On appeal from the Superior Court of New Jersey, Middlesex County, Law Division, Indictment No. 01-08-910.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 10, 2007
Before Judges Weissbard and Baxter.
Defendant Zachary Hill appeals from the trial court's denial of his petition for post-conviction relief (PCR). Following a jury trial, defendant was convicted of two counts of third degree possession of a controlled dangerous substance (CDS), in violation of N.J.S.A. 2C:35-10(a)(1); two counts of third degree distribution of CDS, in violation of N.J.S.A. 2C:35-5(a)(1), 5(b)(3); and two counts of distribution of a controlled dangerous substance within 1000 feet of a school, in violation of N.J.S.A. 2C:35-7. On July 8, 2002, he was sentenced to an aggregate term of imprisonment of eight years with a four-year period of parole ineligibility. This court affirmed the conviction on direct appeal. State v. Hill, Docket No. A-2048-02T4 (App. Div. November 12, 2003). The Supreme Court denied defendant's petition for certification on February 3, 2004.
Defendant filed a timely PCR petition, in which he asserted that he was entitled to post-conviction relief because his trial counsel was ineffective and the representation his counsel provided fell below applicable professional standards. In support of that claim, defendant argued that trial counsel failed to file a motion to suppress evidence which, had it been filed, should have been granted; and improperly failed to convey to defendant a revised plea offer from the State on the morning of trial that defendant would allegedly have accepted had trial counsel conveyed that offer to him.
The PCR judge, who also presided at trial, conducted an evidentiary hearing on the petition because the trial record did not contain sufficient evidence to enable the judge to determine whether she would have granted the motion to suppress had such motion been filed. At the hearing, the State presented the testimony of Lieutenant Paul Schuster, who was the arresting officer. Detective Samuel Hillyer, the detective who found the CDS in the vehicle defendant was driving on the day of his arrest, was on extended medical leave at the time the PCR petition was heard, and with the agreement of both parties, the court relied on Hillyer's trial testimony rather than adjourn the hearing pending Detective Hillyer's return from medical leave. Defendant testified at the PCR hearing, as did his trial counsel.
After hearing the testimony presented at the PCR hearing, the trial judge denied defendant relief, finding that had a motion to suppress the CDS been filed, such motion would have been denied because the search of the vehicle in question was supported by probable cause and exigent circumstances.
On appeal, defendant argues:
I. DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL CONSTITUTIONALLY GUARANTEED TO HIM AT TRIAL BY THE U.S. CONST., AMENDS. VI, XIV,; N.J. CONST. ART. I, PAR. 10.
We agree with defendant's contention that there was merit to his claim that the search of his vehicle was not supported by probable cause, and that trial counsel did not act reasonably in failing to file a motion to suppress. Under those circumstances, but for counsel's errors, the result of the proceedings would have been different. Accordingly, the denial of defendant's petition for post-conviction relief was error. We reverse and remand for further proceedings not inconsistent with this opinion.
At the PCR hearing, Lieutenant Schuster testified that he arrested defendant on July 5, 2001 on the charges that led to the trial in question. For several weeks prior to that date, Schuster had been receiving information from confidential informants (informants) and from residents in the area about narcotics activity in the area of George and Hassart Streets in New Brunswick. The information from those informants led Schuster to focus on defendant and his girlfriend, Zona Bass.
Schuster testified that the informants had provided information to narcotics investigators in the past that had resulted in arrests and convictions for drug violations. In the weeks prior to July 5, 2001, the informants advised Schuster that defendant and Bass were selling heroin to lower-level drug dealers who then sold heroin on street corners. The tip from the informants came "[f]rom being around the area, personal observations . . . and overheard conversations." Schuster explained that the informants "may have seen the street dealer meeting with Mr. Hill or Ms. Bass," but the information provided by the informants was "mostly from word of mouth." The information Schuster received from the informants concerning the location of the drugs "was very vague;" therefore, Schuster tried to determine where the drugs "were being held," but "the best [he] could ...