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State v. Lowery

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


November 23, 2007

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
LEON LOWERY, DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Law Division, Union County, 01-02-0218.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted November 13, 2007

Before Judges Lintner and Sabatino.

Defendant, Leon Lowery, appeals from a July 28, 2006, order entered by Judge Barisonek, denying his petition for post conviction relief (PCR) following the conclusion of a hearing on the same date. We affirm. On February 16, 2001, a Union County Grand Jury issued Indictment No. 01-02-0218 (218) charging defendant with third-degree possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10a(1) (Count One); third-degree possession of CDS with intent to distribute, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(3) (Count Two); third-degree possession of CDS with intent to distribute on or within 1000 feet of school property, N.J.S.A. 2C:35-7 (Count Three); and second-degree possession of CDS with intent to distribute in or within 500 feet of a public park, N.J.S.A. 2C:35-7.1 (Count Four).

Two subsequent Union County Indictments, 01-04-0525 (525) and 01-05-0564 (564) were returned against defendant, the former charging defendant with criminal contempt, and the latter charging defendant with drug offenses, including possession with intent to distribute within 1000 feet of school property. Thomas Butler represented defendant on the charges stemming from the 218 indictment while Peter Adolf represented defendant on indictments 525 and 564.

On August 6, 2001, defendant rejected an offer to plea to all three indictments in return for a recommended sentence of seven years with three and one-half years of parole ineligibility. On December 19, 2001, following a two-day trial, defendant was found guilty on all four counts of the 218 indictment. On March 4, 2002, defendant pled guilty to the 525 fourth-degree of criminal contempt charge and the 564 third-degree charge of possession of CDS with intent to distribute within 1000 feet of school property.

On May 24, 2002, defendant appeared for sentencing before Judge Barisonek on all three indictments.*fn1 At the sentencing hearing, Judge Barisonek found that there was confusion as to whether the sentence on the pleas to 525 and 564 were to run concurrent or consecutive with the sentence received on the 218. Defendant believed that his plea to 525 and 564 was conditioned on a concurrent sentence being imposed on the 218 jury conviction. Judge Barisonek, accordingly, permitted defendant to withdraw his pleas to the 525 and 564 indictments.*fn2

On the 218 conviction, Judge Barisonek merged the three third-degree convictions with the second-degree conviction. Because defendant's criminal history made him eligible for an extended term as a persistent offender, N.J.S.A. 2C:44-3a, the judge granted the State's motion for a discretionary enhanced sentence and imposed a term of fifteen years with six years of parole ineligibility, N.J.S.A. 2C:43-7a(3). Defendant appealed and, in an unreported decision, we affirmed defendant's conviction. Defendant's petition for certification was denied on June 4, 2004. State v. Lowery, 180 N.J. 453 (2004).

On August 24, 2004, defendant moved to correct his sentence, contending that it was illegal. Judge Barisonek denied defendant's motion and we affirmed that denial on April 19, 2006. On May 3, 2005, defendant filed his petition for PCR, the subject of this appeal.

We recite the facts pertinent to this appeal. On November 4, 2000, while supervising and conducting a narcotics investigation, Detective John Wyso of the Roselle Police Department's Narcotics Unit observed defendant engage in "a quick hand exchange" with another individual, and believed it to be a drug transaction. As a result of his observation, Wyso approached defendant, who then ran. Wyso pursued defendant into an alley. When Wyso was approximately five feet behind defendant, he saw defendant reach into the right side of his coat and retrieve a black hat, which he discarded by throwing it onto a nearby roof. Defendant was arrested. $109 was found in his pants pocket and the hat was retrieved from the roof.

Inside the hat, Wyso found a plastic bag and twenty-eight brown glass bottles with white caps, which were taken to headquarters, logged as evidence, and placed in the vault. Tests performed at the Union County Prosecutor's Office Laboratory determined that the contents were cocaine. Detective Martin Lynch of the Union County Prosecutor's office, testifying as an expert, opined that an individual engaged in a hand-to-hand transaction in a high drug area and possessing twenty-eight bottles of cocaine and $109 in low denomination bills possessed the drugs with the intent to distribute.

On appeal, defendant raises the following points:

POINT I

THE DEFENDANT WAS DENIED THE RIGHT TO EFFECTIVE ASSISTANCE OF TRIAL AND APPELLATE COUNSEL AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I PAR. 10 OF THE NEW JERSEY CONSTITUTION.

A. Trial counsel failed to advise the defendant that he could receive an extended term on Indictment No. 01-02-00218.

B. Trial counsel failed to move to suppress evidence notwithstanding the fact that the seizure was not supported by reasonable suspicion.

C. The prosecutor vouched for the credibility of his witness without an objection at trial and a curative instruction or a plain error argument on appeal.

D. Trial counsel and appellate counsel failed to properly argue that the State did not meet its burden of proof with respect to the charge of intending to distribute CDS within 500 feet of a public park.

E. Trial and appellate counsel failed to raise the issue of the inadmissibility of the laboratory report that had been prepared by a county lab rather than a state lab as required by statute.

POINT II

THE DEFENDANT IS ENTITLED TO AN EVIDENTIARY HEARING TO ASCERTAIN ANY CONFLICTS OF INTEREST THAT COULD HAVE ARISEN FROM TRIAL COUNSEL'S WORK AS A MUNICIPAL PROSECUTOR IN UNION COUNTY AND HIS WORK AS COUNSEL FOR THE DEFENDANT IN UNION COUNTY.

POINT III

THE SENTENCE IS ILLEGAL; THE COURT IMPROPERLY USED A SAFETY OF THE COMMUNITY STANDARD TO IMPOSE AN EXTENDED TERM.

Judge Barisonek held a hearing limited to defendant's assertion that he received ineffective assistance of trial counsel because counsel failed to advise him that he was eligible for an extended-term sentence on the 218 indictment. On defendant's other assertions, he determined that defendant failed to present a prima facie case to warrant a plenary hearing.

We first address defendant's contention that Judge Barisonek erred in denying him relief following the plenary hearing on his claim that he was denied effective assistance of counsel by his trial attorney's failure to advise him that he faced an extended term. At the PCR hearing, defendant testified that his attorney, Butler, did not advise him that he was eligible for either a discretionary or mandatory extended term if convicted on the 218 indictment. However, he testified that he "understood [that on indictment] . . . 564 if [he were] to take this plea [he] would be facing extended term." He reiterated that when he went to trial on the 218 charges: "I didn't know I was facing extended term under 218. I was never informed that."

Butler contradicted defendant's testimony, stating that he advised defendant that he was facing a discretionary extended term as a persistent offender if convicted on 218. The Brimage*fn3

worksheet also contained a note with an asterisk that defendant was eligible for an extended term as a persistent offender on the 218 indictment. According to Butler, he "vividly . . . explained" to defendant that he was facing an extended term "[a]s a persistent offender" because of his prior record if convicted on 218. Butler also testified that he represented defendant only on 218 and Adolf represented defendant on the 525 and 564 indictments. Butler explained that although he and Adolf cooperated with one another and worked "in concert" to put all the matters to rest, the plea never occurred. However, Butler was present at the initial plea conference only with respect to 218.

Judge Barisonek accepted Butler's testimony as credible, noting that at the time of the plea bargain defendant would have had to appear in court with both Adolf and Butler. He found from both the Brimage worksheet and Butler's testimony that defendant knew that if he was convicted of the charges in the 218 indictment he would be eligible for a discretionary extended term as a persistent offender due to his prior criminal history.*fn4

The judge also determined that defendant was aware that he faced a mandatory extended term if convicted on the subsequent 564 indictment.

On appeal, defendant asserts that the colloquy during the initial plea conference whereby Butler noted that defendant's exposure, in light of his prior convictions, would have been twenty years with a fourteen-year parole disqualifier if convicted on all three offense, is indicative that "there is no possible way that trial counsel factored in the extended term sentence." In response to that same argument, Judge Barisonek correctly noted that it made no difference what sentence all the charges might possibly add up to so long as defendant was advised and knew, that if found guilty on the 218 indictment, he would be subject to a discretionary extended term.

Defendant also maintains that the proofs establish that Butler's advice was deficient because he advised defendant only on his exposure to a discretionary term, not to the potential for a mandatory extended term if first convicted on the 564 indictment. He argues that, had he known at the time of the initial plea bargain that he also faced a mandatory extended term, he may have looked more favorably on the initial plea offer.

The underlying principles are well settled. In order to succeed on a claim of ineffective assistance of counsel, a defendant must establish that his counsel's performance was seriously deficient and that the deficient performance prejudiced his right to a fair disposition of the charges. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed. 2d 674, 693 (1984); State v. Fritz, 105 N.J. 42 (1987).

Every criminal defendant "is entitled to know, with reasonable exactitude, the penal consequences of any criminal charge he or she is called upon to defend against." State v. Thomsen, 316 N.J. Super. 207, 214 (App. Div. 1998) (citing State v. Howard, 110 N.J. 113, 124-25 (1988)). "[P]lea bargaining is a critical stage of [a] criminal proceeding at which [time] the right of representation attaches." State v. Taccetta, 351 N.J. Super. 196, 200 (App. Div.) (citing State v. Powell, 294 N.J. Super. 557, 564 (App. Div. 1996)), certif. denied, 174 N.J. 544 (2002).

The two Strickland prongs may be shown if "an attorney's gross misadvice of sentencing exposure . . . prevents defendant from making a fair evaluation of a plea offer and induces him to reject a plea agreement he otherwise would likely have accepted." Ibid. Each attorney representing a defendant on separate indictments is required to advise a defendant regarding his or her optimal defense strategy to all the indictments, not simply those for which that attorney represents the defendant. See State v. Roundtree, 388 N.J. Super. 190, 212-13 (App. Div. 2006), certif. denied, 192 N.J. 66 (2007). Thus, both Butler and Adolf had the duty to advise defendant concerning his mandatory extended term eligibility on the 564 indictment if first convicted on the earlier 218 indictment. Defendant's contention fails based upon his own testimony that he was aware that he was facing an extended term on the subsequent 564 indictment. Defendant's enhanced sentence exposure on the 564 indictment could only be on a mandatory basis if first convicted on the earlier 218 indictment. Although defendant's testimony was somewhat confusing, inferentially it provided ample proof that he knew that he was facing a mandatory extended term if subsequently convicted on the 564 indictment. Because he was aware of the mandatory penal consequences to which he would be exposed if convicted first on indictment 218 and then 564, Butler's failure to advise him of his potential mandatory extended term eligibility did not cause him to reject a plea agreement he otherwise would likely have accepted.

Moreover, contrary to defendant's contention, it would not make any difference whether 564 was tried first, so long as he knew that a mandatory extended term was appropriate on a second drug-related conviction. Judge Barisonek's determination that defendant was aware of both his mandatory and discretionary extended-term eligibilities was based upon sufficient credible evidence in the record. Defendant failed to satisfy the second Strickland prong. We see no reason to intervene.

We next address defendant's several other PCR claims that the judge found did not warrant a plenary hearing. We need not describe or explore the formidable procedural obstacles to any grant of relief. See R. 3:22-3; R. 3:22-4; R. 3:22-5; State v. Mitchell, 126 N.J. 565 (1992). "If the court perceives that holding an evidentiary hearing will not aid the court's analysis of whether defendant is entitled to post-conviction relief or that the defendant's allegations are too vague, conclusory, or speculative to warrant an evidentiary hearing, then an evidentiary hearing need not be granted." State v. Marshall, 148 N.J. 89, 158, cert. denied, 522 U.S. 850, 118 S.Ct. 140, 139 L.Ed. 2d 88 (1997) (internal citations omitted).

Defendant maintains he was entitled to a hearing on his claim that Butler had a conflict of interest because he had been a municipal prosecutor in Union County. A municipal prosecutor is precluded "from simultaneously serving as defense counsel in the same county in which he or she serves as a municipal prosecutor." State v. Clark, 162 N.J. 201, 207 (2000) (emphasis added). Defendant's counsel did not simultaneously serve in both positions. He ceased serving as a municipal prosecutor on December 31, 2000, approximately one and one-half months prior to defendant's indictment on 218. Moreover, defendant raised the same argument in his direct appeal, which the appellate panel determined had insufficient merit to warrant discussion in a written opinion. Defendant is barred from raising an argument previously decided. R. 3:22-5. Moreover, PCR counsel conceded, when asked by Judge Barisonek, that he had no other facts to establish a conflict of interest other than the bald assertion that he was a municipal prosecutor.

In his point III argument, defendant asserts that at the time of sentencing Judge Barisonek relied upon safety of the community in finding defendant eligible for an extended-term sentence, is equally unavailing. However, a review of the sentencing record indicates that the judge did not rely on the need to protect the public but instead he reviewed and determined that defendant's criminal record of convictions rendered him statutorily eligible for a discretionary enhanced-term, the very same analysis determined to be appropriate in State v. Pierce, 188 N.J. 155, 168 (2006).

In his appeal of the judge's denial of his motion to reduce his sentence, we noted that although the presumptive extended term imposed did not render it illegal under Natale,*fn5 defendant did not raise an Apprendi*fn6 claim in his direct appeal but only in his post conviction motion filed two months after certification had been denied in his direct appeal. Thus, even if Judge Barisonek relied upon safety of the public as the criterion for determining defendant's eligibility for a discretionary prospective term, which he did not, defendant would not be entitled to a collateral review of his sentence based upon the decision in Pierce. See State v. Thomas, 188 N.J. 137, 147 (2006).

We also agree with Judge Barisonek that defendant failed to present a prima facie case to warrant an evidentiary hearing on the claims that counsel was ineffective for failing to: (1) move to suppress the black hat and drugs found inside the hat; (2) object to the prosecutor's closing argument; (3) argue that the State failed to meet its burden of proof that the drug transaction occurred within 500 feet of a public park; and (4) object to the admissibility of the laboratory report.

Defendant's assertion that he had a meritorious claim of ineffective assistance of counsel based upon trial counsel's failure to move to suppress the evidence of the hat and drugs fails because the argument that they were obtained by an illegal search is not supported by the record. To justify a "particular intrusion the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion." Terry v. Ohio, 392 U.S. 1, 20, 88 S.Ct. 1868, 1879, 20 L.Ed. 2d 889, 905 (1968). Wyso's observation of a hand-to-hand drug transfer in a high-crime area provided a reasonable basis for a Terry investigatory stop justifying the subsequent pursuit after defendant ran. See State v. Tucker, 136 N.J. 158, 168-69 (1994). Moreover, contrary to defendant's argument, his futile attempt to rid himself of the drugs while being chased bespeaks abandonment or "at least a severely diminished expectation of any privacy in the [hat] and its contents." State v. Carroll, 386 N.J. Super. 143, 161 (App. Div. 2006); see also Tucker, supra, 136 N.J. at 172; State v. Bailey, 97 N.J. Super. 396, 400-01 (App. Div. 1967). The failure to file a motion to suppress under those circumstances did not amount to ineffective assistance of counsel.

Likewise lacking merit is defendant's contention that his counsel's failure to object to the following statement by the prosecutor during closing argument represented ineffective assistance of counsel.

[Wyso] could have come here if he was looking to frame this guy and said, yeah, I saw an object changing hands. I saw money changing hand[s]. He could have done that. There would be nothing preventing him from doing that. If he was here to frame, if he was here to lie or be dishonest with you, he could have done that and there would be nothing to prevent him from doing it. But he didn't. Why not? Because his testimony I submit based on the evidence and based on your observations of his demeanor on the stand was the truth.

It is inappropriate for a prosecutor to "'express his or her personal belief or opinion as to the truth or falsity of any testimony or evidence or the guilt of the defendant.'" State v. Marshall, 123 N.J. 1, 154 (1991) (quoting ABA Standards for Criminal Justice § 3-5.8(b) (2d ed. 1980)). However, a prosecutor may argue the State's case in a forceful manner. State v. Setzer, 268 N.J. Super. 553, 565 (App. Div. 1993), certif. denied, 135 N.J. 468 (1994). It is not unusual to find that criminal cases are tried with some degree of emotion. "[A] prosecutor cannot be expected to present the State's case in a manner appropriate to a lecture hall." State v. Johnson, 31 N.J. 489, 510-11 (1960).

The prosecutor's comments were made in response to defense counsel's argument that Wyso's belief that there was a hand-to-hand drug transaction was akin to a "pre-programmed" belief of a tourist sighting the Loch Ness monster while traveling past Loch Ness in Scotland. The credibility of Wyso's observation was hotly contested by the defense. It is appropriate for a prosecutor to respond to the defense's position. State v. Engel, 249 N.J. Super. 336, 379 (App. Div.); certif. denied, 130 N.J. 393 (1991). The prosecutor's argument sought to have the jury determine Wyso's credibility based upon the evidence and the jury's observations of his demeanor. It was not improper. The failure on the part of defense counsel to object did not amount to ineffective assistance of counsel.

Defendant's arguments that his counsel was ineffective for failing to challenge the use of the County Prosecutor's laboratory and the State's proofs that the drug transaction occurred within 500 feet of a public park are devoid of merit. The use of the Union County Prosecutor's facility is in accord with N.J.S.A. 2C:35-19, which expressly allows the use of laboratories "staffed by employees of the State's political subdivisions." Moreover, a random sample that tests positive is sufficient proof "to support the conclusion that the [bulk] is of the identical substance, absent any evidence to the contrary." State v. Jester, 68 N.J. 87, 91 (1975). The laboratory report provides the following conclusion that the substance tested was "Cocaine (II)":

Based upon a random sampling of the bulk controlled dangerous substance exhibit . . . . Based upon that sampling, as well as the appearance and texture of the bulk substance, it is the opinion of the examining chemist that the remaining exhibits are of like character.

There was no evidence to the contrary.

The State's evidence respecting the location of the transaction consisted of the introduction of an official map prepared by an engineer and adopted by Linden, showing the area within five hundred feet of the Linden Recreation Center. Wyso testified that the map represented the area within five hundred feet of the Linden Recreation Center, identified the location where defendant was first seen, and traced the route that defendant took upon fleeing. Defendant's contention that the State should have been required by counsel to present evidence that the Linden Recreation Center is actually a public park misses the mark. Introduction of the map and Wyso's testimony was sufficient to carry the State's burden of proof. See State v. Trotman, 366 N.J. Super. 226, 229-30 (App. Div. 2004); N.J.S.A. 2C:35-7.1. Any argument by defense counsel that the State failed to meet its burden of proof would have been unavailing.

Affirmed.


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