NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 19, 2013
On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 04-08-0134.
Joseph E. Krakora, Public Defender, attorney for appellant (Alan I. Smith, Designated Counsel, on the brief).
Jeffrey S. Chiesa, Attorney General, attorney for respondent (Carol M. Henderson, Assistant Attorney General, of counsel and on the brief). Appellant filed a pro se supplemental brief.
Before Judges Lihotz and Ostrer.
Defendant appeals from the court's June 14, 2011, order denying, without an evidentiary hearing, his petition for post-conviction relief based on a claim of ineffective assistance of counsel. Having reviewed defendant's arguments in light of the facts and applicable law, we affirm, but remand for correction of an error in the judgment of conviction.
Defendant pleaded guilty on January 19, 2007 to being a leader of a narcotics trafficking network, N.J.S.A. 2C:35-3, a first degree offense, after the court denied his pre-trial motion to suppress evidence. In his plea allocution, defendant did little more than admit to the elements of the offense and state that cocaine was the controlled dangerous substance involved. Defendant's crime was punishable by up to life in prison. Ibid. Consistent with the plea agreement, the court sentenced defendant on August 10, 2007, to twenty-six years incarceration. The court imposed a ten-year period of parole ineligibility, three years shorter than the State recommended. The judgment of conviction reflects imposition of five years of parole supervision upon release.
On direct appeal, we affirmed the court's denial of the suppression motion and affirmed the sentence. State v. Wiggins, No. A-0405-07 (App. Div. Apr. 30, 2009), certif. denied, 200 N.J. 208 (2009). We reviewed in our prior decision the details of the State's extensive investigation into narcotics distribution in Atlantic County. Suffice it to say the State obtained court approval for multiple wiretaps and communications data warrants (CDWs), all issued by Judge Albert J. Garofolo. The State impounded an illegally parked Ford van on February 1, 2004. Id. slip op. at 8. The State conducted a warrantless stop of a Toyota minivan on March 9, and impounded that vehicle as well. Id. slip op. at 3-4. The State also conducted a dog-sniffing inspection of a parked Lexus on March 10, 2004. Once the dog indicated the presence of narcotics, the police began to secure the car for towing and impoundment. The owner then consented to a search. Id . slip op. at 7-8. The Ford van and Toyota minivan were searched pursuant to warrants.
Pursuant to the search warrant that Judge Garofolo issued on March 10, investigators seized about four pounds of powder cocaine, and $138, 930 in cash from the Toyota minivan stopped on March 9. Id. slip op. at 5. The police seized $26, 000 cash from the Lexus pursuant to the consent search. The State also obtained a warrant to search defendant's home, where police seized two defaced handguns.
The unsuccessful motion to suppress was directed to whether the seizures of the three vehicles were lawful. The motion did not challenge any of the numerous CDWs and search warrants issued in the course of the State's investigation. As noted, we affirmed the trial court's order. We also rejected defendant's challenge to his sentence, which was based on a claim of excessiveness.
Defendant filed his pro se verified PCR petition on October 9, 2009. He argued his trial counsel was ineffective by failing to challenge the March 10, 2004 warrant authorizing the search of the Toyota minivan, the March 19 warrant to search his home, and the CDWs. He also argued his attorney was ineffective by failing to move for Judge Garofolo's recusal, because he approved the numerous wiretaps, CDWs, and warrants. In addition, he argued generally that his attorney failed to adequately investigate the case.
Once represented, defendant filed a supplemental petition in which he added that his attorney was ineffective because he generally misinformed him, "failed to file all appropriate motions, " failed to request annual reports of electronic warrant authorizations, and failed to make him aware that a co-defendant allegedly "received a post-plea deal in exchange for cooperating against" defendant. Defendant also renewed his argument that counsel was ineffective by failing to argue adequately the pertinent aggravating and mitigating factors. At oral argument, defense counsel clarified that the challenge to the CDWs was based on the argument that they were subject to the same time limitations governing wiretaps. See N.J.S.A. 2A:156A-12f, 12g.
After hearing oral argument, Judge Max A. Baker denied defendant's motion. Judge Baker applied the two-prong test for establishing ineffective assistance set forth in Strickland v. Washington, 466 U.S. 668, 687, 694, 104 S.Ct. 2052, 2064, 2068, 80 L.Ed.2d 674, 693, 698 (1984) (stating that a petitioner must establish (1) his counsel's performance was deficient and he made errors so serious that counsel was not functioning as guaranteed by the Sixth Amendment, and (2) he was prejudiced such that there existed a reasonable probability that, but for counsel's unprofessional errors, the result would have been different).
Judge Baker determined that trial counsel made a reasonable strategic decision not to challenge the search warrants. He also found no ineffectiveness in the failure to seek Judge Garofolo's recusal, or to challenge the CDWs, because those motions would not have succeeded. He also held that defendant failed to demonstrate the relevance or usefulness of the annual report of electronic warrants; therefore, the failure to seek its disclosure was not ineffective. He also found there was no demonstrated ineffectiveness with regard to the plea ...