On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 06-11-1676.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 3, 2011 - Decided Before Judges Fisher and Simonelli.
Defendant Calvin Dawson was arrested for defiant trespass on public property, which was posted with "no trespassing" signs. A search incident to his arrest revealed a baggie of cocaine in one of his pockets. Defendant was indicted for and convicted of third-degree possession of cocaine, N.J.S.A. 2C:35- 10a(1). He was sentenced to a one-year probationary term conditioned on 364 days in the county jail.
Defendant contends for the first time on appeal that his arrest was unlawful because the police lacked reasonable suspicion of criminal activity. Because defendant never filed a motion to suppress, he is "deemed to have waived any objection during trial to the admission of evidence on the ground that such evidence was unlawfully obtained." R. 3:5-7(f); see also State v. Martin, 87 N.J. 561, 566 (1981); State v. Jenkins, 221 N.J. Super. 286, 292 (App. Div. 1987), certif. denied, 113 N.J. 343 (1988), cert. denied, 488 U.S. 1032, 109 S. Ct. 843, 102 L. Ed. 2d 975 (1989). Thus, we will not consider his challenge to his arrest.
Defendant also contends that defense counsel was ineffective for failing to file a motion to suppress. "'Our courts have expressed a general policy against entertaining ineffective-assistance of counsel claims on direct appeal because such claims involve allegations and evidence that lie outside the trial record.'" State v. Castagna, 187 N.J. 293, 313 (2006) (quoting State v. Preciose, 129 N.J. 451, 460 (1992)). "However, when the trial itself provides an adequately developed record upon which to evaluate defendant's claims, appellate courts may consider the issue on direct appeal."
Ibid. (citing State v. Allah, 170 N.J. 269, 285 (2002)). We are not persuaded that the record was sufficiently developed that we may consider defendant's claim of ineffective assistance of counsel on appeal. Thus, we adhere to the practice of deferring the issue of alleged ineffective assistance of counsel to post-conviction relief proceedings where the necessary factual record can be established. See id. at 316.
Defendant also challenges his sentence, contending the 364-day term of imprisonment, imposed as a condition of probation, was excessive. We disagree. Defendant was convicted of a third-degree crime and faced a sentence of three to five years. N.J.S.A. 2C:43-6a(3). Nonetheless, the judge imposed a one-year probationary term, as permitted by N.J.S.A. 2C:45-2, and a 364-day county jail term, as permitted by N.J.S.A. 2C:43-2b(2). The judge's findings of aggravating and mitigating factors are amply supported by the record, and the sentence does not shock the judicial conscience. State v. Cassady, 198 N.J. 165, 180-81 (2009).
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