On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 95-11-1618.
Before Judges Stern, Lintner and Parker.
The opinion of the court was delivered by: Stern, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
We hold that, under the totality of circumstances presented by this case as hereinafter detailed, defendant may pursue his claim of "racial profiling" on a petition for post-conviction relief ("PCR"). Accordingly, we remand to the judge designated by the Supreme Court to consider applications regarding discovery in "racial profiling" cases involving the New Jersey State Police, to consider the defendant's request for discovery to support his claim.
Following denial of his motion to suppress, defendant was convicted of possession of a controlled dangerous substance, contrary to N.J.S.A. 2C:35-10a(1) (count one) and possession of a controlled dangerous substance with intent to distribute, contrary to N.J.S.A. 2C:35-5a(1) and -5b(1). The motion challenged the "consent" search.
At sentencing, on December 20, 1996, count one was merged into count two and defendant was sentenced to the custody of the Commissioner of Corrections for twenty years with six years and eight months to be served before parole eligibility. Judgment was entered that day or shortly thereafter. R. 3:1-4; R. 3:21-5.
Defendant appealed from the judgment, and we affirmed the conviction. However, we remanded for resentencing, resulting in an eighteen-year sentence with a six-year parole ineligibility term.
A petition for post-conviction relief was filed on November 10, 1997, less than five years after the conviction. See R. 3:22-12. It alleged (1) ineffectiveness of trial counsel for "refus[ing] to investigate" the case; (2) prosecutorial misconduct, and (3) that an excessive sentence was imposed.*fn1 Other contentions, including a claim of "racial profiling" and a challenge to the stop, were also raised at the PCR hearing.
The PCR judge denied the petition on January 6, 2000,*fn2 stating in part:
With regard to the racial profiling issue, I'm going to deny that also without prejudice because I think that all these issues are going to take place in front of one judge. It just makes sense and there's nothing again here that would satisfy the second prong of Strickland.
Furthermore, even if the State of New Jersey now admits that racial profiling was going on at this time, I mean at the time of the report there is a record. I don't know whether that type of decision would be retroactive. I have to take some type of guidance from the case law that's out there and if you look at generally speaking, judicial decisions that are made to curb bad police conduct, those decisions are not normally retroactive if it doesn't go to the truth seeking process.
In other words, even though it may have been racial profiling, there's certainly nothing wrong with the four and a half pounds of cocaine found in the car. It doesn't go to that. The truth of the matter is that ...