STATE OF NEW JERSEY VS. LEROY MOORE (12-08-1199, MIDDLESEX COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-0235-17T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

LEROY MOORE,

Defendant-Appellant.
_________________________________

Submitted November 5, 2018 – Decided November 26, 2018

Before Judges Messano and Fasciale.

On appeal from Superior Court of New Jersey, Law
Division, Middlesex County, Indictment No. 12-08-
1199.

Joseph E. Krakora, Public Defender, attorney for
appellant (Monique Moyse, Designated Counsel, on the
brief).

Andrew C. Carey, Middlesex County Prosecutor,
attorney for respondent (Joie D. Piderit, Assistant
Prosecutor, of counsel and on the brief).

Appellant filed a pro se supplemental brief.
PER CURIAM

Defendant appeals from an August 10, 2017 order denying his petition for

post-conviction relief (PCR) without an evidentiary hearing. Judge Alberto

Rivas entered the order and rendered a comprehensive written decision. We

affirm.

On appeal, defendant argues:

POINT I

[DEFENDANT] IS ENTITLED TO AN
EVIDENTIARY HEARING ON HIS CLAIM THAT
HIS ATTORNEY RENDERED INEFFECTIVE
ASSISTANCE OF COUNSEL FOR ALLOWING HIM
TO PLEAD WITHOUT A FACTUAL
BASIS/WITHOUT GUILT TO THE CRIME
CHARGED, FOR ADVISING HIM INCORRECTLY
ABOUT JAIL CREDITS, FOR MISINFORMING HIM
ABOUT THE APPEAL OF HIS MOTION TO
SUPPRESS, FOR FAILING TO REPRESENT HIM
ADEQUATELY AT SENTENCING, AND FOR
FAILING TO INVESTIGATE PRETRIAL.

POINT II

[DEFENDANT'S] GUILTY [PLEA] MUST BE
VACATED AS IT WAS NOT KNOWING AND
VOLUNTARY BECAUSE IT WAS ENTERED INTO
WITHOUT A FULL UNDERSTANDING OF THE
PENAL CONSEQUENCES.

In his pro se supplemental brief, defendant argues the following additional

points, which we have renumbered:

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 POINT III

[THE] TRIAL COURT ERRED WHEN IT FAILED
TO ENTERTAIN THE CLAIM OF INEFFECTIVE
ASSISTANCE OF COUNSEL[']S FAILURE TO
INVESTIGATE THE SEARCH WARRANT THAT
FAILED TO DESCRIBE THE PLACE TO BE
SEARCHED.

POINT IV

[THE] PCR COURT MADE ERROR [BY] DENYING
[DEFENDANT THE OPPORTUNITY] TO RAISE
HIS CLAIM OF PROSECUTORIAL MISCONDUCT
DURING PCR.

POINT V

[THE] PCR COURT ERRED WHEN IT FAILED TO
ENTERTAIN [DEFENDANT'S] CLAIM OF
JUDICIAL MISCONDUCT AND SAME WAS ALSO
OUTSIDE OF THE RECORD UNTIL [DEFENSE
COUNSEL] BROUGHT IT TO [THE] ATTENTION
OF PCR COUNSEL.

As to his PCR contentions, defendant primarily maintains that his counsel

rendered ineffective assistance in the plea and non-plea process. As to the plea

process, defendant argues his counsel encouraged him to plead guilty to a drug

crime he did not commit; allowed him to plead guilty to that drug charge without

obtaining an adequate factual basis; misled him about jail credits; misinformed

him about appealing from the denial of his motion to suppress; and otherwise

A-0235-17T1
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failed to investigate pretrial. For his PCR claim unrelated to the plea process,

defendant argues that his counsel failed to represent him adequately at

sentencing.

Judge Rivas correctly denied the petition without conducting an

evidentiary hearing. A defendant is entitled to an evidentiary hearing only when

he "has presented a prima facie [case] in support of [PCR]," State v. Marshall,

148 N.J. 89, 158 (1997) (first alteration in original) (quoting State v. Preciose,

129 N.J. 451, 462 (1992)), meaning that a "defendant must demonstrate a

reasonable likelihood that his . . . claim will ultimately succeed on the merits."

Ibid. For a defendant to obtain relief based on ineffective assistance grounds,

he is obliged to show not only the particular manner in which counsel's

performance was deficient, but also that the deficiency prejudiced his right to a

fair trial. Strickland v. Washington, 466 U.S. 668, 687 (1984); accord State v.

Fritz, 105 N.J. 42, 58 (1987). As to all of his PCR arguments, defendant failed

to demonstrate a prima facie case of ineffectiveness under either prong of

Strickland.

Additionally – regarding defendant's contention that his counsel rendered

ineffective assistance during the plea process – both the United States Supreme

Court and the New Jersey Supreme Court have extended the Strickland test to

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challenges of guilty pleas based on ineffective assistance of counsel. Lafler v.

Cooper, 566 U.S. 156, 162-63 (2012); Missouri v. Frye, 566 U.S. 134, 140

(2012); State v. DiFrisco, 137 N.J. 434, 456-57 (1994). Defendant must

demonstrate with "reasonable probability" that the result would have been

different had he received proper advice from his attorney. Lafler, 566 U.S. at

163 (quoting Strickland, 466 U.S. at 694). Defendant did not meet this test.

As to the plea process, defendant pled guilty to multiple charges in three

separate indictments. 1 Defendant's assertion that his counsel encouraged him to

plead guilty, and that he then gave an inadequate factual basis, pertains solely

to the 1000-foot school zone drug charge, which is Count Fourteen of Indictment

No. 12-08-01199. In May 2013, defendant testified voluntarily at the plea

hearing – at which he provided an adequate factual basis for the charge – that he

1
Defendant pled guilty to three counts of third-degree possession of a controlled
dangerous substance (CDS), N.J.S.A. 2C:35-10(a)(1) and N.J.S.A. 2C:35-
5(a)(1); two counts of second-degree possession of CDS with intent to distribute
within 500 feet of public housing, N.J.S.A. 2C:35-7.1; third-degree possession
of CDS with intent to distribute within 1000 feet of a school, N.J.S.A. 2C:35-7;
and third-degree bail jumping, N.J.S.A. 2C:29-7.

The court initially sentenced defendant to an aggregate prison term of
seventeen years with eight years of parole ineligibility. The court then modified
that sentence – as the court said giving him an "extraordinary opportunity" – and
imposed a five-year probationary term conditioned on him entering a long-term
drug treatment program. But defendant then violated probation, which led to
the re-imposition of the original sentence.
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possessed cocaine with the intent to distribute within 1000 feet of Co lumbus

Elementary School on August 28, 2009. The indictment, however, identified

the wrong school.

Naming the wrong school in the indictment, plea papers, and during the

plea hearing itself – as Judge Rivas correctly recognized – did not warrant PCR

relief. The judge concluded, and we agree with him on this record, that the

reference to Columbus Elementary School "did not materially and prejudicially

influence[] [defendant's] decision to plead guilty." Defendant pled guilty

because he was guilty. At the PCR hearing, and on this appeal, he failed to show

with "reasonable probability" that the result would have been different had he

received proper advice from his attorney. Defense counsel did not render any

improper advice. Rather, defendant testified that he possessed the drugs with

the intent to distribute within 1000 feet of a school. On this last point, Judge

Rivas determined that defendant pled guilty without any pressure, freely,

knowingly, and voluntarily.

There is no basis whatsoever to support defendant's contention that his

counsel misled him about the amount of jail credits he would receive.

Defendant's jail-credits contentions amount to no more than bald assertions.

Defense counsel questioned defendant on the record at the plea hearing abou t

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the penal consequences of the guilty pleas, especially the amount of jail credit s

that defendant would receive. Defendant himself explained on the record what

he understood the jail credits to be. And after testifying about his understanding

of the penal consequences and jail credits, defendant had no questions. Once

again, Judge Rivas found – on this issue – that defendant pled guilty freely,

knowingly, and intelligently. 2 Even at the sentencing hearing, defense counsel

reiterated on the record defendant's understanding of the jail credits, which was

consistent with the plea agreement and defendant's testimony when he pled

guilty.

Defendant had moved to suppress the drugs because he believed the search

warrant failed to specify which apartment to search in the multi-dwelling

building. Defendant now argues that after the court denied his suppression

motion, he learned that the police entered other apartments in the building before

finding his apartment. Defendant contends that his counsel failed to investigate

the matter and did not effectively pursue his pro se motion for reconsideration

of the order denying his motion to suppress. He maintains that this purported

2
On his direct appeal, we rule affirmed defendant's pro se argument that the
sentencing judge erred by denying jail and gap-time credits. State v. Moore,
No. A-1695-13 and No. A-0805-14 (App. Div. June 7, 2016) (slip op. at 8).
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ineffectiveness led to his guilty pleas and an inadequate presentation of his direct

appeal.

Defendant raised three arguments on his direct appeal pertaining to the

search warrant.

POINT I

THE SEARCH WARRANT AFFIDAVIT DID NOT
PROVIDE PROBABLE CAUSE TO BELIEVE
CONTRABAND WOULD BE DISCOVERED IN
APARTMENT J-10, IN DEFENDANT'S CAR, OR ON
DEFENDANT'S PERSON.

POINT II

BECAUSE THE SEARCH WARRANT DID NOT
INCLUDE THE APARTMENT NUMBER IN A
MULTI-UNIT DWELLING, THE WARRANT
FAILED THE PARTICULARITY REQUIREMENT
AND THE EVIDENCE DISCOVERED MUST BE
SUPPRESSED.

....

POINT [III]

[THE] TRIAL COURT ERRED WHEN DEN[YING]
DEFENDANT[']S MOTION TO SUPPRESS THE
SEARCH WARRANT WHICH FAILED TO
DESCRIBE THE PLACE TO BE SEARCHED AND
FOR THOSE REASONS THE CONVICTIONS MUST
BE VACATED AND SEARCH WARRANT
QUASHED.

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We fully considered defendant's search-warrant contentions in our unpublished

opinion affirming his convictions.

We reject defendant's contention the police
lacked probable cause to suspect contraband would be
found at 100 Roosevelt, in his vehicle, or on his person.
The search warrant affidavit related numerous
controlled drug transactions between police and
defendant, corroborating the CI's information that
although defendant no longer resided in 100 Roosevelt,
he still distributed drugs from the location. The police
also corroborated the CI's tip that defendant sold drugs
from his vehicle by performing a controlled drug
transaction with defendant from the GMC and by
observing him driving the GMC several times,
including transporting items defendant maintained
under the staircase at 651 Roosevelt.

We also reject defendant's argument that the
warrant affidavit did not describe the place to be
searched in 651 Roosevelt with sufficient particularity
because it did not identify an apartment number.

The affiant supported the warrant request with
photographs of the building and described the premises
in detail:

651 Roosevelt Ave[.] (front right door
from Roosevelt [A]ve[.] ) . . . is described
as a multi-family residence. 651 Roosevelt
i[s] located on the corner of Leick Ave. and
Roosevelt Ave. The exterior of the
building on the Leick Ave[.] side and the
Roosevelt Ave[.] side consists of tan
colored brick. The front right door is
brown in color with a white colored door
frame. The brown colored door has brass

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 colored hardware on the middle and top
part of [the] door. The brown colored front
right door has a black colored mail[box] on
the left side. There are also two white
trimmed windows to the left side of the
mailbox. 651 Roosevelt Ave[.] (front right
door from Roosevelt [A]ve[.]) . . . and all
common areas related to 651 Roosevelt
Ave[.] . . . which [defendant] has access to
and is able to store CDS in.

The affiant was not unsure which apartment defendant
occupied; there were no inaccuracies in the description;
and the warrant did not authorize a search of the entire
building. The description of the area to be searched was
detailed; an officer using reasonable effort would be
able to determine the intended premises.

[Moore, slip op at 8-10 (alterations in original)
(citations omitted).]

We reiterate that probable cause existed to support the issuance of the search

warrant.

Even assuming that the police entered other apartments in the building,

the State did not charge defendant with possession of CDS seized from the other

apartments; there is no credible evidence in this record showing that the police

seized CDS from other apartments. Furthermore, pursuing reconsideration of

the order denying suppression of the CDS would have been futile. Therefore,

even if defendant had satisfied prong one of Strickland – which he has not done

– he is unable to satisfy prong two. And defendant has failed to show with

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"reasonable probability" that the result would have been different had he

received proper advice from his attorney about a reconsideration motion or

additional arguments on the direct appeal.

We conclude that defendant's remaining arguments are "without sufficient

merit to warrant discussion in a written opinion." R. 2:11-3(e)(2). We only add

that purported prosecutorial misconduct and judicial misconduct – both of which

are completely unsupported on this record – are not claims of ineffective

assistance of counsel.

Affirmed.

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