On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 03-04-0301.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 10, 2008
Before Judges C.L. Miniman and King.
This is an appeal from denial of a petition for post- conviction relief (PCR). Defendant received an aggregate custodial sentence in June 2003 of ten years with a mandatory five years before parole eligibility. His conviction was affirmed in April 2004. His PCR petition was denied in August 2005. We find no merit to this appeal and affirm.
The prosecution arose from a surveillance of street corner drug transactions in February 2001 in Paterson. After four transactions, defendant was apprehended and found in possession of $407 in cash. His defense in the case essentially was the poor quality of the police work, including the failure to analyze the "stash" found in a nearby alleyway and seized by police on defendant's arrest. This issue, improper admission of prejudicial evidence, first was raised and considered by us on defendant's direct appeal, State v. Holley, No. A-5930-02T3 (App. Div. Apr. 8, 2004), and determined against him. See R. 3:22-5. We there stated with respect to the "stash" evidence:
Not only did defendant's counsel not object, but he encouraged the jury to consider the evidence of the unanalyzed substances. Defendant cannot now be heard to argue that his trial strategy should be overlooked, and an appellate determination be made that references to such evidence were prejudicial.
The jury was properly instructed by the court, and the state and defense fortified the court's instruction, that the jury was not to consider the unanalyzed substances in their deliberations. Defendant's attorney wanted it to be considered, but for reinforcement of his argument that the state conducted a faulty investigation, hopefully generating doubt as to the evidence submitted by the state against defendant.
We find that the jury was properly informed of the analyzed substances to be excluded as evidence for the purpose of the state's proofs. There was no plain error in the use of this evidence, and the lack of objection is compatible with defendant's trial strategy. Relief under the plain error rule will not be granted. R. 2:10-2; see Gaido v. Weiser, 227 N.J. Super. 175, 198 (App. Div. 1988), aff'd, 115 N.J. 310 (1989).
We will consider the issue again, nonetheless, in this PCR context.
At the conclusion of the arguments of counsel and the jury instructions, the prosecutor suggested that perhaps the evidence request form should be removed from the jury's consideration because specimens three, four, and five had been excluded because they were not analyzed. The court asked defense counsel's desires and he requested that this information and evidence be submitted to the jury, stating:
He put it in. It comes back not analyzed. [The prosecutor] stated to me that perhaps it could prejudice the case against my client because it shows that, indeed, there were additional drugs . . . .
[N]ow that I think of it, on the analysis sheet itself, it's the same thing. It also says three, four, and five and names what they are. So I guess in retrospect, your honor, I would rather that it goes in to coincide with my defense that the police were lax from the beginning to the end of this case.
Indeed, from the way the proofs were submitted to the jury, the defendant's only chance of acquittal was to undermine completely the credibility of the State's entire case. This choice of tactics failed. The defendant's strategy cannot now be revised for a hindsight rerun and a second try at acquittal. We conclude that this strategic choice, while unsuccessful, was within the wide range of professional competence. State v. Buonodonna, 122 N.J. 22, 40-42 (1991). Indeed, counsel may not condone or invite a specific course of conduct by the trial judge and when disappointed by the verdict claim that very course as reversible error. State v. Pontery, 19 N.J. 457, 471 (1955). "The defendant cannot beseech and request the trial court to take a certain course of action, and upon adoption by the court, take his chance on the outcome of the trial, and if unfavorable, then condemn the very procedure ...