On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 01-12-1393.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Cuff and Sapp-Peterson.
A jury convicted defendant of numerous drug offenses stemming from the execution of a search warrant at a Godwin Avenue apartment in Paterson that was rented to defendant. Although defendant was not present in the apartment at the time the search warrant was executed, police found numerous items supporting the State's position that defendant resided in the apartment and was therefore in constructive possession of the narcotics recovered. Those items included, women's clothing in the rear bedroom, a library card, a social security card bearing defendant's name, and letters addressed to defendant at the Godwin Avenue address. In addition, defendant's landlord testified that he rented the apartment to defendant and identified the rent receipts he gave to defendant for August and September 2001. The court denied defendant's subsequent motion for a new trial. At sentencing, the court imposed an aggregate six-year period of imprisonment with a three-year period of parole ineligibility, together with fines and penalties.
The conviction and sentence were affirmed on direct appeal. State v. Oyawusi, No. A-5847-02 (App. Div. July 9, 2004). The Supreme Court denied defendant's petition for certification. State v. Oyawusi, 182 N.J. 143 (2004).
Thereafter, defendant filed a pro se petition for post-conviction relief (PCR). Counsel was appointed on defendant's behalf and an evidentiary hearing was conducted before Judge Ernest M. Caposela. In addition to her testimony, defendant presented her paramour, Robert Nicklson,*fn1 and her former trial counsel, as witnesses.
Nicklson confirmed that he and defendant lived together at the Godwin Avenue apartment. He testified that he paid the rent and that he and defendant also rented out the second bedroom. He acknowledged that he and defendant had a fight that resulted in her leaving the apartment. He was apparently incarcerated at the time of the raid on the apartment but testified that he heard that defendant was not living there.
According to defendant, her relationship with Nicklson was characterized by domestic violence, and in June 2001, following a domestic dispute, Nicklson threatened to come back to the apartment and kill her. She left the apartment and did not return until October 2001. She told the court that during this hiatus from the apartment, she stayed in a hotel, and when she did not have money for a hotel room, she stayed with friends or family. Defendant also claimed that her brother accompanied her to court a couple of times to speak to her attorney, but trial counsel told her that he did not need him as a witness.
Trial counsel also testified during the hearing. He testified that due to the passage of time, other than the basic circumstances surrounding the charges, he did not have a specific recollection of the matter. He did not recall defendant telling him she was living with her brother and sister-in-law at the time that the Godwin Avenue apartment was searched. He also did not recall speaking to a witness who knew defendant and advised him that defendant was not living at the Godwin Avenue apartment. He did indicate that had such information been provided to him, he would have interviewed the witnesses if defendant wanted to present them at the time of trial.
The court issued a written opinion denying the petition. The court found that the evidence presented at the trial establishing that defendant resided in the apartment was extensive in contrast to the evidence presented at the PCR evidentiary hearing. The court also found that Nicklson's testimony lacked credibility and his knowledge of defendant's living situation at the time of the raid was not based upon personal knowledge but upon what he heard from people on the street. The court noted that "neither of the [additional] two witnesses proffered by Ms. Oyawusi [in her PCR petition] were present" at the evidentiary hearing. The court concluded that "[e]ven if counsel had interviewed and called the two witnesses to testify at trial, there is no reasonable probability that the jury would have accepted their testimony, especially in light of all the overwhelming evidence of guilt."
On appeal defendant contends:
THE TRIAL COURT'S ORDER DENYING POST-CONVICTION RELIEF MUST BE REVERSED BECAUSE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL AT BOTH ...