On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment Nos. 04-10-3999 and 05-01-0391.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 28, 2011
Before Judges Sapp-Peterson and Ostrer.
Defendant appeals from the trial court order denying his petition for post-conviction relief (PCR) filed in connection with two separate drug-related judgments of conviction. We affirm.
The first conviction stems from a surveillance operation, during which defendant was observed engaging in suspected narcotics transactions with two different men on two separate occasions on July 26, 2004. Following trial, a jury convicted defendant of possession of a controlled dangerous substance (CDS) and possession of CDS with the intent to distribute. In the second indictment, after his suppression motion was denied, defendant pled guilty to possession of CDS with the intent to distribute within 1000 feet of a school. The court subsequently sentenced defendant on both charges, imposing an aggregate fourteen-year sentence with a five-year period of parole ineligibility. Although defendant initially appealed the convictions from both indictments, he later withdrew his appeal. On July 20, 2007, defendant filed a pro se PCR application. Counsel was subsequently assigned to represent defendant and filed a letter brief on behalf of defendant on November 11, 2008. Defendant claimed that his trial and plea counsel, who were two different attorneys, provided ineffective assistance of counsel. Specifically, defendant claimed trial counsel failed to (1) file a motion to disclose the surveillance location; (2) obtain the personnel records of the arresting officers, who were allegedly the subject of an internal affairs investigation; (3) timely request the grand jury minutes; (4) provide him with a copy of the laboratory report for the suspected narcotics seized, chain of custody report, and the expert report in connection with the suspected narcotics seized; and (5) obtain the grand jury minutes as well as other items of discovery. In addition, defendant claimed that trial counsel's representation of him was affected by her pregnancy status at the time.
With regard to the second indictment, defendant urged that the same trial counsel failed to obtain the laboratory report and curriculum vitae of the expert until two days after his suppression motion was heard and denied. As to his plea counsel, a different attorney, defendant contends that during the plea negotiations, counsel provided no legal assistance other than to urge him to plead guilty, resulting in the imposition of a consecutive sentence.
The PCR judge, Judge John T. McNeill, III, in an oral opinion delivered following oral argument on the petition, denied defendant's motion. The judge first observed that beyond defendant's certification, nothing was submitted to the court in support of the application. He found defendant's statement in his certification that he was unaware he would receive a consecutive sentence in connection with the second indictment totally lacking in credibility, based upon the court having personally presided over the plea proceedings:
I was directly involved [when defendant] was before the [c]court on at least three separate occasions where the sentence was detailed -- let me take that back -- he was before the [c]court on the day that the plea was taken, at which time, as counsel are aware, you've both been in front of me many times, I ask a standard litany of questions and I supplement those questions, if required, depending on what comes up during the plea colloquy.
The defendant's attention is directed to the plea agreement, and among the other questions that I ask, I ask him if any questions he asked his attorney when the plea agreement was reviewed item by item, were answered to his satisfaction. He answered in the negative. He then initialed and signed the various documents[,] which clearly indicated that the plea agreement contained two sentence[s] which were -- two sentences which were to be consecutive to each other.
There was then a . . . sentencing event, at which time the [c]court indicates, once again for the record, what the sentence is in detail. The defendant is addressed for purposes of comment, commonly known as elocution.
[Defendant] was so addressed. He had no comments to the [c]court. So there is absolutely no doubt in my mind that he knew exactly what was going on as far as these two sentences being consecutive to each other.
So he puts in his certification that he thought it was going to be a concurrent sentence, which as far as I'm concerned, as I've already basically mentioned in my comments to [defense counsel], reduces his credibility in my mind and in my evaluation to zero.
He makes a lot of allegations in regard to what did or did not happen between himself and his attorneys. The [c]court questioned [defense counsel], which is part of the record today, and I applaud him for his candor that he did review the situation with the two attorneys that represented this gentleman . . . .
He handled the matter well by simply indicating to the [c]court[,] in discharging his responsibility as far as candor before the tribunal[,] that nothing was developed in talking to the two attorneys that would ...