On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Accusation No. 05-11-02367.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 22, 2008
Before Judges Sabatino and Alvarez.
Defendant, David P. Ganley, pled guilty to an accusation on February 6, 2006. He was sentenced in accord with the plea agreement on April 28, 2006, to ten years imprisonment, subject to fifty-four months of parole ineligibility, on two counts of first-degree possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5(b)(1), and a consecutive five years on one count of second-degree possession of a weapon while in the course of committing a drug offense, N.J.S.A. 2C:39-4.1.*fn1 On June 23, 2006, defendant filed a motion seeking to withdraw his guilty plea, which was denied after oral argument on September 29, 2006. This appeal followed. We reverse and remand.
Defendant asserts in support of his request to withdraw his guilty plea, that his plea attorney failed to file a meritorious motion to suppress the evidence against him, and failed to insist the viability of the motion be factored into the Brimage Guidelines 2*fn2 calculations which resulted in the offer extended to him by the State. These omissions, defendant contends, amounted to ineffective assistance of counsel in violation of his constitutional rights. Defendant explains the prejudice which resulted from his attorney's alleged shortcomings by reference to State v. Eckel, 185 N.J. 523 (2006), and State v. Dunlap, 185 N.J. 543 (2006), both of which were decided by the Supreme Court on January 10, 2006, approximately a month prior to the entry of his guilty plea. In a nutshell, the opinions stand for the proposition that "a warrantless search of an automobile based not on probable cause but solely on the arrest of a person unable to endanger the police or destroy evidence cannot be justified under any exception to the warrant requirement and is unreasonable." Eckel, supra, 185 N.J. at 540. Because these cases significantly changed the warrantless automobile search landscape, and did not figure into the plea attorney's advocacy of defendant, it is argued, counsel's representation was ineffective.
Defendant further maintains that counsel's failure to take Eckel and Dunlap into account in plea negotiations is borne out by the fact the term of parole ineligibility was not reduced in the Brimage Guidelines 2 calculations to reflect an application of Section 12, "Downward Departure for Trial Proof Issues." Brimage Guidelines 2 at 97-100. That section would have permitted some discretionary reduction in the State's offer, given the strength of defendant's legal arguments in support of a motion to suppress.
As no suppression hearing was conducted, we glean the facts from police reports, as did the motion judge. The Monmouth County Prosecutor's Office Narcotics Strike Force made an undercover purchase of narcotics from defendant, with the aid of a confidential informant, on March 29, 2005. Defendant used his vehicle, a black Lincoln Navigator, as the pick-up site for the narcotics, and the drop-off point for the payment. Thereafter, on April 6, 2005, the Strike Force received a tip that defendant was going to be "delivering a large quantity of powder cocaine to the Colts Neck Township area on the evening of April 7, 2005."
Early that morning, six detectives commenced day-long surveillance of defendant. An arrest warrant, based on the undercover sale, issued early that afternoon. When defendant returned to his apartment at approximately 4:15 p.m., detectives set up surveillance outside, and parked an unmarked car along the route between defendant's apartment and Colts Neck. At approximately 4:55 p.m., they observed defendant carrying a large black gym bag, which he placed on the back seat of his SUV before driving away.
The arrest warrant was executed after defendant had been followed by detectives for approximately half an hour. He was cuffed and told "that his vehicle was going to be seized and searched incident to his arrest." He was asked "if there were any narcotics or weapons in the vehicle." Defendant informed the officers that "there was a gun and cocaine inside a black backpack located in the rear passenger seat of [his Lincoln] Navigator." A loaded handgun and a large quantity of powder cocaine was retrieved from the backpack.
Only then was defendant informed of his Miranda*fn3 rights and only then did he initial and sign a "Monmouth County Police Uniform Miranda Warning and Waiver Form." After defendant signed the waiver, he was asked "if he had additional amounts of cocaine or weapons." He responded that he had "a large quantity of cocaine in a bedroom closet" in his apartment. Defendant consented in writing to a search of his residence, which resulted in the seizure of a large amount of cocaine.
At the station, defendant signed a written statement in which he admitted that he was "mak[ing] a drop of six ounces of cocaine" when he was arrested. He said that he lived in the apartment with his girlfriend, but that "the apartment [was] not in [his] name." He also admitted to selling cocaine for about two years, during which time he traveled to New York every one or two months to buy cocaine, and to selling it regularly to about five people. He claimed his girlfriend was not involved in drug dealing, and that he would do anything to protect her.
A fundamental principle of our jurisprudence is that under the Sixth Amendment of the United States Constitution, a person accused of crimes is guaranteed the effective assistance of legal counsel in his defense. Strickland v. Washington, 466 U.S. 668, 685-86, 104 S.Ct. 2052, 2063, 80 L.Ed. 2d 674, 692 (1984). To establish a deprivation of that right, a defendant must satisfy the two-part test enunciated in Strickland by demonstrating that: (1) counsel's performance was deficient, and (2) the deficient performance actually prejudiced the accused's defense. Id. at 687, 104 S.Ct. at 2064, 80 L.Ed. 2d at 693; see also State v. Fritz, 105 N.J. 42, 58 (1987)(adopting the Strickland two-part test in New Jersey).
In reviewing such claims, courts employ a strong presumption that defense counsel "rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Strickland, supra, 466 U.S. at 690, 104 S.Ct. at 2066, 80 L.Ed. 2d at 695. "[C]complaints 'merely of matters of trial strategy' will not serve to ground a constitutional claim of inadequacy . . . ." Fritz, supra, 105 N.J. at 54 (quoting State v. Williams, 39 N.J. 471, 489, cert. denied, 374 U.S. 855, 83 S.Ct. 1924, 10 L.Ed. 2d 1075 (1963), overruled on other grounds, State ...