NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-1115-22
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
NORMAN PINKNEY, a/k/a TERRANCE LONG,
Defendant-Appellant. ________________________
Submitted February 14, 2024 – Decided November 14, 2024
Before Judges Gummer and Walcott-Henderson.
On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 19-11-1182.
Jennifer N. Sellitti, Public Defender, attorney for appellant (Anderson D. Harkov, Designated Counsel, on the brief).
Esther Suarez, Hudson County Prosecutor, attorney for respondent (Meagan E. Free, Assistant Prosecutor, on the brief). The opinion of the court was delivered by
WALCOTT-HENDERSON, J.S.C. (temporarily assigned).
Defendant Norman Pinkney appeals from a September 28, 2022 order
denying without an evidentiary hearing his post-conviction relief (PCR) petition
that claimed ineffective assistance of counsel. Defendant asserts that plea
counsel failed to file a motion to suppress evidence and a Miranda1 motion to
suppress a statement he had made to police at the time of his arrest.
Unpersuaded by defendant's arguments, we affirm.
I.
We summarize the pertinent and undisputed facts relied on by the
defendant and the State which are taken solely from Officer Chris Otundo's
investigative report, mindful they have not yet been established at trial. On July
10, 2019, members of the Jersey City Police Department's Street Crimes Unit
were operating unmarked vehicles and surveilling the area of Myrtle Avenue
and Martin Luther King (MLK) Drive in Jersey City during daytime hours.
Officer Otundo, a member of the Unit, was surveilling the area in question when
he reportedly observed an individual, later identified as defendant, loitering in
an area described as an "open-air drug market" for approximately thirty minutes
1 Miranda v. Arizona, 384 U.S. 436 (1966). A-1115-22 2 before walking towards and entering a vehicle parked on the north side of Myrtle
Avenue. Officer Otundo stated in his report that from his location he could see
that an unidentified male carrying an unknown amount of U.S. currency walk to
the parked vehicle occupied by defendant, knock on the window, and enter the
vehicle. The unidentified male exited the vehicle moments later without any
money visible in his hand and walked away. Officer Otundo stated in his
investigative report that he "believed that [he] had observed a hand-to-hand
[controlled-dangerous-substance (CDS)] transaction."
Officer Otundo relayed his observations of defendant and the unidentified
male to other officers who were also on patrol. In the meantime, the vehicle
occupied by defendant drove away, then returned to Myrtle Avenue
approximately thirty minutes later and drove off again.
At Officer Otundo's request, patrol officers searched for and stopped the
vehicle, which was operated by defendant. According to Officer Otundo's
report, defendant immediately attempted to exit the vehicle when the officers
initiated the motor vehicle stop. Officers, however, ordered him to stay inside,
and he complied with their instruction. Another officer, Anthony Haddad,
reported that defendant "appeared to be visibly nervous, apprehensive, was
stuttering and was sweating profusely," and all the responding officers on the
A-1115-22 3 scene detected the "distinct odor of suspected [phencyclidine (CDS-PCP)]
emanating from the inside of the vehicle."
Officer Haddad observed on the front passenger floor of the vehicle a
partially opened black leather fanny pack containing small jars of liquid. When
questioned about the bag, defendant "spontaneously uttered," "[w]hatever you
got in the bag is all I got . . . there's nothing else in the car. [2]" Officer Haddad
retrieved the bag containing eight clear jars of suspected CDS-PCP. Defendant
was immediately placed under arrest without incident, and the vehicle was
impounded.
On November 20, 2019, a Hudson County grand jury returned an
indictment charging defendant with possession of CDS-PCP in the third degree
N.J.S.A. 2C:35-10(a)(1) (count one); possession of CDS-PCP with intent to
distribute in the first degree, N.J.S.A. 2C:35-5(a)(1) and 35-5(b)(6) (count two);
possession of CDS-PCP with intent to distribute within 1,000 feet of school
property in the third degree, N.J.S.A. 2C:35-7(a) (count three); and possession
of CDS-PCP with intent to distribute within 500 feet of public property in the
second degree, N.J.S.A. 2C:35-7.1(a) (count four).
2 The full quote from Officer Otundo's investigative report includes the ellipses shown here. A-1115-22 4 On May 18, 2020, defendant pleaded guilty to third-degree possession of
CDS-PCP (count one) pursuant to a plea agreement with the State. The State
agreed to dismiss the remaining charges, including the first-degree possession-
with-intent charge (count two), and defendant was later sentenced to a three-
year term of probation. Defendant did not appeal his conviction or sentence.
During his plea allocution, defendant admitted to the factual predicates
for the crime to which he had pleaded guilty and advised the judge: he
understood everything that had been discussed, including the plea agreement
and everything in the plea form; counsel had reviewed the plea form with him;
he had not been coerced into signing the plea form; and his answers on the plea
form were true. When the judge asked defendant, "[a]re you satisfied with [your
counsel's] advice and representation," defendant responded, "[y]es, sir."
Defendant timely filed a pro se petition for PCR, stating "I feel like my
right to a trial was on many occasions denied and a false plea was [coerced] due
to fear of being hurt for coming forth." Assigned counsel filed a brief in support
of defendant's pro se PCR petition, alleging plea counsel had been ineffective
by failing to file a motion to suppress the CDS-PCP evidence seized at the time
the officers stopped the vehicle and by failing to file a Miranda motion to
suppress defendant's statement to police during the stop. Defendant also argued
A-1115-22 5 that plea counsel had failed to obtain and review all relevant discovery prior to
advising him to accept the State's plea offer.
The State argued that defendant had been indicted on a first-degree
possession-of-CDS-PCP-with-intent-to-distribute charge and had pleaded guilty
to a third-degree possession offense. The State also recounted the circumstances
underlying the officer's stop of defendant's vehicle and maintained that the
officer's observations were sufficient to establish reasonable and articulable
suspicion for the stop.
On September 28, 2022, the PCR court issued a written decision and order
denying defendant's PCR petition. The PCR court found defendant was not
entitled to an evidentiary hearing because there were no disputed facts, as both
defendant and the State had relied on the same investigative report. Addressing
defendant's argument that plea counsel provided ineffective assistance by failing
to move to suppress evidence, the court concluded that defendant had ignored
several relevant facts in making his argument, including that Officer Otundo
"observed an unidentified male carry U.S. currency to the vehicle, knock on the
window, enter the vehicle, and after about ten to fifteen seconds exit the vehicle
without any money." The court further found that Officer Otundo's
"observations, training, and experience, in addition to his knowledge of the area
A-1115-22 6 . . . and the relevant facts discussed [are] sufficient to establish a reasonable and
articulable suspicion" that defendant was involved in a CDS transaction.
The PCR court held that the officers had probable cause to believe that the
jars they observed on the passenger floor of defendant's vehicle contained CDS-
PCP before seizing them. The court based its decision on Officer Haddad's
observations of the fanny pack containing the jars of liquid, in plain view, the
odor of CDS-PCP, and defendant's demeanor, which the officers described as
"visibly nervous."
The court also concluded that defendant's assertion that plea counsel was
ineffective by failing to move to suppress his statement to the officers lacked
merit because the State "ha[d] an obligation to move to admit [defendant]'s
alleged confession or other inculpatory statement at a N.J.R.E. 104(c) hearing,"
stating "in terms of the Miranda motion, the burden is on the State to move to
admit the statement. Defense [c]ounsel is not obligated to file the [m]otion to
[s]uppress on the Miranda [motion]," and, at the time of the plea, "there was not
a [m]otion filed by the State to admit [the statement] . . . So as of the time of the
plea, that statement wouldn't have been coming in anyway." See Biunno,
Weissbard & Zegas, Current N.J. Rules of Evidence, cmt. 6 on N.J.R.E. 104
(2024) (citing State v. Miller, 76 N.J. 392, 404-05 (1978)) ("Voluntariness of a
confession or other inculpatory statement by an accused must always be
A-1115-22 7 established by the State at a N.J.R.E. 104(c) hearing before it can be introduced
into evidence at trial"); see also State v. Scott, 398 N.J. Super. 142, 153 (App.
Div. 2006), aff'd o.b., 193 N.J. 227 (2008).
The court also found that "[defendant] was charged with a first-degree
crime, and he had plead[ed] to a third-degree crime receiving three years'
probation," and he had "failed to demonstrate how counsel's assistance was not
within the range of competence demanded of attorneys in criminal cases ." The
court noted that defendant's claim that he had not received full discovery prior
to entering his guilty plea was too vague and not supported by any affidavit,
certification or credible evidence, and defendant had "failed to articulate what
discovery materials he failed to receive or what those materials would have
shown that could have influenced his decision to plead guilty or go to trial."
This appeal followed.
Defendant presents the following arguments for our consideration.
POINT I
THE PCR COURT ERRED WHEN IT FAILED TO GRANT DEFENDANT'S REQUEST FOR AN EVIDENTIARY HEARING BECAUSE THE FAILURE OF PLEA COUNSEL TO FILE A MOTION TO SUPPRESS BOTH PHYSICAL EVIDENCE AND EVIDENCE OF AN ALLEGED ORAL STATEMENT MADE BY DEFENDANT, WHEN THE INVESTIGATING OFFICER'S REPORT REVEALED THE MOTIONS HAD MERIT, ESTABLISHED A
A-1115-22 8 PRIMA FACIE CASE OF INEFFECTIVENESS ASSISTANCE OF COUNSEL.
POINT II
THE FAILURE OF PLEA COUNSEL TO FILE AND LITIGATE MOTIONS TO SUPPRESS PHYSICAL EVIDENCE, AND A STATEMENT ALLEGEDLY MADE BY DEFENDANT, DEPRIVED DEFENDANT OF HIS CONSTITUTIONAL RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL.
II.
We review the legal conclusions of a PCR court de novo. State v. Harris,
181 N.J. 391, 419 (2004). The de novo standard of review also applies to mixed
questions of fact and law. Id. at 420. Where, as here, the PCR court has not
conducted an evidentiary hearing, we may "conduct a de novo review" of the
court's "factual findings and legal conclusions." Id. at 421; see also State v.
Lawrence, 463 N.J. Super. 518, 522 (App. Div. 2020).
When a defendant claims ineffective assistance of counsel as the basis for
relief, he must satisfy the two-pronged test formulated in Strickland v.
Washington, 466 U.S. 668, 687 (1984), which was adopted by our Court in State
v. Fritz, 105 N.J. 42, 58 (1987). To satisfy the standard's first prong, a defendant
must show counsel's performance was deficient by demonstrating counsel's
handling of the matter "fell below an objective standard of reasonableness" and
"counsel made errors so serious that counsel was not functioning as the 'counsel'
A-1115-22 9 guaranteed [to] the defendant by the Sixth Amendment." Strickland, 466 U.S.
at 687-88.
Under Strickland's second, "and far more difficult prong," State v. Gideon,
244 N.J. 538, 550 (2021) (quoting State v. Preciose, 129 N.J. 451, 463 (1992)),
a defendant "must show that the deficient performance prejudiced the defense ."
State v. O'Neal, 190 N.J. 601, 629 (2007) (citations omitted) (quoting
Strickland, 446 U.S. at 687). That is, "[t]he defendant must show that there is a
reasonable probability that, but for counsel's unprofessional errors, the result of
the proceeding would have been different. A reasonable probability is a
probability sufficient to undermine confidence in the outcome." Gideon, 244
N.J. at 550-51 (alteration in original) (quoting Strickland, 466 U.S. at 694).
Proof of prejudice under Strickland's second prong "is an exacting standard."
Id. at 551 (quoting State v. Allegro, 193 N.J. 352, 367 (2008)). A defendant
"must 'affirmatively prove prejudice'" to satisfy the second prong of the
Strickland standard. Ibid. (quoting Strickland, 466 U.S. at 693).
In the context of a PCR petition challenging a guilty plea based on the
ineffective assistance of counsel, the second prong is established when the defendant
demonstrates a "reasonable probability that, but for counsel's errors, [the defendant]
would not have pled guilty and would have insisted on going to trial," State v.
Nuñez-Valdéz, 200 N.J. 129, 139 (2009) (alteration in original) (quoting State v.
A-1115-22 10 DiFrisco, 137 N.J. 434, 528 (1994)), and that "a decision to reject the plea bargain
would have been rational under the circumstances," Padilla v. Kentucky, 559 U.S.
356, 372 (2010).
To prevail on a PCR petition, a defendant must establish both prongs of
the Strickland standard. Strickland, 466 U.S. at 687; State v. Nash, 212 N.J.
518, 542 (2013). "With respect to both prongs of the Strickland test, a defendant
asserting ineffective assistance of counsel on PCR bears the burden of proving
his or her right to relief by a preponderance of the evidence." State v. Gaitan,
209 N.J. 339, 350 (2012). A failure to satisfy either prong requires the denial
of a PCR petition founded on an ineffective assistance of counsel claim.
Strickland, 466 U.S. at 700. "Although a demonstration of prejudice constitutes
the second part of the Strickland analysis, courts are permitted leeway to choose
to examine first whether a defendant has been prejudiced, and if not, to dismiss
the claim without determining whether counsel's performance was
constitutionally deficient." Gaitan, 209 N.J. at 350 (internal citations removed).
"[T]o establish a prima facie claim, a [defendant] must do more than make
bald assertions that he was denied the effective assistance of counsel." State v.
Cummings, 321 N.J. Super. 154, 170 (App. Div. 1999). PCR petitions must be
"accompanied by an affidavit or certification by defendant, or by others, setting
forth with particularity," State v. Jones, 219 N.J. 298, 312 (2014), "facts
A-1115-22 11 sufficient to demonstrate counsel's alleged substandard performance ."
Cummings, 321 N.J. Super. at 170. "[F]actual assertions in a [PCR must] be
made by affidavit or certification in order to secure an evidentiary hearing."
Jones, 219 N.J. at 312 (citing R. 3:22-10(c)).
We first address defendant's argument the court erred by rejecting his
claims that plea counsel was ineffective by failing to file a motion to suppress
the CDS-PCP recovered from his vehicle and an "alleged oral statement" he had
made to officers at the time of his arrest; the statement memorialized in Officer
Otundo's report that defendant "spontaneously uttered," "[w]hatever you got in
the bag is all I got . . . there's nothing else in the car."
In response, the State contends the PCR court properly denied defendant's
PCR petition because defendant failed to establish a prima facie case of
ineffective assistance of counsel and the court properly found that plea counsel
was not ineffective by failing to move to suppress the CDS evidence and
defendant's statement to police. The State maintains that based on Officer
Otundo's "observations, experience, and training, as well as his knowledge of
the area being known as an 'open-air drug market,' the officer had a reasonable
and articulable suspicion to believe [defendant] participated in a CDS
transaction" and lawfully ordered the stop of defendant's vehicle under Terry v.
Ohio, 392 U.S. 1 (1968). The State further maintains that "[o]nce the officers
A-1115-22 12 effectuated a valid traffic stop, they observed in plain view a partially open
fanny pack containing glass vials with clear liquid inside," which officers could
then seize under the plain-view doctrine under State v. Mann, 203 N.J. 328, 340-
41 (2010).
In Mann, the Court held the plain-view exception to the warrant
requirement required police officers to be "lawfully in the viewing area,"
discover the evidence "inadvertently," and it had to be "immediately apparent"
to the officers that the items in plain view were evidence of a crime. Id. at 341.
However, since Mann, our Supreme Court has redefined the elements of the
plain-view exception to the warrant requirement. In State v. Gonzales, 227 N.J.
77, 101 (2016), the Court held that an inadvertent discovery of contraband or
evidence of a crime is no longer a predicate for a plain-view search and seizure
provided that an officer is lawfully present when observing an incriminating
item and it is "immediately apparent that the seized item is evidence of a crime."
Ibid.
The PCR court agreed with the State's argument that there was at least
articulable suspicion for the stop based on the totality of the circumstances as
recounted in Officer Otundo's report, including his observations of defendant
loitering in the high drug traffic area, defendant's interaction with an
unidentified male who approached defendant's vehicle with money in his hand,
A-1115-22 13 knocked on the window and entered the vehicle, and then exited shortly
thereafter without any money in his hand.
To sustain a claim for ineffective assistance of counsel based on an alleged
failure to file a motion to suppress physical evidence or a Miranda motion,
defendant must establish that the motions that plea counsel failed to file would
have been meritorious or likely to succeed. O'Neal, 190 N.J. at 619; see also
State v. Worlock, 117 N.J. 596, 625 (1990).
Generally, warrantless searches and seizures are per se unreasonable and
prohibited under the United States and New Jersey Constitutions absent a
recognized exception to the warrant requirement. State v. Smart, 253 N.J. 156,
164-65 (2023). One such exception is the investigative or Terry stop, "which is
a procedure that involves a relatively brief detention by police during which a
person's movement is restricted." State v. Goldsmith, 251 N.J. 384, 399 (2022)
(citing State v. Rosario, 229 N.J. 263, 272 (2017)). "An investigative stop or
detention does not offend the Federal or State Constitution, and no warrant is
needed, 'if it is based on "specific and articulable facts which, taken together
with rational inferences from those facts," give rise to a reasonable suspicion of
criminal activity.'" Ibid. (quoting State v. Rodriguez, 172 N.J. 117, 126 (2002))
(quoting Terry 392 U.S. at 21). Reasonable suspicion "is a less demanding
standard than probable cause." Ibid.
A-1115-22 14 "The first component of the Terry rule concerns the level of reasonable
suspicion that must exist before an 'investigatory stop' legitimately may be
undertaken." State v. Thomas, 110 N.J. 673, 678 (1988). Our Supreme Court
has stated that a police officer may conduct an investigatory stop if, "based on
the totality of the circumstances, the officer had a reasonable and particularized
suspicion to believe that an individual has just engaged in, or was about to
engage in, criminal activity." State v. Stovall, 170 N.J. 346, 356 (2002).
"[I]n determining the lawfulness of an investigatory stop, a reviewing
court must 'evaluate the totality of circumstances surrounding the police -citizen
encounter, balancing the State's interest in effective law enforcement against the
individual's right to be protected from unwarranted and/or overbearing police
intrusions.'" State v. Privott, 203 N.J. 16, 25-26 (2010) (quoting State v. Davis,
104 N.J. 490, 504 (1986)). Thus, a judge must consider the entire picture rather
than each fact in isolation. State v. Nelson, 237 N.J. 540, 554-55 (2019). "[T]he
touchstone for evaluating whether police conduct has violated constitutional
protections is reasonableness." State v. Bard, 445 N.J. Super. 145, 157 (App.
Div. 2016) (internal quotation marks omitted). However, no one fact is issue-
dispositive on what constitutes "reasonable and particularized suspicion" to
conduct a stop. Stovall, 170 N.J. at 356.
A-1115-22 15 Another exception to the warrant requirement is the plain-view doctrine.
Gonzales, 227 N.J. at 90. Under this exception, a warrantless seizure of
evidence in plain view is justified when "a police officer is lawfully in the
viewing area and the nature of the evidence is immediately apparent." Id. at 82.
To satisfy the "immediately apparent" prong, the officer must have probable
cause to associate the item in plain view with criminal activity before seizing it.
State v. Johnson, 171 N.J. 192, 213 (2002). In establishing probable cause, the
officer need not prove that an officer's suspicion is "correct or more likely true
than false." Id. at 215 (quoting State v. Bruzzese, 94 N.J. 210, 237 (1983)).
Rather, "[p]robable cause exists if at the time of the police action there is 'a "well
grounded" suspicion that a crime has been or is being committed.'" State v.
Sullivan, 169 N.J. 204, 211 (2001) (quoting State v. Waltz, 61 N.J. 83, 87
(1972)).
As a preliminary matter, we reject defendant's argument that, because
suppression motions are routinely filed in CDS cases, plea counsel's decision
not to file a motion to suppress automatically constitutes ineffective assistance
of counsel. Rather, where a defendant claims counsel's performance was
deficient by failing to move to suppress evidence, he or she must demonstrate
there is a reasonable probability the motion is meritorious. Kimmelman v.
Morrison, 477 U.S. 365, 375 (1986); State v. Fisher, 156 N.J. 494, 501 (1998).
A-1115-22 16 In his report, Officer Otundo states that he observed defendant loitering
in the area of Myrtle Avenue and MLK Drive, an area known to be an open-air
drug market. He then observed defendant enter a parked vehicle before an
unidentified male walked up to the vehicle with U.S. currency in his hand,
knocked on the window and entered the vehicle only to exit ten-to-fifteen
seconds later, without any money in his hand. Officer Otundo noted in his report
that these circumstances led him to believe that he had witnessed a hand-to-hand
drug transaction prompting him to radio other officers to stop defendant's motor
vehicle, which had left the scene and later returned only to drive away again a
short time later.
The PCR court noted that defendant's argument ignored several of the
relevant facts stated in Officer Otundo's report and failed to consider that Officer
Otundo's experience, training and expertise also supported a reasonable and
articulable suspicion defendant was involved in a CDS transaction.
We agree with the PCR court's conclusion that defendant's argument that
"[a] motion to suppress would have revealed that . . . [O]fficer Otundo[] had
defendant stopped and searched even though he never observed any criminal
activity" is insufficient to establish that there was a meritorious motion to
suppress that plea counsel should have filed in the trial court. Strickland, 466
U.S. at 682. We make this determination because in arguing that plea counsel
A-1115-22 17 provided ineffective assistance by failing to move to suppress the CDS-PCP
found in his vehicle, defendant fails to address Officer Otundo's observations of
his conduct that was sufficient to justify the stop. More particularly, defendant
does not address Officer Otundo's observations of him allegedly loitering in the
"open-air drug market" and his interaction with the unidentified male whom
Officer Otundo suspected had been involved in a hand-to-hand drug transaction
with defendant or Officer Otundo's training and experience in CDS transactions.
While these circumstances individually may not establish reasonable suspicion
necessary to conduct the motor vehicle stop at issue, the totality of these
observations made by Officer Otundo was sufficient under Terry. Nelson, 237
N.J. at 554-55 (finding that a judge must consider the entire picture rather than
each fact in isolation). We reject defendant's argument that the motor vehicle
stop was invalid because it ignores that the entire picture and the totality of
circumstances provided a reasonable suspicion of criminal activity. See ibid.
The court accepted the undisputed facts as stated in Officer Otundo's
report and, relying on State v. Arthur, reasoned that the officers lawfully
conducted the stop after receiving information from Officer Otundo about a
suspected CDS transaction that had just occurred within the vehicle in an area
known for high levels of narcotics activity. See 149 N.J. 1, 10-12 (1997)
(holding that an officer had reasonable and articulable suspicion to conduct a
A-1115-22 18 vehicle stop after receiving information from another officer about a suspected
CDS transaction in an area known for high levels of narcotics activity). Based
on this record, we are not persuaded by defendant's argument that the PCR court
erred in concluding that defendant had failed to demonstrate plea counsel was
ineffective by failing to file a meritless motion to suppress evidence seized in
plain view following a stop of his vehicle that was unlawful.
Because defendant did not demonstrate the stop of his vehicle was
unlawful, he failed to establish that plea counsel's performance was deficient by
failing to move to suppress the CDS-PCP evidence. Kimmelman, 477 U.S. at
375. As the Supreme Court has explained, "it is not ineffective assistance of
counsel for defense counsel not to file a meritless motion." O'Neal, 190 N.J. at
619; see also State v. Echols, 199 N.J. 344, 365 (2009) (stating a failure to make
an unsuccessful argument does not constitute ineffective assistance of counsel).
To satisfy the first prong of Strickland, defendant must demonstrate that
counsel's handling of his case "fell below an objective standard of
reasonableness" and was "so serious that plea counsel was not functioning as the
'counsel' guaranteed [to] the defendant by the Sixth Amendment." Strickland,
466 U.S. at 687-88. Because defendant did not demonstrate a motion to suppress
the CDS evidence recovered from his vehicle would have been successful,
defendant did not carry his burden under Strickland's first prong, and, on that
A-1115-22 19 basis alone, the court correctly denied the PCR claim plea counsel's performance
was deficient by failing to file a motion to suppress the CDS-PCP. See State v.
Marshall, 148 N.J. 89, 158 (1997); Worlock, 117 N.J. at 625. Moreover, because
defendant also failed to demonstrate that the putative motion to suppress the
CDS-PCP had merit, he could not and did not satisfy Strickland's second prong
on the claim—that there is a reasonable probability that but for counsel's alleged
error, the result of the case would have been different. 466 U.S. at 694.
III.
Defendant further argues that "counsel's inactivity was exacerbated
because he failed to seek to suppress a statement defendant allegedly made, after
the warrantless search, that came when he was questioned without the warnings
required by Miranda v. Arizona." In Miranda, the United States Supreme Court
in part held "an individual held for [custodial] interrogation must be clearly
informed that he has the right to consult with a lawyer and to have the lawyer
with him during interrogation . . . ." 384 U.S. at 471.
The State asserts that at the time of his statement to the police officers,
defendant was not in custody, officers were not required to advise him of his
Miranda rights, and "[s]ince no Miranda warnings were required, no Miranda
violation occurred." The State therefore contends "the PCR [c]ourt properly
found that [defendant] has neither demonstrated" that the Miranda motion he
A-1115-22 20 claims plea counsel should have filed was meritorious nor "that plea counsel's
failure to file that motion constituted ineffective assistance of counsel."
In our assessment of defendant's claim, we first consider whether he
satisfied his burden under Strickland's second prong. As we have explained, a
court considering an ineffective-assistance-of-counsel claim may first consider
a defendant's evidence pertinent to the second prong and deny the claim where
the evidence is insufficient to satisfy the second-prong standard. Gaitan, 209
N.J. at 350. Here, we find that even if plea counsel's performance was deficient
by failing to file a Miranda motion, defendant has not satisfied the prejudice
prong of Strickland by demonstrating that but for the alleged error there was a
reasonable probability the result of the case would have been different.
Strickland, 466 U.S. at 694. A defendant "must 'affirmatively prove prejudice'"
to satisfy the second prong of the Strickland standard. Gideon, 224 N.J. at 551
(quoting Strickland, 466 U.S. at 693). Defendant does not carry that burden
here.
Defendant does not point to any evidence demonstrating that had his
counsel filed a Miranda motion there is a reasonable probability that the result
of his case would have been different. See Strickland, 466 U.S. at 693. That is
because even if the motion had been filed and the court had suppressed the
statement he had made to the police, the State's other proofs against him were
A-1115-22 21 overwhelming and his statement added very little. The undisputed facts
established defendant was alone in a vehicle he had been driving that reeked of
the aroma of CDS-PCP with an open bag containing suspected CDS-PCP next
to him and in plain view. And, according to the officers, defendant was visibly
nervous, stuttering and sweating profusely. Thus, even if defendant's statement
admitting that the drugs were his had been suppressed as the result of a Miranda
motion, the State had sufficient evidence to arrest defendant, and seize the
suspected CDS-PCP, and prevail at trial.
Thus, in our view, there is no evidence supporting a conclusion that but
for his counsel's alleged error in failing to file a Miranda motion, there is a
reasonable probability the result of the matter against him would have been
different. To the contrary, the evidence established that suppression of the
statement would not have had any effect on the disposition of charges against
him. See State v. Pierre, 223 N.J. 560, 583 (2015) (explaining "[i]mportant to
the prejudice analysis" under Strickland "is the strength of the evidence" against
the defendant). Defendant's failure to affirmatively establish prejudice under
Strickland's prejudice prong alone required the denial of his Miranda-motion
PCR claim. Gaitan, 209 N.J. at 350.
We also affirm the court's denial of defendant's claim his trial counsel was
ineffective by failing to file the suppression and Miranda motions because
A-1115-22 22 where, as here, a PCR petition challenges a conviction based on a guilty plea,
the defendant must demonstrate a "reasonable probability that, but for counsel's
errors, [the defendant] would not have pled guilty and would have insisted on
going to trial." Nuñez-Valdéz, 200 N.J. at 139. Defendant failed to sustain this
burden and that failure required denial of his ineffective-assistance-of-counsel
claim.
Defendant does not address directly his burden of demonstrating that but
for his counsel's failure to file the suppression or Miranda motions, it would
have been rational to forego the plea offer to and proceed to trial. He argues
only that had plea counsel filed the Miranda motion and a motion to suppress
the CDS-PCP evidence, his entire case would have been dismissed, thereby
suggesting that his plea to a third-degree offense with a sentence of probation
would have been unnecessary.
We agree with the court that notwithstanding defendant's assertion, he
offered no proof that, facing a trial on the multiple very serious charges in the
indictment, including a first-degree offense carrying an exposure to up to a
twenty-year sentence, it would have been rational for him to forego a plea to a
third-degree possession of CDS-PCP charge with a recommended sentence of
three-years' probation. Defendant's PCR petition is untethered to any facts
demonstrated by competent evidence establishing that but for counsel's alleged
A-1115-22 23 errors, it would have been rational to reject the plea offer and proceed to trial.
We have consistently held that PCR claims must be supported by "an affidavit
or certification by defendant or by others setting forth with particularity" the
facts upon which they are based. Jones, 219 N.J. at 312. Defendant offers no
such facts here.
Moreover, as we have explained, defendant makes no showing the
putative motion to suppress evidence would have had merit or that had a
Miranda motion been successful, the resulting suppression of his statement,
when considered in the context of the other evidence, would have impacted the
State's proofs of the crimes charged in any measurably way. As such, other than
defendant's conclusory claim to the contrary, the record is bereft of evidence it
would have been rational of him to forego the offered plea to a third-degree
possessory CDS offense with a probationary sentence and proceed to trial on a
first-degree charge that carried a presumption of imprisonment and a sentence
of between ten and twenty years, and other charges as well. See N.J.S.A. 2C:44-
1(d); N.J.S.A. 2C:43-6(1); see also State v. O'Donnell, 435 N.J. Super. 351, 376
(App. Div. 2014) (explaining the defendant, who had claimed plea counsel was
ineffective, did not establish prejudice under Strickland's second prong because
he had failed to present "sufficient evidence to show 'a reasonable probability
A-1115-22 24 that, but for counsel's errors, [he] would not have pleaded guilty and would have
insisted on going to trial'" (quoting Hill v. Lockhart, 474 U.S. 52, 59 (1985))).
Finally, we reject defendant's argument that plea counsel provided
ineffective assistance by failing to obtain all discovery. As the PCR court found,
defendant's argument lacks merit because defendant fails to identify—even
generally—what additional discovery he claims counsel failed to obtain by
providing an affidavits or certification in support of his argument. R. 3:22-
10(c), (e)(2). A defendant claiming counsel was ineffective by failing to
conduct an investigation "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." Cummings 321
N.J. Super. at 170. Defendant's petition is devoid of any such facts.
Based on our de novo review of defendant's PCR petition, we discern no
basis to conclude the PCR court erred in finding defendant failed to sustain his
burden of proof under Strickland on all his claims. For these reasons, the PCR
court did not err in finding that plea counsel's actions did not fall below the
"objective standard of reasonableness."
Finally, as to defendant's first argument that the PCR court erred by
denying his claims without an evidentiary hearing. The pertinent rule states:
A-1115-22 25 A defendant [is] entitled to an evidentiary hearing only upon the establishment of a prima facie case in support of [PCR], a determination by the court that there are material issues of disputed fact that cannot be resolved by reference to the existing record, and a determination that an evidentiary hearing is necessary to resolve the claims for relief.
[R. 3:22-10(b).]
Having correctly concluded defendant failed to establish a prima facie
case under the Strickland standard, the PCR court properly denied defendant's
request for an evidentiary hearing. Preciose, 129 N.J. at 462-63.
To the extent we have not addressed all of defendant's arguments, we
deemed them without sufficient merit to warrant discussion in a written opinion.
R. 2:11-3(E)(2).
Affirmed.
A-1115-22 26