STATE OF NEW JERSEY v. MONICA DRAKE

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2798-04T42798-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MONICA DRAKE,

Defendant-Appellant.

_______________________________

 

Submitted: November 15, 2005 - Decided June 14, 2006

Before Judges Kestin and Lefelt.

On appeal from the Superior Court of New Jersey, Law Division, Criminal Part, Essex County, 03-04-1552.

Yvonne Smith Segars, Public Defender, attorney for appellant (Donald T. Thelander, Assistant Deputy Public Defender, of counsel and on the brief).

Peter C. Harvey, Attorney General, attorney for respondent (Robyn M. Mitchell and Steven A. Yomtov, Deputy Attorneys General, of counsel and on the brief).

PER CURIAM

Defendant was charged with nine third degree crimes having to do with the possession and distribution of illegal narcotics. Following a jury trial she was convicted on all charges.

At the time of sentencing, the trial court imposed three concurrent sentences, each with four years of imprisonment subject to three years of parole ineligibility. In respect of one of those sentences, the court merged the convictions for conspiracy (N.J.S.A. 2C:5-2), possession of heroin (N.J.S.A. 2C:35-10a(1)) and possession of that CDS with intent to distribute (N.J.S.A. 2C:35-5a(1) and -5b(3)) into the conviction for possession of that CDS in a school zone with intent to distribute (N.J.S.A. 2C:35-7). Another term came from the merger of the convictions for possession of cocaine (N.J.S.A. 2C:35-10a(1)) and possession of that CDS with intent to distribute (N.J.S.A. 2C:35-5a(1) and -5b(3)) into the conviction for possession of that CDS in a school zone with intent to distribute (N.J.S.A. 2C:35-7). The remaining term stemmed from the merger of the conviction for distributing heroin (N.J.S.A. 2C:35-5a(1) and -5b(3)) into the conviction for distribution of that CDS in a school zone (N.J.S.A. 2C:35-7). The judgment of conviction also ordered appropriate assessments, fees, penalties and driver's license suspensions.

On appeal, defendant raises the following issues:

POINT I THE TESTIMONY OF OFFICER HERNANDEZ THAT HE HAD RECEIVED INFORMATION WHILE AT THE POLICE PRECINCT ON THE DAY IN QUESTION THAT "DRUGS" WERE BEING SOLD FROM 257 SHERMAN AVENUE VIOLATED THE DEFENDANT'S FEDERAL AND STATE CONSTITUTIONAL RIGHTS TO CONFRONTATION, DUE PROCESS OF LAW AND A FAIR TRIAL. U.S. CONST. AMENDS. V, VI AND XIV; N.J. CONST. (1947), ART. I, PARS. 1, 9 AND 10. (Not Raised Below)

POINT II PROSECUTORIAL MISCONDUCT, DURING CROSS-EXAMINATION OF THE DEFENDANT, DEPRIVED DEFENDANT OF HER DUE PROCESS RIGHT TO A FAIR TRIAL. U.S. CONST. AMEND. XIV; N.J. CONST. (1947), ART. I. PAR. 10. (Not Raised Below)

POINT III THE DEFENDANT WAS DENIED THE EFFECTIVE REPRESENTATION OF COUNSEL. (Not Raised Below)

We affirm.

The essence of defendant's challenge in the first point is a contention that her convictions stemmed from violation of an essential principle derived from State v. Bankston, 63 N.J. 263, 271 (1973), and other cases, such as State v. Vandeweaghe, 177 N.J. 229, 241 (2003); State v. Frisby, 174 N.J. 583, 592 (2002); and State v. Roach, 146 N.J. 208, 224-26 (1996). That principle precludes admission, as hearsay, of testimony containing a statement or a logical implication that a non-witness gave the police evidence of the accused's guilt. Here, a police officer testified that undercover operations had been fielded at several locations, including the building in which defendant resided, because those addresses were known as places for drug distribution and other criminal activity. This testimony did not violate the preclusive principle. The officer made no such comment about defendant personally, that is, he did not refer to reports from others regarding her behavior, proclivities, or history. The jury was left to make its factual determinations with respect to defendant's culpability for the crimes charged from perfectly admissible evidence, including the varying versions it heard from the witnesses on both sides about defendant's conduct and her interaction with the police on the occasion in question.

Whether or not defense counsel failed to provide effective assistance of counsel in not objecting to the testimony on this point, or to other evidence, and by the manner in which counsel conducted his cross-examination of the police witnesses, is a matter subject to development on a petition for post-conviction relief pursuant to Rule 3:22. On the record before us, we discern no acts or omissions that qualify as ineffective assistance on the part of trial counsel under prevailing standards. Yet, questions regarding application of the standards of Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984), and State v. Fritz, 105 N.J. 42, 57-58 (1987), may not be determinable on this record alone, without further inquiry into what other background information was available to counsel. See State v. Preciose, 129 N.J. 451, 462 (1992).

The remaining arguments advanced by defendant lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

 
Affirmed.

(continued)

(continued)

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A-2798-04T4

June 14, 2006