July 12, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
KESHAWN R. TUCKER, A/K/A KESHAWN BATTLES, KESHAWN RIAN TUCKER, KESHAUN TUCKER, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 08-03-0885.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: July 5, 2011
Before Judges Cuff and Fuentes.
Following a bench trial, defendant Keshawn R. Tucker was found guilty of possession of a controlled dangerous substance (CDS) (heroin), N.J.S.A. 2C:35-10a(1) (count two); possession of CDS with intent to distribute, N.J.S.A. 2C:35-5a(1) (count three); and possession of CDS with intent to distribute within 500 feet of public housing, N.J.S.A. 2C:35-7.1 (count five). The trial judge merged counts two and three with count five and sentenced defendant to a five-year term of imprisonment. The appropriate fees, fines, assessments, penalties, and driver's license suspension were also imposed.
On November 23, 2007, defendant was apprehended while selling drugs in a public housing complex in Newark. On that day, Officers Celso Vinueza and Luis Rivera of the Newark Police Department had established a mobile surveillance on the street near the mailboxes in the Riverside Villa public housing complex. At about 12:00 p.m., Officer Vinueza saw defendant with another man near the mailbox structure. Vinueza saw a woman approach the second man and hand him money. The unidentified man directed the woman to defendant, who handed an object to the woman. Believing he had witnessed a narcotics transaction, Vinueza notified the two-officer take-down unit. The take-down unit arrived, consisting of Officer Nancy Caballero and another officer, identified themselves, and defendant and the man with him began to run.
The officers apprehended defendant, who fell to the ground. Officer Caballero handcuffed defendant, placed him under arrest, and searched defendant's right coat pocket. This is the pocket from which Officer Vinueza observed defendant take the object he handed to the woman. Officer Vinueza found and seized fifty envelopes of heroin wrapped in five separate bundles in magazine paper and rubber bands, known as a brick.
Defendant testified he realized there was drug dealing occurring when he approached the mail boxes, but he was not involved. He was at the Riverside Villa complex on November 23, 2007, to visit his cousin for Thanksgiving. He testified he saw "a couple of dudes out there. I know -- and I know they was out there doin' something wrong."
According to defendant, when the police came, he did not run from them, but turned and walked away when he heard some people yell that "the police was comin' through the gate." He explained:
I turned around and walked back to my cousin['s] house because there this -- I don't want them to try to blame it on me, but that's what they've been doin' [sic] out there, I see the two police or the lady and the um, the other police officer comin' [sic] out the side of the gate.
Defendant further testified that the police told him to stop, and asked him why he was running. He testified that he said "I'm not runnin' [sic]," and then he was handcuffed and searched. Defendant denied possessing drugs.
On appeal, defendant raises the following arguments:
I. TRIAL COUNSEL'S FAILURE TO MOVE FOR SUPPRESSION OF EVIDENCE DENIED DEFENDANT EFFECTIVE ASSISTANCE OF COUNSEL.
A. THE MERITS OF THE DEFENDANT'S FOURTH AMENDMENT CLAIM.
II. THE SENTENCING COURT ERRED BY NOT ARTICULATING THE WEIGHT ASSIGNED TO THE AGGRAVATING FACTORS AND FAILING TO FIND MITIGATING FACTORS BASED IN THE RECORD.
III. THE STATE'S EVIDENCE WAS INSUFFICIENT TO PROVE GUILTY BEYOND A REASONABLE DOUBT. Defendant's ineffective assistance of counsel argument is premature. In State v. Preciose, 129 N.J. 451, 460 (1992), the Court emphasized that claims of ineffective assistance of trial counsel are particularly suited to petitions for post-conviction relief. The Court noted that why defense counsel may have done some things or omitted some things, such as filing a motion to suppress evidence, often relies on evidence outside the trial record. Ibid. This is one of those cases. The trial record simply does not permit us to evaluate whether trial counsel provided representation that fell below accepted standards of reasonableness. Strickland v. Washington, 466 U.S. 668, 688, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984); State v. Fritz, 105 N.J. 42, 58 (1987).
Defendant's contention that his conviction is based on insufficient evidence is without sufficient merit to warrant discussion in a written opinion. State v. Samuels, 189 N.J. 236, 244-45 (2007); State v. Reyes, 50 N.J. 454, 458-59 (1967).
Finally, defendant argues that the five-year term of imprisonment imposed by Judge Petrolle is not supported by a qualitative analysis of the identified aggravating factors. He also contends the judge should have found that his conduct did not cause or threaten serious harm, mitigating factor one, and he did not contemplate that his conduct would cause or threaten serious harm, mitigating factor two. N.J.S.A. 2C:44-1b(1) and (2). The law and the record belie this argument.
A judge is obliged to recognize a mitigating factor only when it is fully supported by the evidence. State v. Dalziel, 182 N.J. 494, 505 (2005). The record does not suggest any error by the judge in this regard.
In addition, Judge Petrolle also clearly articulated the reasons in support of finding two aggravating factors: specific and general deterrence, aggravating factor nine; and the extent of defendant's prior record and the seriousness of those prior convictions, aggravating factor six. N.J.S.A. 2C:44-1a(9) and (6). The judge explained his assessment of defendant's prior behavior and the reason he imposed a five-year term of imprisonment on count five. Judge Petrolle stated:
On count-5, I'm satisfied that there are two aggravating factors. There is the need to deter this defendant as well as others from violating the laws of the State of New Jersey. And there is the seriousness of his prior criminal conviction for carjacking, for which he received a 20-year sentence, and did apparently violate parole on more than one occasion.
I don't find that there's a support and proof beyond a reasonable doubt by way of conviction or otherwise of the risk that he'd commit another offense. There are lots of petitions. Petitions are not findings even by a court without a jury, but there is the prior conviction, serious conviction for carjacking.
I don't find mitigating factors at all. I find that the two aggravating factors do prevail. But given that this is a second-degree offense, and given that he faces five years, and the Parole Board can keep him there as long as they deem appropriate on a five-year sentence, I'm not inclined to impose a greater period of time than five years with one prior indictable conviction.
There is no basis to allow this court to disturb this sentence. State v. Miller, 205 N.J. 109, 127 (2011); State v. Bieniek, 200 N.J. 601, 608 (2010).
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