STATE OF NEW JERSEY v. WILLIE JONES

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2255-04T42255-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

WILLIE JONES,

Defendant-Appellant.

_____________________________

 

Submitted January 18, 2006 - Decided February 7, 2006

Before Judges Collester and Lisa.

On appeal from Superior Court of New Jersey,

Law Division, Union County, 98-11-1692-I.

Yvonne Smith Segars, Public Defender, attorney

for appellant (Arthur J. Owens, Designated

Counsel, of counsel and on the brief).

Theodore J. Romankow, Union County Prosecutor,

attorney for respondent (Steven J. Kaflowitz,

Assistant Prosecutor, of counsel and on the

brief).

PER CURIAM

Tried to a jury, defendant was convicted of distribution of heroin, contrary to N.J.S.A. 2C:35-5(a)(1) and 5(b)(3), and distribution of heroin within 500 feet of a public park, contrary to N.J.S.A. 2C:35-7.1. He was sentenced to an aggregate extended term of ten years with a five-year period of parole ineligibility. On direct appeal we affirmed defendant's conviction and sentence. On September 30, 2002, defendant filed a petition of post-conviction relief (PCR), which was denied by Judge James C. Heimlich on November 5, 2004. On appeal defendant makes the following arguments:

POINT I - THE POST-CONVICTION RELIEF COURT ERRED IN FINDING THAT DEFENDANT FAILED TO DEMONSTRATE THAT HE WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL.

A. TRIAL COUNSEL'S FAILURE TO CALL CO-DEFENDANT HAMPTON BAILEY TO TESTIFY CONSTITUTED INEFFECTIVENESS OF COUNSEL.

B. TRIAL COUNSEL'S FAILURE TO REQUEST AN ADJOURNMENT UPON RECEIVING THE STATE'S ELEVENTH HOUR EXPERT REPORT CONSTITUTED INEFFECTIVENESS OF COUNSEL.

POINT II - THE POST-CONVICTION RELIEF COURT ERRED IN FAILING TO GRANT DEFENDANT AN EVIDENTIARY HEARING ON THE ISSUE OF INEFFECTIVENESS OF COUNSEL.

The arguments made by defendant are without sufficient merit to warrant extensive discussion in a written opinion. R. 2:11-3e(2). We make only the following comments.

Plainfield Police Sergeant Michael Richards testified that at about 7:30 p.m. on August 6, 1998, he observed from a vantage point 150 feet away the defendant distribute drugs to Hampton Bailey, who then rode off on a bicycle. The officers pursued Bailey and cut him off a short distance away. Bailey was observed throwing away four folds of heroin prior to his arrest. When the officers returned to the area of Richards' observation to arrest the defendant, they found no drugs or currency on his person.

The State also called Detective Keith Franklin of the Union County Prosecutor's Office as an expert in street-level narcotics transactions. Defendant's trial attorney made an objection because he had been advised of the proposed expert testimony only ten days prior to trial and did not receive a copy of the report until the day before. The trial judge offered a continuance but defense counsel declined. Detective Franklin then testified that experienced drug dealers use stash locations to conceal and secure their drugs and that it was quite common for a street dealer to "hand off" the money received from the drug sale in an effort to avoid actual possession in case of arrest.

The standard for judging a claim of ineffective assistance of counsel is whether the attorney's conduct "so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 692-93 (1984); State v. Fritz, 105 N.J. 42, 58 (1987). The defendant must show that counsel's representation was deficient under all the circumstances and that there is a reasonable probability that but for counsel's ineffectiveness the result would have been different. Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698; Fritz, supra, 105 N.J. at 60-61.

Defendant argues that his trial attorney's failure to subpoena Bailey constituted ineffective assistance because when Bailey pleaded guilty to possession of heroin, he did not say that he received the heroin from defendant. However, since Bailey made no statement as to the source of the heroin, it is pure speculation to assume that he would have exculpated defendant if called to testify.

 
He next contends his trial counsel was ineffective for failing to accept the judge's offer of a continuance prior to Detective Franklin's testimony but there is no showing of prejudice in proceeding with the testimony. Finally, the denial of an evidentiary hearing on defendant's PCR application did not constitute an abuse of discretion.

Affirmed.

(continued)

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A-2255-04T4

February 7, 2006