December 12, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
KENYION STEVENS, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 02-10-1996.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 15, 2008
Before Judges Collester and Grall.
This appeal is from the denial of a motion for post-conviction relief. Following an unsuccessful motion to suppress the evidence of his crime and indicating his intention to appeal from that determination, Rule 3:5-7(d), defendant Kenyion Stevens negotiated an agreement with the State and pled guilty to possession of a controlled dangerous substance with intent to distribute within 1,000 feet of a school, N.J.S.A. 2C:35-5 and 2C:35-7. Consistent with the plea agreement, the State dismissed related charges and defendant was sentenced to a four-year term of incarceration with a one-year period of parole ineligibility that is consecutive to a sentence for an unrelated crime. This court affirmed the denial of defendant's suppression motion on direct appeal, and the Supreme Court denied defendant's petition for certification. State v. Stevens, No. A-3687-03 (App. Div. Mar. 31, 2005), certif. denied, 183 N.J. 592 (2005).
Defendant filed a timely petition for post-conviction relief contending that he did not have effective assistance of counsel on his motion to suppress. According to defendant, he gave his attorney an account of the events that preceded the seizure of the drugs, but the attorney did not conduct an investigation to corroborate defendant's version of the facts. Defendant also claimed that he asked his lawyer whether he "would be testifying" at the hearing on his suppression motion. The attorney told defendant he "should not testify," and defendant followed that advice.
The evidence presented on the motion to suppress provides context for a discussion of defendant's claim that his attorney's performance was ineffective - not "reasonably competent." State v. Fritz, 105 N.J. 42, 58 (1987).
Detectives from the Neptune Township Police Department were patrolling a high-crime area in an unmarked patrol car. They turned from Heck Street onto Ridge Avenue in front of the car defendant was driving. Defendant was stopped on Ridge Avenue and positioned to make a left turn onto Heck Street. As the patrol car passed, defendant and one of the detectives made eye contact. Defendant turned off his directional signal which was flashing to indicate a left turn, drove straight through the intersection and continued along Ridge Avenue.
The detectives considered defendant's change in course suspicious and followed the car. As they followed, defendant, without signaling, "quickly" pulled the car to the curb and stopped. In order to dispel their mounting suspicion, the detectives stopped to speak to defendant.
When asked why he stopped, defendant said he was going to visit "his boy." Defendant produced a driver's license and the car's registration and insurance card. Because the picture on defendant's driver's license appeared to have been altered and the name on his license was not the name on the car's registration or the insurance card, one of the detectives asked defendant to get out of the car so he could determine whether defendant's height and weight matched the description on the driver's license. At that point, the detective saw drugs protruding from a pocket in the front of defendant's pants. He arrested defendant and seized the drugs and $1500 in cash.
In support of his petition for post-conviction relief, defendant submitted a certification detailing facts contradicting the testimony given by the law enforcement officers. According to defendant, the patrol car passed him before he had reached the intersection of Ridge Avenue and Heck Street, and he did not use his directional signal to indicate that he was turning onto Heck Street. He was on his way to visit his friend J.J. who lived on Ridge Avenue, and he did use his directional signal before he parked at the curb near J.J.'s home.
On appeal from the denial of his motion for post-conviction relief, defendant presents three issues for our consideration:
I. DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL AT TRIAL.
II. THE COURT FAILED TO TAKE ANY TESTIMONY AT THE POST-CONVICTION RELIEF HEARING.
III. THE MOTION FOR POST-CONVICTION RELIEF IS NOT PROCEDURALLY BARRED BY RULE 3:22-4 OR RULE 3:22-5.
The arguments lack sufficient merit to warrant more than the brief discussion that follows. R. 2:11-3(e)(2). Although defendant's petition alleging ineffective assistance of counsel was not procedurally barred, see State v. Harris, 181 N.J. 391, 518 (2004); State v. Preciose, 129 N.J. 451, 459-61 (1992), defendant did not establish grounds for an evidentiary hearing or a grant of post-conviction relief.
In order to obtain post-conviction relief based on his attorney's conduct, defendant was required to show that "counsel's performance was deficient," i.e. not "reasonably competent," and demonstrate "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 463-64 (quoting Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 2068, 80 L.Ed. 2d 674, 698 (1984); Fritz, supra, 105 N.J. at 58. An evidentiary hearing is required only if the facts a defendant asserts, viewed in the light most favorable to the defendant, would entitle the defendant to relief. See id. at 462-63 (stating the standard for evidence adequate to require an evidentiary hearing).
Defendant did not assert facts that would permit a finding of deficient performance based on his attorney's failure to "inform him of his right to testify" or his attorney's failure to allow defendant to decide whether he would testify. By defendant's own account, he asked his attorney whether he would be testifying, his attorney advised against it and he followed that advice without further discussion. Defendant's question demonstrated his understanding of his right to testify, and defendant's silence after the attorney advised him not to testify indicated his understanding of and agreement with the advice.
On the facts as defendant presents them, reasonably competent counsel would have no reason to provide any additional explanation. Fritz, supra, 105 N.J. at 58. The question about the value of defendant's testimony was not complex; at best defendant could do no more than contradict the testimony of the officers about his use of directional signals. Testimony about defendant's reasons for stopping on Ridge Avenue was irrelevant to the only issue on this motion to suppress, which was the reasonableness of the detectives' conduct in light of the facts and circumstances known to them. See generally State v. O'Neal, 190 N.J. 601 (2007) (discussing constitutionally sufficient grounds for police to conduct investigatory stops and seize evidence of a crime).
Similarly, defendant did not allege facts that would permit a finding of deficient performance based on his lawyer's failure to investigate and corroborate his version of the events. Nothing suggests that there was anyone who could corroborate defendant's account of his use of directional signals, and a reasonably competent attorney would not spend time exploring defendant's reasons for parking on Ridge Avenue because his purpose was not known by the detectives and not relevant to the reasonableness of the investigatory stop.
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