STATE OF NEW JERSEY VS. JAMIL PARSON (10-07-1361, OCEAN 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NOT FOR PUBLICATION WITHOUT THE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-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.

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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.

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 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).

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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

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 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.

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 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.

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Affirmed.

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