On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 09-11-1942.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 1, 2011
Before Judges Carchman and Fisher.
Following a jury trial, defendant was convicted of third-degree possession of a controlled dangerous substance - phencyclidine (PCP), N.J.S.A. 2C:35-10a(1). The judge sentenced defendant to a six-year term of imprisonment. On appeal, defendant challenges the sentence and claims that he was denied effective assistance of counsel when his attorney withdrew a previously filed motion for suppression of evidence. We affirm defendant's conviction and the judge's determination that defendant was a persistent offender but remand for further proceedings regarding his sentence and also conclude that his claim regarding ineffective assistance of counsel is premature.
We briefly set forth the relevant facts adduced at trial. On August 2, 2009, Jersey City police officers Greg Wojtowicz and Shawn Butler were driving on Randolph Avenue in a marked vehicle, when at 4:18 p.m., they encountered a white Nissan Maxima that was stopped in front of a home on Randolph Avenue and was blocking the passage of traffic. The driver, later identified as defendant, was talking with a pedestrian standing next to his vehicle while two other pedestrians were standing near the rear passenger side. The officers stopped their vehicle, illuminated its overhead lights and approached either side of the Maxima on foot.
According to Wojtowicz, as he walked towards the Maxima, he could see through the rear window that the driver was "fidgeting with some kind of an object in the center console." The officer then observed the driver throw an object out of the passenger side window. Wojtowicz retrieved the object, "a small glass bottle with a black top," from the sidewalk and noticed "a strong odor of PCP emanating from the bottle." *fn1 The officers called for assistance, upon the arrival of the other police vehicle, defendant was removed from the Maxima and placed under arrest for possession of "drug paraphernalia."
At the time of his arrest, defendant was searched, and nothing of evidential value was found on his person. An on-scene search of the vehicle's central console led to the discovery of "an air freshener bottle with a liquid inside." According to Wojtowicz, the bottle of air freshener was seized because it too "was emanating [the odor of] PCP." At headquarters, both the bottle and the air freshener container were placed into evidence; the liquid contents of the air freshener bottle were poured into a tin can, pursuant to the police department's protocol for storing hazardous materials.
According to the officer, at the time of defendant's arrest, the officer believed that defendant had made "an attempt to conceal the drug by pouring it into an auto expression fresh liquid spray bottle."
Christopher Robatea, a sergeant with the Jersey City Police Department, testified as an expert witness on the subject of "packaging, use, and distribution of . . . illegal narcotics . . . in New Jersey." Robatea indicated that PCP in Jersey City is typically sold in liquid form, and it emits an "[e]xtremely distinct" odor. It is typically ingested by smoking a cigarette that has been "dipped inside the liquid." Although Robatea is aware that sometimes the liquid PCP is diluted with tap water in order to "generate more profit," he has never seen anyone use air freshener as a cutting agent. In the sergeant's opinion, the glass bottle with the black cap "recovered as a result of the arrest from Mr. White" "would have the capability of holding about 2 ounces of the liquid . . . PCP which is capable of generating approximately forty dosages." The sergeant further opined that "your typical or average buyer" would not have in his or her possession as many as "40 hits of PCP." Finally, the sergeant opined that "defendant pour[ed] the PCP into the air freshener" "to conceal the evidence and mask the odor."
Ms. Hogger testified as an expert witness in the field of forensic chemistry. She examined the liquid contents of the tin can the Jersey City Police Department had submitted for suspected PCP. After subjecting the liquid to a chemical testing, she concluded that it contained PCP and that the liquid itself weighed 130.40 grams.
At the conclusion of the State's case, the court read to the jury the parties' stipulation that at the time of defendant's arrest, he was within 1,000 feet of Public School Number 41.
Although defendant did not produce any notice of motion or other accompanying papers, according to the Promis/Gavel records produced by defendant, a motion to suppress was filed on January 4, 2010, and thereafter withdrawn without explanation. The withdrawal of that motion forms the basis of defendant's claim of ineffective assistance of counsel.
Defendant urges that we determine the issue of ineffective assistance of counsel, claiming that the extant record is sufficient to resolve the issue. See State v. Castagna, 187 N.J. 293, 313 (2006); State v. Allah, 170 N.J. 269, 285 (2002). As a general rule, claims of ineffective assistance of counsel are best considered on applications for post-conviction relief (PCR), see Rule 3:22-2, because such claims cannot ordinarily be addressed fairly without the presentation of proofs found outside the trial record. State v. McQuaid, 147 N.J. 464, 484 (1997); State v. Lewis, 389 N.J. Super. 409, 416 (App. Div.), certif. denied, 190 N.J. 393 (2007); State v. Abdullah, 372 N.J. Super. 252, 277 (App. Div. 2004). Rather, PCR affords a defendant the opportunity to develop a record at a hearing where counsel ...