October 19, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
WILLIE J. GORDON, A/K/A WILLIE JUNIOR GORDON, BOO GORDON, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket Indictment No. 05-09-1781.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 14, 2011
Before Judges Cuff and Waugh.
Defendant Willie J. Gordon appeals from the order of the Law Division dismissing his application for post-conviction relief (PCR). We affirm.
We discern the following facts and procedural history from the record on appeal.
In January 2006, a jury found Gordon guilty of third-degree burglary, N.J.S.A. 2C:18-2 (Count One), and third-degree theft by unlawful taking, N.J.S.A. 2C:20-3a (Count Two). He was sentenced to a discretionary extended term of ten-years imprisonment with a five-year parole ineligibility term for burglary and a concurrent five-year term for theft.
Gordon appealed both the conviction and the sentence. We affirmed in a written opinion. State v. Gordon, No. A-3100-06 (App. Div. 2008). The Supreme Court denied certification. State v. Gordon, 199 N.J. 131 (2009).
In affirming, we declined to consider one of Gordon's points on appeal. He argued that he was denied effective assistance of counsel because his defense attorney did not challenge the legality of his arrest. We declined to consider that issue on direct appeal, citing State v. Preciose, 129 N.J. 451, 459-60 (1992) for the proposition that such issues are best-suited for PCR proceedings.
Gordon filed a pro se PCR petition in March 2009. Counsel was subsequently appointed to represent him. Gordon's PCR application was premised on his argument that his trial counsel was ineffective. According to Gordon, if his attorney had moved to suppress evidence related to his allegedly unlawful arrest, the motion would have been successful and the result would have been the suppression of testimony concerning an identification by one of the State's witnesses and statements made by Gordon following his arrest.
The PCR judge heard oral argument on the petition on December 18, 2009. Following argument, the judge delivered an oral decision in which she concluded that the arrest was not illegal. She dismissed the petition. This appeal followed.
Gordon raises the following issues on appeal:
THE DEFENDANT WAS DENIED HIS STATE AND FEDERAL CONSTITUTIONAL RIGHTS TO THE EFFECTIVE ASSISTANCE OF COUNSEL WHEN HIS TRIAL ATTORNEY FAILED TO CHALLENGE THE LEGALITY OF HIS ARREST.
AN EVIDENTIARY HEARING IS REQUIRED WHERE THE DEFENDANT ASSERTS A PRIMA FACIE CASE INVOLVING FACTS WHICH ARE NOT PART OF THE TRIAL RECORD.
"Post-conviction relief is New Jersey's analogue to the federal writ of habeas corpus." Preciose, supra, 129 N.J. at 459. Under Rule 3:22-2, there are four grounds for PCR:
(a) Substantial denial in the conviction proceedings of defendant's rights under the Constitution of the United States or the Constitution or laws of the State of New Jersey;
(b) Lack of jurisdiction of the court to impose the judgment rendered upon defendant's conviction;
(c) Imposition of sentence in excess of or otherwise not in accordance with the sentence authorized by law . . . [;]
(d) Any ground heretofore available as a basis for collateral attack upon a conviction by habeas corpus or any other common-law or statutory remedy.
"A petitioner must establish the right to such relief by a preponderance of the credible evidence." Preciose, supra, 129 N.J. at 459 (citing State v. Mitchell, 126 N.J. 565, 579 (1992)). To sustain that burden, specific facts which "provide the court with an adequate basis on which to rest its decision" must be articulated. Mitchell, supra, 126 N.J. at 579.
Claims of ineffective assistance of counsel are well suited for post-conviction review, and petitioners are rarely barred from raising such claims in petitions for PCR. R. 3:22-4(a); Preciose, supra, 129 N.J. at 459-60. Merely raising such a claim does not, however, entitle a defendant to an evidentiary hearing. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). Rather, the decision to hold an evidentiary hearing on a defendant's ineffective assistance of counsel claim is within the trial court's discretion. Ibid.
Trial courts should grant evidentiary hearings and make a determination on the merits of a defendant's claim only if the defendant has presented a prima facie claim of ineffective assistance. Preciose, supra, 129 N.J. at 462-64. In determining whether a prima facie claim has been established, the facts should be viewed in the light most favorable to a defendant. Id. at 462-63.
To establish a prima facie claim of ineffective assistance of counsel, a defendant must demonstrate a reasonable likelihood of success under the test set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984). Preciose, supra, 129 N.J. at 463 (citing Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 619). Under the first prong of the Strickland test, a defendant must show that defense counsel's performance was deficient. Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. Under the second prong, a defendant must demonstrate "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698. The two-part test set forth in Strickland was adopted by this State in State v. Fritz, 105 N.J. 42, 58 (1987).
In demonstrating that counsel's performance was deficient under the first prong of Strickland, defendant must overcome "'a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.'" Fritz, supra, 105 N.J. at 52 (quoting Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694). Further, because prejudice is not presumed, ibid., a defendant must demonstrate "how specific errors of counsel undermined the reliability" of the proceeding. United States v. Cronic, 466 U.S. 648, 659 n.26, 104 S. Ct. 2039, 2047 n.26, 80 L. Ed. 2d 657, 668 n.26 (1984).
In our opinion on Gordon's direct appeal, we summarized the relevant facts as follows:
On June 18, 2005, Anna Bryja drove to St. Mary's Cemetery in Saddle Brook to visit her father's grave. She parked her Toyota Corolla on a small street approximately sixty feet from the grave. . . . [S]he left her purse in her locked car.
Ciro Giue was also at the cemetery that day. He arrived at approximately 11:45 a.m. . . . . As Giue turned the corner of the mausoleum, he heard the sound of breaking glass and saw a black male standing between two parked cars. The driver's side window of the Corolla was shattered and glass was lying in the street. The man observed by Giue was walking towards the Corolla. The car closest to Giue was a Pontiac Grand Am.
According to Giue, the male walked over to the driver's side of the Corolla, pulled the door open, reached into the car and removed something. The man then spun around in Giue's direction and suddenly Giue and the man stood face-to-face, five feet apart. Realizing he was observing a burglary, Giue yelled for the man to stop. The man paused for a moment, allowing Giue to see that he was clutching a woman's purse. The man then ran toward the Grand Am, jumped into the driver's seat, and drove off. As Giue ran after the Grand Am, the man turned and smiled. The vehicle turned right out of the cemetery toward the town of Garfield. Giue obtained the license plate number and recorded it on the palm of his hand.
Giue called the Garfield Police Department on his cell phone and alerted them to the burglary. He provided a description of the man, his car, its license plate number, and direction of travel. Meanwhile, other mourners at the cemetery alerted Bryja to the incident. She walked over to her car and saw the broken driver's side window. Her purse, which contained approximately $600 in cash, her cell phone, credit cards, her driver's license, and other documents, was missing.
Detective John Fontana of the Saddle Brook Police Department was already at the cemetery due to prior burglary and theft complaints. When he was informed of the burglary, he and Detective Jeffrey Panagia responded in an undercover vehicle. When the officers arrived at the mausoleum, Giue provided Fontana with a description of the suspect and his car. After this brief interview, Fontana, accompanied by Panagia, left the cemetery in an effort to locate the suspect. Their search was unsuccessful.
Meanwhile, they checked the license plate number provided by Giue and discovered that it belonged to Azalie Gordon of . . . E. 27th Street in Paterson. The make and model assigned to the plate number matched Giue's information.
Detectives Fontana and Panagia drove to Paterson to attempt to locate the car or stake out the address associated with the plate number. Before setting up surveillance, Fontana contacted the Paterson Police Department to advise them of the situation and arrange for back-up if necessary. Twenty minutes later the detectives arrived at the Gordon home and parked their unmarked car on the opposite side of the street, five or six houses from the Gordon home. About five minutes later, Detective Thomas Johnson of the Saddle Brook Police Department also arrived on the scene.
About ten minutes later, the Grand Am arrived. It drove down the block, past the Gordon home. Both undercover cars followed the Grand Am. Fontana was about to contact the Paterson Police Department about stopping the Grand Am when it pulled into a gas station. Panagia followed, parking the undercover car behind the Grand Am. Fontana, wearing his badge on a lanyard around his neck, walked up to the Grand Am, identified himself as a police officer, ordered the driver out of the car and arrested him. A cursory search of the driver and the car revealed nothing of evidentiary value. The driver was transported to the Saddle Brook Police Headquarters by the Paterson police.
Gordon argues that those facts did not provide probable cause for his arrest. He further argues that the two Saddle Brook police officers who arrested him in Patterson did not have authority under N.J.S.A. 40A:14-152 to do so in another municipality. We disagree.
"[E]ncounters with the police in which a person's freedom of movement is restricted, such as an arrest or an investigatory stop or detention, must satisfy acceptable constitutional standards." State v. Elders, 192 N.J. 224, 246 (2007) (citing State v. Nishina, 175 N.J. 502, 510-11 (2003); State v. Rodriguez, 172 N.J. 117, 126-27 (2002)). Prior to arrest, the State must demonstrate probable cause. State v. Stovall, 170 N.J. 346, 356 (2002).
Probable cause is an elusive concept that is not necessarily dependent upon one particular event viewed in isolation. State v Pineiro, 181 N.J. 13, 21 (2004). Rather, a probable cause determination may be reached through consideration of a number of factors cumulatively. State v. Moore, 181 N.J. 40, 46 (2004).
"The standards for determining probable cause to arrest and probable cause to search are identical." Id. at 45 (citing State v. Smith, 155 N.J. 83, 92 (1998)). "Probable cause exists if at the time of the police action there is a 'well grounded' suspicion that a crime has been or is being committed." State v. Johnson, 171 N.J. 192, 214 (2002) (quoting State v. Sullivan, 169 N.J. 204, 211 (2001)); State v. Wilson, 178 N.J. 7, 13 (2003). As the Supreme Court held in the context of a search and seizure case, such a determination "requires nothing more than 'a practical, common-sense decision whether, given all the circumstances . . . there is a fair probability that contraband or evidence of a crime will be found in a particular place.'" Johnson, supra, 171 N.J. at 214 (alteration in original) (quoting State v. Demeter, 124 N.J. 374, 380-81 (1991)).
Shortly after the underlying criminal event had taken place, Fontana and Pangia interviewed Giue, who had witnessed the taking of the purse from Bryja's vehicle, stood face to face with the male perpetrator, and recorded the license plate of the car in which the perpetrator drove away from the cemetery. They ascertained the identity and address of the owner of the vehicle and proceeded to set up a stakeout at that location. After a relatively brief surveillance, they and Johnson observed the vehicle identified by Giue drive past the residence and enter a gas station. When they pulled into the station behind the vehicle, they observed that it was being driven by a male. There was also a female passenger. The driver, Gordon, was placed under arrest. Gordon met the very general, or admittedly "vague," description given by Giue. Although there were some differences in the reports with respect to the colors of the clothing worn by the perpetrator and Gordon, there were also similarities. The subsequent search of the vehicle produced no evidence of the crime. However, because the search followed the arrest, neither evidence nor a lack of evidence resulting from the search would be relevant to the issue of the appropriateness of the arrest.
Given the relatively short period of time between the commission of the crime and Gordon's arrest, we conclude that an application of the legal standard described above to the facts in the record would likely have resulted in a finding that the arrest was legal. Consequently, there would have been no suppression of the subsequent identification of Gordon by Giue or the statement made by Gordon.
While it is true that the police officers from Saddle Brook effectuated the arrest in Paterson and were not, at the time, in actual pursuit of a fleeing suspect, such a technical violation of N.J.S.A. 40A:14-152 did not violate a constitutionally protected privacy right and does not result in the suppression of evidence. State v. Nguyen, 419 N.J. Super. 413, 428-29 (App. Div. 2011); State v. Gadsden, 303 N.J. Super. 491, 503-04 (App. Div.), certif. denied, 152 N.J. 187 (1997).
Because Gordon has not demonstrated a prima facie case of ineffective assistance of counsel, he was not entitled to an evidentiary hearing in the Law Division. Preciose, supra, 129 N.J. at 462-64. For the same reason, we determine that the PCR judge appropriately dismissed Gordon's petition.
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