STATE OF NEW JERSEY VS. DERRICK WASHINGTON(10-06-1210, HUDSON 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NOT FOR PUBLICATION WITHOUT THE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-1181-15T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DERRICK WASHINGTON,

Defendant-Appellant.

Submitted June 7, 2017 – Decided July 18, 2017

Before Judges Alvarez and Lisa.

On appeal from the Superior Court of New
Jersey, Law Division, Hudson County,
Indictment No. 10-06-1210.

Joseph E. Krakora, Public Defender, attorney
for appellant (Peter B. Meadow, Designated
Counsel, on the brief).

Esther Suarez, Hudson County Prosecutor,
attorney for respondent (Erin M. Campbell,
Assistant Prosecutor, on the brief).

PER CURIAM

Defendant Derrick Washington appeals the July 17, 2015

dismissal of his petition for post-conviction relief (PCR). He

alleges the Law Division judge abused her discretion by dismissing
the matter immediately before the evidentiary hearing, and that

he received ineffective assistance of counsel when his lawyer did

not produce two witnesses. We now affirm.

Defendant entered a guilty plea, after the denial of his

motion to suppress the evidence seized resulting from a consent

search, to third-degree possession with intent to distribute

within 1000 feet of school property. N.J.S.A. 2C:35-7 and 2C:35-

5(a)(1). In accord with the plea agreement, on December 9, 2011,

he was sentenced to a term of five years imprisonment, subject to

three years of parole ineligibility.

The relevant circumstances and procedural history leading to

this appeal can be very briefly described. We further detail

facts necessary to our discussion of the motion to suppress and

the information in the PCR certifications in our discussion of

defendant's points on appeal.

On September 9, 2014, we remanded defendant's PCR petition

for hearing. State v. Washington, No. A-4304-12 (App. Div. Sept.

9, 2014) (slip op. at 6-7). By July 17, 2015, the matter had been

listed for hearing on five occasions. Because of the judge's

frustration at the unavailability of the witnesses on the five

scheduled dates, the judge directed her law clerk to send an email

notifying counsel that any witnesses either side wished to present

at the hearing would have to be subpoenaed. Although not entirely

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clear from the record, it appears that requests for adjournments

on the prior scheduled dates had been made by both the State as

well as defendant.

In the email, counsel was advised that the fifth adjournment

request was the last one that would be granted. The matter was

thus finally scheduled, with counsel's input, a sixth time for

July 17, 2015.

When the matter was called, defendant's attorney advised that

the two witnesses defendant had hoped to produce were unavailable.

One had a medical issue and was either "still in the hospital or

he just had an operation. He's either in the hospital or in the

rehab[.] [B]oth of the addresses of which I have and that has to

do with his medical condition." The other witness was defendant's

aunt, who was then on vacation. The attorney said, when referring

to the aunt, that he "had corresponde[d,] under subpoenas."

Counsel said he had discussed the matter with her and that "she

had every intention of being here" but for the fact that she was

away. Counsel also stated that with regard to the adjournments,

"several" were at defendant's request, and "one or two instances

on behalf of the State." He requested a sixth adjournment.

In response, the judge explained the scheduling history for

the benefit of the record, including the fact the parties had been

directed to subpoena their witnesses, and had been advised that

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no additional adjournments would be granted. The court applied

the factors in United States v. Burton, 584 F.2d 485, 490-91 (D.C.

Cir. 1978), certif. denied, 439 U.S. 1069, 99 S. Ct. 837, 59 L.

Ed. 2d 34 (1979), and denied the request for an additional

adjournment. She stated that after considering counsel's reasons

for the adjournment request, and in "balancing everything[,]" the

petition would be dismissed without prejudice.

On appeal, defendant raises the following points for our

consideration:

POINT ONE
THE PCR COURT'S DENIAL OF DEFENDANT'S REQUEST
FOR AN ADJOURNMENT TO PRESENT WITNESSES AT THE
EVIDENTIARY HEARING ON HIS PETITION FOR POST-
CONVICTION RELIEF WAS AN ABUSE OF DISCRETION.

POINT TWO
THE PCR COURT FAILED TO MAKE AN ADEQUATE
RECORD TO ALLOW APPROPRIATE APPELLATE REVIEW
OF THE DECISION IN THIS CASE.

POINT THREE
DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF
COUNSEL AT POST-CONVICTION RELIEF DUE TO THE
FAILURE TO SUBPOENA WITNESSES TO APPEAR AT THE
EVIDENTIARY HEARING.

The notice of appeal filed in this matter mentions that

defendant "is also appealing denial of motion to vacate dismissal

of PCR and to reinstate petition for post-conviction relief."

Since no mention is made in the brief of the denial of the

subsequent motion to reinstate PCR, we will deem it waived.

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Telebright Corp., Inc. v. Dir., N.J. Div. of Taxation, 424 N.J.

Super. 384, 393 (App. Div. 2012) (appellant waived right to

challenge an issue due to its failure to brief the issue); Pressler

& Verniero, Current N.J. Court Rules, comment 5 on R. 2:6-2 (2017).

Discretionary rulings, such as the judge's dismissal without

prejudice of the petition in this case are discretionary. We do

not interfere unless the judge has "pursue[d] a manifestly unjust

course." Gillman v. Bally Mfg. Corp., 286 N.J. Super. 523, 528

(App. Div.), certif. denied, 144 N.J. 174 (1996). We will defer

to the trial court's exercise of discretion unless the decision

prejudiced the substantial rights of a party. State v. Munroe,

210 N.J. 429, 441-43, 448 (2012) (An exercise of discretion will

be set aside in the interests of justice).

We see no abuse of discretion in this case that resulted in

prejudice to defendant. First, contrary to defendant's contention

on appeal, his attorney did make reference to "subpoenas," in the

plural not the singular, some indication that counsel understood

his obligations and had fulfilled them. Obviously, a more detailed

inquiry and more expansive responses regarding counsel's efforts

at producing the witnesses would have been preferable. A dismissal

due to failure to produce witnesses at a sixth scheduled date,

however, is simply not an abuse of discretion. It seems a

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reasonable measure intended to balance a defendant's rights with

the administrative needs of the court.

Furthermore, it is questionable whether either of those

witnesses, subpoenaed or not, would have aided defendant's cause.

The issue raised in the motion to suppress was the voluntariness

of defendant's consent to search his apartment, which he shared

with his aunt. The aunt, the same one who was on vacation at the

time the hearing was scheduled, was not present when defendant

signed the consent to search. She did not arrive at the premises

until after defendant's arrest and the search was completed.

The request to search was precipitated by the officers'

observations of defendant appearing to engage in a series of drug

transactions. According to the judge who decided the motion, the

officers confronted defendant, who said he lived "upstairs on the

second floor[.]" When requested, he signed a consent to search

form. At the motion hearing, defendant testified that he was

coerced into signing the consent. When defendant's aunt appeared

on the scene, she too signed a consent form. Drugs and

paraphernalia were found in the apartment.

The judge who decided the motion to suppress noted that

defendant's testimony stood in contrast with the officers'

testimony. He testified that he was merely visiting his aunt and

was waiting for her in the apartment, contrary to the statements

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he made at the scene. Defendant also testified that he was struck

by the officers, and signed the consent for that reason and because

he was afraid his aunt would be arrested. The judge found

defendant incredible, concluding his consent was voluntary.

The first witness defendant intended to produce at the PCR

hearing was not even mentioned during the course of the suppression

hearing. This individual certified, in support of defendant's PCR

petition, that he was present and watched the arrest — a claim

that is not credible given the details set forth in the

certification. He provided a third version of events, different

from defendant's version and the police version. Thus even if

the matter had gone forward with the witnesses, their testimony

would not have changed the outcome. This discretionary dismissal

therefore need not be set aside on the basis that it resulted in

any manifest injustice, or be set aside in the interest of justice.

The standard for ineffective assistance of counsel is oft

repeated. A defendant must be able to establish substandard

professional assistance and prejudice to the outcome as a result.

Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052,

2064, 80 L. Ed. 2d 674, 693 (1984). The Strickland two-prong

standard in this case was not met. We do not agree that counsel

was ineffective at the PCR hearing.

Affirmed.

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