On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 01-02-0963.
The opinion of the court was delivered by: R. B. Coleman, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges R. B. Coleman and Sabatino.
Defendant, David Sessoms a/k/a David Fisher, appeals the Law Division's denial of his petition for post-conviction relief (PCR). Defendant argues that (1) he was denied his right to counsel because his waiver of his right to counsel was not made knowingly and intelligently, and (2) he was denied the effective assistance of counsel because his attorney failed to make a motion to suppress and failed to raise the issue of defendant's competency before defendant waived his right to counsel. We affirm.
On October 20, 2000, two police officers with the Newark Police Department's Narcotics Squad observed defendant standing on a corner identified by police as a drug distribution area with several other individuals. The officers asked the individuals to leave the area and the crowd dispersed. When the officers returned approximately fifteen minutes later, defendant was again standing on the same corner, but he ran into a public housing project when he saw the police.
The officers immediately set up a covert surveillance operation near the corner. With the aid of binoculars, the officers viewed defendant pacing back and forth on the corner and looking over his shoulder, until a vehicle pulled up near defendant. The officers then observed defendant walk up to the vehicle and, after a brief conversation with a person inside, take out a small object from the right side of his pants and exchange it for an unknown sum of money. Two to three minutes later, the officers observed three individuals approach defendant on foot and hand him money. Defendant retrieved several objects from his pocket and handed them to each of the individuals in exchange.
When one of the officers, Officer Gene Collins, approached defendant on foot, defendant began to flee. Officer John Lebron cut off defendant's path with his police vehicle, jumped out, and apprehended defendant. Officer Collins arrived seconds later and saw a section of a transparent plastic bag sticking out of the front zipper of defendant's pants. Officer Collins told defendant to remove the bag. Defendant complied. The bag contained approximately fifty individually packaged bags of marijuana. Officer Collins then patted down the outside of defendant's pants and felt what he suspected was more drugs. Officer Collins reached into defendant's pocket and removed another bag containing sixty-one individually packaged bags of marijuana. The officers also retrieved twenty-four dollars in cash from defendant's pocket.
Defendant was arrested and charged by the Essex County Grand Jury on Indictment No. 01-02-0963 with fourth-degree possession of marijuana, N.J.S.A. 2C:35-10(a)(3) (count one); third-degree possession of marijuana with an intent to distribute, N.J.S.A. 2C:35-5(b)(11) (count two); third-degree possession of marijuana with intent to distribute within 1000 feet of a school, N.J.S.A. 2C:35-7(a) (count three); second-degree possession of marijuana with intent to distribute within 500 feet of a public housing facility, N.J.S.A. 2C:35-7.1 (count four).
On January 7, 2002, the judge entertained several motions, including defendant's motion to represent himself pro se. A Deputy Public Defender was assigned to represent defendant, but defendant found himself in disagreement with counsel about defense strategy. The court asked defendant a battery of questions to gauge whether his waiver of assigned counsel was being made knowingly, voluntarily, and intelligently. The court asked defendant about his level of education; whether and to what extent he had undertaken informal or formal legal studies; whether defendant had previously assisted others in legal matters; whether defendant had previously represented himself or anyone else in a criminal trial, observed a criminal trial, or been a witness in a criminal trial; whether defendant understood the offenses with which he had been charged and the penalties to which he could be subjected if found guilty; whether he understood the concept of consecutive sentences and that he could be subject to consecutive sentences; whether defendant understood the elements of the crimes with which he had been charged, the proofs needed to establish each element, and that the State could use direct or circumstantial evidence to do so; whether defendant had a grasp of the New Jersey Rules of Evidence and understood that they would control what could be introduced at trial; whether defendant understood that, due to his dual role as a defendant and attorney, he would be required to ask himself specific questions if he were to testify as a witness and that his dual role could work to his disadvantage; whether defendant was aware of any defenses to the charges against him; and, most importantly, whether his decision to represent himself was entirely voluntary and whether he understood that he would be entirely on his own and responsible for his own mistakes as an attorney. Though at one point, defendant indicated that he did not wish to proceed pro se,*fn1 he later unequivocally stated that he wished to proceed pro se. The trial court deemed defendant's answers satisfactory and allowed him to proceed pro se, with assigned counsel acting in a standby capacity.
The trial court thereafter heard defendant's pro se pretrial motions. Defendant made a motion to dismiss the charges against him due to lack of prosecution. The trial court denied that motion. Defendant made a motion to suppress evidence based on a violation of Miranda*fn2. The trial court denied that motion because the State was not seeking to introduce any out-of-court testimony. Defendant then made a motion to suppress all the marijuana allegedly found in his possession on the theory that the search was conducted without probable cause, in violation of his Fourth Amendment rights. Defendant told the court that the police officers detained him, ordered him to sit on the ground, found the bags of marijuana somewhere outside his field of vision, and then fabricated the story that he had been carrying the marijuana in his pants. Though the trial court noted that defendant's motion had been made out of time, it resolved to conduct a Rule 104 hearing the following day in which it would compare the defendant's account of the search to that of the police officers who effectuated the search, and then rule on its legality. See N.J.R.E. 104.
On January 8, 2002, the trial court conducted the suppression hearing in which defendant continued to represent himself pro se. Out of the presence of the jury, the State elicited testimony from Officer Collins explaining that he watched defendant make what he believed to be four drug deals, chased defendant on foot and found him with a section of a plastic bag protruding from his front zipper, asked defendant to remove the bag, found that it contained marijuana, and then conducted a pat down of defendant and found the rest of the marijuana. Defendant cross-examined Officer Collins and then argued, albeit in somewhat rambling fashion, that the officers had no probable cause to make an arrest and that Officer Collins's credibility should be discounted because he did not arrest any of the four people who allegedly purchased marijuana from defendant.
The trial court denied defendant's motion to suppress the marijuana, finding that defendant was found in possession of the drugs after a lawful arrest supported by probable cause, and that the bag containing the drugs was also in plain view of the arresting officer. After defendant's motion was denied, assigned counsel expressed her concern that, based upon his performance during the suppression hearing, defendant was clearly incapable of representing himself. Defendant elected to proceed with assigned counsel representing him, and she continued to represent him from that point through the conclusion of trial.
Trial commenced on January 9 and 10, 2002, and on the latter date, the jury found defendant guilty on all counts. The trial court denied defendant's motion for a new trial and sentenced him to seven years incarceration with a three-year period of parole ineligibility. Defendant's direct appeal to this court was denied, State v. Sessoms, No. A-6361-01T5 (App. Div. October 14, ...