February 17, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
JIMMY WHITE, A/K/A JIMMY LEE WHITE, A/K/A MARK WHITE, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Cape May County, No. I-98-02-0103.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 12, 2008
Before Judges Wefing, Parker and LeWinn.
Tried to a jury, defendant was convicted of distribution of a controlled dangerous substance, cocaine, in violation of N.J.S.A. 2C:35-5(a)(1); conspiracy to distribute cocaine, in violation of N.J.S.A. 2C:5-2; distribution of cocaine within one thousand feet of school property, in violation of N.J.S.A. 2C:35-7; conspiracy to distribute cocaine within one thousand feet of school property, in violation of N.J.S.A. 2C:5-2; possession of cocaine, in violation of N.J.S.A. 2C:35-10(a)(1); and possession of a police scanner while in the course of committing a crime, in violation of N.J.S.A. 2C:33-22. The trial court granted the State's motion to sentence defendant to an extended term and imposed an aggregate term of ten years in prison, with five years of parole ineligibility. The sentencing court specified that defendant should serve this sentence concurrently to a sentence he was then serving in Pennsylvania. Defendant appealed his convictions and sentence. We affirmed but remanded for re-sentencing in light of the intervening decision of the Supreme Court in State v. Natale, 184 N.J. 458, 487-89 (2005). State v. White, No. A-5368-03 (App. Div. June 28, 2006).*fn1 On remand, the same sentence was imposed.
Defendant thereafter filed a petition for post-conviction relief ("PCR"). He appeals from the trial court order denying his petition. After reviewing the record in light of the contentions advanced on appeal, we affirm.
On appeal, defendant raises the following contentions:
TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO OBJECT TO MULTIPLE HEARSAY TESTIMONY THAT IDENTIFIED THE DEFENDANT AS THE PERPETRATOR OF THE CRIME AND WHICH HAD A CUMULATIVE PREJUDICIAL EFFECT ON THE MINDS OF THE JURY
TRIAL COUNSEL['S] PERFORMANCE FELL BELOW A STANDARD OF REASONABLE OBJECTIVENESS AND [P]REJUDICED THE DEFENDANT WHEN COUNSEL FAILED TO ADEQUATELY PREPARE A DEFENSE TO THE PROSECUTOR['S] CASE BY NOT INVESTIGATING POTENTIAL ALIBI WITNESSES PROVIDED BY THE DEFENDANT
TRIAL COUNSEL WAS INEFFECTIVE FOR NOT HAVING DISCUSSED WITH THE DEFENDANT HIS CON[S]TITUTIONAL RIGHT TO TESTIFY ON HIS OWN BEHALF
DEFENDANT HAS PRESENTED PRIMA FACIE EVIDEN[C]E ENTITLING HIM TO AN EVIDENTIARY HEARING
In our opinion affirming defendant's conviction, we summarized the factual complex in the following manner.
[O]n January 24, 1998, Wildwood Narcotics Enforcement Detective Kenneth Gallagher received a call from a confidential informant (CI) with whom he had worked in the past. The CI advised Gallagher that she could arrange a significant purchase of crack cocaine from a source whom she identified as Jimmy White. Buy-bust surveillance and back-up teams were assembled, and Investigator Michael Kelly of the Cape May County Prosecutor's Office was enlisted to pose as the buyer. He was directed to purchase one-half ounce of crack cocaine for $650 from a black male named Jimmy Lee White.
Kelly, wearing a transmitting device, proceeded to Wildwood's Garden Park, disguised as a fisherman, in the company of the CI. After approximately fifteen minutes, they were approached by Glenda Sue Tozer, who stated that Jimmy wanted them to go to his apartment. When Kelly and the CI refused, Tozer directed the two to wait in the park for her return.
The surveillance team observed Tozer, riding the CI's bicycle, approach [the] 400 block of Magnolia Avenue in Wildwood. Shortly thereafter, she returned with a clear plastic bag, inside of which were multiple small green ziplock baggies containing what appeared to be crack cocaine, and she told Kelly and the CI that "this is what Jimmy gave me." When Kelly pulled out the purchase money and gave a verbal signal to the surveillance team, it converged on the location and arrested Kelly, the CI and Tozer. Kelly never saw defendant during the purported buy.
After Tozer's arrest, she informed the police that she had obtained the drugs from defendant at 419 Magnolia Avenue, Apartment
4. When the surveillance team then observed defendant leaving that location, they arrested him and transported him to police headquarters.
At headquarters, defendant was read his Miranda*fn2 rights. Defendant acknowledged them, waived his right to counsel, and orally admitted, among other things, that he was the source of the drugs that Tozer sold to Kelly, that he had purchased them on the previous night in Philadelphia and transported them to Wildwood for resale, and that Tozer was acting as his courier. However, defendant denied having drugs in his apartment. At the request of the police, he executed a form indicating his consent to search that apartment.
The search disclosed one baggie of crack cocaine packaged similarly to the drugs that Tozer had sold to Kelly, a police scanner, defendant's birth certificate, and a sifter commonly used to cut narcotics.
[White, supra, No. A-5368-03 (slip op. at 3-5.]
Every defendant in a criminal action is entitled to effective assistance of counsel. State v. Sugar, 84 N.J. 1, 17 (1980). To sustain a claim of ineffective assistance of counsel, not only must a defendant overcome a presumption that defense counsel's "conduct falls within the wide range of reasonable professional assistance," Strickland v. Washington, 466 U.S. 668, 689, 104 S.Ct. 2052, 2065, 80 L.Ed. 2d 674, 694 (1984), but a defendant must also prove that counsel's performance was "deficient" and that "the deficient performance prejudiced the defense." Id. at 687, 104 S.Ct. at 2064, 80 L. Ed. 2d at 693. New Jersey has adopted this two-prong test. State v. Fritz, 105 N.J. 42, 58 (1987).
We reject defendant's first argument with regard to certain hearsay evidence that was received during the course of defendant's trial. Our own review of the trial transcript indicates that defense counsel presented a number of objections to testimony that the witness had been informed that Jimmy White was going to participate in this drug transaction. Those objections commenced with the prosecutor's opening statement and continued through various witnesses. Some objections were sustained and some were not. We agree with the trial court that if defense counsel did not object to all of the hearsay testimony that was proffered, that could not satisfy, in the context of this case, the second prong of the Strickland/Fritz test.
We note also that defendant argued on his direct appeal that the trial court erred in permitting such hearsay testimony. We rejected that argument, noting that defense counsel had attempted to turn the issue to his advantage through his cross- examination. White, supra., No. A-5368-03 (slip op. at 8).
We also reject defendant's argument with respect to potential alibi witnesses. In fact, defense counsel did present an alibi witness, Denise Bawsel. Indeed, defense counsel was able to prevail upon the court to permit him to present this witness even though there had been no compliance with Rule 3:12- 2. Defendant makes a vague complaint that defense counsel was not adequately prepared to question the witness but provides no further explanation.
Defendant complains that his trial attorney did not present his landlord to testify that he did not reside at the apartment in question. Whether defendant resided there was immaterial to the question whether defendant had participated in this drug transaction.
Defendant's next argument is that his trial counsel was ineffective for not having discussed with him his right to testify on his own behalf. The PCR court carefully set forth its reasons for concluding this assertion was not credible. We concur in that analysis.
There is no merit to defendant's claim that he had presented a prima facie case of ineffective assistance of counsel, thus warranting a plenary hearing. R. 2:11-3(e)(2).