STATE OF NEW JERSEY VS. CURTIS F. RATTRAY (09-06-1056, 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NOT FOR PUBLICATION WITHOUT THE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
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1789-18T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

CURTIS F. RATTRAY,

Defendant-Appellant.

Submitted March 24, 2020 – Decided May 6, 2020

Before Judges Hoffman and Currier.

On appeal from the Superior Court of New Jersey, Law
Division, Ocean County, Indictment No. 09-06-1056.

Joseph E. Krakora, Public Defender, attorney for
appellant (Louis H. Miron, Designated Counsel, on the
brief).

Bradley D. Billhimer, Ocean County Prosecutor,
attorney for respondent (Samuel Marzarella, Chief
Appellate Attorney, of counsel; William Kyle Meighan,
Senior Assistant Prosecutor, on the brief).

PER CURIAM
 Defendant Curtis Rattray appeals from the October 31, 2018 denial of his

petition for post-conviction relief (PCR), contending trial counsel was

ineffective for failing to investigate a challenge to a 2008 communications data

warrant (CDW) and failing to move for retraction of defendant's plea.

Defendant also asserts the PCR court should have conducted an evidentiary

hearing. We affirm.

We derive the facts from our prior decision in the direct appeal. State v.

Rattray, No. A-3667-12 (App. Div. June 15, 2015).

Law enforcement learned from a confidential informant (CI) that

defendant was distributing controlled dangerous substances (CDS) from his

home and car, using a specific cell phone number. A CDW for the cell phone

(the April 2008 CDW) resulted in the discovery of multiple telephone calls

between defendant and various known gang members and drug offenders.

Several controlled buys were also conducted.

As a result, law enforcement applied for and was granted a second CDW

(the June 2008 CDW). This CDW permitted the recording of multiple

conversations between defendant and members of his drug distribution network.

An arrest warrant and search warrants for defendant's home and car were issued.

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 Defendant was charged in an indictment as the leader of a drug trafficking

network with numerous counts of possession and distribution of CDS and

conspiracy to manufacture, possess and distribute CDS. After his motion to

suppress the evidence obtained pursuant to the June 2008 CDW was denied,

defendant pleaded guilty to second-degree conspiracy to manufacture, distribute

and possess with the intent to distribute CDS, in violation of N.J.S.A. 2C:5-2

and 2C:35-5(b)(1). He also pleaded guilty to several counts of two other

indictments unrelated to the warrants at issue in this appeal.

On the direct appeal from his conviction and sentence, defendant asserted

insufficiencies in the affidavit supporting the June 2008 CDW application. We

affirmed the conviction and sentence. Id., slip op. at 3.

Defendant's PCR petition contended: (1) trial counsel failed to challenge

the April 2008 CDW; (2) he was not informed by trial counsel about the April

2008 CDW; (3) if he knew about the April 2008 CDW, he would not have

pleaded guilty; (4) appellate counsel was ineffective for failing to challenge the

renewal of the June 2008 CDW; and (5) trial counsel failed to move for a

withdrawal of his guilty plea after the revelation of misconduct by employees in

the prosecutor's office.

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 The PCR court denied the petition in a comprehensive, well-reasoned

written decision and order. Pertinent to the issues on appeal, the PCR court

found defendant did not present any reasons demonstrating why trial counsel

should have objected to the evidence obtained pursuant to the April 2008 CDW.

In addition, the court stated probable cause existed for the issuance of the June

2008 CDW, noting the substantial evidence of numerous controlled buys.

The PCR court also addressed defendant's contentions regarding a

detective and assistant prosecutor who had worked on his case. Defendant

referred to an amended complaint filed in a civil case in 2015 which alleged that

the assistant prosecutor had asked one or more detectives to falsify reports. He

stated his trial counsel should have moved to retract his guilty plea.

The PCR court rejected defendant's assertion, as it lacked any factual

support. In addition, the events alleged in the civil complaint occurred between

January 2012 and November 2014. Defendant committed the offenses at issue

here in 2008, was indicted in 2009, and pleaded guilty in 2012. Furthermore,

trial counsel did not represent defendant following his sentencing hearing in

2012.

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 Because defendant failed to present a prima facie case of ineffective

assistance of counsel, the PCR court found he was not entitled to an evidentiary

hearing.

Defendant raises the following issues on appeal:

I. THE INEFFECTIVE ASSISTANCE OF TRIAL
COUNSEL DEPRIVED DEFENDANT OF A FAIR
OPPORTUNITY TO DEFEND AGAINST THE
CHARGES IN THE INDICTMENTS AND THUS,
DEFENDANT'S PLEAS SHOULD BE VACATED
OR, IN THE ALTERNATIVE, THE TRIAL COURT
SHOULD CONDUCT AN EVIDENTIARY HEARING
TO DETERMINE THE BASIS FOR COUNSEL'S
FAILING TO CHALLENGE THE APRIL 17, 2008
WARRANT OR FILE A MOTION TO VACATE
DEFENDANT'S CONVICTION

II. THE PCR COURT SHOULD HAVE CONDUCTED
AN EVIDENTIARY HEARING TO ADDRESS ALL
OF DEFENDANT'S CLAIMS

The standard for determining whether trial counsel's performance was

ineffective for purposes of the Sixth Amendment was formulated in Strickland

v. Washington, 466 U.S. 668, 687 (1984) and adopted by the New Jersey

Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987). In order to prevail on

a claim of ineffective assistance of counsel, defendant must meet the two -

pronged test establishing both that: (1) counsel's performance was deficient and

he or she made errors that were so egregious that counsel was not functioning

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effectively as guaranteed by the Sixth Amendment to the United States

Constitution; and (2) the defect in performance prejudiced defendant's rights to

a fair trial such that there exists a "reasonable probability that, but for co unsel's

unprofessional errors, the result of the proceeding would have been different."

Strickland, 466 U.S. at 687, 694.

In our review of a PCR court's determination, we defer to the court's

factual findings, including credibility determinations, if they are supported by

"adequate, substantial and credible evidence." State v. Harris, 181 N.J. 391, 415

(2004) (quoting Toll Bros. v. Twp. of W. Windsor, 173 N.J. 502, 549 (2002)).

We affirm substantially for the reasons given in the PCR court's cogent

decision. We add only the following brief comments.

Defendant argues trial counsel did not properly prepare for the

suppression hearing because counsel did not challenge the facts submitted in the

affidavit accompanying the application for the April 2008 CDW. He contends

that if counsel had challenged the affidavit, she "might have demonstrated that

the evidence obtained from the illegal search warrant should have been

suppressed." Because his counsel was inadequate, defendant states he was

"forced to accept the State's plea offer."

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 Merely raising a claim of ineffective assistance of counsel for PCR does

not entitle a defendant to relief or an evidentiary hearing. See State v.

Cummings, 321 N.J. Super. 154, 170 (App. Div. 1999). "[W]hen a petitioner

claims his trial attorney inadequately investigated his case, he must assert the

facts that an investigation would have revealed, supported by affidavits or

certifications based upon the personal knowledge of the affiant or the person

making the certification." State v. Porter, 216 N.J. 343, 353 (2013) (alteration

in original) (quoting Cummings, 321 N.J. Super. at 170). Trial courts should

grant evidentiary hearings only if the defendant has presented a prima facie

claim of ineffective assistance of counsel, material issues of disputed fact lie

outside the record, and resolution of those issues requires a hearing. Id. at 355;

R. 3:22-10(b).

However, "[a] court shall not grant an evidentiary hearing" if "the

defendant's allegations are too vague, conclusory or speculative . . . ." R. 3:22-

10(e)(2). Indeed, the defendant "must do more than make bald assertions that

he was denied the effective assistance of counsel. He must allege facts sufficient

to demonstrate counsel's alleged substandard performance." Cummings, 321

N.J. Super. at 170.

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 Defendant has not presented any facts to demonstrate the failure to

challenge the April 2008 CDW warrant was inadequate or that any challenge

would have been successful. There was substantial evidence supporting the

CDW, including information from a CI and controlled buys of CDS. His

speculative arguments are insufficient to support a finding of ineffective

assistance.

We also discern no merit in defendant's argument that trial counsel was

inadequate in not moving to retract his guilty plea. As the PCR court noted,

counsel no longer represented defendant when the civil complaint was filed

alleging misconduct against a detective and assistant prosecutor. The

allegations in the complaint referred to actions that occurred between January

2012 and November 2014. Defendant committed the pertinent offenses here in

2008, was indicted in 2009 and pleaded guilty in March 2012. He has not

demonstrated any wrongdoing by these individuals in the prosecution of his

case.

We are satisfied the PCR court's denial of the petition was supported by

the credible evidence in the record. Defendant did not demonstrate trial counsel

was ineffective under the Strickland-Fritz test.

Affirmed.

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