July 19, 2007
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
PEDRO J. TRINIDAD, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Bergen County, 05-10-1858-I.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: July 3, 2007
Before Judges Axelrad and Winkelstein.
Defendant Pedro Trinidad appeals from judgments of conviction for first-degree liability for conduct of another, possession of CDS with intent to distribute, N.J.S.A. 2C:2-6, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(1); and second-degree money laundering, N.J.S.A. 2C:21-25. He requests his convictions be vacated due to ineffective assistance of trial counsel in failing to file a suppression motion, which he claims led to him pleading guilty to the charges. We affirm without prejudice to defendant's right to file a post-conviction relief (PCR) petition. R. 3:22-1.
On October 18, 2005, a Bergen County Grand Jury returned Indictment No. 05-10-1858-I, charging defendant with first-degree possession of CDS (cocaine) with intent to distribute (count two); third-degree possession of CDS (cocaine) with intent to distribute within 1000 feet of school property (count three); second-degree possession of a firearm while in the course of committing, attempting to commit or conspiring to commit a violation of N.J.S.A. 2C:35-5 (count four); and third-degree financial facilitation of criminal activity (count five).*fn1
On January 19, 2006, after defendant waived his right to indictment and trial by jury, the Bergen County Prosecutor's Office filed Accusation No. 06-01-0065-A, charging defendant with second-degree money laundering. The above charges arose from a stop of defendant's automobile and a search of defendant and his residence.
On January 19, 2006, defendant pled guilty, pursuant to a plea agreement, to first-degree liability for conduct of another, possession of CDS with intent to distribute; and to second-degree money laundering. On March 10, 2006, defendant was sentenced in accordance with the plea agreement: on the first-degree offense he received a sentence appropriate for an offense one degree lower, a seven-year term with a three-year period of parole ineligibility; and on the second-degree offense he received a concurrent seven-year term with a three-year period of parole ineligibility. Defendant also agreed to forfeit $44,380 on the CDS offense and $97,220 on the money-laundering offense. Several counts of the Indictment were dismissed. Appropriate fees, penalties and assessments were also imposed.
On appeal, defendant does not deny that he knowingly and voluntarily entered the guilty plea with a full understanding of the nature of the charges and the consequences of the plea, or that he provided an adequate factual basis to support such plea.
R. 3:9-2. Nor does he contend that he was not sentenced in accordance with his negotiated plea. Defendant's sole claim on appeal is that the circumstances of his motor vehicle stop, the search of his person, the interrogation and the consent to search his apartment strongly suggest that the searches and seizures conducted by the police were, at best, questionable and, at worst, illegal. He argues that, by trial counsel failing to move for a suppression hearing, which most likely would have resulted in suppression of all the evidence against defendant, he was left with no alternative but to have pled guilty.
Based on the record on appeal, we are satisfied defendant knowingly and voluntarily entered a guilty plea and was appropriately sentenced in accordance with his negotiated plea. Accordingly, we affirm his conviction.
We will not address defendant's claim of ineffective assistance of trial counsel on direct appeal. Ineffective assistance of counsel claims, generally, are more appropriately raised in collateral post-conviction relief proceedings "because such claims involve allegations and evidence that lie outside the trial record." State v. Preciose, 129 N.J. 451, 460 (1992). As trial counsel made no motion to suppress, there is no record of facts upon which we could assess the merits of the searches and seizures now challenged so as to evaluate defendant's ineffective assistance of counsel claim. See Strickland v. Washington, 466 U.S. 668, 687-94, 104 S.Ct. 2052, 2064-69, 80 L.Ed. 2d 674, 693-98 (1984) (in order to establish a claim for ineffective assistance of counsel, a defendant must meet the two-prong test of showing that his counsel's performance was seriously deficient in that it fell below an objective standard of reasonableness measured by prevailing professional norms and that the defect in performance prejudiced his right to a fair trial and affected the outcome of the case). Other than a few pages of police reports submitted by defendant, the record on appeal contains nothing about the stop of defendant's car, the search of his person, the reasons for transporting him to the police station, or the circumstances surrounding his giving consent to search his residence. Nor does the record contain any information about the plea negotiations between defense counsel and the prosecutor, disclose whether defendant requested that his counsel attack the search and seizure, or reveal whether his counsel withheld a motion to suppress for strategic or tactical reasons.
Our affirmance of defendant's conviction is without prejudice to any PCR petition defendant may timely pursue asserting ineffective assistance of trial counsel in failing to move to suppress the evidence. State v. Sparano, 249 N.J. Super. 411, 419 (App. Div. 1991).