On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment Nos. 03-05-1651 and 03-04-1526.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 21, 2009
Before Judges Axelrad and Fisher.
In this appeal, we examine whether defendant was deprived of the effective assistance of counsel when his attorney insisted that a detective employed by the prosecutor's office remain in the jury venire. The detective eventually served on the jury, which convicted defendant. Because the record does not suggest a reasonable tactical basis for defense counsel's unorthodox position, we vacate the order denying post-conviction relief and remand for an evidentiary hearing.
During a trial the jury heard testimony that, on March 16, 2003, six undercover Newark police officers conducted surveillance on Garside Street in what was referred to as a drug trafficking area. From an unmarked van, officers observed defendant talking to a woman on a street corner. During this conversation, the woman handed what appeared to be money to defendant, who then walked across the street and retrieved from under a rock a bag containing small envelopes from which he drew one envelope. The envelopes under the rock contained heroin. Defendant then recrossed the street and handed an envelope to the woman.
The officers decided to arrest defendant and the woman. As they neared, someone yelled, "Five-O, five-o," and defendant and the woman ran off. The woman got away, but defendant tripped and fell during the pursuit and was apprehended. He was found to be in possession of $95 in cash.
Defendant was arrested and charged in Indictment No. 03-04-1526 with third-degree possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10(a)(1); third-degree possession of CDS with the intent to distribute, N.J.S.A. 2C:35-5(b)(3); third-degree possession of CDS with the intent to distribute within 1000 feet of a school, N.J.S.A. 2C:35-7; and second-degree possession of CDS with the intent to distribute within 500 feet of a public housing facility, N.J.S.A. 2C:35-7.1.*fn1
At the conclusion of a trial, the jury convicted defendant of all the charges set forth in Indictment No. 03-04-1526. Soon thereafter, pursuant to an agreement, defendant pled guilty to third-degree possession of CDS with the intent to distribute within 1000 feet of a school in Indictment No. 03-05-1651 in exchange for the dismissal of the other counts in that indictment.
With regard to the convictions resulting from the trial in Indictment No. 03-04-1526, the judge granted the State's motion to impose an extended term, merged all convictions and, on the conviction of second-degree possession of CDS with the intent to distribute within 500 feet of a public housing facility, the judge imposed a prison term of twenty years with a ten-year period of parole ineligibility. On the single count to which defendant pled guilty in Indictment No. 03-05-1561, the judge imposed a concurrent eight-year prison term with a three-year period of parole ineligibility.
Defendant appealed from both judgments of conviction, arguing that: (1) the admission of expert testimony of drug trafficking impermissibly invaded the jury's province; (2) imposition of an above the presumptive, persistent offender extended term with a maximum parole disqualifier violated his constitutional rights to trial by jury and due process of law; and (3) the trial judge abused his discretion by imposing the maximum extended term of twenty years with a ten-year period of parole ineligibility. By way of an unpublished opinion, we affirmed the convictions but remanded for reconsideration of the duration of the sentence. State v. Morgan, No. A-4864-03T4 (App. Div. June 1, 2006). Following reconsideration, the trial judge imposed the same sentences. Defendant's petition for certification was denied by the Supreme Court. 188 N.J. 491 (2006).
Defendant filed a petition for post-conviction relief on November 20, 2006. He argued that he was deprived of the effective assistance of counsel in numerous ways. The judge did not conduct an evidentiary hearing, but heard only the argument of counsel and denied defendant's petition for post-conviction relief by way of a written decision.
Defendant appealed, raising the following arguments for our consideration:
I. THE LOWER COURT ORDER MUST BE REVERSED SINCE DEFENDANT RECEIVED INEFFECTIVE ...