NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3366-16T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JOSEPH SMITH,
Defendant-Appellant.
___________________________
Submitted February 7, 2018 – Decided March 12, 2019
Before Judges Fuentes and Suter.
On appeal from Superior Court of New Jersey, Law
Division, Essex County, Indictment Nos. 14-04-1128
and 14-04-1129.
Joseph E. Krakora, Public Defender, attorney for
appellant (Suzannah Brown, Designated Counsel, on
the brief).
Robert D. Laurino, Acting Essex County Prosecutor,
attorney for respondent (Tiffany M. Russo, Special
Deputy Attorney General/Acting Assistant Prosecutor,
of counsel and on the brief).
The opinion of the court was delivered by
FUENTES, P.J.A.D.
An Essex County Grand Jury indicted defendant Joseph Smith, charging
him with second degree unlawful possession of a handgun while in the course
of committing or attempting to commit a drug-related offense, N.J.S.A. 2C:39-
4.1(a); second degree unlawful possession of a loaded handgun, N.J.S.A. 2C:39-
5(b); fourth degree unlawful possession of armor piercing ammunition, N.J.S.A.
2C:39-3(f), fourth degree unlawful possession of marijuana with intent to
distribute in a quantity of less than one ounce, N.J.S.A. 2C:35-5(a)(1), (b)(12);
and fourth degree unlawful possession of drug paraphernalia, N.J.S.A. 2C:36-3.
The Grand Jury found probable cause that defendant committed these offenses
on December 17, 2013.
On September 15, 2014, defendant entered into a negotiated agreement
with the State through which he pled guilty to second degree unlawful
possession of a loaded handgun and fourth degree unlawful possession of armor
piercing ammunition. The State agreed to dismiss the remaining charges in the
indictment and recommend the court sentence defendant to an aggregate term of
five years imprisonment, with forty-two months of parole ineligibility. On
February 6, 2015, the court sentenced defendant in accordance with the plea
agreement. The sentencing judge found aggravating factors, N.J.S.A. 2C:44-
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2
1(a)(3), (6), and (9), and no mitigating factors. Defendant did not seek appellate
review of the plea hearing or the sentence imposed by the court.
On August 11, 2015, defendant filed a pro se petition seeking post-
conviction relief (PCR), in which he claimed his counsel provided ineffective
assistance by failing to investigate and file a motion to suppress the handgun
found inside the car. The PCR judge assigned an attorney to represent defendant
in the prosecution of this petition. On March 18, 2015, PCR counsel filed a brief
with the court arguing prior defense counsel was ineffective when he failed to
challenge the constitutionality of the search of defendant's motor vehicle
conducted by Newark police officers.
The PCR court heard oral argument on defendant's petition on June 24,
2016. PCR counsel argued the police officers stopped defendant's car without
probable cause and unlawfully detained defendant and other persons in
defendant's parked car. Under these circumstances, PCR counsel claimed
defense counsel should have challenged the constitutionality of the motor
vehicle stop and search, as well as defendant's subsequent detention related
thereto. PCR counsel emphasized that defense counsel did not conduct any
investigation nor make any effort to ascertain the location of the police officers
at the time they were allegedly surveilling defendant. Defense counsel also did
A-3366-16T1
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not make any effort to locate the man who was seated in the passenger-side of
defendant's vehicle at the time of the arrest. Without giving a specific
description or proffer of this witness's testimony, PCR counsel claimed this
person would have been able "to testify . . . [at the] suppression hearing," and
provide" an alternate version of the facts, which could be supported by Mr.
Smith."
PCR counsel argued defense counsel's failure to seek this information left
defendant unable to challenge the police officers' claim of probable cause.
According to PCR counsel, this satisfied the first prong under Strickland v.
Washington, 466 U.S. 668, 687 (1984). The second prong in Strickland requires
defendant to show there was "a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would have been different."
Id. at 694. PCR counsel argued there was a strong likelihood the court would
have granted a motion to suppress the evidence seized from defendant's car, thus
satisfying the second prong under Strickland.
The State argued the facts did not support defendant's claim of ineffective
assistance of counsel. According to the State, on the date of defendant's arrest,
Essex County Narcotics Task Force Detectives received information from a
citizen that a man was selling marijuana in the area of Osborne Terrace and
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Renner Avenue. The caller described the alleged dealer as "a heavy set black
male with long dreadlocks." The man selling the marijuana was seated in a
parked blue Ford SUV. Narcotics Task Force Detectives responded to the area
identified by the caller in an unmarked police vehicle. Upon arrival, they
observed a motor vehicle that matched the caller's description. Seated behind
the SUV's steering-wheel was an African American man who also matched the
physical description of the alleged drug dealer. The Detectives also saw another
African American man seated in the front passenger-side of the SUV. From
their vantage point, the Detectives saw an unknown African American man
approach the passenger-side of the SUV, at which point defendant extended his
arm across the passenger seated next to him, and handed the unknown African
American man an indiscernible amount of currency in exchange for an equally
unknown object. Based on the belief they had witnessed a hand-to-hand illicit
drug transaction, the Detectives decided to approach defendant's car. As they
approached, the Detectives noticed defendant "fumbling with items in and
around the center console area."
The Detectives ordered defendant and the other two occupants of the SUV
"to show their hands." Except defendant, the other two occupants, later
identified as William Johnson and Robert Anthony Lee, complied with the
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Detectives' command. However, defendant continued to "fumble around."
Defendant finally complied after the Detectives again ordered him to show his
hands. One of the Detectives saw a black bag fall from the center console to the
driver-side of the SUV. The Detective saw the bag contained "a green vegetative
substance." As he opened the SUV's driver-side door, the Detective
immediately detected an odor of raw marijuana. After removing defendant and
the two other occupants from the SUV, the Detective saw "a black handgun in
the center console area."
After reviewing the relevant case law that discusses the constitutional
principles governing automobile stop and searches, the PCR judge found he
"may need to hear from trial counsel as regard to the conversations that . . . were
had regarding the possible motion and whether an alternative version of facts . .
. were known to trial counsel." The PCR judge concluded that an evidentiary
hearing would "allow the [c]ourt to make a better determination of whether it
was ultimately a trial strategy not to pursue the motion to suppress." 1
1
Although not a part of this appeal, the PCR judge also considered and rejected
as "meritless" defendant's argument that he was entitled to withdraw his guilty
plea. The PCR judge cited to the Supreme Court's decision in State v. Slater,
189 N.J. 145 (2009) to reach this decision.
A-3366-16T1
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The PCR judge conducted an evidentiary hearing on November 10, 2016.
Defendant's original defense counsel testified as a witness for the State. No
other witnesses were called. In response to the prosecutor's questions, defense
counsel explained that based on his criminal record, defendant was facing
consecutive terms of ten years, with five years of parole ineligibility, for a total
potential penal exposure of twenty years with ten years of parole ineligibility.
Defendant was also exposed to discretionary and mandatory extended terms. As
defense counsel explained, because defendant was charged with the possession
of a handgun without a permit, "his potential exposure was 30 years [in] New
Jersey State Prison with 15 years parole ineligibility" under the Graves Act. See
N.J.S.A. 2C:43-6(c).
Defense counsel also testified that he reviewed police reports that stated
defendant "essentially blurted out and took ownership of that gun and drugs."
In fact, defense counsel testified that defendant gave an inculpatory statement
concerning ownership of the handgun and marijuana after he was informed of
and waived his constitutional rights under Miranda v. Arizona, 384 U.S. 436
(1966). On cross-examination, PCR counsel asked defense counsel why he
never considered contacting or tried to contact the two passengers in the SUV.
Defense counsel gave the following explanation:
A-3366-16T1
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I didn’t contact them because, based upon A, the offer
that we had and the fact that it would be withdrawn
again, for lack of a better term, roll the dice with the
motion to suppress, I -- when speaking with [defendant]
we balanced the risk versus the reward. The risk of the
offer going up substantially, the risk of there being no
offer at the motion and having to go to trial and be
subjected to 30 with 15 versus the reward of winning
the motion to suppress based upon what we had there.
So based upon that a determination was made that there
really wasn’t anything that would be sufficient to
justify passing up that offer at that time.
The PCR judge reserved decision at the conclusion of the November 10,
2016 evidentiary hearing. On January 20, 2017, the judge delivered an oral
decision from the bench denying defendant's PCR petition. After reviewing the
case law that has addressed how to apply the two-prong standard for determining
ineffective assistance of counsel under Strickland, the judge found defense
counsel made a sound, fully informed strategic decision not to file a motion to
suppress in exchange for securing defendant a reasonably favorable plea
agreement. The judge found defense counsel thoughtfully weighed the risk of
presenting the motion judge with "testimony that would have contradicted his
client's, which may have seemed beneficial at the moment [but] would later be
used to discredit petitioner's entire statement."
A-3366-16T1
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The PCR judge found defense counsel's testimony credible and
dispositive. The judge found defendant made a knowing, voluntary decision to
accept the State's plea offer after weighing all of the risks involved in going to
trial and receiving sound legal advice from his attorney. The judge provided the
following explanation in support of his ruling:
Together [defendant and defense counsel] they reached
a consensus that accepting a plea rather than risking
going to trial was the best [course] of action. Knowing
the plea offer would be withdrawn petitioner and
[defense counsel] had to make the strategic decision to
determine whether it would be best to forego filing any
motions and accept five years with 42 months parole
ineligibility or risk going to trial and face up to 30 years
in prison.
The [c]ourt has considered the briefs and heard the
testimony regarding [defense counsel's] determination
to not file a motion to suppress. Petitioner had the
burden to satisfy both prongs of the Strickland/Fritz2
test and also show that the suppression motion had
merit. The petitioner has failed to meet that burden.
Regarding the issue of whether the police had probable
cause to search petitioner and his car there was no
reason for [defense counsel] to question petitioner's
accounts of the events that transpired, thus, not
notifying him of a basis to file a motion to dismiss.
2
Our State Supreme Court adopted the Strickland two-prong test in State v.
Fritz, 105 N.J. 42, 58 (1987).
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Against this factual and procedural backdrop, defendant now appeals
raising the following argument.
POINT ONE
THE PCR COURT ERRED IN DENYING MR.
SMITH'S CLAIM THAT HE RECEIVED
INEFFECTIVE ASSISTANCE OF COUNSEL.
Defendant's argument lacks sufficient merit to warrant discussion in a
written opinion. R. 2:11-3(e)(2). We affirm substantially for the reasons
expressed by Judge Arthur J. Batista in his oral opinion delivered from the bench
of January 20, 2017.
Affirmed.
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