January 2, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
BENJAMIN COX, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 01-08-0839-I.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: December 12, 2007
Before Judges Axelrad and Payne.
Defendant Benjamin Cox appeals from an order of May 30, 2006, denying his request for a plenary hearing and his petition for post-conviction relief (PCR). Defendant had alleged ineffective assistance of trial and appellate counsel and violation of his constitutional right to confrontation with respect to a laboratory report. He had also challenged his sentence, which exceeded the then-existing presumptive term, on Sixth Amendment grounds. Defendant renews these arguments on appeal, and further contends the PCR judge should have sua sponte recused himself because of his partiality and reliance on personal knowledge of defendant's trial counsel's good reputation and of defendant's criminal record. We are not persuaded by any of defendant's arguments challenging his conviction. However, as the State acknowledges, this is a pipeline case under State v. Natale, 184 N.J. 458, 494 (2005), and we thus remand for resentencing.
In March 2003, defendant and co-defendant were convicted of eight counts of drug offenses arising out of transactions involving the use of an apartment. These included first-degree possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5a(1) and b(1) (count two); third-degree possession of cocaine and heroin with the intent to distribute it within 1,000 feet of school property, N.J.S.A. 2C:35-7 and N.J.S.A. 2C:35-5a (counts three and six); and first-degree operation of a drug manufacturing premises, N.J.S.A. 2C:35-4 (count seven). The convictions arose from an early morning surveillance operation at 12th Avenue and Auburn Street in Paterson. Co-defendant was observed soliciting drug sales. When approached by a potential purchaser, she called defendant on her cell phone and, after exiting 21 Auburn Street, defendant made the sale. Prior to a second sale, defendant was observed peeking out of the window of the second floor of the Auburn Street location. Upon the arrest of both sellers, currency and keys to the Auburn Street apartment were found in defendant's possession. The police then made a protective sweep of the apartment for other occupants and, upon observing drugs, locked the door and obtained a warrant. A subsequent search disclosed that the apartment was being used for a drug-packaging operation, not as a residence. Defendant testified he had no connection to the apartment and denied engaging in any drug transaction, even though clothing and other personal items of his were also found in the apartment.
Defendant was sentenced as a persistent offender, N.J.S.A. 2C:43-6f, to a mandatory extended term on count seven of life with twenty-five years of parole ineligibility, with other concurrent terms, including twenty years on count two. We affirmed defendant's conviction and sentence on direct appeal. State v. Cox, No. A-6119-02T4 (App. Div., February 8, 2005). On May 13, 2005, the Supreme Court denied certification. State v. Cox, 183 N.J. 588 (2005). This PCR petition was then filed.
On appeal, defendant contends trial counsel was ineffective in failing to: (1) properly investigate his case; (2) communicate with him and discuss any aspects of his testimony during trial; and (3) pursue a suppression motion. Defendant asserts the boiler-plate claim that his trial counsel failed to conduct a meaningful investigation into the defense of the charges, review videotapes or recordings, or conduct meaningful interviews of potential witnesses. Defendant, however, never sets forth what such further investigation would have produced and how it could have affected the outcome of the case. To establish a prima facie claim for ineffective assistance, "a petitioner must do more than make bald assertions that he was denied the effective assistance of counsel[;] [h]e must allege facts sufficient to demonstrate counsel's alleged substandard performance." State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999); see also State v. Rountree, 388 N.J. Super. 190, 206 (App. Div. 2006), certif. denied, 192 N.J. 66 (2007). Nor did defendant set forth what witnesses trial counsel failed to interview and what information they would have provided, let alone submit an affidavit from the purported witnesses. When a defendant claims his attorney inadequately investigated his case, "he must assert the facts that an investigation would have revealed, supported by affidavits or certifications based upon the personal knowledge of the affiant or the person making the certification." Ibid.
Defendant's claim of failure of communication by trial counsel is not supported by the record. Defendant claims that trial counsel only met with him three times prior to trial, and this was insufficient to prepare for his defense. The judge did not find such claim to be credible based on his knowledge of the attorney's long-standing practice of diligently visiting clients in jail in a multitude of cases before him and his degree of preparation in the present case. Additionally, as the judge noted, the frequency of consultation prior to trial is not the sole factor in determining trial preparedness, rather, "the proper inquiry is whether as a result of that consultation, counsel was able properly to investigate the case and develop a reasonable defense." State v. Savage, 120 N.J. 594, 617 (1990).
The record undermines defendant's claim that trial counsel failed to assist him in making an informed decision as to whether or not to testify and then failed to prepare him for cross-examination. In extensive voir dire prior to defendant testifying at trial, defendant confirmed he had sufficient time to consult with trial counsel regarding his decision to testify and had all of his questions answered by counsel. Once defendant decided to take the stand and deny a connection to the apartment and participation in the drug transactions, we fail to understand how any additional consultation with counsel could have changed the outcome of the case. As we stated on direct appeal, in view of the evidence, "[w]e are not surprised that the jury did not believe [defendant's] tale."
Defendant's claim regarding the suppression motion is also unavailing. Although defendant asserts ineffective assistance in trial counsel's failure to pursue a suppression motion, he provides no Fourth Amendment analysis to demonstrate how the search and seizure by the police was illegal. When a defendant's ineffective assistance of counsel claim is based on a failure to file a suppression motion, a defendant must establish that the suppression motion has merit. State v. Ball, 381 N.J. Super. 545, 554 (App. Div. 2005) (citing State v. Fisher, 156 N.J. 494, 501 (1998)). The PCR judge properly determined the police had probable cause to enter the apartment and did not exceed the permissible scope of the initial search. Furthermore, he noted the search warrant was not based on the initial search where drugs were noticed on the sofa and in the hallway, but on the events observed on the street. Thus, as the evidence would have been admissible whether or not trial counsel pursued the suppression motion, defendant cannot satisfy the second prong of Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed. 2d 674, 693 (1984), that failure to do so would have affected the outcome.
Defendant's arguments of ineffective assistance of appellate counsel in failing to consult with him in preparation of his appeal, failing to argue that trial counsel had been ineffective, and failing to argue that defendant had been denied his right to confrontation are similarly without merit. "The failure to raise unsuccessful legal arguments does not constitute ineffective assistance of counsel." State v. Worlock, 117 N.J. 596, 625 (1990); see also State v. Webster, 187 N.J. 254, 257 (2006). Appellate counsel appropriately did not raise ineffective assistance of trial counsel on direct appeal, as such claims are uniquely reserved for the PCR process since facts supporting the claims are to be found outside the record. State v. Preciose, 129 N.J. 451, 460 (1992). Furthermore, as previously discussed, defendant has failed to show that his trial counsel was, in fact, ineffective.
Nor was appellate counsel deficient in determining not to raise as error admission of the laboratory report confirming the seized items as CDS without testimony of the technician who tested the drugs. Defendant waived his right to confrontation and stipulated that the suspected contraband was heroin, crack and cocaine, because his defense was that he was arrested as a passerby and had no connection with the apartment. Defendant did not contend the seized items were not drugs. We are satisfied that defendant waived his right to assert a Crawford*fn1 confrontation clause violation, State v. Miller, 170 N.J. 417, 436 (2000), and furthermore, that there was no such violation in the admission of the laboratory certificate results. Moreover, we perceive no basis to conclude the stipulation constituted deficient trial performance or was prejudicial to defendant's case. See Strickland, supra, 466 U.S. at 687-94, 104 S.Ct. 2064-69, 80 L.Ed. 2d at 693-98 (in order to establish a claim for ineffective assistance of counsel, a defendant must meet the two-prong test of showing that his counsel's performance was seriously deficient in that it fell below an objective standard of reasonableness measured by prevailing professional norms and that the defect in performance prejudiced his right to a fair trial and affected the outcome of the case).
Defendant did not request an evidentiary hearing at oral argument, and instead stated he would rely on the papers. Moreover, as defendant's PCR claims are without merit, the judge did not err in denying the PCR relief without a hearing. Preciose, supra, 129 N.J. at 462. Defendant's newly advanced argument respecting judicial bias of the PCR judge is without merit warranting any further discussion. R. 2:11-3(e)(2).
Defendant was sentenced to terms in excess of the former-presumptive on count two, i.e., twenty years on first-degree possession of cocaine with intent to distribute, N.J.S.A. 2C:44-1f(1)(b); and on count seven, i.e., an extended term of life on first-degree operation of a drug manufacturing premises, N.J.S.A. 2C:44-1f(1)(e). In Natale, supra, the Supreme Court eliminated presumptive terms from the sentencing process and concluded the appropriate remedy for the Sixth Amendment violations was to remand those sentences for reconsideration without regard to the presumptive terms. 184 N.J. at 466. The Supreme Court decided to give its decision "[p]ipeline retroactivity" and apply it to "cases on direct appeal as of the date of this decision and to those defendants who raised Blakely claims at trial or on direct appeal." Id. at 494. As defendant's direct appeal was decided before the Supreme Court's decision in Natale and the Blakely/Natale issue was raised in defendant's appellate briefing, the challenges to his sentence fall within the "pipeline retroactivity." Accordingly, he is entitled to resentencing without regard to consideration of the presumptive terms.
Defendant's conviction is affirmed; we remand for resentencing under Natale.