October 10, 2007
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
VINCENT WILSON A/K/A BERNARD HARRIS, A/K/A LAMONT HOWARD, A/K/A VINCENT HOWARD, A/K/A RAJOHN WILLIAMS, A/K/A ANTHONY WILSON AND A/K/A WAVEN WILSON, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Essex County, 05-04-0776-I.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 17, 2007
Before Judges Weissbard and Baxter.
Defendant Vincent Wilson appeals from his conviction on the following narcotic offenses: possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10a(1) (Count One); possession of CDS with intent to distribute, N.J.S.A. 2C:35-5a(1) and 5b(3) (Count Two); possession of CDS with intent to distribute within 1000 feet of a school, N.J.S.A. 2C:35-7 (Count Three); and possession of CDS within 500 feet of public housing, N.J.S.A. 2C:35-7.1 (Count Four). Defendant was acquitted of a fifth count charging tampering with physical evidence, N.J.S.A. 2C:28-6.
At sentencing, the court merged Counts One, Two and Three into Count Four. On Count Four the judge imposed a sentence of seven years with three years of parole ineligibility.
The facts proven at trial were uncomplicated. On January 28, 2005, Newark Police Officers Mark Garrett and Douglas Marshall were on uniformed foot patrol on Stratford Avenue, between Clinton Avenue and Avon Avenue, in Newark. At 9:30 a.m., the officers were positioned in the vestibule of a building located at 2 Stratford Avenue, on the corner of Stratford and Clinton. The only pedestrians the officers observed were two individuals standing in front of 29 Stratford Avenue, 355 feet away. The officers' view was unobstructed.
The officers witnessed the two individuals, later identified as Eugene Bryant and defendant Vincent Wilson, "conducting what looked to . . . be a transaction of U.S. currency." Bryant "handed to Wilson U.S. currency . . . in the manner keeping it hidden." Wilson then placed the money in his pocket and walked away from 29 Stratford toward the officers. Bryant followed. When the men reached 19 Stratford Avenue, they entered the building.
The officers, suspecting that a drug transaction was occurring, walked over to 19 Stratford Avenue. As the officers approached, they noticed that Bryant was standing inside. Bryant opened the door and let the officers inside the building's lobby. Upon entering, the officers asked Bryant why he was in the lobby. At that point, the officers heard a door open and defendant came into view from around the corner to the officers' left.
Upon observing the officers, defendant stopped and dropped an object along his pant leg to the floor. Garrett then asked defendant where he was coming from, while Marshall retrieved the object from the floor. The officers then arrested defendant. A search revealed cash in defendant's rear pocket, consisting of tens, twenties and fives, although the exact amount was not noted. The officers also arrested Bryant.
After defendant was arrested, he was taken to the central processing unit. Marshall testified that he performed a second search of defendant and noticed that the currency found in his rear pocket had been torn to pieces. The item found at the scene was tested and determined to be "50 decks [i.e. packets] of heroin." The money found on Wilson, however, was subsequently lost.
In his opening statement, defense counsel painted a picture of a man falsely accused by police officers who could not possibly have seen what they claimed. Defense counsel noted:
Ladies and gentlemen, this is a case about false accusation. It is a case where the first moment the police encounter Vincent Wilson, that is, with their eyes, you're going to realize after going soon into the evidence of this case, that what they're saying they saw was physically impossible for them or any other human being on the planet earth to see.
On cross-examination of Officers Marshall and Garrett, the defense attempted to elicit that the police officers' views of 29 Stratford had been compromised by distance, undermining their claims that they witnessed an exchange of money.
In support of its defense of false accusation, witness Shakira Loyal testified that there are only two rooms to the left of the 19 Stratford lobby: her apartment and a meter room which is always locked. She testified that defendant had not been in her apartment, calling into question the officers' testimony that a door opened and defendant emerged from the left.
On appeal defendant presents the following issues:
POINT I: THE TRIAL COURT ERRED BY FAILING TO PROVIDE THE JURY WITH AN INSTRUCTION ON IDENTIFICATION, THEREBY DENYING DEFENDANT DUE PROCESS OF LAW AND A FAIR TRIAL. U.S. CONST., AMENDS. VI AND XIV; N.J. CONST. (1947), ART. I, PARS 1, 10. (Not raised Below)
POINT II: THE STATE FAILED TO PROVE BEYOND A REASONABLE DOUBT THE ELEMENT OF INTENT TO DISTRIBUTE DRUGS; CONSEQUENTLY THE CONVICTIONS ON COUNTS TWO, THREE AND FOUR MUST BE VACATED AND A JUDGMENT OF ACQUITTAL ENTERED. (Not raised Below)
POINT III: THE SEIZURE OF THE HEROIN WAS NOT BASED ON PROBABLE CAUSE AND VIOLATED THE DEFENDANT'S CONSTITUTIONAL RIGHTS UNDER STATE AND FEDERAL LAW; DEFENSE COUNSEL WAS CONSTITUTIONALLY INEFFECTIVE IN FAILING TO MOVE FOR SUPPRESSION OF THE EVIDENCE. U.S. CONST. AMENDS. VI AND XIV; N.J. CONST. (1947), ART. I, PARS. 1 and 10. (Not Raised Below)
POINT IV: THE VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE, NECESSITATING REVERSAL.
We conclude that there was no error and therefore affirm the convictions.
Defendant contends that the trial court committed plain error in failing to instruct the jury on the issue of identification. Defendant argues that a specific identification instruction should be given when identification is a legitimate issue, citing State v. Pierce, 330 N.J. Super. 479, 487-490 (App. Div. 2000). Defendant claims that "[his] main defense in this case was one of identification," noting that "cross examination of the state's witnesses was largely centered on their ability to accurately identify the perpetrator in light of all the surrounding circumstances." Defendant adds that his failure to request the charge does not undermine his argument under Pierce. Ibid.
The State responds by arguing that "there was no issue of identification in the trial." The State contends that the defense at trial was not that the police had misidentified the perpetrator, but rather that there was no perpetrator because the police simply fabricated the story as part of a "general sweep of the neighborhood." The State adds that even if identification had been an issue, a failure to provide the instruction would not rise to the level of plain error because the defense "expressly declined an instruction on the subject and affirmatively asserted that identification was not an issue in the case." See State v. King, 372 N.J. Super. 227, 239 (App. Div. 2004).
At trial, the issue of identification was specifically addressed by the court during the following exchange:
THE COURT: Okay. That's another potential issue nailed shut. This is good. So, the state will not offer any statement of the defendant oral or written in the statement, and cross-examination any statement alleged to be made or statement he made. As the state wishes.
Propriety of identification is not an issue, correct, [defense counsel]?
[Defense counsel]: Correct, Judge.
THE COURT: Okay.
The seminal decision with regard to whether an identification instruction must be given is State v. Green, 86 N.J. 281 (1981). There, the Court stated that a request for jury instructions shall be granted when those instructions relate to "essential and fundamental issues and those dealing with substantially material points." Id. at 290. (citing Wild v. Roman, 91 N.J. Super. 410, 413-14 (App. Div. 1966)). Because a defendant may "justifiably assume that fundamental matters will be covered in the charge," id. at 288, "the failure to give such an instruction, even when not requested, may constitute reversible error." State v. Davis, 363 N.J. Super. 556, 561 (App. Div. 2003)(citing Pierce, supra, 330 N.J. Super. at 487-490); State v. Frey, 194 N.J. Super. 326, 329 (App. Div. 1984). In fact, "as a matter of general procedure, a model identification charge should be given in every case in which identification is a legitimate issue." Davis, supra, 363 N.J. Super. at 561.
The fact that a charge should be given, however, does not mean that an omission constitutes plain error. King, supra, 372 N.J. Super. at 238. In King, ibid., for example, defendant admitted to shooting his gun but denied that his bullet killed the victim. At trial, defense counsel declined an identification instruction and stated that identification was not in issue, prompting the judge to omit the instruction. Id. at 239. On appeal, we held that an instruction should have been given, but declined to find plain error. Ibid. In so doing, we noted that "[t]his case involves more than a mere failure by defense counsel to request a specific instruction," rather "defense counsel expressly declined an instruction on the subject and affirmatively asserted that identification was not an issue in the case." Ibid. We went on to note that "the judge's charge as a whole, including the instructions on burden of proof, culpability, and causation, were adequate" to ensure that the jury understood its obligation "to determine  by proof beyond a reasonable doubt that defendant was the actor that shot [the victim]." Id. at 239.
In the present case, we need not reach plain error because the trial court did not need to give the jury an identification charge. Identification was not a legitimate issue in the case. Green, supra, 86 N.J. at 290. Defendant's defense was that the police made up their testimony and that the events never occurred. It was not that the police were unable to properly identify who was involved. Such an argument would have been untenable, given that the officers witnessed defendant with the heroin in the hallway and immediately arrested him. Defense counsel's declination of an identification instruction reflected that undeniable fact.
Defendant contends that he received ineffective assistance of counsel because defense counsel failed to move to suppress the heroin. Defendant argues that "there was an issue regarding the constitutionality of the officers' actions in retrieving the heroin," because there was no probable cause to believe that defendant had engaged in wrongdoing when they "stopped" defendant in the hallway. Defendant opines that "reasonably competent counsel would have used every legitimate means to suppress the evidence." Counsel's failure to pursue those means "rendered his performance prejudicially defective, leading to a breakdown in the adversary process." See State v. Fritz, 105 N.J. 42, 52 (1987) (quoting Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed. 2d 674, 693 (1984)).
The State responds that defense counsel properly declined to move to suppress the heroin because it would have been "a fruitless endeavor." The State first argues that a plenary suppression hearing would never have been granted because defendant offered nothing more than denial of the State's assertions of fact. See State v. Green, 346 N.J. Super. 87, 90- 91 (App. Div. 2000). The State adds that even if a hearing were granted, the motion would have been denied because defendant failed to make a threshold showing that any part of the "stop" was unlawful. As such, the State concludes that defendant received effective assistance of counsel.
When counsel's challenged conduct is a failure to file a suppression motion, a showing of prejudice necessarily requires that defendant's underlying claim is meritorious. State v. O'Neal, 190 N.J. 601, 618-19 (2007) (citing State v. Fisher, 156 N.J. 494, 501 (1998)).
In the present case, defendant's argument fails because his search and seizure claim, whether based on federal or state law, is meritless. While defendant suggests that the constitutionality of his "stop" was in question, he is wrong. Defendant was not "stopped" until after the police saw him drop 50 decks of heroin onto the ground. At that point the police had sufficient probable cause to stop defendant, seize the heroin and arrest him. State v. Jordan, 115 N.J. Super. 73, 75-76 (App. Div. 1971). Any argument based on the impropriety of the observation is similarly meritless, as the police observed the heroin in plain view from the hallway of an apartment building where defendant had no expectation of privacy. Ibid. Defense counsel cannot be found ineffective for failing to advance meritless arguments; therefore, defendant has not been denied the effective assistance of counsel. O'Neal, supra, 190 N.J. at 619.
Defendant's argument that his motion for judgment of acquittal should have been granted on Counts Two, Three and Four because the proofs failed to establish his intent to distribute, and his argument that the verdict is against the weight of the evidence are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).
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