On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 06-06-0567.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted July 18, 2012 -
Before Judges Espinosa and Koblitz.
Petitioner appeals from the denial of his petition for post-conviction relief (PCR) without an evidentiary hearing. We affirm, substantially for the reasons set forth in the written opinion of Judge Stuart Peim.
Petitioner was convicted by a jury of third-degree possession of controlled dangerous substance (heroin), N.J.S.A. 2C:35-10(a)(1) (count one); third-degree distribution of a controlled dangerous substance (heroin), N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(3) (count two); and third-degree possession of a controlled dangerous substance (heroin) with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(3) (count four).*fn1 The trial court sentenced petitioner to eight years incarceration with a four-year period of parole ineligibility on count two, and after merging count one with count four, imposed a concurrent term of eight years with a four-year period of parole ineligibility on count four. Appropriate fines and penalties were also imposed.
Petitioner appealed and we affirmed his convictions and sentence in an unpublished opinion. State v. Jenkins, No. A-4489-06 (App. Div. Nov. 6, 2008). The Supreme Court denied his petition for certification, 199 N.J. 517 (2009).
The facts underlying petitioner's convictions are set forth in our opinion and need not be repeated here. We note only the following salient facts.
Defendant was under investigation by police for suspected narcotics activities. Police conducting surveillance of him observed co-defendant, Obie Holland, enter a car driven by defendant with cash in his hand. Defendant drove a short distance and then discharged his passenger. When police stopped Holland and announced, "police," Holland dropped three folds of heroin to the ground. Holland testified at trial that he had purchased the heroin from defendant while he was in defendant's car.
The State also produced the testimony of Detective Michael Triarsi of
the Union County Prosecutor's Office, who was qualified as an expert
in the "packing, identification, and distribution of narcotics." As
Judge Peim stated, the State provided Triarsi with "a hypothetical set
of facts directly mirroring the events of the night in question based
on the State's version of the evidence." Following the recitation of
these hypothetical facts, the prosecutor asked Triarsi if he was
"able to render an opinion as to whether that quantity*fn2
of heroin would be something someone would possess for personal use or 
for distribution purposes." Triarsi replied, "[i]t would be for
distribution[,]" and then proceeded to identify the facts he relied
upon in forming that conclusion. Triarsi did not offer an opinion as
to defendant's guilt on the charges against him.
Petitioner filed a PCR petition on August 12, 2009 in which he argued that his sentence was illegal. In his letter brief, petitioner argued that the police officers committed perjury in the grand jury and at trial; that he should not have been convicted because the prosecutor could not use the testimony of a cooperating co-defendant who had numerous felony convictions; that his conviction violated the constitutional guarantee against double jeopardy; and that his appellate attorney was ineffective.
A supplemental memorandum of law and appendix was filed on his behalf by PCR counsel on February 2, 2010. In the supplemental memorandum, petitioner argues that he was denied the effective assistance of both trial and appellate counsel. He contends that his trial counsel was ineffective in failing to object to Triarsi's expert testimony. Petitioner argues that this resulted in plain error and that his appellate counsel was ineffective in failing to raise this issue on direct appeal.
Judge Peim denied the petition by order dated October 28, 2010 and set forth his reasons in a ...