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State v. Fisher

November 7, 1997

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
LLOYD A. FISHER, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Union County.

Approved for Publication November 7, 1997.

Before Judges Baime, Brochin and Braithwaite. The opinion of the court was delivered by Brochin, J.A.D.

The opinion of the court was delivered by: Brochin

The opinion of the court was delivered by

BROCHIN, J.A.D.

On March 22, 1990, defendant Lloyd A. Fisher was indicted for third-degree possession of cocaine contrary to N.J.S.A. 2C:35-10(a)(1). On May 3, 1990, he moved to suppress the evidence against him on the ground that it had been obtained by an illegal warrantless search and seizure. Defendant, who had been free on bail, failed to appear in court on the return date of his motion and became a fugitive. His attorney withdrew the motion to suppress. Defendant was not re-arrested until July 15, 1993. His motion to suppress was not re-filed. He pleaded guilty January 3, 1994. He was sentenced to three years' imprisonment to be served concurrently with his sentence for parole violation. He appealed his sentence and we affirmed.

Defendant then applied for post-conviction relief. He argued that the assigned counsel who represented him after he was re-arrested had provided him with constitutionally ineffective assistance by failing to re-file his motion to suppress the evidence. The post-conviction relief Judge assumed for the purposes of his decision that if defendant's suppression motion had been made and heard, it would have been successful and would have resulted in the dismissal of the charge against him. He ruled that the failure to re-file the motion was not constitutionally ineffective assistance of counsel because, when the motion might have been re-filed, the controlling decision appeared to be State v. Prince, 140 N.J. Super. 418, 356 A.2d 428 (App. Div.), appeal reinstated, 71 N.J. 347 (1976), and he interpreted that case to mean that, by fleeing, a criminal defendant waived his rights to relief from the courts. On the basis of that interpretation of Prince, the Judge held that defense counsel's failure to anticipate our decision in State v. Canty, 278 N.J. Super. 80, 650 A.2d 391 (App. Div. 1994), where we held that a defendant's flight did not forfeit his right to move on constitutional grounds to suppress evidence, did not fall so far below the applicable standard of practice as to constitute constitutionally ineffective assistance of counsel. See Strickland v. Washington, 466 U.S. 668, 689, 104 S. Ct. 2052, 2065, 80 L. Ed. 2d 674, 694-95 (1984) (" court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance . . . .")

On appeal, defendant reiterates the argument he made before the post-conviction relief Judge. The State counters with the argument that "prior to Canty, it was reasonable for counsel to think that Prince, supra, with its principle that absconding defendants were not entitled to seek relief from the courts, would be applicable to defense motions seeking to suppress evidence via application of the judicially created exclusionary rule."

The State's argument misconstrues Prince, supra. The defendant in that case pleaded guilty and then appealed from his sentence. In a brief opinion, we noted, "We are advised that during the pendency of this appeal defendant escaped from his place of confinement." 140 N.J. Super. at 419 (emphasis added). We dismissed his appeal with the following explanation:

An escape is a contempt of the judgment of the court ordering the confinement. While in such contempt, defendant is not entitled to the consideration of the judiciary or relief at the hands of the court."

[ Id. at 420 (citations omitted) (emphasis added).]

Our decision in Prince, supra, has a subsequent history. Our Supreme Court granted the defendant leave to appeal. The Court's entire opinion reads:

Motion for leave to appeal is granted; the appeal is reinstated, and the Appellate Division is directed to ...


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