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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 ...