For reversal and reinstatement -- Chief Justice Weintraub, Justices Jacobs, Proctor and Mountain, and Judges Sullivan, Lewis and Collester. For affirmance -- None.
Defendant was found guilty by a jury of unlawful possession of 236 decks of heroin in violation of N.J.S.A. 24:18-4. On appeal to the Appellate Division, he alleged that several factors had deprived him of his right to a fair trial, including the ineffective assistance of counsel, improper comments of the prosecutor during summation, and errors of the trial court in its comments during trial and in its charge to the jury. In an unreported opinion the Appellate Division rejected defendant's claim that he had not received effective assistance of counsel. However, the court concluded that its "over-all impression" after reviewing the record of the proceedings was that defendant had not received a fair trial. The court accordingly reversed the conviction and remanded for a new trial. We granted the State's petition for certification. 62 N.J. 201 (1973).
On July 30, 1970, two detectives of the Newark Police narcotics squad were parked in a car in front of a three-story apartment house in that city. According to the testimony of the police, they saw defendant come out the front door of the building. When defendant saw the police he ran back into the building, slamming the front door behind him. One of the detectives then ran to the back of the building and up a flight of stairs to a second-floor porch. As the detective arrived defendant was coming out the back door, but when he saw the officer he ran back into an apartment on the second floor. The detective said he pursued the defendant through the kitchen and into the bedroom. At that point
the detective noticed that defendant was carrying a gray box in his hand. The detective saw defendant lean out an open window, and when he stepped back from the window he was empty-handed. The detective looked out the window and saw what appeared to be the same gray box on the ground nearby the building. After the other detective arrived, the first officer left the defendant with him and went downstairs. The officer picked up the box and found inside what was later determined to be 236 decks of heroin.
Defendant testified that he did not live in the building, but on the day in question he was visiting a friend, Leslie Harris, who lived in the second-floor apartment. As defendant started to leave from the front door, he saw the detectives and went back into the building and up to Harris' apartment. He said that he had been previously convicted of unlawful use of narcotics, and he feared arrest by the police because he was not carrying his narcotics law violator's card. See N.J.S.A. 2A:169A-4. Defendant denied that he attempted to run out the back door of the building. He said that when the police entered they asked Harris if there were narcotics in the building. Harris answered in the negative. According to the defendant, Harris then accompanied one of the detectives downstairs while the other officer remained with the defendant; when Harris and the detective returned the detective had a box in his hand. The defendant denied knowing anything about the box or its contents.
The Appellate Division found that defendant was not deprived of his right to effective assistance of counsel. We are satisfied that this determination was correct. Defendant's complaints in this regard are directed merely to matters of trial strategy. Our review of the record convinces us that these matters are clearly insufficient to support defendant's contention. See State v. Dennis, 43 N.J. 418, 427-428 (1964); State v. Williams, 39 N.J. 471, 489, cert. denied 374 U.S. 855, 83 S. Ct. 1924, 10 L. Ed. 2 d 1075 (1963).
Although the Appellate Division rejected defendant's claim that he was not adequately represented, the court
stated that various errors at the trial, while independently not requiring reversal, cumulatively denied defendant a fair trial and compelled the vacation of his conviction. We cannot agree.
We deal first with the Appellate Division's reference to the manner in which the trial judge overruled objections made by defense counsel. On one occasion in response to defense counsel's statement that he objected to a question, the judge replied: "I don't. I will permit it." At another point the court responded to counsel's objection: "Well, you can object. Your objection is noted but the jury is entitled to know." We find nothing improper in these remarks. The comments in no way constituted unfair criticism or an attempt to humiliate counsel. Several of counsel's other objections were sustained by the court, and our reading of the record as a whole convinces us that the court's treatment of counsel was courteous. Cf. State v. Zwillman, 112 N.J. Super. 6, 20-23 (App. Div. 1970), certif. den. 57 N.J. 603 (1971). At other points in the trial, we think the court properly, and in a civil manner, admonished counsel for arguing with the court after an objection had been overruled and for directing comments to the prosecutor rather than to the court.
The Appellate Division also suggested that the trial court should have intervened to instruct the jury to disregard testimony concerning the information supplied to the police that defendant would be leaving the building with narcotics. On cross-examination, defense counsel elicited testimony from one of the police officers that the police had been informed that narcotics were being sold in the second floor apartment of the building. Counsel also brought out that defendant did not live there. On re-direct, the officer testified in response to the prosecutor's questions that the complete information given the police included a tip that the ...