STATE OF NEW JERSEY v. LOUIS COFIELD

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1035-04T41035-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

LOUIS COFIELD,

Defendant-Appellant.

____________________________________

 

Submitted March 28, 2006 - Decided April 21, 2006

Before Judges Skillman and Payne.

On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 99-11-1532.

Yvonne Smith Segars, Public Defender, attorney for appellant (Timothy P. Reilly, Designated Counsel, of counsel and on the brief).

Theodore J. Romankow, Union County Prosecutor, attorney for respondent (Steven J. Kaflowitz, Assistant Prosecutor, of counsel; Patricia L. Cronin, Legal Analyst, on the brief).

PER CURIAM

A jury found defendant guilty of third-degree possession of cocaine, in violation of N.J.S.A. 2C:35-10(a)(1); second-degree 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)(2); and second-degree possession of cocaine within 500 feet of a public housing facility with the intent to distribute, in violation of N.J.S.A. 2C:35-7.1. The trial court sentenced defendant to an extended term of nineteen-years imprisonment, with eight years of parole ineligibility, for possession of cocaine with the intent to distribute. The court also imposed the statutorily mandated penalties, fees and suspension of defendant's motor vehicle license. The court merged defendant's other convictions.

On appeal, we affirmed defendant's conviction and sentence in an unreported opinion. State v. Cofield, A-1955-00T4 (App. Div. Jan. 22, 2003). The Supreme Court denied defendant's petition for certification. 176 N.J. 280 (2003).

Defendant filed a petition for post-conviction relief based on the alleged ineffective assistance of trial counsel in failing to move to suppress the evidence obtained in a search of a residence. Defendant argued that such a motion would have been granted because the application for the warrant pursuant to which the search was conducted did not contain a constitutionally sufficient justification for a "no knock" entry into the residence. Defendant also filed what he characterized as a "motion to correct an illegal sentence."

The trial court heard argument on the petition for post-conviction relief and the motion addressed to his sentence at the same time. Following argument, Judge Barisonek denied both the petition and the motion in a comprehensive oral opinion. In ruling that defendant's trial counsel had not been ineffective in failing to file a motion to suppress based on the no-knock provision in the warrant, Judge Barisonek concluded that such a motion would have been unsuccessful, and therefore, defendant could not show that "there [was] a reasonable probability that, but for counsel's [alleged] unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 2068, 80 L. Ed. 2d 674, 698 (1984). Judge Barisonek concluded based on the totality of the circumstances, including defendant's substantial criminal history, consisting of more than thirty arrests, including one for robbery and another for possession of a prohibited weapon, and convictions for assault and numerous drug offenses, and evidence that an ongoing drug distribution operation was being conducted by multiple persons in the residence, the officers who executed the warrant had a reasonable, particularized suspicion that a no-knock entry was required to protect their safety.

On appeal, defendant presents the following arguments:

I. THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED SINCE THE POST-CONVICTION COURT ERRED IN DENYING POST-CONVICTION RELIEF WHERE TRIAL COUNSEL FAILED TO PURSUE A VALID MOTION TO SUPPRESS EVIDENCE BASED UPON THE INVESTIGATING OFFICER'S PROVIDING FALSE AND ERRONEOUS INFORMATION TO OBTAIN A "NO-KNOCK" WARRANT IN "RECKLESS DISREGARD OF THE TRUTH."

A. TRIAL COUNSEL FAILED TO FILE A CLEARLY MERITORIOUS MOTION TO SUPPRESS EVIDENCE CHALLENGING THE "NO-KNOCK" WARRANT WHICH, IF FILED, WOULD HAVE RESULTED IN THE SUPPRESSION OF ALL EVIDENCE AGAINST DEFENDANT AT TRIAL.

B. TRIAL COUNSEL'S FAILURE TO CONSULT WITH MR. COFIELD AND/OR CONDUCT AN INVESTIGATION INTO HIS CRIMINAL RECORD AND PURSUE A VALID MOTION TO SUPPRESS EVIDENCE WAS NOT UNASSAILABLE AS A STRATEGY DECISION.

II. THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED AND REMANDED SINCE THE TRIAL COURT FAILED TO CONDUCT AN EVIDENTIARY HEARING ON THE ISSUE OF INEFFECTIVE-ASSISTANCE-OF-COUNSEL CLAIM.

III. THE POST-CONVICTION COURT ERRED IN DENYING DEFENDANT'S MOTION TO CORRECT HIS ILLEGAL SENTENCE.

Defendant's arguments presented under Point III of his brief are clearly without merit and do not warrant extended discussion. R. 2:11-3(e)(2). Defendant's claims that the trial court misidentified aggravating sentencing factors and that his sentence is excessive are not cognizable on a petition for post-conviction relief. State v. Flores, 228 N.J. Super. 586, 591-96 (App. Div. 1988). Defendant's claim that he is entitled to resentencing under State v. Natale, 184 N.J. 458 (2005) is also not cognizable on his petition for post-conviction relief, because the Court determined in Natale that it would only apply its holding "to defendants with cases on direct appeal as of the date of this decision [which was August 2, 2005] and to those defendants who raised Blakely claims at trial or on direct appeal." Id. at 494. Defendant first raised this issue in his petition for post-conviction relief. Therefore, he is not entitled to a Natale remand.

However, the ineffective assistance of counsel arguments defendant presents under Points I and II of his brief require more extensive discussion. In Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693, the Court pronounced a two-part test for evaluating claims of ineffective assistance of counsel:

First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable.

To establish the second of the Strickland tests, "[t]he defendant must show that there is 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 the confidence in the outcome." Id. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698.

The New Jersey courts apply the same tests in reviewing claims of ineffective assistance of counsel under the New Jersey Constitution. State v. Allah, 170 N.J. 269, 283 (2002); State v. Fisher, 156 N.J. 494, 500 (1998); State v. Fritz, 105 N.J. 42, 53-58 (1987).

If a claim of ineffective assistance of counsel is based on the failure to file a motion for suppression of evidence, the application of the second Strickland test requires the court to determine whether there is a reasonable probability that a motion to suppress would have been successful. See State v. Goodwin, 173 N.J. 583, 597-98 (2002); State v. Fisher, 156 N.J. 494, 501 (1998). Unless the defendant can make this showing, the ineffective assistance of counsel claim must be rejected, because defendant has failed to establish that counsel's alleged "deficient performance prejudiced the defense." Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693.

Defendant does not dispute that the affidavit in support of the application for the search warrant established probable cause to search the premises for drugs. However, defendant argues that a motion to suppress would have been granted because the affidavit failed to show the required justification for a no-knock entry.

Our Supreme Court has adopted the following requirements for determining whether a search warrant may include authorization for a no-knock entry:

First, to justify a no-knock warrant provision, a police officer must have a reasonable, particularized suspicion that a no-knock entry is required to prevent the destruction of evidence, to protect the officer's safety, or to effectuate the arrest or seizure of evidence. Second, the police officer must articulate the reasons for that suspicion and may base those reasons on the totality of the circumstances with which he or she is faced. Third, although the officer's assessment of the circumstances may be based on his or her experience and knowledge, the officer must articulate a minimal level of objective justification to support the no-knock entry, meaning it may not be based on a mere hunch.

[State v. Johnson, 168 N.J. 608, 619 (2001).]

Where the reason for seeking a no-knock warrant is the safety of the police officers executing the warrant, "[t]he objective facts that, in the totality of the circumstances, [may] give rise to a reasonable suspicion of a heightened risk to officer safety depend on the particular circumstances of each case[.]" State v. Jones, 179 N.J. 377, 398 (2004). "[A] suspect's criminal history may be used as part of the totality of the circumstances analysis to justify a no-knock entry." Id. at 399. Such criminal history may include arrests of the suspect that did not result in a conviction. Id. at 402-03. Thus, "[t]he fact that an offender eventually pled to a lesser-included offense does not undermine the probative value to officer safety suggested by the original charges against a suspect." Id. at 403.

In addition to a suspect's criminal history, other factors a court may consider in determining whether to authorize a no-knock entry include whether there is reason to believe the suspect or suspects named in the warrant are "engaged in ongoing criminal activity" on the premises and whether there are "multiple offenders" involved in that activity. Id. at 407-08. The court also may consider whether the magnitude of a suspect's penal exposure due to his criminal record and the criminal activity believed to be occurring in the premises would create "a strong incentive to resist capture by the police." Id. at 408. "[T]he showing required to justify an unannounced entry 'is not high.'" Id. at 399 (quoting Johnson, supra, 168 N.J. at 624).

We conclude that application of the factors identified in Jones to the facts of this case justified the no-knock provision in the search warrant that revealed the evidence upon which defendant's conviction is based. The affidavit of Detective Robert Henderson of the Plainfield Police Department, submitted in support of the application for the warrant, stated that a reliable confidential informant had informed the police that crack cocaine and heroin were being distributed by defendant and two confederates inside 427 East Second Street in Plainfield, which was described as "half of a side-by-side duplex." After receiving this information, the police had the informant make controlled buys of crack cocaine and heroin from defendant and a confederate inside the premises on three separate occasions, which spanned a one-month period from the middle of June to the middle of July 1999. In addition, the police conducted a surveillance of the premises during the same period and observed numerous individuals enter the house for a brief period and then leave. A number of those individuals were observed carrying small white pharmacist's folds when they left the premises, which they would place up to their nostrils, inhale from and then throw to the ground before leaving the area. Detective Henderson expressed the opinion that those individuals were quickly snorting the contents of a packet of heroin and discarding the packaging to avoid possible detection.

Detective Henderson's affidavit also indicated that defendant had an extensive criminal record, including arrests for possession of a weapon and a conviction for assault:

The records of Otho L. Cofield indicate that Otho Cofield has been arrested in excess of thirty times, more than ten times he has been arrested for possession and possession with the intent to distribute CDS and on four occasions he has been arrested while in possession of a weapon. He also has four criminal convictions on his record. According to Promis Gavel records Cofield has been convicted of assault and burglary. He has six prior bench warrants for failure to appear in court to respond to criminal charges. He was sentenced to NJ State Prison in 1989 and again in 1996.

The part of the affidavit which stated that defendant had been arrested four times for weapons offenses was inaccurate. In fact, defendant had a single arrest for possession of a prohibited weapon.

In support of the application for authorization to make a no-knock entry into the premises, Henderson stated:

[B]ased on my training, education and experience, and also the prior criminal record of Otho L. Cofield, I know that those involved in the unlawful distribution of controlled dangerous substances, will, if given sufficient warning, make every effort to dispose of said controlled dangerous substances as well as any and all evidence relating to same. Considering Cofield's extensive prior criminal history, including six bench warrants, it is highly unlikely that Cofield will cooperate with the police during the execution of the requested search warrant. I also know from my training, education and experience, that these substances and related materials are susceptible to easy destruction. I further know from my training, education and experience, and the prior criminal arrest record of Otho L. Cofield that drug trafficking is inherently violent and commonly involves the use of dangerous weapons, especially firearms. Therefore, I request that I be permitted to enter said premises without first knocking, announcing, and identifying myself and others who may go with me for the safety of myself and others and also to prevent the destruction of any evidence.

Based upon this application, a Superior Court judge authorized the police to search the premises at 427 East Second Street and to make a no-knock entry for that purpose.

At approximately 9:30 p.m. on July 28, 1999, the police made the no-knock entry into the premises authorized by the warrant and conducted a search that revealed substantial quantities of heroin and crack cocaine as well as various drug paraphernalia. The police also found defendant and four other persons on the premises, who were placed under arrest.

The fact that the affidavit in support of the warrant application contained some inaccurate information regarding defendant's criminal history does not automatically require suppression of the evidence obtained in the search. "The Supreme Court of the United States and Supreme Court of New Jersey have both held that if an affidavit submitted in support of an application for a search warrant contains lawfully obtained information which establishes the probable cause required for a search, evidence obtained pursuant to the warrant will not be suppressed on the ground that the affidavit also contains false . . . information." State v. Chaney, 318 N.J. Super. 217, 221 (App. Div. 1999); see also State v. Holland, 176 N.J. 344, 360-61 (2003). Therefore, the trial court correctly concluded that the no-knock provision of the warrant could be sustained if the information set forth in the warrant, disregarding the inaccurate information, would justify the requisite reasonable suspicion that a no-knock entry into the premises was required to protect the safety of the officers executing the warrant.

The affidavit accurately reported that defendant had more than thirty prior arrests, four prior convictions for drug-related offenses and two prior sentences to State Prison. In addition, defendant had an arrest for possession of a weapon and a conviction for assault. It is also undisputed that the affidavit accurately reported that there was an ongoing drug distribution operation being conducted within the premises that involved multiple suspects. Moreover, it is evident in light of defendant's substantial criminal record that he faced a substantial sentence if the execution of the warrant revealed evidence that he was again engaged in the distribution of drugs. Under all these circumstances, the trial court correctly concluded that the police could reasonably have believed they could be met with physical resistance in conducting the search authorized by the warrant and that an unannounced entry would reduce the danger to the officers.

These facts closely parallel the facts in Jones, in which the Court upheld a no-knock provision in a warrant authorizing a search of a residence. In that case, the Court concluded that the totality of the circumstances, which included a seven-year old arrest of the defendant for assault on a police officer and unlawful possession of a weapon, evidence that an ongoing drug distribution operation was being conducted in the residence that was to be searched, the involvement of multiple offenders in the distribution of the drugs, and the fact that one of the suspect's prior convictions for drug offenses would give him a strong incentive to resist capture by the police, "provided a particularized, reasonable suspicion that officer safety would be compromised unless the police were permitted to dispense with the knock and announce requirement." Jones, supra, 179 N.J. at 408.

The facts of this case are nearly identical. Defendant had a twelve-year-old arrest for possession of a prohibited weapon that was dismissed and a three-year-old arrest for robbery that resulted in convictions for assault and theft; the police had evidence that an ongoing drug distribution operation was being conducted in the residence that was to be searched; there were multiple suspects involved in that drug distribution operation; and defendant had four prior convictions for drug offenses that gave the police a reasonable basis for believing he would have a particularly strong incentive to resist capture. Therefore, this case is controlled by Jones. See also State v. Sanchez, 179 N.J. 409 (2004).

 
Finally, the trial court correctly determined that there was no need to conduct an evidentiary hearing regarding defendant's petition for post-conviction relief because the affidavit in support of the search warrant and the trial record contained all the facts required to evaluate defendant's ineffective assistance claim.

Affirmed.

(continued)

(continued)

14

A-1035-04T4

April 21, 2006