January 4, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
RAHEEM MOLLEY, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment Nos. 03-02-0200 and 03-04-0635.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 14, 2009
Before Judges Reisner and Chambers.
Defendant Raheem Molley appeals from an October 9, 2007 order denying his petition for post-conviction relief (PCR). We affirm.
These are the most pertinent facts. At about 9 a.m. on November 15, 2002, defendant sold drugs to an undercover police officer outside a public housing complex located near a public park in Atlantic City. The officer paid for the drugs with a $20 bill which had earlier been photocopied to record the serial number.
At about 10:30 a.m. on the same day, a plain clothes officer who was part of the same undercover police team entered the area trying to identify defendant. However, defendant apparently identified him as a police officer and fled on a bicycle. The bike hit a curb and tipped over, and as defendant was falling he threw away several glassine bags of heroin which the police recovered. When arrested, defendant also had the $20 bill which the first undercover officer had given him. To state the obvious, there was overwhelming proof of defendant's guilt.
The 9:00 and 10:30 incidents were made the subjects of two separate indictments. Based on the evidence described above, defendant was convicted of the following offenses on the first indictment: third degree possession of controlled dangerous substance (CDS), N.J.S.A. 2C:35-10a(1); third degree possession with intent to distribute, N.J.S.A. 2C:35-5a(1) and 2C:35-5b(3); second degree possession of CDS with intent to distribute within 500 feet of a public housing facility, N.J.S.A. 2C:35-7.1; and third degree distribution of CDS within 1,000 feet of school property, N.J.S.A. 2C-35-7.
With respect to the second indictment, he was found guilty of: third degree possession of CDS, N.J.S.A. 2C:35-10a(1); third degree possession with intent to distribute, N.J.S.A. 2C:35- 5a(1) and 2C:35-5(b)(3); third degree possession with intent to distribute CDS within 1,000 feet of school property, N.J.S.A. 2C:35-7; second degree possession with intent to distribute CDS within 500 feet of a public housing facility, N.J.S.A. 2C:35- 7.1; and second degree distribution of CDS within 500 feet of a public housing facility, N.J.S.A. 2C:35-7.1.
The trial court rejected defendant's arguments for merger of all convictions arising from both incidents, relying on State v. Williams, 229 N.J. Super. 179, 183-84 (App. Div. 1988). However, he merged the offenses arising from each indictment. After merging the offenses arising from the first indictment, the trial court sentenced defendant to ten years in prison with a three year parole disqualifier for second-degree "possession of heroin with intent to distribute in a public zone." The trial judge merged all of the counts of the second indictment into a conviction for distribution of CDS within 500 feet of a public housing facility, and imposed a consecutive ten year sentence with a three year parole disqualifier.*fn1 At the sentencing, the judge indicated that if he had not imposed two consecutive ordinary-term sentences, he would have imposed an extended-term sentence on one of the second-degree CDS offenses. In other words, even if the judge had merged all of the convictions into one second-degree CDS offense, he would have imposed twenty years with a six-year parole bar as an extended term.
On defendant's direct appeal, he raised the following points:
POINT I: THE STATE COMMITTED SIGNIFICANT MISCONDUCT IN SUMMATION, AND THE TRIAL COURT'S REMEDIAL INSTRUCTIONS WERE INSUFFICIENT TO AMELIORATE THE CONSEQUENT PREJUDICE.
POINT II: THE TRIAL COURT'S INSTRUCTIONS FAILED UNDER THE UNUSUAL CIRCUMSTANCES OF THE CASE, TO ADEQUATELY APPRISE THE JURY THAT THE DEFENDANT WAS ENTITLED TO SEPARATE CONSIDERATION OF EACH CHARGE, AND IN FACT MINIMIZED THE CONSEQUENCES OF GUILTY VERDICT.
POINT III: THE STATE'S PLEA OFFER PURSUANT TO STATE V. BRIMAGE, WAS EXCESSIVE, RESULTING IN TRIAL AND THE EXCESSIVE SENTENCE IMPOSED UPON THE DEFENDANT, NECESSITATING REVERSAL.
POINT IV: THE TRIAL COURT FAILED TO FOLLOW THE PROCEDURAL AND SUBSTANTIVE LAW ESTABLISHED IN STATE V. YARBOUGH IN IMPOSING CONSECUTIVE SENTENCES, AND IMPOSED AN AGGREGATE SENTENCE THAT IS EXCESSIVE AND SHOCKS THE CONSCIENCE.
A. The Imposition Of Consecutive Sentences Violates The Dictates Of Yarbough.
B. The Sentence Is Excessive And Shocks The Conscience.
In an unpublished opinion, we affirmed the conviction and the sentence. State v. Molley, No. A-1879-03T4 (App. Div. Dec. 7, 2004). We found no merit in defendant's argument under State v. Yarbough, 100 N.J. 627 (1985), cert. denied, 475 U.S. 1014, 106 S.Ct. 1193, 89 L.Ed. 2d 308 (1986), concerning the imposition of consecutive sentences.
In our opinion, we agreed with the trial judge that defendant committed separate offenses at separate times, thereby justifying consecutive sentences. In that connection, we stated that "the two separate instances of sale of CDS were encompassed in two separate indictments and involved different CDS packets. The incidents were not part of one continuing offense, but were sufficiently separated by time and location." We also concluded that "in light of defendant's extensive criminal record, the sentence was deserved." By order dated January 14, 2005, we denied defendant's motion for partial reconsideration.
Certification was denied on March 16, 2005. State v. Molley, 183 N.J. 215 (2005).
Defendant then filed the PCR petition giving rise to this appeal. In his PCR, defendant contended that his trial counsel was ineffective because he failed to obtain a videotape of the park where defendant encountered the second undercover officer. Defendant contended that because the videotape allegedly showed someone other than defendant selling drugs, this would tend to show that defendant did not intend to sell the bags of drugs he later discarded. He also contended that counsel was ineffective in failing to object to certain leading questions asked at the trial; in failing to object to the school zone and public housing zone maps; and in failing to file a motion to dismiss the indictment. He also contended that appellate counsel was ineffective for failing to raise these issues on direct appeal. He further argued that in the petition for certification, appellate counsel should have raised the misstatement in our opinion concerning two "sales" of CDS, when in fact there was one sale and one act of possession with intent to distribute.
In a thorough oral opinion placed on the record on September 27, 2007, Judge Michael R. Connor, who had also been the trial judge, rejected all of defendant's PCR contentions. He concluded that trial counsel's failure to obtain the videotape was not ineffective assistance because "if anything, the videotape would have been corroborative of the State's case." He also held that any deficiencies in the grand jury proceedings were rendered moot by defendant's subsequent conviction. Additionally, any dismissal of the indictment would have been without prejudice and the State would have been free to reindict him.
The judge next addressed defendant's argument that trial counsel was ineffective for failing to object to a question asking the first undercover officer how she came into contact with the defendant. The officer had answered, "I asked the group of people in the park if there was anyone in the area who would be selling CDS and they directed me to go to a male known as Raheem." The judge noted that it would be difficult to assess the admissibility of the statement because trial counsel did not object to it. He reasoned that the statement may have constituted hearsay or it may have qualified for one of the hearsay exceptions. In any event, "under the second prong [of the Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052; 80 L.Ed. 2d 674 (1984), test],... any failure to make an objection would not have resulted in a material difference in the outcome." Even without the statement, the State presented evidence that defendant made a "hand-to-hand sale to the undercover" police officer.
With respect to the school zone and public housing zone maps, Judge Connor determined that the police officers "were competent to testify as to whether or not [they are] the zone map[s] established by the city." Therefore, trial counsel's failure to object to the maps was immaterial because they were properly authenticated.
Addressing the misstatement in our opinion about a second sale of CDS, the judge concluded that it was insignificant because "if you distribute [CDS] or you possess it with intent to distribute, the exact same criminal responsibility exists." Since the underlying argument defendant was raising was without merit, appellate counsel's failure to raise it in a petition for certification was not ineffective assistance.
On this appeal, defendant raises the following points for our consideration:
POINT I: THE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL IN VIOLATION OF HIS SIXTH AMENDMENT CONSTITUTIONAL RIGHT TO COUNSEL.
A. Background And Standard Of Review.
B. Defendant Was Denied His Sixth Amendment Constitutional Right To Counsel Because Of Trial Counsel's Failure To Conduct Appropriate Pretrial Investigation.
C. Defendant Was Denied His Sixth Amendment Constitutional Right To Counsel Because Of Trial Counsel's Failure To Make Necessary Objections and Motions.
D. Defendant Received Ineffective Assistance Of Trial Counsel Because Of Counsel's Cumulative Errors.
POINT II: DEFENDANT RECEIVED INADEQUATE REPRESENTATION BY APPELLATE COUNSEL.
POINT III: AN EVIDENTIARY HEARING IS WARRANTED.
We conclude that all of these arguments were thoroughly and cogently addressed by Judge Connor in his oral opinion, with which we agree. Defendant's contentions are without sufficient merit to warrant further discussion in this opinion. R. 2:11-3(e)(2). We add the following comments.
Defendant was convicted on the basis of evidence that can fairly be described as overwhelming. None of the errors he ascribes to his trial counsel concern matters that would have made a difference to the outcome of the case. Likewise, even if his appellate counsel had made the arguments defendant now contends should have been advanced, it would have had no impact on the outcome of his appeal.
Because defendant did not establish a prima facie claim of ineffective assistance of counsel, the trial court did not err in deciding the PCR petition without a plenary hearing. See State v. Preciose, 129 N.J. 451, 462-64 (1992); Strickland v. Washington, 466 U.S. 668, 687-88, 104 S.Ct. 2052, 2064, 80 L.Ed. 2d 674, 693 (1984); State v. Fritz, 105 N.J. 42, 58 (1987).