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State v. Frias

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


December 12, 2007

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
KENNY FRIAS, DEFENDANT-APPELLANT.

On appeal from Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 96-12-1204.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued November 26, 2007

Before Judges Weissbard and Baxter.

Defendant Kenny Frias appeals from an October 24, 2005 order denying his first petition for post-conviction relief (PCR). He presents the following arguments for our consideration:

I. PETITIONER WAS DENIED THE EFFECTIVE ASSISTANCE OF TRIAL COUNSEL IN VIOLATION OF THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ARTICLE I, PARAGRAPH 10 OF THE NEW JERSEY CONSTITUTION.

II. AN EVIDENTIARY HEARING IS NECESSARY TO DECIDE WHETHER A REASONABLE PROBABILITY EXISTS IN LIGHT OF COUNSEL'S ERRORS AND NEWLY DISCOVERED EVIDENCE THAT THE RESULT OF THE PROCEEDING WOULD HAVE BEEN DIFFERENT.

III. THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION TO SUPPRESS PHYSICAL EVIDENCE FOLLOWING AN ENTRY INTO A THIRD PARTY'S HOME PURSUANT TO AN ARREST WARRANT.

IV. THE TRIAL COURT ERRED IN RELYING ON THE RULE OF APPARENT AUTHORITY IN DENYING DEFENDANT AN EVIDENTIARY HEARING.

V. DEFENDANT WAS DENIED HIS RIGHT TO A JURY TRIAL WHEN HE WAS SENTENCED ABOVE THE PRESUMPTIVE TERM BASED ON FACTS NOT SUBMITTED TO THE JURY.

We agree with defendant's contentions in Points I, II and IV, and remand for an evidentiary hearing. State v. Preciose, 129 N.J. 451, 459-64 (1992). We need not reach the argument defendant presents in Point III because the trial court will be reconsidering on remand its previous denial of defendant's motion to suppress. We reject the sentencing argument presented in Point V.

I.

On August 6, 1996, approximately 390 guns were stolen from Precinct 75 of the New York City police department in Brooklyn.

A judge of the United States District Court for the Eastern District of New York issued a federal arrest warrant for Regino Luis Frias (Regino)*fn1 under the belief that Regino had stolen the guns. New York police also issued a wanted poster with a picture of Regino on it. The poster stated that "subject is driving a late model gray Maxima Station Wagon NY Lic. No. M10-ODF. Information is that subject is in a motel in New Jersey . . . ."

The Clifton police department was notified of the arrest warrant. A confidential informant (CI) had told police that Regino was residing at 131 Mahar Avenue in Clifton with his brother defendant Kenny Frias, and that defendant had been using a green Honda that was parked outside that address. Consequently, police went to the Mahar Avenue address on August 14, 1996 to execute the arrest warrant for Regino. Detective Stuart Kennedy testified at the suppression hearing that he spoke with the landlord of the building, who resided on the first floor of the two-family, two-story structure. According to Kennedy's testimony, the landlord identified a picture of Regino, said that Regino lived in the apartment on the second floor, and voluntarily gave police a key to the apartment. Kennedy testified, as did Officer Michael McLaughlin, that they did not hear any voices, see any lights, or hear or see anything else that would have indicated that there was anybody inside the second floor apartment. Nonetheless, Kennedy and McLaughlin used the key to enter the apartment. Upon entering, they engaged in a protective sweep. During the course of that sweep, they saw in plain view a large amount of money and narcotics paraphernalia. No one was present in the apartment. One of the supervising officers ordered police to suspend further activity and to exit the apartment until they were able to secure a search warrant. A municipal court judge issued the warrant about two hours later, at 1:15 a.m. on August 15, 1996.

Shortly before the warrant was issued, a 1995 Toyota pulled up to the house. Defendant was a passenger in that car. Police stopped him, frisked him and asked him to identify himself. A police officer returned with a search warrant and gave defendant a copy. The resulting search of the apartment produced more than six ounces of heroin, drug paraphernalia, more than $10,000 in cash, a defaced handgun, a rifle and documents that tied defendant to the premises.

The jury returned a verdict finding defendant guilty of two first-degree crimes: possession of a controlled dangerous substance (CDS) with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and -5(b)(1), and maintaining or operating a CDS production facility, N.J.S.A. 2C:35-4. Defendant was also convicted of two third-degree narcotics offenses, as well as fourth-degree possession of a defaced firearm, N.J.S.A. 2C:39-3(d). At sentencing, after merger of the third-degree convictions, the judge sentenced defendant to a fifteen-year term of imprisonment, with a five-year period of parole ineligibility on the first-degree possession of CDS with intent to distribute conviction. A concurrent sixteen-year term of imprisonment, with a seven-year term of parole ineligibility, was imposed on the CDS production-facility conviction. An eighteen month concurrent sentence was imposed on the defaced firearm conviction.

On direct appeal, defendant argued that the trial court erred in denying his motion to suppress because police acted unlawfully in their execution of the arrest warrant. We rejected that claim. State v. Frias, No. A-4840-01 (App. Div. December 10, 2003). Relying on State v. Miller, 342 N.J. Super. 474, 497 (App. Div. 2001), we held that the test is "whether there was an objectively reasonable basis both for believing the residence to have been the home of the person named in the arrest warrant and that he was present in the home at the time the warrant was executed." Ultimately, we agreed with the trial judge's ruling that the police officers, in executing the arrest warrant at the subject premises on the basis of information they had received from both the confidential informant "and the landlord who also resided in the building," had a reasonable belief that Regino Frias, the subject of the arrest warrant, resided there. We held that the belief that Regino was present at the home at the time was also reasonable, supported by the presence of a motor vehicle which had been identified as his. For those reasons, we rejected defendant's argument that the arrest warrant was not properly executed, and upheld the later search pursuant to the search warrant. We rejected defendant's sentencing arguments, finding that defendant's contentions lacked sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

After the appeal was decided, defendant claims that new evidence came to light, which formed the basis of the PCR petition that he filed on February 14, 2005. In the PCR proceeding, defendant argued: (1) he was denied effective assistance of counsel because his trial counsel failed to make a reasonable investigation into the police officer's discussion with the landlord; (2) an evidentiary hearing was necessary to decide whether a reasonable probability existed that the results of the proceeding would have been different in light of the newly-discovered evidence; and (3) the trial court erred when it denied his motion to suppress physical evidence following an entry into the home of a third-party pursuant to an arrest warrant.

At the August 1, 2005 PCR hearing, defendant provided the court with an undated certification of Julio Lazarte. Lazarte was the person police described as being the landlord. His certification stated the following: (1) law enforcement officers came to his father's home at 131 Mahar Avenue on August 14, 1996, at which time they showed him a photograph of a wanted felon and inquired whether he knew the man depicted; (2) at the time, Lazarte was eighteen years old and living with his father on the said premises; (3) Lazarte never identified the person in the photograph as a resident of the apartment, nor did he identify the man in the photograph as being present at the time the police arrived; (4) Lazarte never identified any vehicle parked on the street as belonging to the party depicted in the photograph; (5) after telling the police that his father was the landlord, the police insisted that Lazarte produce the key to the upstairs apartment; (6) Lazarte believed he had no choice in the matter, and gave the police the key.

On October 24, 2005, the judge presiding over the PCR proceedings, who had not been the trial judge, issued a written opinion holding that defendant had not established a prima facie claim of ineffective assistance of counsel. The judge denied PCR relief without conducting an evidentiary hearing. The judge found that if Detective Kennedy was mistaken about whether it was the landlord's son who consented to the entry into the second-floor apartment, or whether it was the landlord himself, was of no consequence. The judge therefore determined that trial counsel's failure to speak to Lazarte and learn that he was not the landlord, would have made no difference and the motion to suppress would have been denied regardless. The court reasoned as follows:

The rule of apparent authority requires consideration of the reasonableness of an officer's belief that an individual [giving consent] had the authority to consent to a search (entry) at the time it was made. State v. Maristany, 133 N.J. 299 (1993). In the case at bar, it is of no consequence whether it was the landlord's son who consented to the entry into Petitioner's apartment or whether it was the landlord himself. There was a reasonable basis for Detective Kennedy to believe that the individual who answered the landlord's door, consented to the police entry and gave him a key to Petitioner's apartment, had the authority to consent to the entrance into Petitioner's apartment. Therefore, the fact that Petitioner's attorney failed to offer Julio Lazarte as a witness (to testify as to being the person who answered the door) does not constitute ineffective assistance of counsel because there is no reasonable probability that Lazarte's testimony would have changed the outcome of the case. The trial court, during the suppression hearing, found Detective Kennedy to be credible and reasonable in his belief that the consenting party had the authority to consent to the police entry; thus, since the ruling on the suppression motion by the trial court would not have changed (as the court found Detective Kennedy's testimony credible), nor would the ultimate result of the case have likely changed.

This court finds that the Petitioner has failed to show a prima facie case of ineffective assistance of counsel because based on the legal concept of apparent authority even in the event that defense counsel had called Julio Lazarte to testify, there exists no reasonable probability that his testimony would have changed the outcome of the case in favor of defendant.

II.

To prove ineffective assistance of counsel, defendant must demonstrate that counsel's performance was deficient, and that this deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2064, 80 L.Ed. 2d. 674, 693 (1984). Performance is deficient "when counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Id. at 687, 104 S.Ct. at 2064, 80 L.Ed. 2d at 693. To show prejudice, the defendant must demonstrate that there is a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S.Ct. at 2068, 80 L.Ed. 2d at 698. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Ibid. There is a "strong presumption that counsel's conduct falls within a wide range of reasonable professional assistance." Id. at 689, 104 S.Ct. at 2065, 80 L.Ed. 2d at 694. The New Jersey Supreme Court has adopted the Strickland test. State v. Fritz, 105 N.J. 42 (1987).

Although this court must defer to the trial court's factual findings that underpin its determination, this court owes no deference to the determination itself. State v. Cleveland, 371 N.J. Super., 286, 295 (App. Div.), certif. denied, 182 N.J. 148 (2004). Whether the trial court's fact-finding satisfies the applicable legal standard is a question of law subject to plenary review on appeal. Ibid.

Defendant argues that trial counsel's performance was deficient because counsel failed to do a simple investigation of the facts, which would have established that Lazarte was not the owner of the property, but was the landlord's eighteen-year-old son. According to defendant, if this investigation had been conducted, the "consent to search the second floor apartment would have been voided." Additionally, if Julio had testified, he "would have revealed to the trial court that Detective Kennedy never showed Julio a photo of the wanted felon Regino Frias . . . thus discrediting the most heavily relied upon assertion by police in justifying the execution of the arrest warrant."

"Counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary. In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments." Strickland, supra, 466 U.S. at 692, 104 S.Ct. at 2066, 80 L.Ed. 2d at 695. We conclude that trial counsel's performance was deficient when he failed to interview Julio Lazarte to determine whether Detective Kennedy's version of his conversation with Lazarte was accurate.

The linchpin of whether the arrest warrant was lawfully executed was Kennedy's testimony that Lazarte told him Regino resided there and "was upstairs." As the trial court judge described it, "it's a domino theory. If the arrest warrant falls . . . the plain view falls. If the plain view falls, the search warrant falls." Thus, because the lawfulness of the arrest warrant and the subsequent search warrant hinged on this testimony, counsel had the duty to investigate whether there was evidence that would contradict Kennedy's testimony.

Under these circumstances, we conclude that trial counsel had a duty to investigate an issue that could have resulted in the exclusion of all evidence subsequently obtained against his client. The failure to interview the landlord violates the standard established by Strickland that requires an attorney to make "reasonable investigations." Ibid.

The State argues that there is nothing in the record demonstrating that trial counsel failed to interview Lazarte. We disagree. During the November 28, 2001 argument of the motion to suppress, trial counsel repeatedly referred to "the landlord" without ever asserting that the person Kennedy described as the landlord was actually the landlord's son. Had trial counsel interviewed Lazarte, he would have learned that Lazarte was not the owner of the building, but was instead merely an eighteen-year-old high school student who was the son of the landlord. Moreover, if trial counsel had interviewed Lazarte, it is inconceivable that he would not have called him to testify at the hearing or presented an investigator's summary of Lazarte's testimony to the State as part of his reciprocal discovery obligation under Rule 3:13-3. Thus, we reject the State's contention that there is no evidence demonstrating that trial counsel failed to interview Lazarte. For all of these reasons, we conclude that trial counsel's failure to adequately investigate the facts satisfies the first prong of the Strickland/Fritz test.

We turn now to the second prong and determine whether the result of the hearing on the motion to suppress would have been different had trial counsel interviewed Lazarte. Stated differently, we determine whether there exists a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, supra, 466 U.S. at 694, 104 S.Ct. at 2068, 80 L.Ed. 2d at 698. Defendant argues that the second prong is satisfied and that he was prejudiced by trial counsel's error because had counsel provided testimony from Lazarte, there would have been evidence that the police executed the arrest warrant unlawfully. He further argues that such evidence would have resulted in his acquittal because all evidence acquired after the unlawful arrest warrant would then have been excluded as fruit of the poisonous tree. Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed. 2d 441 (1963).

An arrest warrant and a search warrant serve to protect different interests. Steagald v. United States, 451 U.S. 204, 212-213, 101 S.Ct. 1642, 1648, 58 L.Ed. 2d 46 (1981). "[A] search warrant is necessary to fully protect the privacy interests of third parties when their home is searched for the subject of an arrest warrant." Id. at 207 n.3, 101 S.Ct. at 1645 n.3, 68 L.Ed. 2d at 43 n.3. Thus, officers can enter the residence of the subject of an arrest warrant on the strength of the arrest warrant alone, but they cannot enter the home of another person to search for the subject of an arrest warrant without first procuring a search warrant. State v. Cleveland, 371 N.J. Super. 286, 298 (App. Div.), certif. denied, 182 N.J. 148 (2004). As we observed in Miller:

[A]n arrest warrant may not be used as a pretext for gaining entry to conduct a search of a third-party's home; and, even if entry is properly gained, the arrest warrant may be used to support a subsequent search only when that search is conducted incident to an arrest lawfully made. The underlying reason for this rule is obvious: the standard for issuing an arrest warrant, and its focal purpose, do not confer the minimum protections which the probable cause standard and special purposes for search warrants provide. [State v. Miller, supra, 342 N.J. Super. at 495.]

Thus, in evaluating whether an arrest warrant was lawfully executed in a third-party dwelling, this court must apply a two-part test: "in the absence of consent or exigency, an arrest warrant is not lawfully executed in a dwelling unless the officers executing the warrant have objectively reasonable bases for believing that the person named in the warrant both resides at the dwelling," id. at 479, and is "present in the home at the time the warrant was executed." Id. at 497.

"An arrest warrant founded on probable cause implicitly carries with it the limited authority to enter a dwelling in which the suspect lives when there is reason to believe the suspect is within." Payton v. New York, 445 U.S. 573, 603, 100 S.Ct. 1371, 1388, 63 L.Ed. 2d 639, 661 (1980). "Yet, absent special circumstances, a police officer cannot search for the subject of an arrest warrant in a home where the subject is merely a visitor without first obtaining a search warrant." Cleveland, supra, 371 N.J. Super. at 294. "A contrary conclusion . . . would create a significant potential for abuse. Armed solely with an arrest warrant for a single person, the police could search all the homes of that individual's friends and acquaintances." Id. at 298 (quoting Steagald, supra, 451 U.S. at 215, 101 S.Ct. at 1649, 68 L.Ed. 2d at 47).

In this case, counsel's error was prejudicial if it resulted in the admission of evidence obtained by the unlawful execution of an arrest warrant. To determine whether counsel's error was prejudicial, we must first decide whether Julio's testimony could have proved that the arrest warrant was unlawfully executed. Based on Miller, the issue as to whether the arrest warrant was lawfully executed depends upon whether (1) the police reasonably believed that Regino resided at that apartment and was within the apartment that evening, (2) the police had consent to enter the apartment, or (3) there were exigent circumstances justifying the police's entrance into the apartment. Thus, if Lazarte's testimony negated all of these prongs of Miller, then the warrant was unlawfully executed and defendant was prejudiced by counsel's error.

Defendant argues that the officers did not reasonably execute the arrest warrant. To prevail on this argument, defendant must prove, in accordance with Miller, that Kennedy had no objectively reasonable belief that (1) Regino resided at the apartment, or (2) Regino was within the dwelling at the time the warrant was executed. Kennedy testified that he believed Regino Frias resided at 141 Mahar Avenue based on information from the CI and the landlord. Kennedy further testified that Lazarte told him that Regino "was upstairs." According to Lazarte's certification, however, Lazarte never identified the person in the photograph as being present in the apartment or as a resident of the apartment, nor did he identify the green Honda as belonging to the person in the photograph. If Lazarte had testified, and his testimony was found credible, then counsel could have demonstrated that Kennedy had no objectively reasonable belief that Regino resided at or was within the apartment.

In this case, the officers' belief that Regino resided at and was present within the apartment at the time the warrant was executed was based on information from the CI and from Lazarte. If Lazarte did not provide the information to Kennedy that Kennedy claims, then the only basis Kennedy had for execution of the warrant was the information he obtained from the CI. This information alone is not sufficient. This "snippet" of information from the CI is not sufficient, standing alone, to provide an objectively reasonable belief. Miller, supra, 342 N.J. Super. at 500.

Furthermore, the officers in this case, like those in Miller, did nothing else to independently confirm the CI's information. In Miller, the Court held that the police did not have an objectively reasonable basis for believing that the defendant was within the apartment or resided there when they relied on information provided by the defendant's mother. 342 N.J. Super. at 479-80. An arrest warrant was issued for the defendant. Id. at 480. The police went to an address they believed defendant spent time at with his children and their mother, Sandra Champion. Ibid. Champion's mother answered the door and told the police that the defendant was living with Champion at Champion's home, which was a different address, and that defendant was there at that moment. Id. at 481. The police immediately proceeded to Champion's home. Ibid. Champion answered the door and told the police that the defendant did not reside there. Ibid. The police then used threats to gain entry into the premises. Ibid. When the police entered Champion's home, they found the defendant, arrested him, and searched him. As a result of the search, the police found drugs in his clothing.

The Court held that the police unlawfully executed the arrest warrant because the warrant "was used as a basis for gaining entry and searching the third party's premises for defendant. It was also used as a pretext for a general search once on the premises." Id. at 496. The police, according to the Court, had no objectively reasonable basis to believe that the residence was the home of the defendant, or that the defendant was present in the home at the time the warrant was executed. Ibid. The only information the officers had was the statement given by Champion's mother, and that statement was "unsupported by observation, investigation or other inquiry. Consequently, as a basis for the officers' action, it did not meet the 'objectively reasonable belief' standard in respect of either prong of the pertinent test." Id. at 497. The Court reasoned:

The officers in this matter did nothing to confirm independently the snippet of opinion they had received from Champion's mother . . . Nor did the officers offer any bases for a reasonable belief, beyond the early hour, that defendant was present within. Without the necessary objectively reasonable basis, it is clear that these officers were using this arrest warrant as a surrogate for a search warrant. [Id. at 500.]

Here, the CI's information was uncorroborated and inconsistent with the information that the police did have. The New York warrant stated that Regino was driving a gray Nissan station wagon and was staying in a motel. The CI told Kennedy that Regino was driving a green Honda and was residing at 131 Mahar Avenue. The CI's information was not corroborated by any other intelligence. Furthermore, the police did not conduct their own investigation to determine whether Regino was located in that apartment, other than the information they stated they obtained from Lazarte. They did not, for example, investigate themselves whether Regino, or anyone else, was present in the apartment. In fact, Kennedy and McLaughlin testified that they observed no signs that any one was home at the apartment. They did not see any lights on, hear any noises, or see any movement from within the apartment, nor did they see Regino enter the apartment.

Accordingly, had trial counsel interviewed Lazarte and presented him as a witness at the suppression hearing, and if the trial court found Lazarte's testimony to be credible, then the police would have had no objectively reasonable basis for executing the arrest warrant. The unlawful execution of the arrest warrant would have then resulted in an exclusion of the evidence obtained by the ensuing police entry into the apartment when Lazarte gave them the key. Based upon their observations during that initial entry, the police were able to obtain a search warrant. Thus, as we have already discussed, and as the trial court correctly observed, if the initial entry into the second-floor apartment pursuant to the arrest warrant was itself unlawful, then the later search warrant based upon those initial police observations would have also been unlawful, and subject to suppression as fruit of the poisonous tree.

The PCR judge held that trial counsel's failure to interview Lazarte and present him as a witness at the suppression hearing did not constitute ineffective assistance of counsel because the result of the suppression hearing would have been the same even if Lazarte had been presented as a witness. In particular, the PCR judge concluded that Lazarte had the apparent authority to consent to the entry into the second-floor apartment. We disagree. A landlord does not have authority to consent to a search of a tenant's premises. Chapman v. United States, 365 U.S. 610, 616-17, 81 S.Ct. 776, 779-80, 5 L.Ed. 2d 828, 833 (1961); State v. Hempele, 120 N.J. 182, 207 (1990). The fact that the landlord has a key to the tenant's residence is not relevant to whether he has authority to consent. State v. Coyle, 119 N.J. 194, 215 (1990), overruled on other grounds, 163 N.J. 403 (2003).

In light of Hempele and Coyle, the trial court's conclusion that Lazarte had apparent authority to consent to the officers' entry into defendant's apartment was erroneous. The doctrine of apparent authority requires consideration of the reasonableness of an officer's belief that the individual giving consent had the authority to consent to the search or entry at the time it was made. State v. Maristany, 133 N.J. 299, 306 (1993). Here, even if Detective Kennedy reasonably believed that the person he was speaking to had the authority to consent to entry of the upstairs apartment, as a matter of law, Kennedy's belief in the apparent authority of Lazarte was irrelevant because a landlord, as held in Hempele and Coyle, is not permitted to consent to a search of a tenant's apartment. It stands to reason that if a landlord is not permitted to consent, his son could not have apparent authority to do so either. Consequently, the PCR judge erred when he concluded that Lazarte had apparent authority to validate the officers' entrance to the second-floor apartment.

Under these circumstances, the second prong of the Strickland/Fritz test is satisfied because defendant has established a reasonable probability that but for counsel's unprofessional errors, the result might have been different.

We do not, however, reverse defendant's conviction. We simply conclude that he was entitled to the benefit of an evidentiary hearing, pursuant to Preciose, at which time he would have had the opportunity to present Lazarte's testimony. The judge would then be required to decide whether Detective Kennedy's testimony was credible or whether instead the testimony of Lazarte was credible. If, upon remand, the judge concludes the testimony of Lazarte to be credible, then the judge would be required to evaluate whether under those circumstances the motion to suppress should have been granted.

The State argued that defendant's evidence was "too vague, conclusory, or speculative" because Lazarte's certification was undated and this claim was offered ten years after defendant's arrest. We disagree. A reviewing court must consider defendant's "contentions indulgently and view the facts asserted by him in the light most favorable to him." State v. Petrozelli, 351 N.J. Super. 14, 23-24 (App. Div. 2002). Although the certification is undated, its contents are not vague, and when viewed in the light most favorable to defendant, we conclude that the certification*fn2 was sufficient to warrant an evidentiary hearing. Accordingly, we reject the State's contention that Lazarte's certification was insufficient to justify an evidentiary hearing.

III.

As part of his ineffective assistance of counsel claim, defendant also argues that counsel was ineffective when he failed to "challenge the fact that no evidence was ever presented to the jury that defendant's residence was used on more than one occasion to manufacture CDS." Defendant further contends that trial counsel "simply accepted the government's version of the facts without confrontation, despite the ability to negate an essential element of the crime." This argument was not raised before the judge during the PCR hearing and we will not consider it on appeal. Generally, unless such an issue, even a constitutional issue, goes to the jurisdiction of the trial court or concerns matters of substantial public interest, we will not consider it if it was not presented to the trial court. State v. Walker, 385 N.J. Super. 388, 410 (App. Div.), certif. denied, 187 N.J. 83 (2006).

IV.

In light of our determination that this matter should be remanded for an evidentiary hearing pursuant to State v. Preciose, we need not address the sentencing argument defendant raises in Point V. We do so, nonetheless, in the event that the PCR judge denies the petition upon remand. In that event, defendant's sentencing claims would become pertinent.

In Point V, defendant argues that he "was denied his right to a jury trial when he was sentenced above the presumptive term based on facts not submitted to the jury." He bases that argument upon State v. Natale, 184 N.J. 458 (2005)(Natale II). It is clear, however, that defendant is not entitled to the benefit of the new rule of law established in Natale II because his sentence was not in the pipeline that was established in that decision. Id. at 494. Defendant was sentenced on April 12, 2002, and we affirmed his sentence on direct appeal on December 10, 2003. Only cases pending on direct appeal at the time Natale II was decided are in the pipeline, provided that they raised an excessive sentence argument. Defendant's appeal was concluded nearly two years before Natale II was decided, and accordingly, he was not in the pipeline. He is therefore not entitled to the benefit of the Court's decision there. For that reason, we decline to consider the arguments he raises in Point

V.

Reversed and remanded for an evidentiary hearing. We do not retain jurisdiction.


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