On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 02-02-0354.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 25, 2010
Before Judges Baxter and Alvarez.
Defendant John C. Peters appeals from a May 2, 2008 order that denied his petition for post-conviction relief (PCR). On appeal, he raises the following claim:
I. THE DEFENDANT WAS ENTITLED TO AN EVIDENTIARY HEARING ON HIS CLAIM OF INEFFECTIVE ASSISTANCE OF COUNSEL, AS THE DEFENDANT PRODUCED A PRIMA FACIE CASE OF INEFFECTIVENESS WHEN DEFENSE COUNSEL OPENED THE DOOR TO N.J.R.E. 404(b) EVIDENCE THAT HAD PREVIOUSLY BEEN RULED INADMISSIBLE AGAINST THE DEFENDANT, AND THEN FAILED TO RAISE THE ISSUE OF HIS OWN ERRORS ON APPEAL.
In particular, defendant asserted in his PCR petition that trial counsel rendered ineffective assistance at trial when, through his cross-examination of a witness, Richard D'Onofrio, trial counsel opened the door to testimony that the trial judge, at a hearing outside the presence of the jury, had ruled inadmissible. The judge had ruled that the State would not be permitted in its case in chief to produce evidence that on prior occasions defendant had sold drugs to co-defendant Thomas DeRosa. We agree with the PCR judge's conclusion that such cross-examination did not constitute ineffective assistance, nor did the same attorney provide ineffective assistance when he failed to raise that issue on appeal. We affirm.
Following a trial by jury, defendant was convicted of second-degree distribution of a controlled dangerous substance (CDS) and related conspiracy charges, for which he was sentenced, as a persistent offender, to a twenty-year term with a ten-year period of parole ineligibility. The State's proofs at trial consisted largely of the testimony of two co-defendants, Richard D'Onofrio and Thomas DeRosa, both of whom entered negotiated pleas of guilty to an amended, and significantly lesser charge, of third-degree conspiracy to distribute CDS.
D'Onofrio owns a retail flower shop in Neptune known as Jersey Shore Florist. DeRosa was a friend of his, and in return for D'Onofrio permitting DeRosa to store his cocaine at D'Onofrio's flower shop, DeRosa supplied D'Onofrio with free cocaine.
According to D'Onofrio, on June 20, 2001, DeRosa entered his store and told him that defendant, whom he referred to as "John," and a man named Barry, would be meeting DeRosa at D'Onofrio's flower shop to bring DeRosa some cocaine. According to D'Onofrio, a little while later, defendant arrived in a tan pickup truck and DeRosa went out to the parking lot to meet him. The two then entered his store. Defendant remained for only a few minutes. After he left, DeRosa handed D'Onofrio a package that looked like a baseball wrapped in electrical tape. D'Onofrio placed it in a file cabinet, with the understanding that DeRosa would retrieve the cocaine at some point in the future, as he had been doing for approximately three years.
Shortly after defendant and DeRosa left the store, a Neptune police detective and several officers, whom D'Onofrio knew, entered his store. After chatting for a few moments, they advised D'Onofrio that they were not there for pleasure, but instead for business. D'Onofrio testified he immediately knew why they were there, and he quickly handed them the package of cocaine.
On cross-examination, D'Onofrio was asked whether Barry had ever in the past delivered cocaine to his store, to which D'Onofrio answered, "[t]o Thomas, yes, uh hum." To address that line of questioning, the prosecutor asked D'Onofrio on redirect examination if, to his knowledge, Barry was the only person who had "deliver[ed] drugs to Thomas DeRosa before." Defendant objected.
At sidebar, the State argued that because the defense had inquired about whether DeRosa had in the past purchased CDS from Barry, thereby implying that it was Barry who had supplied CDS to DeRosa on the day in question, the State should be permitted to, in effect, level the playing field by eliciting testimony from D'Onofrio that in the past defendant had also supplied CDS to DeRosa. The State asserted that by asking D'Onofrio about Barry's drug sales to DeRosa in the past, defendant had opened the door to the very line of testimony that the judge had earlier excluded, namely whether defendant had ever sold CDS to DeRosa in the past. The judge overruled defendant's objection, agreeing with the State that defendant had opened the door. With defendant's objection overruled, ...