March 14, 2007
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
WALI LANE, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 03-01-105.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 28, 2007
Before Judges Parker and C.S. Fisher.
In this appeal, we consider various arguments raised by defendant, including his claim that he was denied the effective assistance of counsel.
Defendant was indicted and charged with having committed numerous drug offenses on April 26, 2002. During trial, the jury heard testimony from police officers, who, on that date, conducted surveillance of three individuals sitting on a porch at 729 West Fourth Street in Plainfield.
The officers testified that they observed a series of drug transactions. On each occasion, when a customer approached, Antoine Tarver, who was one of the three men on the porch, would speak with the customer, retrieve something from a dresser on the porch, and receive money in exchange. A few of these customers were stopped by police units after they had departed the area and found to be in possession of heroin.
After a number of such transactions, Tarver took money from his pocket, kept one bill for himself, and handed the rest to defendant. Tarver then left the porch and walked to a convenience store. One police unit responded to the convenience store and detained Tarver; another unit pulled into the driveway at 729 West Fourth Street.
As the police vehicle entered the driveway, defendant was observed shoving something alongside the dresser. The officers called defendant over and one of the officers searched the area near the dresser, finding money and forty folds of heroin.
Tarver also testified for the State. He asserted that defendant showed him heroin while they were on the porch that day. Tarver asked defendant, who was Tarver's nephew, if he could sell it for him. As a result, Tarver sold the heroin in the manner described by the officers, and gave the money to defendant.
Defendant and Tarver were indicted. Prior to trial, the State and Tarver entered into an agreement whereby Tarver pled guilty to one count of distributing heroin within 1,000 feet of school property, and one count of distributing heroin within 500 feet of a public park, and agreed to give truthful testimony against defendant, in exchange for the State's agreement to recommend a five-year sentence with an eighteen-month period of parole ineligibility.
Following trial, defendant was found guilty of third-degree possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10(a)(1) (count one); three counts of third-degree possession with the intent to distribute CDS, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(3) (counts two, five and eight); three counts of third-degree possession of CDS with intent to distribute within 1,000 feet of school property, N.J.S.A. 2C:35-7 (counts three, six and nine); and four counts of second-degree possession of CDS with the intent to distribute within 500 feet of a public park or housing facility, N.J.S.A. 2C:35-7.1 (counts four, seven, ten and eleven). After all appropriate mergers, defendant was sentenced to an extended ten-year term on count four, with a five-year period of parole ineligibility; he was also sentenced to ten-year terms of imprisonment on counts seven, ten and eleven. All these prison terms were ordered to run concurrently.
Defendant appealed, raising the following arguments for our consideration:
I. NO OTHER CONCLUSION CAN BE REACHED BUT THAT DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL BASED UPON TRIAL COUNSEL'S FAILURE TO EFFECTIVELY AND MEANINGFULY CROSS-EXAMINE A KEY STATE WITNESS.
II. THE COURT BELOW ERRED IN DENYING DEFENDANT'S MOTION FOR A NEW TRIAL.
III. DEFENDANT WAS PREJUDICED BOTH BY QUESTIONS POSED BY THE PROSECUTOR DURING THE VOIR DIRE OF THE STATE'S EXPERT WITNESS AS WELL AS BY THE HYPOTHETICAL QUESTION POSED, THUS DEPRIVING DEFENDANT OF A FAIR TRIAL AND WARRANTING REVERSAL OF THE JUDGMENT OF CONVICTION (Not Raised Below).
IV. NO OTHER CONCLUSION CAN BE REACHED BUT THAT THE EFFECT OF CUMULATIVE TRIAL ERRORS IN THE CONTEXT OF THE PROCEEDINGS BELOW DEPRIVED DEFENDANT OF A FAIR TRIAL AND WARRANT REVERSAL.
V. DEFENDANT'S SENTENCE VIOLTED THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION.
VI. THE TRIAL COURT ERRED IN FAILING TO CREDIT DEFENDANT WITH ANY MITIGATING FACTORS.*fn1
In Point I, defendant argues that he was denied the effective assistance of counsel because his trial attorney failed to cross-examine Tarver more extensively. Although counsel elicited testimony from Tarver that he agreed to testify in order to receive a favorable plea agreement, defendant contends that counsel should also have elicited testimony from Tarver that he told the police, following his arrest, that the drugs belonged to him, not defendant. The State responds to this argument by claiming that Tarver made additional statements that inculpated defendant and that if defendant's attorney had elicited the exculpatory statements, the State would have elicited testimony about Tarver's statements to the contrary.
To prevail on a claim of ineffective assistance of counsel, a defendant must show that his counsel's performance was deficient and that the deficiency resulted in prejudice.
Strickland v. Washington, 466 U.S. 668, 687-88, 105 S.Ct. 2052, 2064-65, 80 L.Ed. 2d 674, 693 (1984); State v. Fritz, 105 N.J. 42, 58 (1984). In determining whether counsel's representation was deficient, there is a presumption that the attorney made "all significant decisions in the exercise of reasonable professional judgment." Ibid. To rebut that presumption, a defendant must demonstrate that he was prejudiced by counsel's deficient performance by demonstrating "a reasonable probability that, but for the counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, supra, 446 U.S. at 694, 104 S.Ct. at 2086, 80 L.Ed. 2d at 698. A reasonable probability was defined by the Court as that which is sufficient to undermine confidence in the outcome. Ibid.
Based on the record before us, we cannot determine whether defense counsel erred or was pursuing a particular trial strategy in not engaging in the cross-examination in question. When such a claim of ineffective assistance of counsel is raised for the first time on appeal, an appellate court will often lack a sufficient record by which to assess the performance of counsel, particularly when the act or omission may have been based upon a tactical decision. In that circumstance, we will choose not to reach the merits of the argument because it involves "allegations and evidence that lie outside the trial record," State v. Loftin, 287 N.J. Super. 76, 110 (App. Div.), certif. denied, 144 N.J. 175 (1996), and instead leave the matter to future consideration upon defendant's filing of a petition for post-conviction relief. See State v. Preciose, 129 N.J. 451, 460 (1992) (noting the general policy against entertaining claims of ineffective assistance of counsel on direct appeal). This is such a case. Accordingly, we conclude that the argument of ineffective assistance of counsel contained in Point I is better left to be considered once there is presented a full record containing the reasons why counsel chose not to pursue the line of cross-examination raised by defendant.
We find insufficient merit in Points II, III, IV, and VI to warrant discussion in a written opinion. R. 2:11-3(e)(2).
And, as for defendant's Point V, the State concedes that the changes to our sentencing laws announced in State v. Natale, 184 N.J. 458 (2005), which was decided after defendant was sentenced, requires that defendant be re-sentenced on counts seven, ten and eleven. We agree with the State, however, that defendant need not be re-sentenced regarding the extended term imposed on count four. See State v. Thomas, 188 N.J. 137 (2006).
Affirmed with the exception that the matter is remanded for re-sentencing on counts seven, ten and eleven. We do not retain jurisdiction.