On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 04-12-1781.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 2, 2012 -
Before Judges Messano and Kennedy.
Tried by a jury, defendant Jamal Wade was convicted of second-degree possession of a handgun for an unlawful purpose, N.J.S.A. 2C:39-4(a), and third-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b). The third count of the indictment, second-degree possession of a firearm by certain persons, N.J.S.A. 2C:39-7, was severed from the other counts, and the same jury subsequently convicted defendant of that charge. He was sentenced on October 21, 2005. The judge merged the second count into the first and sentenced defendant to a term of six years' imprisonment. On the certain persons conviction, the judge imposed a consecutive seven-year term with a five-year period of parole ineligibility.
Defendant appealed his conviction and sentence. We briefly recite the evidence adduced at trial as set forth in our opinion:
On July 21, 2004, at about 5 p.m. Detective Vaughn Patterson and Sergeant George Vazquez of the Paterson Police Department were riding in an unmarked police car in the area of 11th Avenue and East 22nd Street. . . . Suddenly they saw two individuals, later identified as defendant and Lawrence Moody, running at full speed in their direction on 11th Avenue. Both men were wearing bandanas covering much of their faces and necks. Vazquez and Patterson saw a "silver object" in the left hand of the defendant and a small safe in his right hand. The officers followed the two men on to East 22nd Street where they crossed in front of the police vehicle. Both Patterson and Vazquez recognized the silver object in defendant's left hand as a handgun, and saw him hand it to Moody . . . .
. . . Vazquez drove the car up next to the defendant and Moody and saw Moody throw the handgun into some hedges . . . . The two men then separated and ran in different directions despite being told to stop . . . . Defendant turned into a driveway on 11th Avenue and tried to stash some items under a parked car. Patterson then caught up to the defendant and handcuffed him. Looking under the parked car, Patterson found the safe. The silver handgun was later found in the area where Moody threw it.
The safe contained $1,999, in [mostly small] denominations . . . . The safe also contained numerous black rubber bands, two razor blades, two straight-edge razor blades, and a piece of paper with a toll-free number on it. The handgun was unloaded but later found to be operative. At police headquarters Patterson inquired whether there were any burglary or robbery reports that day and was told that there were none. Patterson was not surprised because the contents and number of small bills led him to believe that the safe had been stolen from a drug dealer.
The defense case consisted of the testimony of Moody, who had pled guilty to possessing a firearm for an unlawful purpose. . . . During his testimony Moody also admitted to convictions of other crimes including about eight drug offenses.
Testifying as to the events of July 21, 2004, Moody said that he purchased the gun from someone on the street and that the defendant was not involved in the purchase . . . . He claimed the defendant never possessed the firearm and never passed it to him . . . . He said that he saw the safe next to a garbage can . . . and denied that either he or defendant opened it. He added that defendant picked up the safe. They were walking away when they saw the unmarked police car and started running because he had the gun in his hand. When asked about his guilty plea in this case, Moody admitted telling the plea judge that defendant possessed the weapon and passed it to him just before they started running from the police. He explained in his testimony that he lied to take advantage of the generous plea offered by the State. [State v. Jamal Wade, A-3393-05T4 (App. Div. January 14, 2008) (slip op. at 3-6).]
We affirmed defendant's convictions and sentences on appeal. Id. (slip op. at 3). Defendant's petition for certification to the Supreme Court was denied. State v. Wade, 196 N.J. 85 (2008).
On August 8, 2008, defendant filed a pro se petition for post-conviction relief (PCR), along with a supporting brief. Defendant argued that he was denied the effective assistance of trial counsel in that his attorney failed to properly investigate the allegations and possible defenses, failed "to argue the obvious issues," and misinterpreted "the opening the door doctrine" leading the jury to infer that defendant was a drug dealer.
Counsel was appointed, and defendant filed a supplemental certification and brief. In his certification, defendant claimed trial counsel failed to investigate his co-defendant, Lawrence Moody, referred to Moody as a drug dealer, thereby implying to the jury defendant was also a drug dealer, and failed to investigate other potentially exculpatory witnesses. These included Shakia Townsend and Maurice Timmons, defendant's friends, who defendant claimed were present and would have testified that defendant never possessed the handgun.*fn1 ...