On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 00-10-2025.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 21, 2008
Before Judges Skillman and Collester.
Following a jury trial defendant Jay Britt was found guilty of attempted murder, N.J.S.A. 2C:5-1, (count one); two counts of aggravated assault, N.J.S.A. 2C:12-1(b)(1) and (2), (counts two and three); possession of a handgun for an unlawful purpose, N.J.S.A. 2C:39-4(a), (count four); unlawful possession of a handgun, N.J.S.A. 2C:39-5(b), (count five); hindering his own prosecution by suppression of evidence, N.J.S.A. 2C:29-3(b)(1), (count six); and tampering with evidence, a handgun, N.J.S.A. 2C:28-6(1), (count seven). He was sentenced to a custodial term of fifteen years with a No Early Release Act (NERA) minimum of twelve years and nine months on count one, and terms of four years on counts five and six, concurrent with each other and with count one. Counts two, three, and four were merged with count one; count seven was merged with count six. We affirmed defendant's convictions and sentence on direct appeal (A-5354-01T04), and defendant's petition for certification was denied. State v. Britt, 180 N.J. 357 (2004).
Defendant filed a petition for post-conviction relief (PCR), asserting that he was deprived of effective assistance by trial counsel. Following argument on December 19, 2005, the trial judge denied the petition. This appeal followed.
The facts adduced at defendant's trial are set forth at length in our earlier opinion on defendant's direct appeal. In this appeal we consider only those facts relevant to defendant's PCR claim of ineffective assistance of counsel.
At about 3:15 a.m. on September 4, 2000, a fight broke out at Martini's Bar at the Quality Inn on South Carolina and Pacific Avenues in Atlantic City. Everyone in the bar was forced to leave, but within a few minutes fighting resumed on the street. Adrian Howard and his girlfriend, Tiya Cheatham, left the bar and were in the area of the fight when a gold-colored Chevrolet Malibu came speeding up the street and separated the two groups who were fighting. The car stopped, and the driver got out of the car. He fired up to six shots from a handgun, and then got into the car and fled.
Howard was shot five times. He managed to get to the lobby of the Quality Inn whose front desk person called for an ambulance. An Atlantic City police officer arrived before the ambulance. Howard told him that three African American males were in the Malibu and that the driver was the shooter. When the ambulance arrived Howard was taken to the Atlantic City Medical Center where he underwent emergency surgery.
Tiya Cheatham told police detectives that after the gold-colored car pulled up, a man got out and started shooting. She said she was unable to identify the man. No handgun was found at the scene.
Jeff Spencer was a retired police officer working as a limousine chauffer in the early hours of September 9, 2000. He was driving west on Pacific Avenue and about to make a left turn on South Carolina Avenue when he heard gunshots coming from the area between Pacific Avenue and Boardwalk on South Carolina Avenue. He called 9-1-1 and asked that the police be notified. Afterward, a gold car came from the area where the shots were fired and sped by. Spencer saw three men in the vehicle and noted the license plate number, which he later gave to police officers.
Further investigation disclosed that a gold-colored Malibu with the license plate number given by Spencer was an Enterprise Leasing rental car leased to the defendant. Although he gave an address in Brooklyn, he supplied an Atlantic City telephone number which was then traced to the apartment of Latasha Reid in a high rise apartment complex at 130 Vermont Avenue.
On receipt of this information, Detectives Barnhart and Dreager went to the area of 130 Vermont Avenue at about 10:15 a.m. They spotted the gold Malibu with the described license plate about a block away from the high rise. The detectives then called for backup to go to the apartment listed for Latasha Reid.
After other officers arrived, Detective Dreager knocked on the door of the apartment and identified himself as a police officer. Someone behind the door asked Dreager who it was. He repeated that it was the police and requested that person open the door because they were looking for defendant. After silence for about thirty seconds, Detective Dreager knocked again and asked for defendant. At that point, a K-9 officer arrived and called out that police would forcibly enter with the K-9 dogs if the door was not opened. The door was opened, and police found inside the apartment Latasha Reid, a child, and three men. Detective Dreager identified himself and said he was ...