On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No.05-02-0208.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 5, 2006
Before Judges Wefing and Parker.
After denial of his motion to suppress, defendant Chaffee Edwards pled guilty to third degree distribution of a controlled dangerous substance (CDS) in a school zone, N.J.S.A. 2C:35-7. He appeals from a judgment of conviction entered on November 28, 2005 sentencing him to a term of three years subject to one year parole ineligibility.
These charges arose out of a surveillance operation in which the police observed one buyer purchase drugs from defendant. That buyer was not stopped. A second buyer was stopped by the police, arrested and searched. After cocaine was recovered from that individual, defendant was arrested.
Defendant's motion to suppress was argued without an evidentiary hearing. Defendant claimed that because the cocaine had been seized from the buyer, there was no exigency and the police were required to obtain a warrant before arresting him.
In denying the suppression motion, the trial court stated that, "[I]t is clear that the officers had probable cause to make the arrests in this case and thereafter to have conducted searches pursuant to those lawful arrests which resulted in the seizure of the evidence in this case."
After denial of the motion, defendant entered his plea admitting that he distributed crack cocaine in a school zone on the day alleged. In this appeal, he argues:
THE FAILURE TO REQUEST AN EVIDENTIARY HEARING ON THE MOTION TO SUPPRESS WAS INEFFECTIVE ASSISTANCE OF COUNSEL. U.S. CONST., AMENDS. VI, XIV; N.J. CONST. ART. I, PAR. 10. (Not Raised Below)
THE DEFENDANT'S SENTENCE IS ILLEGAL BECAUSE IT DOES NOT INCLUDE 177 DAYS OF JAIL CREDITS TO WHICH HE WAS ENTITLED PURSUANT TO STATE V. BLACK
To demonstrate ineffective assistance of counsel, defendant must show a reasonable likelihood of being able to rebut the "strong presumption" of competent performance on counsel's part, and of showing that, but for counsel's error, the outcome of the suppression motion would have been different. Strickland v. Washington, 466 U.S. 668, 687-89, 104 S.Ct. 2052, 2064-65, 80 L.Ed. 2d 674, 693 (1984); State v. Fritz, 105 N.J. 42, 60-61 (1987). To rebut that "strong presumption," a defendant must prove that counsel's performance was deficient and that defendant was prejudiced by the deficient performance by demonstrating "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, supra, 466 U.S. at 694, 104 S.Ct. at 2086, 80 L.Ed. 2d at 698. A "reasonable probability" is that which is "sufficient to undermine confidence ...