On appeal from the Superior Court of New Jersey, Law Division, Criminal Part, Essex County.
Approved for Publication August 27, 1996.
Before Judges Dreier, Kestin and Cuff. The opinion of the court was delivered by Kestin, J.A.D.
The opinion of the court was delivered by: Kestin
The opinion of the court was delivered by KESTIN, J.A.D.
Defendant was convicted of first degree possession of cocaine with intent to distribute, second degree conspiracy to possess cocaine with intent to distribute, and third degree possession of cocaine. The State's motion for an extended term was granted and defendant was sentenced on the merged offenses to a forty-year term of imprisonment with twenty years of parole ineligibility consecutive to another sentence he was then serving. A $100,000 fine was imposed along with a $3,000 DEDR penalty, a $50 lab fee, and a $50 VCCB assessment. Defendant's driving privileges were suspended for twenty-four months.
On appeal, defendant raises the following issues:
POINT I THE TRIAL COURT ERRED IN DENYING THE MOTION TO SUPPRESS
POINT II THE COURT COMMITTED PLAIN ERROR AND DENIED APPELLANT A FAIR TRIAL IN FAILING TO INSTRUCT THE JURY AS TO THE WEIGHT TO BE ACCORDED EXPERT TESTIMONY (NOT RAISED BELOW)
POINT III APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL
The trial court's denial of the motion to suppress was based upon factual findings supported by substantial credible evidence in the record. The determination is, therefore, entitled to deference. State v. Johnson, 42 N.J. 146, 160-62, 199 A.2d 809 (1964); State v. Watson, 261 N.J. Super. 169, 177, 618 A.2d 367 (App. Div. 1992), certif. denied, 133 N.J. 441 (1993).
Defendant's argument that he was not afforded effective representation by trial counsel focuses upon counsel's omission to present two fact witnesses at the jury trial. Defendant asserts that at the suppression hearing two weeks earlier the testimony of those witnesses tended to exculpate him from complicity in the drug transaction that generated the charges. Our review of the testimony discloses that it is ambiguous, not clearly exculpatory as defendant contends. That testimony might well have been regarded by trial counsel to be cumulative of and inferior to the co-defendant's testimony at trial that characterized defendant as a bystander who "was walking by the corner [when] the police grabbed him." Testimony from one of the arresting officers, on the other hand, identified defendant as the driver of the car involved in the drug transaction and one of the participants in the transaction itself. Defendant did not testify.
From this, there appears to be little factual basis for defendant's argument of inadequate representation by trial counsel that would satisfy the tests of Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); United States v. Cronic, 466 U.S. 648, 104 S. Ct. 2039, 80 L. Ed. 2d 657 (1984); and State v. Fritz, 105 N.J. 42, 519 A.2d 336 (1987). We do not regard defendant as precluded from raising this issue on a petition for post-conviction relief, however, if he is able to develop a more persuasive basis. See State v. Preciose, 129 N.J. 451, 459-61, 609 A.2d 1280 (1992).
As to the remaining issue on appeal, we agree with defendant that the trial Judge erred in omitting to "carefully instruct the jury on the weight to be accorded to and the assessment of expert opinion testimony[,]" State v. Odom, 116 N.J. 65, 82, 560 A.2d 1198 (1989), on the issue of whether the drugs involved were possessed with the intent to distribute. Defendant failed, however, to object to the absence of such an instruction, and must satisfy plain error standards. R. 2:10-2. The lack of an objection is itself a serious omission, for if it had been lodged the trial court would have had an opportunity to remedy the omitted instruction before the case went to the jury. See R. 1:7-2; Vartenissian v. Food Haulers, Inc., 193 N.J. Super. 603, 609-10, 475 A.2d 626 ...