NOT FOR PUBLICATION WITHOUT THE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-0627-16T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JAMIL PARSON,
Defendant-Appellant.
Submitted March 21, 2018 – Decided June 22, 2018
Before Judges Alvarez and Nugent.
On appeal from Superior Court of New Jersey,
Law Division, Ocean County, Indictment No. 10-
07-1361.
Joseph E. Krakora, Public Defender, attorney
for appellant (William Welaj, Designated
Counsel, on the brief).
Joseph D. Coronato, Ocean County Prosecutor,
attorney for respondent (Samuel Marzarella,
Chief Appellate Attorney, of counsel; Shiraz
Imran Deen, Assistant Prosecutor, on the
brief).
PER CURIAM
Defendant Jamil Parson appeals the June 23, 2016 order denying
his petition for post-conviction relief (PCR). After our review
of the record and relevant law, we affirm.
On September 9, 2011, after the Law Division judge denied his
motion to suppress statements he had made to law enforcement,
defendant entered into an open plea to all counts of the indictment
pending against him. He was charged with: first-degree conspiracy
to commit murder, N.J.S.A. 2C:5-2 and 2C:11-3(a) or (b) (count
one); first-degree murder, N.J.S.A. 2C:ll-3(a) or (b) (count two);
first-degree attempted murder, N.J.S.A. 2C:5-l and 2C:ll-3(a)
(count three); second-degree aggravated assault, N.J.S.A. 2C:12-
1(b)(1) (count four); second-degree unlawful possession of a
weapon, N.J.S.A. 2C:39-5(b) (count five); second-degree possession
of a weapon for unlawful purpose, N.J.S.A. 2C:39-4(a) (count six);
first-degree attempted witness tampering, N.J.S.A. 2C:28-5(a)
(count eight); and second-degree conspiracy to commit witness
tampering, N.J.S.A. 2C:28-5(a) and 2C:5-2 (count nine)1.
On November 18, 2011, defendant was sentenced to forty years
of imprisonment on count two, with an eighty-five percent period
of parole ineligibility pursuant to the No Early Release Act
(NERA), N.J.S.A. 2C:43-7.2. On count three, defendant was
1
Count seven charged a codefendant, and is not pertinent to this
appeal.
2 A-0627-16T3
sentenced to a twenty-year term subject to NERA. On count five,
he was sentenced to a ten-year term with a three-year parole
disqualifier. On count nine, he was sentenced to an additional
ten-year term. All sentences ran concurrent to one another for
an aggregate sentence of forty years subject to NERA. The
remaining counts were appropriately merged by the sentencing
judge. Defendant's direct appeal was denied. State v. Parson,
No. A-2779-11 (App. Div. July 1, 2014). Defendant did not file a
petition for certification. Defendant's PCR petition followed.
Defendant was accused of murdering Louis Garcia and shooting
Fernando Reyes. He reportedly discussed the shooting with several
acquaintances afterwards, asking them not to reveal the
information to the police. Nieemah Cooper, a woman with whom he
lived intermittently, was one of those persons.
In December 2009, a few days after the shooting, a
confidential informant reported to Detective Casey Long that
someone known as "Animal" had committed the crime. The informant
gave Animal's address, which was Cooper's address. When
interviewed by police, Cooper's neighbor confirmed that:
defendant frequented Cooper's home, his real name was Jamil, and
he claimed he was affiliated with a gang. The neighbor informed
police that Cooper sold loose cigars and cigarettes.
3 A-0627-16T3
The authorities had been independently investigating Cooper
for drug trafficking. They arranged a controlled buy of marijuana
from her, and then obtained a search warrant for Cooper's home.
When police searched the premises, they found marijuana and
interviewed Cooper regarding her contacts with "Animal." While
at the apartment, they seized several items belonging to defendant,
including the victim's gloves. Cooper was arrested for drug
possession.
Cooper later told police that defendant was affiliated with
a gang, and had admitted to her that he committed the murder. She
also said that defendant's co-defendant had come to her home
sometime after the incident to tell her not to discuss defendant's
involvement in the shootings. Police found a discarded 9mm handgun
in a backyard near Cooper's residence.
On December 30, 2009, police arrested and interviewed
defendant. He made an unsuccessful pretrial motion to suppress
the inculpatory statement he made when interviewed. The Law
Division judge then found police complied with the principles
enunciated in Miranda2 before interrogating him.
Defendant raises the following points for our consideration:
POINT I:
THE TRIAL COURT ERRED IN DENYING THE
DEFENDANT'S PETITION FOR POST-CONVICTION
2
Miranda v. Arizona, 384 U.S. 436 (1966).
4 A-0627-16T3
RELIEF WITHOUT AFFORDING HIM AN EVIDENTIARY
HEARING TO FULLY ADDRESS HIS CONTENTION THAT
HE WAS ENTITLED TO WITHDRAW HIS GUILTY PLEA
ON THE BASIS HE FAILED TO RECEIVE ADEQUATE
LEGAL REPRESENTATION FROM TRIAL COUNSEL,
RESULTING IN A GUILTY PLEA WHICH HAD NOT BEEN
FREELY, KNOWINGLY AND VOLUNTARILY ENTERED.
POINT II:
THE TRIAL COURT ERRED IN DENYING THE
DEFENDANT'S PETITION FOR POST-CONVICTION
RELIEF SINCE THE DEFENDANT DID NOT RECEIVE
ADEQUATE LEGAL REPRESENTATION FROM TRIAL
COUNSEL AS A RESULT OF TRIAL COUNSEL'S FAILURE
TO FILE A MOTION TO SUPPRESS THE FRUITS OF THE
SEARCH OF HIS RESIDENCE BY CHALLENGING THE
SEARCH WARRANT AND ITS EXECUTION.
A. FACTUAL BACKGROUND.
B. THE PREVAILING LEGAL PRINCIPLES
REGARDING CLAIMS OF INEFFECTIVE
ASSISTANCE OF COUNSEL BASED UPON A
FAILURE TO FILE A MOTION TO SUPPRESS.
C. TRIAL COUNSEL'S FAILURE TO FILE A MOTION
TO SUPPRESS RELATING TO THE SEARCH
WARRANT CONSTITUTED INEFFECTIVE
ASSISTANCE OF COUNSEL SINCE THE WARRANT
WAS OBTAINED AS A RESULT OF A WILFULLY
FALSE STATEMENT OR A STATEMENT MADE IN
RECKLESS DISREGARD OF THE TRUTH.
D. TRIAL COUNSEL'S FAILURE TO FILE A MOTION
TO SUPPRESS RELATING TO THE SEARCH
WARRANT CONSTITUTED INEFFECTIVE
ASSISTANCE OF COUNSEL SINCE THE SEIZURE
OF VARIOUS ITEMS ALLEGEDLY IN PLAIN VIEW
RELATING TO THE DEFENDANT'S INVOLVEMENT
IN THE SHOOTING WAS NOT "INADVERTENT".
E. TRIAL COUNSEL'S FAILURE TO FILE A MOTION
TO SUPPRESS RELATING TO THE SEARCH
WARRANT CONSTITUTED INEFFECTIVE
ASSISTANCE OF COUNSEL IN LIGHT OF THE
5 A-0627-16T3
ALTERATION OF THE SEARCH WARRANT ALONG
WITH ITS EXECUTION AT 12:45 A.M., OUTSIDE
THE SCOPE OF THE TIME SET FORTH IN THE
WARRANT.
In order to prevail, a defendant must first show the failure
of his trial counsel to provide him with competent professional
assistance. Strickland v. Washington, 466 U.S. 668 (1984); State
v. Fritz, 105 N.J. 42, 58 (1987). A defendant must also establish
that the alleged ineffective assistance of counsel prejudiced the
outcome.
Ineffective assistance of counsel claims can be made even if
a defendant elected to enter into a plea agreement with the State.
In those cases, a defendant must demonstrate that, but for the
ineffective assistance of counsel, he would not have entered a
guilty plea, but rather would have elected to take the matter to
trial. State v. DiFrisco, 137 N.J. 434, 457 (1994).
When defense counsel's "failure to litigate a Fourth
Amendment claim is the principal allegation of ineffectiveness,
'the defendant must also prove that his Fourth Amendment claim is
meritorious and that there is a reasonable probability that the
verdict would have been different absent the excludable evidence
in order to demonstrate actual prejudice.'" State v. Johnson, 365
N.J. Super. 27, 35 (App. Div. 2003) (quoting Kimmelman v. Morrison,
477 U.S. 365, 375 (1986)). Thus, when counsel fails to file a
6 A-0627-16T3
suppression motion, the defendant must satisfy both parts of the
Strickland test and also prove that his Fourth Amendment claim is
meritorious. State v. Goodwin, 173 N.J. 583, 597 (2002).
I.
Defendant first contends his attorney did not adequately
explain the consequences of his guilty plea, making it neither
knowing nor voluntary. At the oral argument on his PCR petition,
defendant alleged his lawyer told him to only answer "yes" to the
questions he was asked. Defendant argued that the transcript
corroborated this as he responded affirmatively to all the
questions that were posed.
To the contrary, over the course of the lengthy plea colloquy,
spanning thirty-three transcript pages, defendant while under oath
demonstrated his knowing, intelligent, and voluntary waiver of his
right to a trial, and his full and comprehensive understanding of
the nature of the guilty plea, an open plea to the indictment.
His contention is so lacking in merit as to not warrant discussion
in a written opinion. R. 2:11-3(e)(2).
II.
Defendant also contends the court should have conducted an
evidentiary hearing before it denied his petition. We disagree,
as defendant failed to establish a prima facie case. Defendant
has failed to "allege facts sufficient to demonstrate counsel's
7 A-0627-16T3
alleged substandard performance." State v. Cummings, 321 N.J.
Super. 154, 170 (App. Div. 1999).
Police were conducting an ongoing investigation into Cooper's
drug dealing – including making a controlled buy, and it was for
that reason that the search warrant was issued. Defendant does
not even challenge the validity of the warrant. Defendant only
argues that the search exceeded the scope of the search warrant,
and claims the search was really motivated by the murder
investigation and not Cooper's nefarious activities. This
argument also lacks merit.
Clearly, the police investigating the shooting were
interested in the fruits of any search of Cooper's house.
Nonetheless, there was a lawful, independent basis justifying the
issuance of the warrant. That the authorities may have had an
ulterior or secondary motive in conducting the search does not
cast doubt on the lawfulness of the search when it is otherwise
valid.
It suffices that, regardless of any other motives the officers
"outwardly behave[d] in a constitutionally appropriate manner."
State v. Kennedy, 247 N.J. Super. 21, 28 (App. Div. 1991).
Therefore, had trial counsel filed a motion to suppress the
physical evidence seized based on the invalidity of the warrant,
the motion would have been denied.
8 A-0627-16T3
III.
Defendant asserts the seizure of items related to the murder
while the police were on the premises was unconstitutional and
warranted suppression. This included seizing defendant's
identification, along with gang literature, and a pair of gloves
subsequently found to have belonged to the victim that contained
the victim's DNA. The officers obviously believed those items
would assist them in prosecuting defendant. But the record on
appeal does not establish any connection between the seizure and
the investigation, and defendant's ultimate prosecution. In other
words, defendant has not demonstrated that had the items been
suppressed, he would have taken the matter to trial as opposed to
entering into an agreement with the State. See DiFrisco, 137 N.J.
at 457.
Defendant told numerous witnesses that he was involved in the
shooting. He told the witnesses, including Cooper, to say nothing
about his culpability. The weapon used was found near Cooper's
yard. Defendant confessed to the crime. Thus, trial counsel's
failure to file a motion to suppress was ultimately of no moment.
Defendant did not establish a prima facie case that would have
warranted an evidentiary hearing. His attorney was not ineffective
for failing to file a motion to suppress the items taken from
Cooper's home.
9 A-0627-16T3
Affirmed.
10 A-0627-16T3