On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 05-05-0718.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 1, 2007
Before Judges Gilroy and Baxter.
Defendant Roosevelt Dowdy appeals from his conviction on two counts of possession of a controlled dangerous substance, N.J.S.A. 2C:35-10(a)(1) (counts one and six). At the close of the State's case, the court granted the State's motion to dismiss the distribution counts (counts four, five, nine and ten), and the jury acquitted defendant of the possession with intent to distribute counts (counts two and seven).
On June 8, 2006, prior to sentencing, the court denied the State's motion to sentence defendant to an extended term of imprisonment as a persistent offender, pursuant to N.J.S.A. 2C:44-3(a). Afterward, the court sentenced defendant to a three-year term of imprisonment on counts one and six, concurrent to each other. Three weeks after sentencing, on June 29, 2006, defendant filed a motion for reduction of sentence, pursuant to Rule 3:21-10. The court denied that motion, finding that defendant had not presented any meritorious arguments to warrant a change of sentence.
On appeal, defendant presents the following arguments for our consideration:
I. THE SEIZURE OF THE HEROIN AND COCAINE WAS NOT BASED ON PROBABLE CAUSE AND VIOLATED DEFENDANT'S CONSTITUTIONAL RIGHTS UNDER STATE AND FEDERAL LAW; DEFENSE COUNSEL WAS CONSTITUTIONALLY INEFFECTIVE IN FAILING TO MAKE A MOTION TO SUPPRESS THE EVIDENCE. U.S. CONST. AMENDS. VI AND XIV; N.J. CONST., (1947), ART. I, PARS. 1 AND 10. (Not Raised Below)
II. THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING THE MOTION FOR RECONSIDERATION OF SENTENCE.
After a careful review of the record, we conclude that each of these claims lacks merit, and we affirm the conviction and sentence.
We begin by addressing defendant's claim that his conviction should be reversed because he received ineffective assistance of counsel. In particular, defendant argues that because the seizure of the heroin and cocaine was not based on probable cause, his attorney was required to file a motion to suppress that evidence. He further argues her failure to do so demonstrates that her level of performance fell below required Sixth Amendment standards; that had she done so, the motion to suppress would have been granted; and that her deficient performance resulted in a conviction that would otherwise have been avoided.
In reply, the State argues that there is no record upon which to weigh the effectiveness of defense counsel's pretrial performance. In particular, the State argues that because defendant did not move to suppress the evidence, there is no record establishing the facts relevant to a suppression hearing nor was there an opportunity for the judge to make a credibility determination concerning the surveilling officer's reasons for arresting defendant. The State further argues that "defendant seeks to transform counsel's realistic appraisal of the police investigation and counsel's successful trial strategy--that defendant possessed the narcotics for personal use and not distribution--into a claim of ineffectiveness." The State urges us to reject "[d]efendant's transparent tactic."
Although the State argues that there is an insufficient evidentiary record against which to evaluate counsel's performance, the State nonetheless has addressed in considerable detail the question of whether the seizure of heroin and cocaine from defendant's person was supported by probable cause. Claims of ineffective assistance of counsel are generally preserved for post-conviction review because the resolution of such claims requires evaluation of evidence not contained in the trial record. State v. Preciose, 129 N.J. 451, 462 (1992). ...