December 9, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
JEREMIAH GERMAN, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Morris County, Indictment No. 99-08-01077-I.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 13, 2008
Before Judges Parrillo and Messano.
Defendant Jeremiah German appeals from an order of the Law Division denying his motion for post-conviction relief (PCR).
Defendant was charged in a ten-count indictment with multiple drug offenses, involving a series of related events occurring on July 23, 1998 and September 24 and 25, 1998, that were consolidated for trial pursuant to Rule 3:7-6. Following trial by jury, defendant was found guilty of eight of those counts: three counts of possession of cocaine, N.J.S.A. 2C:35- 10(a)(1) (counts one, six and ten); two counts of possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(3) (counts two and seven); one count of distribution of cocaine in a quantity less than one-half ounce, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(3) (count three); and two counts of distribution of cocaine within 500 feet of a public park, N.J.S.A. 2C:35-7.1 (counts five and nine).
Having been previously convicted of distribution, defendant was eligible for a mandatory extended term. N.J.S.A. 2C:43- 6(f). As a result, after merging count three (distribution) into count five (distribution within 500 feet of a public park), and counts six (possession of cocaine) and seven (possession of cocaine with intent to distribute) into count nine (distribution within 500 feet of a public park), the court imposed on these convictions concurrent ten-year terms of imprisonment with five- year parole disqualifiers. N.J.S.A. 2C:43-7(a)(4) and N.J.S.A. 2C:43-7(c). The court also merged count one (possession of cocaine) into count two (possession of cocaine with intent to distribute), and for that crime and the conviction on count ten (possession of cocaine) defendant was sentenced to concurrent five-year terms of imprisonment, to run concurrent to the other sentences. Thus, in the aggregate, defendant was sentenced to a ten-year term with a five-year parole bar. Appropriate fees and penalties were also imposed.
We recount the underlying facts as stated in our opinion affirming the judgment of conviction:
These convictions arose out of a police undercover narcotics operation targeting Ike's Postwar Club, a Morris Township bar located on Martin Luther King Avenue. The State's proofs at trial demonstrated that as part of this operation, Detective Swan of the Morris County Prosecutor's Office Narcotics Unit went to the bar at around 9:30 p.m. on July 23, 1998 to engage in a controlled buy of narcotics. At the time, there were ten to twelve people inside. Detective Swan engaged a man, later determined to be defendant, in a conversation about drugs. Defendant asked Detective Swan how much he wanted and Detective Swan replied that he wanted one bag of cocaine. Defendant then handed the detective a paper fold containing 0.99 grams of cocaine. Defendant said the price was $15 and Detective Swan paid him, passing his money low, as defendant had instructed.
During the transaction, Detective Swan made a mental image of defendant as a black male with black braided hair, about 5 foot 9 inches and 170 pounds, and wearing a white t-shirt, denim shorts and beige work boots. About ten minutes after the transaction, Detective Swan left the bar and returned to his car, where he radioed a description of the seller to his backup officer, Sergeant Jeffrey Paul, a seventeen year veteran of the Morristown Police Department, who was parked approximately twenty to twenty-five feet from the front door of Ike's Post War Club.
Sergeant Paul heard Detective Swan's description of the seller over the radio and, shortly thereafter, observed a man closely matching that description, in physical appearance and dress, emerge from the bar. Sergeant Paul recognized the man as defendant, whom he had known for more than ten years, as he was familiar with many of the residents in the area.
The officers did not arrest defendant that evening because the undercover operation was still ongoing and in fact, did not conclude until September 24, 1998, when police began to execute arrest warrants for those implicated in the sting. At 11:30 p.m. that evening, Morris Township Patrolman Thomas Manning and other officers entered Ike's Post War Club to arrest defendant. There were only three people in the bar at that time, including defendant who was standing against a wall, facing the bar.
Officer Manning arrested defendant and frisked him, discovering a wad of money totaling $828, comprised of one $50 bill, thirty-two $20 bills, ten $10 bills, six $5 bills and eight $1 bills. Manning then passed defendant off to another officer while he continued to search the area where he had observed defendant standing when police entered the bar. When he shined his flashlight on the floor where defendant had been standing, Officer Manning saw two plastic bags stuck together. One of the bags contained three corner folds of cocaine. The second bag contained ten corner folds of cocaine. The total amount of cocaine contained in the two bags, and divided among the smaller corner folds, equaled 5.97 grams.
Defendant was transported to Morris Township police headquarters for processing. For some reason, he was not searched again at police headquarters. However, defendant was searched upon his admission to the Morris County jail later the morning following his arrest, when a sheriff's officer discovered a plastic bag containing 0.24 grams of cocaine in defendant's pocket.
At trial, Sergeant Paul identified defendant in court as the man he saw leaving the bar on July 23, 1998, matching Detective Swan's detailed description, radioed just moments earlier, whom Sergeant Paul had also known for more than ten years. Detective Swan also identified defendant as the man from whom he recalled having purchased cocaine at Ike's Post War Club on July 23, 1998.
[State v. German, A-3535-01T4 (App. Div. January 9, 2004).]
As noted, we affirmed the judgment of conviction in an unpublished opinion, and the Supreme Court denied defendant's petition for certification. State v. German, 181 N.J. 544 (2004).
Defendant's timely PCR petition claimed that he was deprived of the effective assistance of both trial and appellate counsel in several respects. The PCR judge thoroughly considered each of these assertions and rejected them for reasons articulated on the record at the close of argument:
Here, the first thing that the petitioner alleges is that his attorney failed to investigate his case properly by not calling two witnesses or maybe more, but particular in his brief and initially in his papers, he refers to Walter Taylor and Nat Wallace. He alleges that both witnesses would have provided exculpatory testimony.
In order for him to prevail on a prima facie claim regarding a failure to investigate, the defendant must assert the facts that an investigation would have revealed supported by either affidavits or certifications or some trustworthy information really it should be based according to Cummings in 321 [N.J. Super.], it should be based upon affidavits or certifications that the affiant has on personal knowledge.
Now, I understand that Mr. Wallace is now deceased but here, the petitioner hasn't provided any affidavits or certifications from these witnesses. He just has his own certification wherein he alleges that counsel failed to investigate or interview.
But he does not offer any specific testimony or any information as to what these alleged exculpatory witnesses would have testified to. He has to make more than a bald assertion that he was denied the effective assistance of counsel.
The next thing he argues to me is that certain Motions should have been filed.
Now, he didn't go into this in great detail. He did in his brief. One of them was a suppression Motion and I'm not sure even as I sit here now, exactly what he is claiming by way of a suppression Motion, because I would have to make a determination that there's merit to the Motion to suppress and I really don't have anything concrete before me to indicate what he is seeking to suppress, why he is seeking to suppress it, and on what grounds the suppression should be granted.
There was also an allegation that he should have brought a Wade application, but I really think that the Wade application was touched upon in the Appellate Division opinion with respect to this matter. Because in addressing the identification charge, the Appellate Division really was also addressing the Wade argument. Wade wasn't argued here today before me orally, nor was it brought up by Mr. German, but it is in the papers so I'm addressing it now.
So I can't find that that Motion would have been of any assistance to him whatsoever. And moreover, as I read the Post Conviction Relief, the brief does not specify exactly what facts upon which the failure to bring the Motion are premised. Or how that failure caused a prejudicial deficiency.
So I can't find that the prima facie case has been made there, that would warrant an evidentiary hearing.
As far as the argument that his attorney and appellate counsel did not confer with him regarding the case, I have a better understanding as to what Mr. Record did based upon the information given to me here today by Mr. German. I don't have any information with respect to what communication or lack of communication existed between the appellate counsel and Mr. German. But I would have to find and the petitioner would have to demonstrate that counsel did not keep him reasonably informed and that lack of communication contributed to his guilty verdict.
I really can't find that, because I haven't really had specific information for me to rule upon that would show that, or demonstrate it was the insufficiency of contact and how the insufficiency prejudiced the outcome. As a matter of fact, what I do have here is Mr. German telling me how frequently he brought these things up with his attorney, but his attorney in his view just did not pursue them as aggressively as he wanted him to.
The last major thing he brings up is that appellate counsel was aware of his pro se brief but did not file it. But appellate counsel did file a brief, I did read a brief by Mr. German but he doesn't indicate to me how his pro se brief would have affected the outcome. And without that, I don't see how I can say that I should give him an evidentiary hearing because it doesn't rise to a prima facie case.
The PCR judge thus denied defendant's request for an evidentiary hearing.
On appeal, defendant reiterates his claim of ineffective assistance of trial counsel, this time focusing on the failure to: (1) cross-examine Officer Breeding on the fact that he was not the one who found the drugs in defendant's clothing at the jail; (2) cross-examine Detective Manning concerning the possibility that the drugs found on the floor of the bar at the time of defendant's arrest could have been the property of other patrons; and (3) cross-examine Manning concerning the possibility that the $820.00 in defendant's possession at the time of his arrest could have been because he just cashed his paycheck.
We have considered each of these claims in light of the record, the applicable law, and the arguments of counsel, and we are satisfied that none of them is of sufficient merit to warrant extended discussion in a written opinion. R. 2:11- 3(e)(2). We add, however, the following comments.
It is virtually axiomatic that in order for defendant to obtain relief based on ineffective assistance grounds, he is obliged to show both the particular manner in which counsel's performance was deficient and that the deficiency prejudiced his right to a fair trial. See, e.g., 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, 58 (1987). We are persuaded that proof of the alleged deficiencies here clearly fails to meet either the performance or prejudice prong of the Strickland test, and does not warrant convening an evidentiary hearing.
As to Officer Breeding, counsel's apparent strategy was to suggest that the drugs were planted on defendant because he had been searched twice before taken to the jail and no contraband was found either time. To this end, counsel attempted to attack Breeding's credibility by emphasizing both that it was a different officer who conducted the search and the number of times defendant was searched prior to his search at the jail. Counsel also attempted to attack Detective Manning's credibility by highlighting a number of contrary facts, including that there were two other patrons near the defendant; the club was dark; and he needed a flashlight. Counsel then brought out the additional facts that defendant did not make any furtive movements, or attempt to run, and that the detective did not see him drop anything on the floor. While he did not specifically ask Detective Manning about the possibility that the drugs belonged to the other two patrons, that was indeed the implication as counsel did inquire of Manning as to defendant's proximity to them and to the drugs.
Lastly, although counsel did not ask Manning about the money found on defendant, he did question Sergeant Paul, the person in charge of the investigation, about it, pointing out the additional fact that the money was never tested for drug residue. Counsel also asked Paul whether the money found on defendant could have been from working, and followed up the response with further inquiry into whether the Sergeant checked to see whether in fact defendant was employed at the time.
To sum, defendant has not demonstrated a prima facie case of deficiency on counsel's part to warrant an evidentiary hearing. However, even assuming deficient performance, defendant has not established any prejudice therefrom, namely that the outcome, in light of the evidence of guilt, would have been any different but for counsel's shortcomings.
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