December 18, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
JOSEPH JONES, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 05-04-0972.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 9, 2008
Before Judges Skillman and Graves.
In a five-count indictment, defendant Joseph Jones was charged with third-degree possession of cocaine, contrary to N.J.S.A. 2C:35-10(a)(1) (count one); third-degree possession of cocaine with intent to distribute, contrary to N.J.S.A. 2C:35- 5(b)(3) (count two); third-degree possession of cocaine in a school zone with intent to distribute, contrary to N.J.S.A. 2C:35-7 (count three); third-degree distribution of cocaine, contrary to N.J.S.A. 2C:35-5(b)(3) (count four); and third- degree distribution of cocaine in a school zone, contrary to N.J.S.A. 2C:35-7 (count five). A jury found defendant guilty on counts one and three and acquitted him on the remaining counts.
The trial judge granted defendant's motion for acquittal on count three but, in an unpublished decision, we reversed. State v. Joseph Jones, No. A-5312-05 (App. Div. June 4, 2007). At sentencing on July 27, 2007, the court granted the State's motion for a mandatory extended term under N.J.S.A. 2C:43-6(f), count one was merged into count three, and the court imposed a five-year prison term with three years of parole ineligibility.
On appeal, defendant presents the following arguments:
THE DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL, CONSTITUTIONALLY GUARANTEED TO HIM BY THE U.S. CONST., AMENDS. VI, XIV; N.J. CONST. ART. 1, PAR. 10, WHEN HIS TRIAL ATTORNEY INTENTIONALLY BROUGHT OUT BEFORE THE JURY THE FACT THAT DEFENDANT HAD AN ARREST WARRANT (NOT RAISED BELOW).
THE DEFENDANT'S CONVICTION MUST BE REVERSED AS THE VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE (NOT RAISED BELOW).
After considering the record, the briefs, and the applicable law, we are satisfied that these contentions are without sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(2). We therefore affirm with only the following comments.
In our prior opinion, we concluded that the State's proofs were "more than sufficient" to warrant defendant's conviction for possession of cocaine with intent to distribute in a school zone, and we concluded there was no basis to grant defendant's motion for a judgment of acquittal notwithstanding the jury verdict on count three of the indictment. We summarized the pertinent facts of the case as follows:
The State's proofs were that on January 7, 2005, at about 5:30 p.m., Asbury Park Police Officers Philip J. Montgomery and Lorenzo M. Pettway were working undercover in their vehicle when they saw defendant walking down Main Street. Since they knew of an outstanding arrest warrant for defendant, the officers drove around the block and parked at a nearby intersection. Using binoculars, Montgomery saw defendant "sprinkling" what he believed to be crack cocaine into the hand of an individual later identified as Robert Jones, no relation to defendant. Robert Jones then handed defendant a DVD player. The officers then moved in to make arrests. Montgomery arrested the defendant, who was still holding the DVD player. Pettway went after Robert Jones and saw him throw something to the ground. Pettway picked it up, saw it was a "rock" of crack cocaine. The alleged transaction involving the crack cocaine and DVD player took place within 1,000 feet of the Thurgood Marshall Elementary School.
Robert Jones entered a guilty plea to possession of cocaine and testified for the State. He said that he walked up to defendant and asked him if he wanted to buy the DVD player. Defendant told him he did not have money but did have "product" in exchange. Robert Jones agreed. When he saw Officer Pettway approach, Robert Jones threw the cocaine away.
Defendant testified he was walking home and talking on his cell phone when Robert Jones approached him and asked him to buy a DVD player still in its box. Defendant agreed to pay $10 and was reaching in his pocket for the money when the two police officers got out of a van. He related that Robert Jones fled and left the DVD player at defendant's feet. Officer Montgomery then arrested defendant for possession of stolen property. Defendant claimed that he never possessed the DVD player or cocaine and did not distribute anything to Robert Jones.
[State v. Jones, supra, slip op. at 2-3.]
In support of his ineffective assistance of counsel claim, defendant contends that "trial counsel's conduct in bringing to the attention of the jury the fact that defendant had an existing arrest warrant could never be seen as appropriate or helpful." When defendant testified, however, he claimed that Officer Montgomery told him he was being taken into custody because of an outstanding arrest warrant:
Q: So tell me your recollections of what it is that happens as you're there with Jones with respect to the police officer?
A: The gray Dodge Caravan pulls up. Robert Jones takes off and heads back towards Bond Street. [Officer] Montgomery gets out the driver's side of the vehicle. Officer Marshawn Love opens the slide door and exits, comes towards me. Montgomery told me that I had a warrant and to put my hands behind my back.
In addition, during his summation, defense counsel suggested to the jury that the arrest warrant was the real reason for defendant's arrest because the police "didn't see anything."
And they want to rest a case on the credibility of these officers? I'm going to tell you what I think happened here. First of all, Montgomery lied when he said he saw Joseph walking on Main Street.
[The police] were coming around here. They saw the movement up there. And they figured, maybe not unreasonably, maybe there's something going down here. But they didn't see anything, didn't see anything. Because if they saw something, the first words out of Montgomery's mouth when he pulls halfway up the 600 block . . . would have been something akin to, we got you selling stuff to that guy. Get up against the fence. Go through the pockets. Do whatever.
No, the first thing he said was, got a warrant. [G]ot a warrant. It doesn't make sense what they did because they didn't see anything.
Thus, defense counsel's reference to the existing arrest warrant was consistent not only with defendant's testimony but also with defense counsel's efforts to demonstrate that Montgomery lacked credibility. Moreover, we deem it significant that defense counsel's trial strategy was successful with respect to three of the five charges. Under these circumstances, defendant has failed to establish that his counsel's performance was deficient and that the deficiency prejudiced his right to a fair trial. Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 2064, 80 L.Ed. 2d 674, 692- 93 (1984); State v. Fritz, 105 N.J. 42, 58 (1987).
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