On appeal from Superior Court of New Jersey, Law Division, Cape May County, 98-08-0402.
Before Judges Pressler, Weissbard and Parrillo.
The opinion of the court was delivered by: Weissbard, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Defendant Willie Roper appeals from the dismissal of his petition for post-conviction relief (PCR) on the basis that he lacked"standing." We reverse and remand for consideration of the merits of defendant's petition.
After a bench trial, defendant was convicted of all five counts of an indictment charging the following offenses: possession of cocaine, N.J.S.A. 2C:35-10a(1)(count one); distribution of cocaine, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35- 5b(3)(count two); conspiracy to distribute cocaine, N.J.S.A. 2C:35-5a(1), N.J.S.A. 2C:35-5b(3) and N.J.S.A. 2C:5-2 (count three); distribution of cocaine within 1000 feet of school property, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-7 (count four); conspiracy to distribute cocaine within 1000 feet of school property, N.J.S.A. 2C:35-7, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C: 5-2 (count five). Another indictment charging witness tampering and terroristic threats, consolidated for trial, was dismissed at the conclusion of the State's case pursuant to R. 3:18-1.
On his conviction defendant was sentenced to an aggregate term of four years with three years of parole ineligibility. In an unpublished opinion filed March 20, 2001, we affirmed defendant's conviction and on June 21, 2001 his petition for certification was denied. State v. Roper, 169 N.J. 607 (2001). Defendant filed the present PCR petition on December 7, 2002.
In our prior opinion we stated the following:
For the first time on appeal, defendant contends that the evidence seized from his co-defendant, Timothy William Beck, was the product of an illegal search and seizure and should have been suppressed. R. 3:5-7(a) requires a motion to suppress to be made prior to trial. A defendant who fails to timely file a motion to suppress is deemed to have waived any objection during trial to the admission of evidence on the ground that such evidence was unlawfully obtained. R. 3:5- 7(f); State v. Martin, 87 N.J. 561, 566-67 (1981).
Here, defendant failed to file a motion to suppress. We elect not to exercise original jurisdiction pursuant to R. 2:10-5 and consider the suppression issues on direct appeal, since the record does not provide sufficient basis for disposition without further fact-finding. Burns v. Belafsky, N.J., (2001) (slip. op. at 6). The case was not tried with suppression issues in mind. Moreover, there may have been sound tactical considerations that caused counsel not to file a motion to suppress.
Accordingly, we conclude that the best course is to preserve the issue for a possible petition for post-conviction relief. See State v. Fisher, 156 N.J. 494, 507-08 (1998).
In such a proceeding, the judge can consider the explanation given by counsel, if any, in failing to file a motion to suppress, and make the ultimate determination whether counsel's performance was deficient or ineffective. Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 2063, 80 L. Ed. 2d 674, 692 (1984); State v. Fritz, 105 N.J. 42, 53-58 (1987). If counsel's performance was deficient, the judge will then have to decide whether the deficient performance prejudiced the defense. Ibid.
In order to determine whether defendant was prejudiced, the court, of necessity, will need to consider the potential merits of a claim of unlawful search and seizure. Obviously, counsel cannot be deemed ineffective for failing to raise arguments that are ultimately deemed without merit. State v. Worlock, 117 N.J. 596, 625 (1990). Therefore, if defendant's arguments regarding ...