On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment Nos. 01-05-2091 and 01-10-4012.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: October 21, 2009
Before Judges Cuff and C.L. Miniman.
Defendant Al-Tariq Witcher, who is serving a fifteen-year term of imprisonment and a consecutive five-year term, both subject to fifty-percent parole disqualifiers, for drug and weapons charges, appeals from the denial of his petition for post-conviction relief (PCR), which asserted multiple grounds for relief. We affirm in part, reverse in part, and remand for an evidentiary hearing.
According to the evidence developed at trial, viewed most favorably to the State, Newark police officers in the Safe Cities Task Force (SCTF), Michael Cantalupo and Antonio Badim, were patrolling Newark in an unmarked police vehicle on February 22, 2001. Around 4:00 p.m., the officers began to observe the area of Sherman Avenue and Astor Street. A few minutes later, the officers observed defendant standing in front of 24 Astor Street. Several people walked up to defendant and handed him paper money in exchange for unknown items. The officers believed that they were possibly observing narcotics activity.
Cantalupo and Badim approached defendant while another unit, containing three other members from the SCTF, approached defendant shortly thereafter from another direction so that he was boxed in. Badim then observed defendant drop an item that was later ascertained to be a bag filled with twenty-three vials of cocaine. Badim walked over to pick up the bag and Cantalupo detained defendant. Badim then informed Cantalupo of what he found and Cantalupo arrested defendant. The police officers did not stop or arrest any of the people they observed purchasing drugs from defendant.
Cantalupo conducted a pat-down search of defendant to check for weapons and contraband before he put him in the police car, but found nothing. Badim conducted a second pat-down search, felt a bulge in defendant's pocket, but did not remove it from defendant's person, placing him in the police car instead. Once at police headquarters, the officers found $230 in cash on defendant's person. There were eight $20 bills, three $10 bills; four $5 dollar bills; and twenty $1 bills. The drugs were field tested and determined to be cocaine.
On May 10, 2001, defendant was charged under Essex County Indictment No. 01-05-2091, with the following drug offenses based on the conduct the officers observed on February 21, 2001:
(1) third-degree possession of a controlled dangerous substance (CDS) contrary to N.J.S.A 2C:35-10a(1) (Count One); (2) third-degree possession of CDS with intent to distribute contrary to N.J.S.A 2C:35-5b(3) (Count Two); (3) third-degree possession of CDS while on or within 1000 feet of school property contrary to N.J.S.A. 2C:35-7 (Count Three); and (4) second-degree possession with intent to distribute CDS while in or within 500 feet of a public-housing facility contrary to N.J.S.A. 2C:35-7.1 (Count Four).
On October 5, 2001, defendant was charged under Essex County Indictment No. 01-10-4012 with third-degree unlawful possession of a handgun in violation of N.J.S.A. 2C:39-5b. On other dates, defendant was also charged under Essex County Indictment No. 02-01-0368 with third-degree receiving stolen property, and was charged under Essex County Indictment No. 01-06-2806 with first-degree robbery.
On January 24, 2002, defendant filed a pro se motion to dismiss the weapons charge alleging delay in presenting the matter to the grand jury. The judge denied this motion. On May 30, 2002, defendant move to suppress the vials of cocaine that he allegedly discarded before being arrested on February 22, 2001. The judge denied this motion as well.
During the trial of the charges under Indictment No. 01-05-2091, which took place from June 4 through 6, 2002, Cantalupo testified to the events of February 22, 2001, and also testified that there were two operating schools within 1000 feet, and one public-housing project within 500 feet, of the location where defendant was allegedly selling illegal drugs. Badim testified in a manner largely consistent with Cantalupo.
Another witness, Detective Reginald Holloway, testified for the State as an expert in the packaging of controlled dangerous substances possessed with the intent to distribute. The State posed a hypothetical to Detective Holloway which, essentially, was the fact pattern described by Cantalupo and Badim at trial, except that defendant's name was replaced with "person A." The State asked Detective Holloway what his opinion was on that fact pattern; the Detective responded that he would opine that person A "possessed the discarded vials with the intent to illegally distribute for monetary gain." Defendant did not testify.
At the conclusion of the evidence, defendant moved for a judgment of acquittal on the ground that the State failed to prove possession of any narcotics. The motion was denied. Defense counsel then argued to the jury that the State never attempted to connect defendant to the vials of cocaine by doing a fingerprint analysis of any of them. She pointed to many pieces of testimony that suggested Cantalupo and Badim were not credible and pointed to some inconsistencies between Cantalupo's grand-jury and trial testimony, inconsistencies between Badim's suppression hearing and trial testimony, inconsistencies between both officers' trial testimony, and testimony that was plainly incredible. She argued that the police officers decided to stop defendant "just because he was on the street." She further argued they did a pat-down search and found the money. She argued the jury had no clue where the police found the drugs on this busy street in a high crime area. She pointed out that when defendant was stopped, he stood right there and did not resist. She argued the drugs did not belong to defendant, who was only walking down the street from his house with some money in his pocket.
On the morning of deliberations, June 6, 2002, the jury, after less than three hours, stated that it could not reach a verdict. One juror stated, "Your Honor, it's just impossible." Because they only deliberated for a short period of time, the judge sent the jury back and asked them to resume deliberations. The jury then requested a read back of the testimony of Cantalupo and Badim. The jury reached a verdict later that afternoon, finding defendant guilty of all the drug charges.
After the verdict was entered, the State extended a plea offer pursuant to which it would recommend fifteen years in prison with a fifty-percent parole disqualifier for the drug offenses and five consecutive years with the same parole disqualifier for the weapons offense in exchange for a guilty plea. On June 12, 2002, defendant pled guilty to the weapons charge. During the plea hearing, the State recommended a term of five years in prison with two and one-half years of parole ineligibility to be served consecutively with the sentence for the drug charges. Additionally, the State recommended dismissing the charges against defendant for third-degree receiving stolen property under Indictment No. 02-01-0368 and first-degree robbery under Indictment No. 01-06-2806. As part of defendant's guilty plea, defendant was forced to withdraw his motion to dismiss the weapons charge, notwithstanding his request to keep the motion open.
On July 26, 2002, an article appeared in the Star Ledger that reported an ongoing investigation into the illegal practices of the SCTF. In that article and others that followed, officers from the SCTF were reportedly involved in illegal activity, including falsifying records and illegally searching defendants' homes. There is no evidence in the record before us that either of the officers in this case was connected in any way to the allegations in those articles.
On July 28, 2002, defendant filed a pro se motion for a new trial based upon newly discovered evidence. Defendant certified that he had new evidence in the form of a recent news story that reported several Newark police officers, who were members of the SCTF, were involved in misconduct that included planting evidence on defendants who refused to act as informants. Defendant maintained that the officers approached him outside his home requesting information relating to other crimes. When he refused to furnish any information, he contended that the officers put him in the back of the squad car, took the keys to his house, and searched his house. He further asserted that the officers then falsified police reports, failing to report the search of his apartment, and that there were multiple units on the scene, not just the two units to which the officers testified. He claimed that this constituted grounds for a new trial because, during the trial, he alleged similar misconduct of the Newark police officers who arrested him and those officers were also members of the SCTF. Defendant withdrew this motion when it came time for sentencing.
The sentencing hearing occurred on August 2, 2002, at which time the judge granted the State's motion to sentence defendant to an extended term as a persistent offender under N.J.S.A. 2C:44-3a on Count Four, possession of CDS within 500 feet of public housing. Thereafter, the judge sentenced defendant on the drug charges and the weapons charge. He found aggravating factors*fn2 three, six, and nine, but found no mitigating factors.*fn3 Under the indictment for the drug charges, the judge merged Counts One and Two into Count Three, possession of CDS with intent to distribute within 1000 feet of a public school. On Count Three, defendant was sentenced to five years in prison with three years of parole ineligibility. On Count Four, the judge sentenced defendant to an extended term of fifteen years in prison with seven and one-half years of parole ineligibility.
Under the indictment for the weapons charge, the judge sentenced defendant in accordance with the plea agreement to five years in prison with two and one-half years of parole ineligibility to be served consecutively to the sentences imposed for the drug charges. In accordance with the prosecutor's motion, the judge dismissed the charges under Indictment Nos. 02-10-0368 and 01-06-2806.
On December 19, 2002, defendant filed a Notice of Appeal regarding both the drug charges and the weapons charge. Defendant raised the following issues on direct appeal:
POINT I - THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY REQUIRING THE JURY TO CONTINUE DELIBERATIONS DESPITE THE JURY'S INDICATION THAT IT WAS DEADLOCKED. (Not Raised Below.)
POINT II - THE DEFENDANT WAS DENIED HIS RIGHT TO A FAIR TRIAL AS A RESULT OF TESTIMONY ELICITED BY THE STATE REFLECTING DEFENDANT'S IMPECUNIOSITY. (Not Raised Below.)
POINT III - THE PROSECUTOR'S SUMMATION EXCEEDED THE BOUNDS OF PROPRIETY. (Not Raised Below.)
POINT IV - THE TRIAL COURT ERRED BY FAILING TO MERGE COUNT III CHARGING POSSESSION WITH INTENT TO DISTRIBUTE A CONTROLLED DANGEROUS SUBSTANCE WITHIN A SCHOOL ZONE INTO COUNT IV CHARING POSSESSION WITH INTENT TO DISTRIBUTE A CONTROLLED DANGEROUS SUBSTANCE WITHIN A PUBLIC HOUSING FACILITY ZONE. (Partially Raised Below.)
POINT V - THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE. [State v Witcher, No. A-1981-02 (App. Div. Jan. 29, 2004) (slip op. at 3-4), certif. denied, 179 N.J. 374 (2004).]
In a pro se supplemental brief, defendant also raised the issue of whether his sentence fell within the Brimage*fn4 guidelines. Id. at 4.
On January 29, 2004, we affirmed defendant's conviction, but remanded to the trial court to amend the judgment of conviction to merge Count Three into Count Four. Id. at 14. Defendant then petitioned the New Jersey Supreme Court for certification, which was denied on March 25, 2004. State v. Witcher, 179 N.J. 374 (2004).
On February 17, 2005, defendant filed a pro se petition for PCR. In his brief, defendant made the following arguments:
POINT I - DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF TRIAL AND APPELLATE COUNSEL IN VIOLATION OF HIS STATE AND FEDERAL CONSTITUTIONAL RIGHTS.
A. TRIAL COUNSEL FAILED TO CONDUCT AN ADEQUATE AND MEANINGFUL PRETRIAL INVESTIGATION AND TO OBTAIN AND PRESENT HIGHLY ...