On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 01-03-0542.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 5, 2009
Before Judges Lisa and Baxter.
Defendant Yoel Ramirez appeals from a June 20, 2008 order that denied his first petition for post-conviction relief (PCR). Defendant argues that he was denied the effective assistance of counsel during the hearing on his motion to suppress when, due to an alleged conflict of interest, his attorney failed to call as a witness a person whom the attorney had previously represented in an unrelated matter years earlier. We affirm.
In March 2001, a Monmouth County grand jury returned a thirteen-count indictment charging defendant with, among other things, first-degree possession of a controlled dangerous substance (CDS) with intent to distribute, N.J.S.A. 2C:35-5b(1); related second- and third-degree drug distribution offenses; second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a; second-degree weapons possession during commission of a CDS crime, N.J.S.A. 2C:39-4.1a; and second-degree certain persons not to possess firearms, N.J.S.A. 2C:39-7b.
Defendant filed a motion to suppress. At the hearing, the State presented Lieutenant Salvatore Garrone of the Monmouth County Sheriff's Department, who testified that on November 2, 2000, he and Officer Leonard Maxfield were enroute to Asbury Park to investigate active warrants when they received a radio transmission directing them to meet with bail bondsmen concerning the whereabouts of co-defendant Jackie Small, who was the subject of two outstanding fugitive warrants.
Garrone and Maxfield arranged to meet the bail bondsmen at a nearby car dealership, where the bondsmen advised them that Small could be located in a second-floor apartment on Third Avenue in Asbury Park. According to Garrone, the bondsmen "had also developed other information involving illegal narcotics activity and possibly weapons involvement" in the apartment. Garrone and Maxfield waited outside the subject premises while the bondsmen took Small into custody. As the bondsmen led Small outside, Garrone observed defendant standing in the front doorway of the building. At that moment, one of the bail bondsmen informed Garrone that "there's drugs all over the place inside." Immediately after hearing the bondsman make that remark, defendant abruptly turned around and went back inside.
Garrone and Maxfield followed defendant into the building, up a flight of stairs and into the first-floor bedroom where they observed defendant sitting on a bed next to a plastic bag containing a white powdery substance, which was on a night table next to him. Garrone observed other substances that appeared to be CDS in a second bedroom. Directing the beam of his flashlight onto a rubber container, from which a strong smell of marijuana was emanating, Garrone was able to see a nine millimeter semi-automatic handgun.
At that point, defendant ran from the building, but was apprehended. Garrone prepared an affidavit in support of a request for a warrant authorizing a search of the entire second-floor apartment. After a judge issued the search warrant, Garrone, Maxfield and a number of sheriff's officers who had by then responded to the scene, conducted a search of the premises, which yielded additional CDS and currency.
At the conclusion of the suppression hearing, Judge James Kennedy denied defendant's motion to suppress, concluding that the conduct of the officers was objectively reasonable and was supported by exigent circumstances and probable cause. Defendant thereafter entered a negotiated plea of guilty to the first-degree drug distribution charge, reserving his right to challenge on appeal the denial of his motion to suppress.*fn1
In a per curiam opinion, we affirmed the denial of defendant's motion. State v. Ramirez, No. A-1407-02 (App. Div. April 1, 2004). We agreed with Judge Kennedy's conclusion that it was reasonable for Garrone to believe that defendant was a potential new suspect who would attempt to destroy the drugs. Id. at 16. In particular, we reasoned that defendant's position outside the building, and his abrupt re-entry once he heard the bail bondsmen tell Garrone about the presence of narcotics inside, provided a reasonable basis to conclude that defendant would attempt to destroy the CDS unless law enforcement attempted to secure the premises to prevent him from doing so. Ibid. We also held that Garrone's knowledge of the possibility of weapons inside justified securing defendant and conducting a "protective sweep of the premises" to "insure that the evidence would not be destroyed and the officers' lives would not be placed in danger." Id. at 18. In sum, we concluded that police acted reasonably; the information provided by the bondsmen concerning the presence of CDS and weapons in the residence, when combined with defendant's abrupt re-entry of the building, when he heard the bondsmen tell police what they had observed, provided exigent circumstances and probable cause for the initial warrantless entry. Id. at 18-19. Defendant's petition for certification was denied. State v. Ramirez, 193 N.J. 587 (2008).
Defendant filed a timely PCR petition, in which he asserted that because trial counsel had represented one of the bondsmen, Jerry Stevens, on a simple assault charge some five years earlier, counsel had an irreconcilable conflict of interest that so compromised the representation counsel provided to defendant ...