110 L. Ed. 2d at 306). "When an anonymous tip is involved, additional factors must be considered to generate the requisite level of reasonable and articulable suspicion." State v. Privott, 203 N.J. 16, 26 (2010).
Here, the anonymous tip stated that two black males had driven from the robbery on Chancellor Avenue in a gold Infiniti with a partial license plate number "PPV-". A few minutes later, Officer Combs was "able to corroborate the tip by finding" two black males in a vehicle with the same "color, type, and approximate location" as provided in the tip. See Gamble, supra, 218 N.J. at 419, 431. Moreover, the vehicle's license plate number was "PPU-83B." This "minor discrepancy in the plate number" is "constitutionally insignificant," as "[i]t would have been reasonable for the officers to assume that the two like-[look]ing letters were confused." See Golotta, supra, 178 N.J. at 224. Thus, "the caller described the vehicle with sufficient specificity to permit the officers reasonably to conclude that [the gold Infiniti] was, in fact, the suspected vehicle." Id. at 223.
Merely describing a person or vehicle is not in itself sufficient to corroborate an anonymous tip. See J.L., supra, 529 U.S. at 271-72, 120 S. Ct. at 1379, 146 L. Ed. 2d at 260; White, supra, 496 U.S. at 332, 110 S. Ct. at 2417, 110 L. Ed. 2d at 310; State v. Rodriguez, 172 N.J. 117, 131 (2002). Courts require "something more." White, supra, 496 U.S. at 329, 110 S. Ct. at 2416, 110 L. Ed. 2d at 308. "[T]here is more than one way to" corroborate a tip from an anonymous source. Navarette, supra, ___ U.S. at ___, 134 S. Ct. at 1692, 188 L. Ed. 2d at 691.
Here, there was additional corroboration in the form of Nwanonyiri's report to the Irvington Police, which was reflected in the Irvington broadcast. As Nwanonyiri later testified, she told the police what happened, including that a black male with a gun had robbed her at the drive-thru ATM machine at Fleet Bank on Chancellor Avenue, and that there was somebody else in the car. Nwanonyiri's non-anonymous, face-to-face report to the police provided substantial reliability. A "'police officer may assume that an ordinary citizen reporting a crime, which the citizen purports to have observed, is providing reliable information,'" particularly when the citizen makes the report "face-to-face." Hathaway, supra, slip op. at 19 (quoting State v. Basil, 202 N.J. 570, 586 (2010)) (citation omitted). Thus, Nwanonyiri's in-person report provided reliable information corroborating the anonymous call's report of the crime, and many of the details of the anonymous call. This showed the tip was "reliable in its assertion of illegality," not just in its description of the vehicle. Cf. J.L., supra, 529 U.S. at 272, 120 S. Ct. at 1379, 146 L. Ed. 2d at 261.
"Another factor to be considered is that the greater the threat to public safety, the greater the need may be for prompt action, and thus allowances must be made for the fact that perfect knowledge is often not attainable at the moment the police must act." Hathaway, supra, slip op. at 20 (citing Golotta, supra, 178 N.J. at 221-22). "[A] reduced degree of corroboration" is required for "tips purporting to describe contemporaneous, readily observable criminal actions" and indicating that the perpetrator poses an "immediate safety risk" to the public. Golotta, supra, 178 N.J. at 215, 221-22, 227 (internal quotation marks and citations omitted). Here, both the anonymous call and Nwanonyiri reported a robbery had just occurred, and Nwanonyiri told the police that the male had brandished a gun at her and was "gonna hurt somebody." These demonstrated dangers distinguish this case from simple gun possession as in J.L. See id. at 226-27.
Moreover, neither defendant nor his vehicle was searched based on the anonymous call. No search occurred until after he volunteered to Officer Teixeira that he had a gun in his right pocket. Thus, "the narrow question is whether there was a sufficient basis to stop the vehicle, not whether grounds existed for the police to search its contents or arrest its driver," which are "more intrusive forms of conduct." Id. at 226. "[I]n the hierarchy of interests, '[t]here is a lesser expectation of privacy in one's automobile[.]'" Id. at 220. "[T]hat lesser privacy interest and the nature of the intrusion (an investigatory stop, not a full-blown search . . .) are relevant in assessing the reasonableness of the government's conduct." Ibid.
Considering all of these factors, we agree with the trial court that the record contains sufficient facts to demonstrate Officer Combs had reasonable suspicion to stop the vehicle. The anonymous tip was corroborated by the victim's in-person report to the police, as well as by Officer Combs' observations of the vehicle. Indeed, given this information and the threat to public safety, "the police would have been derelict in their duty had they not stopped the vehicle." State v. Zapata, 297 N.J. Super. 160, 174 (App. Div. 1997), certif. denied, 156 N.J. 405 (1998).
Therefore, like the trial court, we find that "a motion to suppress the [evidence] found on defendant would have failed." O'Neal, supra, 190 N.J. at 619. "It is not ineffective assistance of counsel for defense counsel not to file a meritless [suppression] motion." Ibid. Nor was defendant prejudiced, because that evidence would not have been suppressed. State v. Roper, 362 N.J. Super. 248, 255 (App. Div. 2003).
Defendant argues his subsequent detailed confession to committing the robbery also would have been suppressed if the investigatory stop was improper. As the stop was not improper, we need not consider that argument. In any event, defendant did not make his confession until about twenty-four hours after the stop. During that period, he was not questioned after booking ended, slept during the night, and was offered food. The trial court has upheld the voluntariness of his confession. See Spaggery, supra, at 5.
Because a motion to suppress the results of the vehicle stop would have failed, we reject defendant's first ineffectiveness claim. We note the PCR court also opined that trial counsel may have made a strategic decision not to litigate such a motion because it could have caused the State to find the person who witnessed the crime and made the anonymous call, thus strengthening its case.
III.
Defendant next claims that trial counsel was ineffective concerning a gratuitous comment in Officer Combs' testimony at trial. During his testimony about the car stop, Combs stated that he knew the driver, co-defendant Brandon Leath. The prosecutor asked, "And you knew him from town?" Combs responded, "Prior arrests, correct." Trial counsel immediately objected. The court told the jury: "I am sustaining the objection. You have to strike the officer's response from your mind." The court added that "you cannot use it in your deliberations in any manner whatsoever." That curative instruction was reinforced by the court's opening and closing instructions to the jury that any evidence the court had stricken or excluded "is not evidence and shall not enter into your final deliberations."
Defendant contends trial counsel was ineffective for not requesting a mistrial. However, defendant fails to show a reasonable probability that a mistrial would have been granted if requested, despite the court's immediate and reinforced curative instructions. "The grant of a mistrial is an extraordinary remedy to be exercised only when necessary 'to prevent an obvious failure of justice.'" State v. Yough, 208 N.J. 385, 397 (2011) (citation omitted). "'Unless the vice is plainly ineradicable by an instruction to the jury, a mistrial is not allowable of right.'" State v. Winter, 96 N.J. 640, 647 (1984) (citation omitted). Moreover, whether a comment can be cured by a curative "instruction, or instead requires the more severe response of a mistrial, is one that is peculiarly within the competence of the trial judge, who has the feel of the case and is best equipped to gauge the effect of a prejudicial comment on the jury in the overall setting." Id. at 646-47. "[W]hether a prejudicial remark can be neutralized through a curative instruction or undermines the fairness of a trial are matters 'peculiarly within the competence of the trial judge.'" Yough, supra, 208 N.J. at 397 (citation omitted). "The grant of a mistrial is an extraordinary remedy to be exercised only when necessary 'to prevent an obvious failure of justice.'" Ibid. (citation omitted).
Here, the gratuitous comment stated only that Leath had prior arrests. We see no reason why the trial court's prompt and reinforced instruction to disregard the comment was inadequate to remove any prejudice. See Zapata, supra, 297 N.J. Super. at 175-77 (a detective's comment that he had arrested the co-defendant did not require a mistrial given the court's curative instruction).
Indeed, trial counsel ultimately concluded that Officer Combs' comment helped defendant's defense. In her closing argument, counsel argued that Combs "didn't have a radio transmission" telling him to stop Leath's car, and that Combs stopped Leath's car just because it was "driven by a guy that he knew that had prior arrests."
Given that Officer Combs' comment was not addressed to defendant, was promptly and thoroughly addressed by the trial court, and was not prejudicial to the defense, there was no reasonable probability a mistrial motion would have been granted. Because defendant has failed to show prejudice, we "'need not determine whether counsel's performance was deficient.'" Marshall, supra, 148 N.J. at 261 (quoting Strickland, supra, 466 U.S. at 697, 104 S. Ct. at 2069, 80 L. Ed. 2d at 699).
IV.
We reject defendant's second pro se claim, alleging ineffectiveness for failing to file a motion to suppress on the grounds the investigatory stop was improper, for the same reasons we rejected his similar counseled claim above.
In his first pro se claim, defendant argues that he asked PCR counsel to raise that his trial counsel was ineffective in the plea process, that PCR counsel advised against raising the claim, and that defendant agreed not to raise it.
A PCR counsel "is responsible to communicate with his client and investigate the claims." State v. Rue, 175 N.J. 1, 18 (2002). "Based on that communication and investigation, counsel then must 'fashion the most effective arguments possible.'" Ibid. (citation omitted). Because defendant agreed not to raise his plea claim, this was not a situation where counsel failed to "advance the claims the client desires to forward in a petition." Id. at 19. We note defendant never attempted to raise the claim himself, including in his pro se PCR petition.
Defendant alleges that PCR counsel's advice was substandard. We need not determine the viability of that claim, because defendant's claim that trial counsel was ineffective in the plea process is rebutted by the record.
Defendant admits he received and rejected a plea offer. The offer was to recommend defendant serve nine (apparently amended to eight) years in prison, with an 85% period of parole ineligibility, concurrently with a seven-year State prison sentence he was receiving in Essex County. The trial court urged defendant to accept such a low offer, warning that if he rejected the offer he was likely to be sentenced at the upper end of the range, and that the offer would be off the table on the date of trial. Nonetheless, defendant rejected the offer.
On the first day of trial, trial counsel argued that defendant should still be able to accept the amended plea offer. Trial counsel stated that defendant turned down the State's offer in part because he hoped Leath would be a defense witness. However, Leath was not cooperative with the defense; his statement to defense investigators "did not assist us in our defense at all;" and ultimately he was listed as a prosecution witness. Trial counsel argued that the plea offer should be reopened because she was unable to communicate Leath's unhelpfulness to defendant before the first day of trial.
Trial counsel detailed how her efforts to contact defendant earlier were thwarted because he was being transferred back and forth between Essex County Jail, Union County Jail, and the State Central Reception and Assignment Facility in Trenton. She went to the jail to speak with him on multiple occasions, but was turned away because he had been transferred out or was still being processed on his transfer back. She made efforts to verify he was in a particular jail, and to mail him information in both jails, but her efforts were thwarted and her mail returned because he was incarcerated under different names.
PCR counsel used these facts to support an argument that trial counsel did not consult sufficiently with defendant. Defendant conceded trial counsel met with him twice to prepare for trial. The PCR court found this was more than sufficient time to prepare for trial. Defendant has not appealed that ruling. --------
After a lengthy argument by trial counsel, the trial court denied counsel's request to reopen the offer. The court pointed out it was the first day of trial, the State had prepared for trial and refused to reopen the offer, defendant had had four months to accept the offer, and he had rejected it knowing the consequences. Defendant did not appeal that ruling. See R. 3:22-4(a).
Defendant now claims trial counsel was ineffective for not communicating Leath's refusal to him sooner. However, defendant stated on the record that "[i]t wasn't really [trial counsel's] fault because she did attempt to come see me, she attempted to send me documents," "but I was always being moved around from facility to facility," and "I have a really unique name" which the facilities misspelled and "put backwards." Given trial counsel's uncontested efforts, defendant has not shown counsel's efforts "'fell below an objective standard of reasonableness,'" particularly as "'[j]udicial scrutiny of counsel's performance must be highly deferential.'" Marshall, supra, 148 N.J. at 256 (quoting Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2064-65, 80 L. Ed. 2d at 694).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION