State v. Arthur

877 A.2d 1183, 184 N.J. 307, 2005 N.J. LEXIS 925
CourtSupreme Court of New Jersey
DecidedJuly 19, 2005
StatusPublished
Cited by165 cases

This text of 877 A.2d 1183 (State v. Arthur) is published on Counsel Stack Legal Research, covering Supreme Court of New Jersey primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Arthur, 877 A.2d 1183, 184 N.J. 307, 2005 N.J. LEXIS 925 (N.J. 2005).

Opinions

Judge SKILLMAN

(temporarily assigned) delivered the opinion of the Court.

This is an appeal from the denial of a petition for post-conviction relief based on the alleged ineffective assistance of trial counsel in the defense of a prosecution for a sale of drugs. Defendant’s primary claim is that his counsel was ineffective in failing to call as a defense witness Robert Jackson, who initially told defense counsel that he was the one who sold the drugs but then retracted this admission when informed he could be subject to prosecution. We conclude that defense counsel’s decision not to call Jackson [313]*313was a reasonable strategic decision because the buyer of the drugs, Robin Crittenden, testified that Jackson was the one who sold her the drugs and defense counsel could reasonably have believed Jackson would harm the defense case by denying Crittenden’s allegation that he was the seller. We also reject defendant’s arguments that trial counsel provided ineffective assistance by failing to visit the scene of the drug transaction or to interview potential defense witnesses before trial and by failing to call other witnesses who could have testified defendant did not sell drugs to Crittenden.

I

A jury found defendant guilty of distribution of cocaine, in violation of N.J.S.A. 2C:35-5(b)(3) and N.J.S.A. 2C:35-5(b)(3); distribution of cocaine within 500 feet of a public park, in violation of N.J.S.A. 2C:35-7.1; possession of cocaine, in violation of N.J.S.A. 2C:35 — 10(a)(1); possession of cocaine with the intent to distribute, in violation of N.J.S.A. 2C:35 — 5(a)(1) and N.J.S.A. 2C:35 — 5(b)(3); and possession of cocaine within 500 feet of a public park with the intent to distribute, in violation of N.J.S.A. 2C:35-7.1. The trial court granted the State’s motion to sentence defendant to an extended term pursuant to N.J.S.A. 2C:43-6(f) and imposed concurrent fifteen-year terms of imprisonment, with five years of parole ineligibility, for distribution of cocaine within 500 feet of a public park and possession of cocaine within 500 feet of a public park with the intent to distribute. The Appellate Division affirmed defendant’s conviction and sentence in an unreported opinion, State v. Arthur, No. A-1892-00T4 (App.Div. Apr. 23, 2002), and this Court denied his petition for certification, 174 N.J. 545, 810 A.2d 64 (2002).

Defendant filed a petition for post-conviction relief based on the alleged ineffective assistance provided by his trial counsel, which was supported by affidavits of Jackson and three other potential witnesses whom counsel did not call at defendant’s trial. Judge Barisonek, who also was the trial judge, conducted a two-day [314]*314evidentiary hearing in which Jackson, defendant, defendant’s brother James Arthur, defendant’s fiancée Crystal Ross and defense counsel all testified. Based on the evidence presented at that hearing and the trial record, Judge Barisonek concluded that defendant had failed to prove his ineffective assistance claim and denied the petition.

The Appellate Division affirmed in an unreported opinion, which concluded that defense counsel had not provided ineffective assistance by failing to call Jackson as a defense witness and also rejected defendant’s other arguments. This Court granted defendant’s petition for certification limited to the issue of whether he received ineffective assistance of trial counsel. 182 N.J. 628, 868 A.2d 1031 (2005).1

Defendant’s convictions were based primarily on the testimony of Andre Crawford, a detective in the Narcotics Bureau of the Plainfield Police Department. While Crawford was conducting an undercover narcotics surveillance from an undisclosed location in the late afternoon on June 23, 1998, he observed defendant place some items behind bushes located at 969 West 3rd Street in Plainfield. Defendant then got into a car that left the area for a brief period. When he returned, defendant went to the bushes, bent down to check the items he had placed there, and walked back to the street. Shortly thereafter, defendant was approached by a woman named Robin Crittenden. After defendant and Crittenden spoke briefly, defendant went to the bushes, retrieved an item, and walked back to Crittenden, who handed him money in exchange for the item. Crawford testified that he had an unobstructed view of the apparent drug transaction from a distance of less than thirty feet and that he knew defendant before observing him on this occasion.

[315]*315Crawford radioed the officers in his back-up unit to come to the area. The officers arrived within a short time and immediately detained defendant and Crittenden. Because there were other people in the area, the officers brought them onto the porch of 969 West 3rd Street. Crawford confirmed by radio from his surveillance location that they were the two persons he had observed engage in an apparent drug transaction.

Crittenden said to one of the officers: “I don’t have anything. What’s going on here.” She then dropped a vial from her hand, which was subsequently determined to contain cocaine. At this point, the officers placed defendant and Crittenden under arrest.

Crawford directed one of the officers to the bushes where he had observed defendant retrieve the item that he handed to Crittenden. The officer found a brown bag at that location, which contained a Kentucky Fried Chicken box with forty-five vials of what was subsequently determined to be cocaine. A subsequent examination of the evidence disclosed that the vial dropped by Crittenden had the same kind of white cover as forty-three of the forty-five vials found behind the bushes.

Crittenden testified on defendant’s behalf that the person who sold her cocaine was not defendant but instead Robert Jackson, who resided at 969 West 3rd Street. Crittenden testified that she told Crawford and the other police officers that Jackson, not defendant, sold her the drugs but “they didn’t want to hear it” and kept insisting defendant was the seller. Crittenden testified that even though she eventually named defendant as the seller when she pled guilty to charges based on her role in the transaction, she did so only because the prosecutor required her to identify defendant to get the benefit of her plea bargain.

On cross-examination, Crittenden was confronted with the parts of the plea transcript in which she identified defendant as the seller. She also acknowledged that she had three prior criminal convictions.

[316]*316On redirect, defense counsel brought out that when her guilty plea was being taken, she initially identified Jackson, not defendant, as the seller. However, the judge indicated he would not accept the plea and declared a recess. According to Crittenden, she identified defendant as the seller at this point because she was scared that she would lose the benefit of her plea bargain.

After Crittenden completed her testimony, the prosecutor stated that she wanted to call Jackson as a rebuttal witness but that, after speaking with defense counsel, Jackson had “left the building” and was “nowhere to be found.” The prosecutor asked the trial court to delay the trial to afford her an opportunity to locate Jackson, but the court denied the application.

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Cite This Page — Counsel Stack

Bluebook (online)
877 A.2d 1183, 184 N.J. 307, 2005 N.J. LEXIS 925, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-arthur-nj-2005.