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State v. Witcher

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


January 12, 2010

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
AL-TARIQ WITCHER,*FN1 DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment Nos. 01-05-2091 and 01-10-4012.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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.

I.

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.

II.

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 CREDIBLE IMPEACHMENT MATERIAL.

B. TRIAL COUNSEL FAILED TO MOVE FOR VOIR DIRE OF A DELIBERATING JUROR AND/OR A MISTRIAL AFTER THE JUROR EXPRESSED AN INABILITY TO CONTINUE.

C. TRIAL COUNSEL FAILED TO COMMUNICATE A FAVORABLE PLEA OFFER TO DEFENDANT; OR, IF THERE WAS NO OFFER, COUNSEL FAILED TO CHALLENGE THE STATE'S ARBITRATRY AND CAPRICIOUS DECISION NOT TO OFFER A PLEA.

D. TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO CHALLENGE THE POST-CONVICTION PLEA OFFER WHICH EXCEEDED THE BRIMAGE GUIDELINES.

E. TRIAL COUNSEL FAILED TO REFILE DEFENDANT'S PRO SE MOTION FOR DISMISSAL FOR DELAY.

F. TRIAL COUNSEL FAILED TO REFILE DEFENDANT'S MOTION FOR NEW TRIAL BASED ON NEWLY DISCOVERED EVIDENCE.

G. APPELLATE COUNSEL FAILED TO RAISE AS PLAIN ERROR COUNSEL'S NUMEROUS ERRORS AS DISCUSSED IN SUBPOINT "C)(2)."

POINT II - THE COURT DENIED DEFENDANT A FAIR TRIAL BY FAILING TO VOIR DIRE A DISTRAUGHT JUROR.

On February 10, 2006, defendant also filed motions for discovery and inspection of all documents related to the alleged misconduct of officers assigned to the SCTF.

On May 3, 2007, the PCR judge heard oral argument and ultimately denied defendant's petition without a plenary hearing. During the hearing, defendant argued that the State's expert improperly testified by giving his opinion on hypothetical scenarios which mimicked the facts of the incident at issue and were directed at the ultimate issue of the case. The judge found there was no improper testimony or impermissible gaps filled by the expert. Defendant also raised his attorney's failure to challenge his conviction for possession of CDS with intent to distribute within 1000 feet of a school zone, because one of the schools was allegedly not operational at the time of the crime. The judge found that there was no real issue presented because there was no proof that the school was closed and, even if it was, there was still another school within 1000 feet that was indisputably operating.

The judge next addressed the issue of defense counsel's alleged failure to properly investigate and uncover impeaching evidence regarding the officers who arrested defendant and testified at trial. That evidence included police records and radio-transmission and police-vehicle logs of the SCTF. The judge held that defendant presented no evidence to substantiate that anything in those records would have impeached the testifying officers. The judge expressed that it was trial strategy not to pursue that evidence. He reasoned that if the attorney did pursue it, defendant would have had to testify to the police misconduct that those records allegedly supported and doing so would expose defendant's multitude of prior convictions.

The judge then addressed defendant's contention that his trial counsel failed to inform him of a lesser plea offered by the prosecutor. The judge found here was never an actual lesser plea offered and that "discussions that go back and forth . . . do not constitute a plea agreement."

The judge next dismissed defendant's argument regarding a violation of the Brimage guidelines as having been raised on direct appeal and addressed by us.

The judge then ruled on the issue of the jury expressing an inability to continue with deliberations. He found that the trial judge properly handled the situation and was well within his discretion when he directed the jury to continue deliberating after only three hours of attempting to come to a decision. He, thus, ascertained that defendant's trial attorney had no reason to object to the trial judge's action and was, therefore, not ineffective.

The judge also analyzed whether defendant's trial counsel was ineffective for failing to file a discovery motion to compel production of the police logs in relation to police misconduct and for a new trial based on the newly discovered evidence of the Newark Police corruption article. He determined that those issues had no merit because defendant did not establish that there was any underlying misconduct that would be proved by that evidence.

III.

This appeal from the order denying PCR followed. Defendant, through his designated counsel, raises the following issues for our consideration:

POINT I - THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED BECAUSE THE POST-CONVICTION COURT ERRED IN DENYING RELIEF WHERE TRIAL COUNSEL RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL

A. The post-conviction court erred in deciding that counsel was not ineffective when she failed to object to the admission of expert testimony on drug trafficking that included not only general opinion testimony on distribution but also the opinion that defendant had distributed drugs impermissibly thereby invading in the province of the jury.

B. Defendant was deprived of effective assistance of counsel when his trial attorney failed to advise him of a plea offer of a five year prison sentence with a thirty-six month period of parole ineligibility.

C. Trial counsel failed to conduct an adequate and meaningful pretrial investigation and to obtain and present highly credible impeachment material.

D. Trial counsel failed to move for voir dire of a deliberating juror and/or move for a mistrial after the juror expressed an inability to continue.

E. Trial counsel was ineffective in negotiating a post-conviction plea agreement that was above the Brimage guidelines.

F. Trial counsel was ineffective for failing to re-file defendant's meritorious pro se dismissal for delay motion.

POINT II - THE POST-CONVICTION COURT ERRED IN DENYING DEFENDANT'S MOTION FOR DISCOVERY OF POLICE DOCUMENTS AND RECORDS PERTAINING TO THE SAFE CITIES TASK FORCE.

POINT III - THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED BECAUSE THE POST-CONVICTION COURT ERRED IN DENYING RELIEF WHERE APPELLATE COUNSEL RENDERED INEFFECTIVE ASSISTANCE SINCE COUNSEL FAILED TO RAISE REVERSIBLE ISSUES ON APPEAL.

POINT IV - THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED AND THE MATTER REMANDED TO THE LAW DIVISION SINCE THE POST-CONVICTION COURT ERRED IN DENYING DEFENDANT-APPELLANT A HEARING ON HIS PETITION FOR POST-CONVICTION RELIEF ALLEGING INEFFECTIVE-ASSISTANCE-OF-COUNSEL.

Defendant also raises the following points in his pro se reply brief, which we have renumbered to run consecutively to the points on appeal raised by his counsel:

POINT [V] - NONE OF DEFENDANT'S CLAIMS ARE PROCEDURALLY BARRED UNDER RULES 3:22-4 AND 3:22-5.

POINT [VI] - THE STATE'S SO-CALLED GLOBAL/UNIVERSAL PLEA OFFER WAS UNCONSTITUTIONAL, ILLEGAL, ARBITRARY, CAPRICIOUS AND UNENFORCEABLE.

POINT [VII] - THE BRIMAGE GUIDELINES AND N.J.S.A. 2C:35-12 APPLY TO DEFENDANT'S CASE AND/OR THE POST-CONVICTION SENTENCE AGREEMENT VIOLATES THE SUPREME COURT HOLDING IN STATE V. WARREN.

[A.] The State's argument that Brimage does not apply is belied by the caselaw [sic], statutes and the record.

[B.] If Brimage and/or N.J.S.A 2C:35-12 do not apply, then the plea and sentence agreement violates the Supreme Court's holding in State v. Warren, 115 N.J. 433 (1989).

Post-conviction relief is New Jersey's equivalent to the federal writ of habeas corpus. State v. Preciose, 129 N.J. 451, 458 (1992). "A petitioner must establish the right to [post- conviction] relief by a preponderance of the credible evidence." Id. at 459 (citations omitted).

We review the legal conclusions of a PCR judge de novo. State v. Harris, 181 N.J. 391, 420 (2004) (citing Mickens-Thomas v. Vaughn, 355 F.3d 294, 303 (3d Cir. 2004); Hakeem v. Beyer, 990 F.2d 750, 758 (3d Cir. 1993)), cert. denied, 545 U.S. 1145, 121 S.Ct. 2973, 162 L.Ed. 2d 898 (2005). The same scope of review applies to mixed questions of law and fact. Ibid. (citing McCandless v. Vaughn, 172 F.3d 255, 265 (3d Cir. 1999)). We review fact-findings for clear error, ibid. (citing Burkett v. Fulcomer, 951 F.2d 1431, 1438 (3d Cir. 1991), cert. denied, 505 U.S. 1229, 112 S.Ct. 3055, 120 L.Ed. 2d 921 (1992)), and accord deference to credibility determinations, ibid. (citing United States v. Igbonwa, 120 F.3d 437, 441 (3d Cir. 1997), cert. denied, 552 U.S. 1119, 118 S.Ct. 1059, 140 L.Ed. 2d 121 (1998)).

However, where no evidentiary hearing has been held, we "may exercise de novo review over the factual inferences drawn from the documentary record by the [PCR judge]." Id. at 421 (citing Zettlemoyer v. Fulcomer, 923 F.2d 284, 291 n.5 (3d Cir.), cert. denied, 502 U.S. 902, 112 S.Ct. 280, 116 L.Ed. 2d 232 (1991)). Thus, it is within our authority "to conduct a de novo review of both the factual findings and legal conclusions of the PCR court." Ibid. Where no credibility determinations have been made, "we invoke our original jurisdiction in the review of th[e] matter." Ibid. Such a review is appropriate here as there was no evidentiary hearing and no credibility determinations were made.

IV.

We turn to the issue of defendant's motion for PCR discovery. Defendant sought "discovery and inspection of all investigations into misconduct by the Safe Cities Task Force and its past members . . . ." Defendant argues that the PCR judge erred in denying his motion for discovery because that discovery was vital to establishing that his trial counsel provided ineffective assistance to him when she failed to refile his motion for a new trial. Defendant filed his motion for a new trial on July 28, 2002, two days after he discovered the newspaper article implicating other members of the SCTF in police misconduct. He then withdrew that motion before sentencing on August 2, 2002.

"New Jersey courts have the inherent power to order discovery when justice so requires." State v. Marshall, 148 N.J. 89, 269 (internal quotations and citations omitted), cert. denied, 522 U.S. 850, 118 S.Ct. 140, 139 L.Ed. 2d 88 (1997). This power may be invoked in a post-conviction proceeding, although "only in the unusual case." Id. at 270. "In most cases, a post-conviction petitioner will be fully informed of the documentary source of the errors that he brings to the PCR court's attention." Ibid. PCR discovery "'is not a device for investigating possible claims, but a means for vindicating actual claims.'" Ibid. (quoting People v. Gonzalez, 800 P.2d 1159, 1206 (Cal. 1990), cert. denied, 502 U.S. 835, 112 S.Ct. 117, 116 L.Ed. 2d 85 (1991)).

Moreover, consistent with our prior discovery jurisprudence, any PCR discovery order should be appropriately narrow and limited. "[T]here is no post[-]conviction right to 'fish' through official files for belated grounds of attack on the judgment, or to confirm mere speculation or hope that a basis for collateral relief may exist." However, where a defendant presents the PCR court with good cause to order the State to supply the defendant with discovery that is relevant to the defendant's case and not privileged, the court has the discretionary authority to grant relief. [Id. at 270-71 (quoting Gonzalez, supra, 800 P.2d at 1205, other citations omitted).]

Additionally, "[c]courts may reason by analogy to existing discovery rules, see R. 3:13-2 to -4, in designing an appropriate PCR discovery order." Id. at 271.

The PCR judge denied defendant's motion for discovery because there was no evidence of any connection between the police misconduct alleged against other members of the SCTF and Cantalupo and Badim. The judge concluded that it was trial strategy not to pursue this evidence. He reasoned that if the attorney had pursued it, defendant would have had to testify to the police misconduct and doing so would expose his multitude of prior convictions.

In the welter of PCR claims before him, it seems that the PCR judge lost focus on the issue we now consider. The PCR claim to which the discovery related was whether trial counsel provided ineffective assistance to defendant when she failed to refile the motion for a new trial based on newly discovered evidence.

In Strickland v. Washington, 466 U.S. 668, 685, 104 S.Ct. 2052, 2063, 80 L.Ed. 2d 674, 692 (1984), the United States Supreme Court explained the constitutional guarantee of effective assistance of counsel for every criminal defendant embodied in the Sixth Amendment. A two-prong analysis is required when evaluating a claim of ineffective assistance of counsel. Id. at 687, 104 S.Ct. at 2064, 80 L.Ed. 2d at 693. To prevail, the defendant must first demonstrate that trial counsel committed serious professional errors. Ibid. Second, defendant must demonstrate that the professional errors prejudiced the defendant to the extent that he was deprived of a fair trial. Ibid. Our Supreme Court has adopted the standards embodied in Strickland. State v. Fritz, 105 N.J. 42, 57-58 (1987).

"'Judicial scrutiny of counsel's performance must be highly deferential,' and must avoid viewing the performance under the 'distorting effects of hindsight.'" State v. Norman, 151 N.J. 5, 37 (1997) (quoting Strickland, supra, 466 U.S. at 689, 104 S.Ct. at 2065, 80 L.Ed. 2d at 694). Moreover, there is a strong presumption that counsel "rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Strickland, supra, 466 U.S. at 690, 104 S.Ct. at 2066, 80 L.Ed. 2d at 695. Adequate assistance of counsel should be measured by a "reasonable competence" standard. Fritz, supra, 105 N.J. at 60-61. That standard does not require "the best of attorneys," but rather that attorneys not be "so ineffective as to make the idea of a fair trial meaningless." State v. Davis, 116 N.J. 341, 351 (1989).

Here, defendant must demonstrate a reasonably competent attorney would have filed a motion for a new trial and that the failure to do so caused him prejudice, i.e., that a motion for a new trial likely would have been granted. We note that nothing suggests the evidence reported in the Star Ledger on July 22, 2002, was anything but new to defendant and his counsel. A motion for a new trial under Rule 3:20-1 may be based on newly discovered evidence, State v. Carter, 85 N.J. 300, 314 (1981), and may be granted "if required in the interest of justice," R. 3:20-1. The evidence must be material, not merely cumulative, must not have been reasonably discoverable before trial, and must be of a nature to have probably affected the jury's verdict. Carter, supra, 85 N.J. at 314. A motion for a new trial based on newly discovered evidence may be made at any time. R. 3:20-2; see also State v. Hill, 267 N.J. Super. 223, 225 (App. Div. 1993), rev'd on other grounds, 136 N.J. 292 (1994).

The judge was clearly mistaken in denying discovery based on counsel's presumed trial strategy to avoid having defendant take the stand because the issue was really whether she could have discovered evidence based on the Star Ledger article to directly impeach Cantalupo and Badim. It is clear from counsel's cross-examination of Cantalupo and Badim that the theory of the defense at trial, before anyone saw the Star Ledger article, was that defendant was merely walking down the street and never had possession of the drugs. Counsel suggested that the officers had the drugs with them or found them somewhere on the street and planted them. The large number of inconsistencies in their testimony and their inability to recall many of the details of their investigation is quite troublesome,*fn5 as is the absence of any State Laboratory analysis of the content of the vials and any fingerprints on them. This is not a case where evidence of guilt was overwhelming.

Defendant certainly had no control over the records of the SCTF or Internal Affairs investigation into police misconduct. Nor could he compel the Star Ledger to disgorge documents in its possession without the aid of the courts. Yet the information contained in such documents would directly bear on whether his counsel was ineffective in failing to refile the new-trial motion and whether he was prejudiced by his counsel's failure to do so. Without the PCR discovery sought, defendant could not possibly satisfy either prong of Strickland. As a consequence, we reverse the denial of discovery and remand for entry of a proper PCR discovery order.

V.

Defendant makes various claims respecting his trial counsel's alleged errors and further asserts that his appellate attorney was ineffective for not raising on appeal the errors of his trial counsel. The State responds that many of defendant's claims are procedurally barred under Rules 3:22-4 and 3:22-5.

It further asserts that his counsel was not ineffective and that most of the decisions made at the trial level amounted to trial strategy, not error. The PCR judge found that defendant's counsel were not ineffective.

A.

Defendant contends that his trial counsel was ineffective for failing to advise him that there was a plea offer of five years imprisonment with a three-year period of parole ineligibility on the drug charges. He asserts that the State relayed a plea offer to him on the armed robbery indictment, offering a term of twenty-five years subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, if he pled guilty. Defendant rejected this offer, because he was innocent and, thus, could not plead guilty. State v. Taccetta, 200 N.J. 183, 186 (2009). After his conviction, he contends he learned that a plea offer on the drug charges was never communicated to him. He relies on the transcript of an April 1, 2002, arraignment and status conference.

At that conference, neither the prosecutor responsible for the cases nor the public defender assigned to defendant were available and other counsel stood in for each. The following colloquy took place:

[PUBLIC DEFENDER:] In this case [defendant] has several outstanding Indictments, several outstanding Indictments, and I don't believe a combined offer has been given for the receiving stolen property yet, but that's still outstanding.

THE COURT: Do we have a combined plea offer now?

[PROSECUTOR]: The plea offer, Judge, was what was the combined plea offer on the previous three.

I believe what [the prosecutor] did, Judge, was he incorporated the receiving case, which is the Indictment here, as an accusation in a pre-indictment offer, which even though it's been indicted now should not affect the plea numbers; five years with 36 months of parole ineligibility on Indictment 01-05-2091, five flat on the arraignment for today; and then on Indictment 01-6-2806, it was 25 years . . . subject to . . . NERA, and under Indictment 01-10-4012, five flat on that case. The defendant is three strikes eligible, Judge.

In a status conference on May 29, 2002, the prosecutor again referred to the plea offer as a "global plea," and that was the only plea offer ever mentioned on record. At no point in the record do any of the parties or attorneys refer to separate plea offers.

Defendant's certification in support of PCR does not contain any reference to any plea offer. Thus, defendant's claim rests entirely upon this transcript. An attorney's performance is considered deficient under the first prong of Strickland/Fritz if the attorney does not communicate all plea offers to the client. See State v. Powell, 294 N.J. Super. 557, 564 (App. Div. 1996) (finding defendant made a prima facie case for ineffective assistance of counsel where counsel failed to communicate a renewed plea offer from the State to defendant after an unsuccessful appeal of a suppression hearing).

Here, however, it is clear from the language used by the substitute prosecutor that the plea offer being discussed was a global offer on all four indictments. Defendant was present that day for his arraignment on the charge of receiving stolen property. He addressed the judge at the end of this very brief conference. Thus, he was fully aware of this plea offer and has not demonstrated that any other offer was ever made. Defendant presents no evidence that a separate offer was made. As a result, he has failed to establish a prima facie case of ineffective assistance of counsel.

B.

In Point I(C), defendant alleges that his attorney was ineffective for failing to investigate various issues relating to the testifying officers' credibility. Defendant first claims that his counsel was ineffective for failing to obtain documents demonstrating that St. Columbia School was no longer operating at the time of his arrest. Second, defendant avers that his attorney was ineffective for failing to obtain police-vehicle and radio-transmission log sheets to prove that the officers were lying about the number of officers on the scene of defendant's arrest. Third, he alleges that his counsel should have investigated police misconduct and the illegal activities of the SCTF, and presented such evidence for impeachment purposes at trial.

Cantalupo testified that St. Columbia School on Pennsylvania Avenue was within 1000 feet of the location where defendant was arrested. He also testified that United Academy on Miller Street was within 1000 feet. Cantalupo testified that both schools were in operation on February 22, 2001. Additionally, there was operational public housing within 500 feet of the place of arrest. Cantalupo testified that he knew that both schools were operating because he would pass by while on patrol and see children leaving school. Defendant's attorney cross-examined Cantalupo on this issue by asking if he was sure that both schools were open, but presented no evidence to impeach him. Cantalupo reaffirmed that both schools were open.

Defendant alleges that St. Columbia was not open at the time of his arrest and, thus, its existence could not be used as a basis for charging defendant with possession of CDS with intent to distribute within 1000 feet of a school under N.J.S.A. 2C:35-7. Defendant further contends that illuminating this inconsistency in the Cantalupo's testimony would have impeached his credibility.

The State responds that defendant has presented no evidence to support his allegation that the St. Columbia School was closed and, even if it was closed, United Academy was indisputably open. Therefore, the State asserts the elements of N.J.S.A. 2C:35-5 were satisfied even if St. Columbia was closed.

The PCR court agreed with the State's position. The judge stated, "it's clear that . . . there's no proof offered that the one school was closed, but more importantly, in the testimony in the transcript it was clear that there was another school that the detective testified to that was also within the required distance and that that school was in operation."

There is no merit to this issue because defendant presented no documentary proof that the St. Columbia School was actually no longer operating on February 22, 2001. Even if he had presented such evidence, there was no contention that United Academy was not operational, much less any evidence to prove it. Neither the charge to the jury nor the verdict sheet focused the jury on St. Columbia School; no mention of the schools by name was made. Not having secured the evidence defendant claims his attorney failed to discover, he has not made out a prima facie case of ineffective assistance of counsel in any respect related to this alleged evidence. See State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.) ("[I]n order to establish a prima facie claim, a petitioner must do more than make bald assertions that he was denied the effective assistance of counsel."), certif. denied, 162 N.J. 199 (1999). He was not entitled to an evidentiary hearing.

C.

Defendant contends his trial attorney was ineffective for failing to obtain police-vehicle and radio-transmission log sheets. Defendant asserts that these documents would prove that there were more officers on the scene than the five officers Cantalupo and Badim testified were present.

The State responds that the failure to obtain the police-vehicle and radio-transmission logs amounted to mere trial strategy and not ineffective assistance of counsel. It contends that the trial attorney chose not to pursue this evidence because it would have required defendant to testify. If he did, the State would have cross-examined him to bring out his previous convictions. The PCR judge agreed with the State's arguments and supported its decision with the same line of reasoning.

Trial strategy is clearly within the discretion of competent trial counsel. State v. Coruzzi, 189 N.J. Super. 273, 321 (App. Div.), certif. denied, 94 N.J. 531 (1983). If an attorney thoroughly investigates all facts and law and considers all options, the attorney's trial strategy is "virtually unchallengeable." State v. Savage, 120 N.J. 594 (1990). If counsel fails to conduct a reasonable investigation, counsel's performance may be deficient. Id. at 618.

Defendant certified to the following facts bearing on this issue:

Prior to trial, defendant wrote to counsel informing her that the police officers had falsified police reports, illegally searched his apartment, charged defendant with these offenses after defendant refused to be an informant, and left out the names of several other officers who were on the scene at the time of the arrest.

Defendant asked counsel to investigate the misconduct of the police officers, to request vehicle and radio transmission log sheets, and to ascertain any further information necessary to prove that the officers lied and engaged in misconduct including illegal searches and seizures.

These allegations cannot be brushed aside with "trial strategy" because they clearly allege a failure to conduct a reasonable investigation. If those police-vehicle logs and radio-transmission logs contain information contradicting the officers' testimony, that evidence could have been used to further impeach their already shaky credibility without putting defendant on the stand.

Of course, the difficulty in evaluating defendant's claims in this respect is that he does not have the evidence and cannot obtain it without the aid of the court. However, we are satisfied that defendant certified sufficient facts to meet his burden of proof under the first prong of Strickland, supra, 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed. 2d at 693. A plenary hearing should have been scheduled and defendant allowed to subpoena these documents to prove that his counsel was ineffective.

VI.

After carefully reviewing the record in the light of the written arguments advanced by the parties, we conclude that defendant's remaining arguments "are without sufficient merit to warrant discussion in a written opinion." R. 2:11-3(e)(2). Those arguments are: (1) counsel was ineffective in failing to object to the expert's testimony; (2) counsel's failure to seek voir dire of a deliberating juror or request a mistrial; (3) counsel was ineffective in negotiating a post-conviction plea agreement that was above the Brimage guidelines; (4) counsel was ineffective for failing to refile his pro se delay motion; (5) appellate counsel was ineffective in failing to raise reversible issues on appeal; and (6) that the sentence imposed violated Warren.

Affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion.


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