STATE OF NEW JERSEY v. GREGORY JONES

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2330-03T52330-03T5

STATE OF NEW JERSEY,

Plaintiff-Respondent,

vs.

GREGORY JONES,

Defendant-Appellant.

__________________________________

 

Submitted: June 20, 2006 - Decided July 14, 2006

Before Judges Conley and Cuff.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 03-04-1507.

Triarsi, Betancourt, Walsh & Wukovits, attorneys for appellant (Steven F. Wukovits, of counsel; Howard P. Lesnik, on the brief).

Paula T. Dow, Essex County Prosecutor, attorney for respondent (Lucille M. Rosano, Acting Assistant Prosecutor, on the brief).

PER CURIAM

A jury convicted defendant of conspiracy to violate the narcotics laws contrary to N.J.S.A. 2C:5-2 (Count One); possession of a controlled dangerous substance (CDS) (cocaine), contrary to N.J.S.A. 2C:35-10a(1) (Count Two); possession with intent to distribute cocaine, contrary to N.J.S.A. 2C:35-5a(1) (Count Three); and possession with intent to distribute cocaine within one thousand feet of a school zone contrary to N.J.S.A. 2C:35-7 (Count Four). At sentencing, Judge Lester merged Counts One, Two and Three with Count Four and imposed a four-year term of imprisonment with a three-year period of parole ineligibility. The judge also imposed the appropriate fines, penalties and assessments.

On appeal, defendant raises the following points:

Point I Defendant's trial counsel was incompetent, thus depriving defendant of his right to a fair trial (Not raised below).

Point II Officer Dudley's Accusation and Officers' Smith and Furlow Indictments Constitute Newly Discovered Evidence Admissible as Other Crimes Evidence (Not raised below).

Point III There is a Great Public Interest that Requires this Matter be Remanded on all Issues (Not raised below).

Point IV The Jury Verdict on Count Three and Count Four is Against the Weight of the Evidence.

We affirm.

On the evening of January 13, 2003, Newark Police Officers Ismael Lespier, Tyrone Dudley, Lawrence Furlow and Darius Smith were on narcotics patrol in a blue Astro minivan with tinted windows. The officers were dressed in plain clothes. Around 8:45 p.m., one of the officers noticed a crowd in the area of a chicken take-out store located at 263 South Orange Avenue. The chicken store stood next to a liquor store and across the street from a mosque. This area was known for narcotics trafficking. The officers decided to set up a surveillance of the store.

Officer Lespier parked the van facing westbound on South Orange Avenue in front of the mosque, about twenty-seven feet from the chicken store. The area was illuminated by light from the stores, as well as a street light on the other side of the road. Daphne Thomas was observed walking back and forth in front of the liquor store.

Over a ten to fifteen minute period, Officers Lespier and Furlow observed several people walk up to and briefly speak with Thomas. Thomas then walked into and quickly out of the liquor store. She returned to the individual who approached her and reached with her right hand under her black jacket, through the top of her gray sweatshirt and into her left sleeve, and pulled a plastic bag from her sleeve. Thomas opened up a little bag and removed an item from inside. She handed the item to the person in return for money. She immediately walked to the chicken store and handed the money to defendant, who stood in the doorway of the store. She then returned to her original place on the street. Defendant removed a wad of bills from his pocket, placed the money with the other bills, and returned the wad of bills to his pocket. Defendant remained inside the threshold of the door for most of the time. The officers watched three or four transactions before deciding to arrest defendant and Thomas.

Officers Lespier and Dudley approached Thomas. Officer Lespier showed her his badge and told her that they had observed her selling narcotics. He could see a plastic bag protruding from her hand. Thomas opened her hand and Officer Lespier saw a plastic bag that contained seven smaller yellow transparent bags. Based on his experience, he suspected the smaller bags contained cocaine.

Officer Lespier also noticed a bulge in Thomas' sleeve. He demanded she produce the item in her sleeve. She pulled out a second clear bag containing thirty-nine small black transparent bags of suspected cocaine. She had no currency on her. Thomas was arrested.

As defendant began to walk away, he was detained by Officers Furlow and Smith. Officer Furlow identified himself as a police officer. Officer Lespier directed Officers Smith and Furlow to arrest defendant for conspiring with Thomas. Defendant had $76 in his pocket in the following denominations: two $20 bills, three $5 bills, eighteen $1 bills, one silver dollar, and eight quarters.

Officer Furlow tested the substances contained in one of the yellow bags and in one of the black bags. Each bag tested positive for cocaine. The parties stipulated to the admission of a map and letter demonstrating that 263 South Orange Avenue was within 1000 feet of school property.

Altagracia Cruz, defendant's girlfriend and the mother of his two children, testified on his behalf. Around 7:15 p.m. on January 13, 2003, Ms. Cruz arrived at defendant's house and drove him to a store on Springfield Avenue where defendant purchased some T-shirts and thermals. She pulled up to the store and waited outside in the car for him. After making the purchase, defendant asked Ms. Cruz to take him to a liquor store on South Orange Avenue so he could check his Pick-It lottery tickets. Ms. Cruz dropped defendant at the liquor store at about 8:05 p.m. and drove home. Defendant told her that he would check the tickets and call her later. About fifteen to twenty minutes later, defendant called her from the Newark Police Station. Ms. Cruz went to the police station to find out what had happened and to collect defendant's property, including the lottery tickets. On cross-examination, Ms. Cruz admitted that the property sheet listing the items she signed out on defendant's behalf did not list any lottery tickets. She further admitted that she did not know what he was doing between the time she dropped him off and the time of his arrest.

Officer Darius Smith, one of the arresting officers, was called by the defense. Officer Smith acknowledged that Timothy Jones, defendant's brother, had a civil lawsuit against the officer for personal injuries allegedly sustained at a house formerly owned by Smith at 54 Ninth Avenue in Newark. The injuries occurred about two years before defendant's January 13, 2003 arrest. Officer Smith testified that he had never seen Timothy Jones at the house, did not receive notice of the claim until May 18, 2003, several months after defendant's arrest, and did not know that defendant was Timothy Jones' brother. At the time of defendant's trial, Officer Smith believed the suit was still pending. Officer Smith also acknowledged that he and Timothy Jones had countersuits against each other for harassment.

Defendant testified in his own defense. At the time of his arrest, defendant lived about two and one-half blocks from 263 South Orange Avenue. That day, his girlfriend, Altagracia Cruz, dropped him off at the liquor store near 263 South Orange Avenue so he could check his Pick-It lottery tickets and change his shirt. Before he entered the chicken store, defendant noticed eleven police vehicles on Fairmount Avenue and people against the wall. The police were walking up and down the block asking questions, getting names and information, and checking people. He went into the chicken store to change his shirt. As he came out of the store and started walking up the street, six police officers dressed in black and wearing black masks came from behind a dumpster and pushed his head into the liquor store window. Officer Smith pushed him against the liquor store window and yelled, "Tim can't save you now." Then Officer Smith handcuffed and arrested him. Four minutes elapsed from the time he was dropped off until the time of his arrest. Defendant denied that he was selling drugs with Thomas and had not seen her that day until her arrest.

Defendant never had the opportunity to check the lottery tickets in his pocket before his arrest. He called his girlfriend, just as she reached home, to tell her that he had been arrested.

Defendant knew Officer Smith before January 13, 2003. Smith always harassed him because Smith had problems with defendant's brother, Timothy. Defendant knew that Timothy had a lawsuit against Officer Smith for injuries, and further claimed that Timothy had lodged four or five complaints against Officer Smith in the past two years.

Defendant stated that he had only $48 in his pocket at the time of his arrest, and that the police planted the remaining money on him. Defendant testified that he sustained a knot on his head when Officer Smith pushed him into the liquor store window. He did not file any complaints against the officers and did not seek medical attention. Defendant claimed that many people witnessed his altercation with police, but none of them was able to testify on his behalf.

In order to establish a claim of ineffective assistance of counsel, defendant must satisfy the two-prong test identified by Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984) and State v. Fritz, 105 N.J. 42, 52 (1987). First, defendant must show that defense counsel's performance was indeed deficient. Second, defendant must demonstrate that there exists "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698. The precepts of Strickland and its tests have been adopted by New Jersey. Fritz, supra, 105 N.J. at 58. There is a strong presumption that counsel "rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Strickland, supra, 466 U.S. at 690, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695. Further, because prejudice is not presumed, Fritz, supra, 105 N.J. at 61, a defendant must demonstrate "how specific errors of counsel undermined the reliability" of the proceeding. United States v. Cronic, 466 U.S. 648, 659 n.26, 104 S. Ct. 2039, 2047 n.26, 80 L. Ed. 2d 657, 668 n.26 (1984). Moreover, such acts or omissions of counsel must amount to more than mere tactical strategy. Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694-95.

Usually, such claims are reserved for post-conviction relief after completion of all avenues for direct appeal. State v. Preciose, 129 N.J. 451, 460 (1992). We will consider a claim of ineffective assistance of counsel only if it can be evaluated on the trial record. Here, defendant's claim that counsel was unprepared because he was unaware of the litigation between defendant's brother and Officer Smith can be evaluated on the trial record and that record does not support defendant's claim. On cross-examination, Officer Smith admitted that he knew defendant's brother and admitted that defendant's brother had filed a claim for damages for injuries sustained by the brother at a building formerly owned by Smith. The jury was, therefore, informed that the police officer may be biased against defendant. It was for the jury, however, to determine whether the litigation actually caused the officer to fabricate his testimony against defendant. As to the claim that trial counsel did not call witnesses identified to him prior to trial, this record does not allow an assessment of this claim on direct appeal. This claim is best addressed in a petition for post-conviction relief.

Defendant also contends that the State's witnesses have either been convicted of charges or charged with offenses that severely effect their credibility. This is information that should be presented on a motion for a new trial pursuant to Rule 4:50. This court cannot assemble the record that is required to consider this claim.

Finally, defendant's contention that the verdicts on Counts Three and Four are against the weight of the evidence is without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

 
Affirmed.

(continued)

(continued)

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A-2330-03T5

July 14, 2006