On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 06-04-1138.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 7, 2011 --
Before Judges Axelrad and Ostrer.
Defendant Felicia Dwight appeals from the Law Division's March 16, 2010 order denying her petition for post-conviction relief (PCR), which alleged ineffective assistance of trial counsel and requested an evidentiary hearing.
The record reflects that defendant was convicted by a jury of third-degree possession of cocaine, a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10(a)(1) (count one); second-degree possession of cocaine, a CDS, with intent to distribute, N.J.S.A. 2C:35-5(b)(2) (count two); third-degree possession of cocaine, a CDS, within a school zone, N.J.S.A. 2C:35-7 (count three); and third-degree possession of heroin, a CDS, N.J.S.A. 2C:35-10(a)(1) (count four). She was acquitted of the third-degree offenses of possession with intent to distribute heroin (count five), and possession of heroin within a school zone (count six). On June 28, 2007, the trial judge, Thomas M. McCormack, merged counts one and three with count two, and sentenced defendant to a seven-year custodial term with three years of parole ineligibility, and to a concurrent five-year term on count four. He also imposed appropriate fines and penalties.
Defendant did not file a direct appeal of her conviction or sentence. Instead, on or about September 17, 2008, she filed a PCR petition by a pro se submission and through counsel. Defendant claimed her trial attorney was ineffective in failing to challenge the validity of the search warrant and move to suppress the evidence obtained as a result of the faulty warrant. Defendant urged that Detective Marquise Carter's affidavit in support of the search warrant was clearly misleading because he used the pronoun "we" and "our" to describe what he himself saw when he went to her apartment on October 10, 2005 to conduct surveillance. According to defendant, that inconsistency gave the impression there were multiple people who conducted the surveillance and unfairly bolstered the testimony contained in the affidavit. Defendant argued that if trial counsel had filed a motion to suppress the search, these inconsistencies would have been revealed, and a motion to suppress the evidence obtained as a result of the faulty warrant would have been successful.
Defendant further asserted that trial counsel was ineffective in unduly pressuring her into not testifying at trial. Although she conceded the court questioned her on the record regarding her right to testify or remain silent, defendant asserted that this colloquy was tainted by prior discussions where counsel pressured her to waive this right. Defendant also claimed she had established a prima facie case sufficient to require an evidentiary hearing.
Following oral argument on March 12, 2010, with defendant present, Judge McCormack denied defendant's PCR petition, finding there was no need for an evidentiary hearing. After reviewing the briefs, transcripts, search warrant, and affidavit in support of the warrant, the judge concluded defendant had failed to establish she received ineffective assistance of trial counsel. The order denying the petition was filed on March 16, 2010. This appeal ensued.
On appeal, defendant renews the claims and arguments made to the PCR judge of ineffective assistance of trial counsel in failing to file a motion to suppress the search warrant and in unduly pressuring her into not testifying at trial, and her contention that she demonstrated a prima facie case of ineffective assistance warranting an evidentiary hearing. She additionally asserts, in general terms, that trial counsel failed to: (1) object to the prosecutor's improper comments made during summation; (2) make a motion for a judgment of acquittal at the end of the State's case; and (3) request that she be sentenced to a term one degree lower than the crime to which she was sentenced. Based on our review of the record and applicable law, we do not find any of these arguments to be persuasive.
None of defendant's claimed deficiencies even meet the first Strickland prong. See Strickland v. Washington, 466 U.S. 668, 687, 694, 104 S. Ct. 2052, 2064, 2068, 80 L. Ed. 2d 674, 693, 698 (1984) (holding that in order to prevail on a claim of ineffective assistance of counsel, a defendant must meet the two-prong test of establishing both that: (1) counsel's performance was deficient and he or she made errors so serious that counsel was not functioning effectively as guaranteed by the Sixth Amendment to the United States Constitution and (2) the defect in performance prejudiced defendant's rights to a fair trial such that there existed a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different"); State v. Fritz, 105 N.J. 42, 58 (1987) (adopting the Strickland test in New Jersey). See also State v. Preciose, 129 N.J. 451, 462-63 (1992) (holding that to establish a prima facie claim of ineffectiveness of counsel within the Strickland/Fritz test warranting an evidentiary hearing, a defendant must demonstrate a reasonable likelihood that his or her claim will ultimately succeed on the merits).
Because the search warrant affidavit contained sufficient facts to establish probable cause for issuance of the warrant, it would have been futile for trial counsel to file a motion to suppress the evidence. The warrant was properly issued under the standard set forth by the United States Supreme Court in Illinois v. Gates, 462 U.S. 213, 238, 103 S. Ct. 2317, 2332, 76 L. Ed. 2d 527, 548 (1983), as the application clearly set forth circumstances establishing a "fair probability" that evidence of criminal activity could be found. See also State v. Sullivan, 169 N.J. 204, 212 (2001) (adopting the same standard in New Jersey). Detective Carter certified in his affidavit that he was approached by a confidential informant who said that defendant had large amounts of narcotics in her home and had been distributing the narcotics out of her home for a while. That information was corroborated by Detective Carter's observations during the surveillance when he observed numerous people enter defendant's home for approximately two to three minutes and then exit. Detective Carter also observed a black male, later identified as Andrew Tucker, approach defendant's home, and make an exchange with defendant at the front door. The detective then stopped Tucker and arrested him for possession of cocaine.
Moreover, there may not have been inconsistencies in the search warrant as nothing in the trial transcript cited by defendant establishes that Detective Carter conducted the surveillance by himself on October 10, 2005. The officer simply testified he personally was dressed in street clothing and positioned across the street to avoid being noticed during the surveillance. He was never asked during direct or cross-examination if he was working alone. It is likely he had backup during the surveillance, which is ...