On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 06-12-2112.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Sabatino and C.L. Miniman.
This is an appeal from the trial court's denial of post-conviction relief ("PCR"). Following a 2008 jury trial, defendant Antoine Stevens was principally convicted of second-degree possession of heroin in Jersey City with the intent to distribute it within five hundred feet of a public park, N.J.S.A. 2C:35-7.1. He was also convicted at the same time of other related offenses, including the possession of that same quantity of heroin with the intent to distribute it in a school zone, N.J.S.A. 2C:35-7.
During the course of the trial, the State moved into evidence a city map that depicted the areas within five hundred feet of a public park. In particular, the map showed that the liquor store at the corner of Stegman Street and Martin Luther King Drive, where the police and other witnesses had seen defendant make an apparent drug purchase shortly before his arrest, was located within five hundred feet of a city park.
We affirmed defendant's conviction on direct appeal, subject only to a remand to merge, for sentencing purposes, the park zone offense with the school zone offense. State v. Stevens, Docket No. A-4166-07 (Jul. 22, 2009), certif. denied, 201 N.J. 145 (2009). As part of our analysis, we rejected defendant's argument that the trial court had improperly admitted into evidence the five-hundred foot map and testimony relating to it. Id., slip op. at 11-12, 24-34. On the ensuing remand, the trial court resentenced defendant in accordance with our instructions.
After the Supreme Court denied certification, defendant filed a petition for PCR with the trial court in November 2009. In his petition, defendant alleged that his trial attorney was constitutionally ineffective, particularly with respect to the evidence that related to defendant's possession of heroin within the requisite distance from a public park.
As part of his PCR application, defendant submitted a one-page
memorandum dated April 6, 2010 from an investigator. The investigator
had gone to the liquor store where the police had seen defendant make
an apparent drug purchase shortly before his arrest.*fn1
The investigator measured the distance from the liquor store
to the edge of a city park, Audubon Park. According to the
investigator, that distance exceeded five hundred feet, contrary to
the State's contention at trial.*fn2
Defendant asserted that his trial attorney should have pursued a similar investigation, and should have presented evidence showing that the liquor store was, in fact, outside of the five-hundred foot radius of the park. Defendant further argued that his trial attorney was deficient in not objecting to the admission at trial of maps and testimony presented by the State showing the relevant distances around the park.
After considering these arguments, the PCR judge, who had also presided over defendant's trial, dismissed the petition. The judge found that defendant's arguments relating to the five hundred foot radius were procedurally barred under Rule 3:22-5 because the issues as to the evidence of that distance had already been raised and adjudicated in the direct appeal. Aside from that procedural bar, the judge also found that defendant's claims of ineffective assistance of trial counsel lacked substantive merit. In particular, the judge noted, as we had previously concluded on direct appeal, that there was "ample circumstantial evidence that [defendant] possessed heroin at some point prior to his arrest[,]" and that his possession of it within a park zone could have been reasonably inferred from the trial evidence. The judge found no need to conduct a post-conviction evidentiary hearing, given defendant's failure to present a prima facie basis to set aside the final judgment.
On this appeal, defendant raises the following points:
THE PCR COURT ERRED IN DENYING DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF AS TRIAL COUNSEL'S CONDUCT WAS DEFICIENT WHEN HE FAILED TO CHALLENGE THE STATE'S EXPERT BY ENGAGING AN EXPERT TO DETERMINE WHETHER THE DISTANCE OF THE LIQUOR STORE WHERE DEFENDANT ...