May 19, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
LEROY MOORE, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 02-08-0965.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 21, 2009
Before Judges Graves and Grall.
Defendant Leroy Moore appeals from an order dated June 29, 2007, denying his petition for post-conviction relief (PCR). After reviewing the record in light of defendant's contentions, we affirm.
In a seven-count indictment, defendant was charged with first-degree armed robbery, N.J.S.A. 2C:15-1 (count one); third- degree possession of cocaine, N.J.S.A. 2C:35-10(a)(1) (count two); third-degree possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5(b)(3) (count three); second-degree possession of cocaine with intent to distribute within 500 feet of a public park, N.J.S.A. 2C:35-7.1 (count four); fourth-degree resisting arrest, N.J.S.A. 2C:29-2(a)(2) (count five); third- degree possession of a knife for an unlawful purpose, N.J.S.A. 2C:39-4(d) (count six); and fourth-degree possession of a knife under circumstances not manifestly appropriate, N.J.S.A. 2C:35- 5(b) (count seven). Following a jury trial, defendant was found guilty on counts two, three, four, and five; but he was acquitted of counts one and seven. Count six was dismissed at the request of the State because the jury was unable to reach a unanimous verdict on that count.
At sentencing on December 15, 2003, the court merged counts two and three into count four, and defendant was sentenced to an eight-year prison term with three years of parole ineligibility for possession of cocaine with intent to distribute within 500 feet of a public park. The court imposed a concurrent nine- month sentence for resisting arrest. In addition, pursuant to a negotiated plea on a separate indictment, defendant was sentenced to a concurrent four-year term for third-degree theft of a motor vehicle.
In an unreported decision, we affirmed defendant's convictions and sentence, State v. Moore, No. A-3739-03T4 (May 27, 2005), and the Supreme Court denied his petition for certification, 185 N.J. 38 (2006). In our prior opinion, we stated:
The evidence the jury considered involved incidents during the early afternoon of May 17, 2002. According to Ellen Winosky, she left her home to deliver money to an acquaintance who needed it to buy food for her children. As she walked toward the woman's home, someone came up behind her, held a knife to her neck, demanded money, went through her pockets and took the cash. A second man on a bicycle wearing a "doo-rag" on his head watched while the first man robbed her. After he had her money, the man who took it addressed the man on the bike referring to him as "Leroy."
Winosky's testimony about the robbery was contradicted by Joanne Rompa. According to Rompa, she introduced Winosky to defendant that day and saw her give him a one-hundred dollar bill. According to Rompa, Winosky later confided that she intended to accuse defendant of robbing her.
Winosky reported the crime and accompanied a detective while he drove around the area to see if she could identify the perpetrators. Winosky saw defendant standing on the basketball court in a park and identified him.
An officer on patrol, who had heard reports about the robbery and Winosky's identification, was in the area. He drove his police car into the park and toward the basketball court. Defendant approached the officer, who told him he was under arrest. Defendant pushed away from the officer and ran. As the officer followed, he saw defendant trying to take something from the pockets of his pants as he ran. He could not tell whether defendant succeeded. After apprehending defendant, the officer retraced the path of flight and found thirty-seven balls of aluminum, which contained cocaine. At the time of his arrest defendant said, "I never robbed anyone; all I do is sell drugs."
On the basis of this evidence, the jury acquitted defendant of charges related to the robbery of Winosky and convicted him of the drug charges and of resisting arrest.
[State v. Moore, supra, slip op. at 3-5.]
In his PCR petition, which was heard on June 15, 2007, defendant argued that trial counsel was ineffective for conceding his guilt on the drug charges without his consent. He also contended that the State failed to disclose and trial counsel failed to discover that the State's key witness on the drug charges, Officer Wayne E. Hundemann, was serving a thirty- day suspension from duty in connection with an unrelated matter when he testified on September 3, 2003.
During an evidentiary hearing, the court heard conflicting testimony from defendant and his trial attorney regarding trial counsel's opening statement to the jury in which he acknowledged that defendant was "a cocaine dealer." Defendant testified that he never met with his attorney to discuss the case or trial strategy and, according to defendant, he never authorized his attorney to concede his guilt on the drug charges.
In contrast, trial counsel testified he met with defendant on "many" occasions prior to trial, and they agreed that defendant would concede he was a drug dealer in an effort to avoid a conviction on the first-degree robbery charge:
Q: And what kind of defense did you craft?
A: Well, since it was going to be a joint trial, and the police alleged that they found abandoned drugs as Mr. Moore was running from them, . . . the only defense that seemed logical at the time was that, in fact, consistent with his statement, alleged statement, he was out there. He was selling drugs. And it would make no sense for somebody to rip off a client. That would not be very good for business. That seemed to be a proper defense. As it turned out, it was a great defense. He was found not guilty of the robbery.
Q: Okay. But the central issue in this hearing right now is the complaint that, essentially, you gave the defendant up on the drug charges, without his permission; right? First of all, do you remember specifically having any conversation with the defendant about that strategy?
A: Well, there is no doubt that we talked about it. And that he approved it. And this was in his best interest, in light of the facts of the case. I can't tell you, I specifically remember a conversation of four years ago.
Q: Okay. If you can't remember a specific conversation from four years ago, why are you so confident that you had -- No doubt that you had this conversation?
A: Because it wouldn't be proper for me to just, you know, concede a charge, without talking to the defendant. He was on the street, and we spoke about the case. And I'm sure I said to him, you know, is this okay. This is my idea, of trying to avoid a potential 20-year sentence, with 85 percent. Or even in excess of that, as an extended term. I'm sure he said, that seems to be the right strategy, in light of the bad facts of the case.
Q: Would you have done it, if he didn't approve it?
Following the hearing, Judge Cantor, who also presided over defendant's jury trial, rendered an oral decision denying defendant's petition. The judge's reasons for rejecting defendant's claim that his attorney was ineffective for conceding defendant's guilt in his opening statement to the jury, included the following:
Now, I take the testimony today, and I have to make some type of a finding of credibility. And I grant you that, it's four years. And [defense counsel] says, "I have no recollection specifically. But it's my general practice, that I wouldn't concede guilt, unless I had discussed it with my client before I went out on the record." I find that to be credible, based on the fact that, this concession was made in opening. If Mr. Moore was not happy with [defense counsel], he could have -- he would have raised it to this Court. He was not a wall flower. I mean, he had things to say. And he felt comfortable talking to the Court about what was going on.
I find [defense counsel] did, in fact, address the issue to Mr. Moore. That Mr. Moore did concede the drug charges. And [defense counsel] went forward, with the consent of his client. Therefore, I cannot find ineffective assistance of counsel in this matter, based on the testimony before me.
With regard to defendant's claim that the State withheld evidence favorable and material to his defense, in violation of Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 1196-97, 10 L.Ed. 2d 215, 218 (1963), by failing to disclose Officer Hundemann's suspension, the court found that the prosecutor should have disclosed the suspension. Nevertheless, the court determined that the State's failure to disclose the suspension was not prejudicial to defendant's defense:
I find that the Prosecutor should have disclosed the suspension of the officer. And that it was inappropriate for them to go forward with the trial, without disclosing that to the Court and to Counsel. . . .
On the other hand, that being said, I don't find, that that failure would have yielded a benefit to Mr. Moore in this specific case, because I would not have allowed it to be used for cross-examination, because it wasn't a prior conviction. Nor would I have allowed it to be used to open up the police records of Officer Hundemann. Because it was not that type of relevance, which would have yielded something within the police file. So, on both of those counts, I reject it.
On appeal, defendant presents the following arguments:
DEFENDANT WAS DENIED HIS CONSTITUTIONAL RIGHT TO BE CONFRONTED WITH WITNESSES AGAINST HIM AND TO DUE PROCESS OF LAW BY THE ASSISTANT PROSECUTOR'S FAILURE TO DISCLOSE THAT THE STATE'S MAIN WITNESS AGAINST HIM, OFFICER HUNDEMANN, WAS SERVING A 30 DAY SUSPENSION FROM DUTY WHEN HE TESTIFIED.
A. THE SUPPRESSION OF THE SUSPENSION VIOLATED BRADY V. MARYLAND (Raised Below).
B. THE SUSPENSION WAS DISCOVERABLE UNDER STATE V. HARRIS (Raised Below).
THE PCR COURT ERRED IN DENYING DEFENDANT'S PCR PETITION WHERE DEFENDANT ESTABLISHED A PRIMA FACIE CASE OF INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL.
A. TRIAL COUNSEL WAS INEFFECTIVE BY CONCEDING DEFENDANT'S GUILT TO THE DRUG CHARGES IN HIS CLOSING WITHOUT THE DEFENDANT'S CONSENT (Raised Below).
B. TRIAL COUNSEL WAS INEFFECTIVE FOR STIPULATING TO THE LABORATORY REPORT (Raised Below).
C. TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO DISCOVER THAT OFFICER HUNDEMANN WAS SUSPENDED FROM POLICE DEPARTMENT AT TIME OF HIS TESTIMONY (Raised Below).
TRIAL COUNSEL'S ERRORS WERE CUMULATIVE AND CREATED A REASONABLE PROBABILITY THAT THEY MATERIALLY AFFECTED THE OUTCOME OF THE DEFENDANT'S CASE (Raised Below).
THE ISSUES RAISED IN DEFENDANT'S PRO SE BRIEF SUPPORT HIS REQUEST FOR POST-CONVICTION RELIEF.
In our view, these arguments are clearly without merit and do not warrant extended discussion in a written opinion. R. 2:11-3(e)(2). Judge Cantor's factual findings are fully supported by the record, and she correctly applied well-settled legal principles. We perceive no basis for reversal based upon insufficient representation of counsel. See State v. Castagna, 187 N.J. 293, 316 (2006) (noting that defense counsel's strategy of admitting defendant's guilt to lesser-included offenses in an effort to avoid a conviction of the most serious offense, was not prima facie evidence of ineffective assistance of counsel).
Moreover, because Officer Hundemann's suspension was not admissible to impeach his testimony, defendant failed to establish "a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 3383, 87 L.Ed. 2d 481, 494 (1985); see State v. Russo, 333 N.J. Super. 119, 134 (App. Div. 2000) (To succeed on a Brady claim, defendant must "demonstrate that there is a reasonable probability that had the evidence been disclosed to the defense, the result of the proceeding would have been different.").
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