On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 06-10-1064.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 31, 2011 -
Before Judges A. A. Rodriguez and Sabatino.
Tried by a jury, defendant Shawn Cornelius Pressley was found guilty of third-degree possession of cocaine, a controlled dangerous substance ("CDS"), N.J.S.A. 2C:35-10a(1); third-degree possession of CDS with intent to distribute, N.J.S.A. 2C:35-5a(1) and 2C:35-5b(3); and third-degree possession of CDS with intent to distribute it in a school zone, N.J.S.A. 2C:35-5b(3) and 2C:35-7. The trial court also found defendant guilty of the disorderly persons offense of resisting arrest, N.J.S.A. 2C:29-2a(1). With the State's consent, the trial court dismissed an additional count in the indictment that had charged defendant with the second-degree offense of possession of CDS with intent to distribute it within five-hundred feet of a public housing zone.
At sentencing, the trial court imposed an extended term of seven years, with a three-year period of parole ineligibility, on the school zone offense. The court merged the two other indictable convictions into the school zone offense. Lastly, the court imposed a concurrent ninety-day jail term on the disorderly persons offense. Customary fines and penalties were also imposed.
The sole claim that defendant now raises on appeal is that his trial counsel was constitutionally ineffective in failing to move to suppress a plastic bag containing cocaine, which a detective had observed defendant drop to the ground when he approached defendant on the street. We reject that contention because such a motion to suppress would not have had merit.
The trial proofs reflect that at about 7:00 p.m. on July 1, 2006, two Trenton police detectives were on patrol in the area of East Trenton when they encountered defendant. According to the testimony of one of those detectives, Ryan Burger, he saw defendant leaning into a blue van that was occupied by a white male and a white female. Defendant appeared to be speaking with the white female passenger, who was holding paper currency. Based on his training and experience, Detective Burger suspected that defendant was engaged in a drug transaction.
Seeking to investigate the situation, Detective Burger pulled up his patrol car and approached defendant. According to Burger's testimony, at that point defendant "became visibly nervous[,] placed both of his hands into his pockets[,] and began to walk away from the van[.]" Burger ordered defendant to stop walking and to turn around. Burger then observed defendant take his left hand from his pocket and drop a white object on the ground. Burger immediately picked up the white object, which turned out to be a plastic bag containing crack cocaine.
After defendant dropped the bag, he started moving away at a faster pace. Burger caught up with defendant. He subdued defendant with pepper spray and made an arrest. No drugs were recovered from defendant, but he was found to be carrying $186 in cash.
Meanwhile, the van was searched, and a stash of crack cocaine was recovered from the car door handle. The female passenger also had a crack cocaine pipe in her right front pants pocket. She placed the money that had been in her hand on the console. The male passenger later took the money.
At trial, the recovered cocaine and the crack pipe were admitted into evidence, without objection by defense counsel. The quantity of cocaine was determined to be 0.85 grams.
Defendant contends that his trial attorney should have objected to the admission of the cocaine and, in particular, should have filed a pretrial motion to suppress the drugs because they had been recovered by the police without a warrant. He contends that the failure of his attorney to resist the admission of this evidence deprived him of his constitutional right to the effective assistance of counsel.
In evaluating these contentions, we are guided by well-established legal principles. Pursuant to the Sixth Amendment of the United States Constitution, a person accused of crimes is guaranteed the effective assistance of legal counsel in his defense. Strickland v. Washington, 466 U.S. 668, 685-87, 104 S. Ct. 2052, 2063-64, 80 L. Ed. 2d 674, 692-93 (1984). To establish a deprivation of that right, a convicted defendant must satisfy the two-part test enunciated in Strickland by demonstrating that: (1) counsel's performance was deficient, and (2) that deficient performance actually prejudiced the accused's defense. Id. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693; see also State v. Fritz, 105 N.J. 42, 58 (1987) (adopting the Strickland two-part test in New Jersey). In reviewing such claims, courts apply a strong presumption that ...