On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 06-03-0490.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted August 16, 2011
Before Judges Waugh and Koblitz.
Defendant George Garrett appeals the April 8, 2010 denial of his petition for post-conviction relief (PCR), arguing that he received ineffective assistance of trial counsel. After reviewing the record in light of the contentions advanced on appeal, we affirm.
Defendant was indicted in Hudson County Indictment No. 06-03-0490, charging him with, on November 7, 2005, third-degree possession of heroin, N.J.S.A. 2C:35-10a(1) (count one); third-degree possession of less than one-half ounce of heroin with the intent to distribute, N.J.S.A. 2C:35-5a(1) and 2C:35-5b(3) (count two); third-degree possession of heroin with the intent to distribute within 1000 feet of a school zone, N.J.S.A. 2C:35-5a(1) and 2C:35-7 (count three); and second-degree possession of heroin with the intent to distribute within 500 feet of public housing, N.J.S.A. 2C:35-5a(1) and 2C:35-7.1 (count four). In counts five through eight, he was charged with the same offenses involving cocaine. In count nine, he was charged with third-degree distribution of less than one-half ounce of heroin to Danny Perez a/k/a Johnny Pacheco, N.J.S.A. 2C:35-5a(1) and 2C:35-5b(3). Count ten charged that the distribution occurred within 100 feet of a school and count eleven that it occurred within 500 feet of public housing. Counts twelve, thirteen and fourteen alleged the same charges as counts nine through eleven in relation to a sale of heroin to Rafael Rosado. Count fifteen charged defendant with fourth-degree resisting arrest by flight, N.J.S.A. 2C: 29-2a.
Defendant was acquitted of six counts after a two-day jury trial and,
after the appropriate merger of counts, was sentenced on counts four,
eight and fifteen to an aggregate sentence of ten years in prison
subject to a five-year period of parole ineligibility. We affirmed
defendant's conviction on direct appeal. State v. Garrette,*fn1
No. A-2719-06 (App. Div. Aug. 5, 2008).
At trial, Jersey City police officers testified they saw defendant sell drugs to two individuals directly in front of their unmarked car. They testified to the following facts regarding the events surrounding the sale. Defendant took something from a pouch and handed it to the two men in exchange for money. Defendant and the other men attempted to flee to avoid apprehension, but the officers ultimately arrested the three men and found cocaine and heroin in the pouch. The transactions took place across the street from the Montgomery Garden public housing complex.
One of the two men arrested with defendant, who had an extensive criminal record and admitted to having an almost twenty-year drug addiction, testified for the defense that he bought heroin from someone other than defendant in the Montgomery Garden housing complex immediately prior to his arrest.
The first two points raised by defendant on direct appeal were raised as plain error and read as follows:
WHEN THE JURORS ASKED QUESTIONS OF FACT DURING DELIBERATIONS, THE JUDGE IMPROPERLY INFORMED THEM THEY WOULD HAVE TO RELY ON UNAIDED MEMORY, ALTHOUGH VIDEOTAPES OF THE PROCEEDING WERE AVAILABLE TO REFRESH THEIR MEMORIES. (Not raised below)
THE INSTRUCTION ON DEFENDANT'S EXERCISE OF HIS RIGHT TO REMAIN SILENT SUGGESTED THAT HE HAD AN OBLIGATION TO TESTIFY AND THEREBY VIOLATED HIS STATE AND FEDERAL ...