On appeal from the Superior Court of New Jersey, Law Division, Union County, 99-09-1213.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Lintner and Alvarez.
On January 11, 2001, a jury convicted defendant, Ernest Green, of third-degree distribution of cocaine, N.J.S.A. 2C:35-5a(1), N.J.S.A. 2C:35-5b(3), and second-degree distribution of cocaine within 500 feet of a public housing facility, N.J.S.A. 2C:35-7.1. Defendant qualified for a mandatory extended term, N.J.S.A. 2C:43-6f, and, on June 1, 2001, he was sentenced to eighteen years imprisonment with eight years of parole ineligibility on the second-degree conviction.*fn1 A concurrent five-year term with two years of parole ineligibility was imposed on the third-degree offense. On April 1, 2003, in an unreported per curium opinion, we affirmed the conviction but vacated the sentence on the third-degree offense, noting that the third-degree conviction should be merged with the second-degree offense. We determined, however, that the sentence imposed on the second-degree offense did not constitute an abuse of discretion nor was it manifestly excessive or unduly punitive. Defendant's Petition for Certification was denied on July 21, 2003. State v. Green, 177 N.J. 496 (2003).
On October 10, 2003, defendant filed a pro se motion for post conviction relief (PCR). A letter brief, dated May 19, 2005, amending defendant's PCR motion was filed by counsel, challenging the admission of testimony of the drug expert called by the State based on ineffective assistance, asserting counsel failed to object to the expert's qualifications. Defendant also challenged the sentence, claiming it was (1) violative of Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed. 2d 403 (2004) and (2) excessive when compared to the recommended sentence provided by the State's final plea offer.
On May 9, 2006, Judge Malone rendered a written opinion denying defendant's motion. Addressing defendant's Blakely contentions, the judge noted that defendant was not entitled to retroactive application because his case was not on direct appeal at the time of the decision in State v. Natale (Natale II), 184 N.J. 458, 495-096 (2005). Rejecting defendant's assertion that his sentence was excessive, Judge Malone pointed out that on direct appeal defendant raised, and the appellate panel rejected, defendant's argument that his sentence was excessive. Declining to consider defendant's claim of disparity between the sentence imposed and his rejected plea offer, Judge Malone determined that the issue was procedurally barred because it should have been raised on direct appeal. Finally, rejecting his claim of ineffective assistance of counsel, Judge Malone pointed out that the trial record reflected that defense counsel objected to the State's expert witness on qualification, relevancy, and repetitive grounds. Judge Malone also concluded that the issue of admissibility of the expert's opinion was also barred from being raised on PCR because it was not raised on appeal.
Defendant appeals, raising the same arguments, specifically:
POINT ONE THE ADMISSION OF EXPERT TESTIMONY ON DRUG TRAFFICKING IMPERMISSIBLY INVADED THE PROVINCE OF THE JURY. (NOT RAISED BELOW.)
POINT TWO DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL CONSTITUTIONALLY GUARANTEED, BY THE U.S. CONST., AMENDS. VI XIV; N.J. CONST. ART. I PAR. 10, WHEN TRIAL COUNSEL FAILED TO OBJECT TO THE SCOPE OF THE EXPERT TESTIMONY AND WHEN APPELLATE COUNSEL FAILED TO RAISE THE ISSUE ON DIRECT APPEAL.
POINT THREE THE COURT COMMITTED ERROR IN APPLYING R. 2:22-3 AS A PROCEDURAL BAR TO DEFENDANT'S PETITION FOR POST CONVICTION RELIEF.
POINT FOUR THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT SENTENCED THE DEFENDANT TO A GROSSLY DISPROPORTIONATE MAXIMUM TERM.
We reject defendant's contentions and affirm substantially for the reasons expressed by Judge Malone in his letter opinion of May 9, 2006.
We focus first on defendant's Point One and Point Two contentions challenging the testimony of the State's narcotics experts. Ordinarily PCR cannot be used to circumvent issues that could have, but were not raised on appeal. State v. Afanador, 151 N.J. 41, 50 (1997); R. 3:22-4. However, a court may grant relief from that procedural bar if enforcement of the bar would result in a fundamental injustice. R. 3:22-4. Defendant asserts that the judge erred in determining that admission of the expert's opinion was procedurally barred because it amounted to a fundamental injustice. He maintains that the State's expert impermissibly infringed upon the jury's function by testifying as to how dealers avoid being caught possessing drugs and money. He also ...