May 24, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
ANTHONY GREEN, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 02-11-3939.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 12, 2010
Before Judges Axelrad and Fisher.
In this appeal, we review an order denying defendant's petition for post-conviction relief (PCR), which was based on the contention he was denied the effective assistance of counsel because his trial attorney failed to file a pretrial motion to suppress evidence. We find no merit in defendant's arguments and affirm.
In 2003, defendant was convicted by a jury of first-degree robbery, N.J.S.A. 2C:15-1, and sentenced to a fifteen-year prison term subject to an 85% period of parole ineligibility pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2. In his direct appeal, defendant argued that: (1) his detention, search and arrest constituted an unreasonable search and seizure; (2) the evidence obtained after defendant was detained should have been suppressed; (3) the failure of trial counsel to seek suppression of seized evidence constituted a deprivation of his Sixth Amendment rights; and (4) the sentence imposed unlawfully exceeded the presumptive term. We affirmed, with the exception that we did not reach the merits of the third argument. State v. Green, No. A-2181-03 (App. Div. June 24, 2005).*fn1 That is, in our unpublished opinion, we rejected the first and second arguments because defendant had failed to move for suppression of the seized evidence, citing State v. Martin, 87 N.J. 561, 566-67 (1981); R. 3:5-7(f); as for the third argument, we suggested that "the failure to seek a pre-trial hearing may well have been the product of trial strategy," but concluded that "the resolution of that issue necessitates some further record" that could be developed upon the filing of a PCR petition. Green, supra, slip op. at 2-3. The Supreme Court denied defendant's petition for certification. 185 N.J. 298 (2005).
In 2007, defendant filed a PCR petition. He then asserted that evidence obtained should have been suppressed because it constituted the fruit of an illegal search and seizure, and that his trial counsel's failure to move to suppress constituted the ineffective assistance of counsel. After conducting an evidentiary hearing, at which defendant and his trial attorney testified, the judge rendered a thorough written decision denying defendant's PCR petition.
Defendant appealed, raising the following arguments for our consideration:
I. THE PCR COURT ERRED IN DENYING DEFENDANT'S REQUEST FOR POST-CONVICTION RELIEF AS TRIAL COUNSEL'S FAILURE TO SUPPRESS THE EVIDENCE RECOVERED FROM THE ILLEGAL SEARCH AND SEIZURE OF DEFENDANT AMOUNTED TO INEFFECTIVE ASSISTANCE OF COUNSEL.
II. THE PCR COURT ERRED IN DENYING DEFENDANT'S REQUEST FOR RECONSIDERATION OF HIS SENTENCE AS THE SENTENCE IMPOSED ON DEFENDANT'S CONVICTION OF ROBBERY WAS MANIFESTLY EXCESSIVE AND CONSTITUTED AN ABUSE OF JUDICIAL DISCRETION.
We find insufficient merit in these arguments to warrant discussion in a written opinion, R. 2:11-3(e)(2), and affirm substantially for the reasons set forth in Judge Goldman's opinion. We add only the following brief comments regarding Point I.
The record reveals that, on September 13, 2002, fourteen-year old Kameesha Grant was walking on South Orange Avenue near South 18th Street in Newark when approached from behind by defendant, who put one arm around her neck and pressed an object, which she thought to be a gun, to Grant's neck. As they continued to walk in that fashion, defendant demanded Grant's gold chains when a police vehicle slowed to a stop a short distance in front of them. Defendant then turned himself and Grant around and began walking in the opposite direction, threatening to shoot if Grant refused to turn over the chains. He then took the chains from her and ran in the direction of South 16th Street.
Although they were on their way to another assignment, the officers in the approaching police vehicle decided to investigate when they saw Grant crying. As defendant ran, the officers exited their vehicle. Grant was crying hysterically and unable to explain what had happened. One of the officers pursued defendant on foot, eventually apprehending him in the backyard of a home on South 15h Street after having lost sight of him twice. The officer searched defendant for weapons but found none.
Defendant was handcuffed and brought to Grant's location near South 18th Street. She identified defendant as her assailant but also noted he was wearing a different shirt. According to Judge Goldman's findings:
[The officers] began searching the area for a gun and the chains. They only found a short piece of plastic that looked like a piece of a broom handle. After the search, [defendant] was searched a second time. In one version of the events, [one officer] shook [defendant's] pants and gold chains fell out of his pants leg. In another version, after being identified by Grant, the chains were found in [defendant's] groin area. [Defendant] was arrested and taken to a holding cell in the robbery homicide division. At trial, Grant identified [defendant] as her assailant and identified the gold chains that had fallen from his pants as th[os]e which had been stolen from her.
At trial, [defendant] contended that he was on a bus during the time of the robbery.
He states that he had gotten off the bus at 15th [S]treet to talk to an old acquaintance when he was searched and then detained.
Counsel argued that Grant mistakenly identified [defendant] and that the police framed [defendant] by planting the chains in his pants during the second search. Counsel made no motion to suppress evidence prior to the trial.
In rejecting defendant's argument that his trial attorney was ineffective, Judge Goldman relied on the trial attorney's testimony and what he referred to as her "several well thought-out strategic reasons for not filing a motion to suppress the two gold chains." First, the judge recognized that a motion to suppress "would have prematurely disclosed and contradicted the defense theory of the case at trial, that the gold chains were planted on [defendant] by the police." Second, the trial attorney testified that the State was having difficulty locating Grant prior to trial and, as a result, "the delay that would have resulted from filing a motion to suppress, would have given the State additional time to locate Grant and make her available to testify against [defendant] at trial." Third, as the judge held, a pretrial hearing would have given witnesses "an opportunity to rehearse their version of the incident and strengthen their identifications of [defendant] prior to their testimony before the jury." And the judge also noted that to the extent the State claimed the discovery of the chains was not the result of a search but instead they "merely fell out of [defendant's] pants, [defendant] might need to testify at a suppression hearing to establish that the search had taken place," thereby generating the possibility that defendant's pretrial testimony could be used to impeach his anticipated testimony at trial.
For these reasons, Judge Goldman logically concluded that defendant's trial attorney adopted a sound trial strategy in choosing not to move to suppress evidence. There was ample evidence in the record to support the judge's view, and the judge's scrutiny of counsel's performance was fully in accord with applicable principles. See Strickland v. Washington, 466 U.S. 668, 689, 104 S.Ct. 2052, 2065, 80 L.Ed. 2d 674, 694 (1984) (holding that 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).