December 6, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
RAYMOND JENKINS, DEFENDANT-APPELLANT.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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Petitioner appealed and we affirmed his convictions and sentence in an unpublished opinion.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 written opinion of the same date.
Defendant presents the following issues for our consideration in his appeal:
THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST CONVICTION RELIEF WITHOUT AFFORDING HIM AN EVIDENTIARY HEARING TO FULLY ADDRESS HIS CONTENTION THAT HE FAILED TO RECEIVE ADEQUATE LEGAL REPRESENTATION AT THE TRIAL LEVEL.
A. THE PREVAILING LEGAL
PRINCIPLES REGARDING CLAIMS OF INEFFECTIVE ASSISTANCE OF COUNSEL, EVIDENTIARY HEARINGS AND PETITIONS FOR POST CONVICTION RELIEF.
B. SINCE THE DEFENDANT
PRESENTED A PRIMA FACIE CASE OF INEFFECTIVE ASSISTANCE OF COUNSEL AS A RESULT OF TRIAL COUNSEL'S FAILURE TO OBJECT TO THE EXPERT TESTIMONY ELICITED FROM DETECTIVE MICHAEL TRIARSI, THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST CONVICTION RELIEF WITHOUT AFFORDING HIM AN EVIDENTIARY HEARING.
SINCE THE DEFENDANT FAILED TO RECEIVE ADEQUATE LEGAL REPRESENTATION FROM APPELLATE COUNSEL, RULE 3:22-4 DID NOT OPERATE AS A PROCEDURAL BAR TO ADJUDICATE THE DEFENDANT'S CONTENTION REGARDING TRIAL COUNSEL ON ITS SUBSTANTIVE MERITS.
THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST CONVICTION RELIEF WITHOUT AFFORDING POST CONVICTION RELIEF COUNSEL THE OPPORTUNITY TO PRESENT ORAL ARGUMENT.
We are not persuaded by any of these arguments and affirm. The standard for determining whether counsel's performance was ineffective for purposes of the Sixth Amendment was formulated in Strickland v. Washington, 466 U.S. 668, l04 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), and adopted by our Supreme Court in State v. Fritz, l05 N.J. 42 (l987). In order to prevail on a claim of ineffective assistance of counsel, defendant must meet the two-prong test of establishing both that: (l) counsel's performance was deficient and he or she made errors that were so egregious 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 exists a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, supra, 466 U.S. at 687, 694, l04 S. Ct. at 2064, 2068, 80 L. Ed. 2d at 693, 698.
An expert is permitted to give an opinion as to intent or purpose regarding drug evidence "as long as the expert does not express his opinion of defendant's guilt but simply characterizes defendant's conduct based on the facts and evidence in light of his specialized knowledge[.]" State v. Reeds, 197 N.J. 280, 291 (2009) (quoting State v. Odom, 116 N.J. 65, 78-79 (1989)). As Judge Peim noted in his written decision, the expert's testimony here fell within the parameters defined in Reeds, Odom, and State v. Nesbitt, 185 N.J. 504 (2006). We are therefore satisfied that trial counsel's failure to object to this testimony did not constitute the defect in performance required by the first prong of the Strickland-Fritz test.
Moreover, even if appellate counsel had raised the scope of the expert's testimony as plain error, the argument that such evidence was admitted erroneously would have been subject to an abuse of discretion standard. We grant substantial deference to the trial judge's discretion on evidentiary rulings unless it is a clear error of judgment or so wide of the mark that a manifest denial of justice results. See, e.g., State v. Koedatich, 112 N.J. 225, 313 (1988), cert. denied, 488 U.S. 1017, 109 S. Ct. 813, 102 L. Ed. 2d 803 (1989); State v. Carter, 91 N.J. 86, 106 (1982); State v. Swint, 328 N.J. Super. 236, 253 (App. Div.), certif. denied, 165 N.J. 492 (2000). Even if the scope of the expert testimony here were improper, the reversal of a defendant's conviction is warranted "only if that testimony was sufficiently prejudicial to have the capacity to bring about an unjust result." State v. Thompson, 405 N.J. Super. 76, 81 (App. Div.), certif. denied, 199 N.J. 133 (2009); see also Nesbitt, supra, 185 N.J. at 518-19. As Judge Peim observed, the evidence against defendant was "very strong." His guilt of possession and distribution of the heroin for which he was convicted was supported by the testimony of his buyer as well as the surveillance of the police officers. Because an argument that the admission of Triarsi's testimony constituted error, let alone plain error, was unlikely to succeed, the failure to advance this argument on appeal also did not constitute a defect in performance that could satisfy the first prong of the Strickland-Fritz test. Finally, because the evidence of defendant's guilt was strong, he suffered no prejudice as the result of Triarsi's testimony that could satisfy the second prong of the Strickland-Fritz test.
We are satisfied from our review of the record that defendant failed to make a prima facie showing of ineffectiveness of trial counsel within the Strickland-Fritz test and that the remaining arguments raised by petitioner lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). Accordingly, the PCR court correctly concluded that an evidentiary hearing was not warranted. See State v. Preciose, 129 N.J. 451, 462-63 (1992).