STATE OF NEW JERSEY v. YUSEF STEELE

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2824-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

YUSEF STEELE,

Defendant-Appellant.

 

Submitted: June 5, 2006 - Decided July 13, 2006

Before Judges A. A. Rodr guez and Fall.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment Number 01-07-0769-I.

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

Bruce J. Kaplan, Middlesex County Prosecutor, attorney for respondent (Simon Louis Rosenbach, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Yusef Steele appeals from an order entered in the Law Division on January 11, 2005, denying his application for post-conviction relief. The following factual and procedural history is relevant to our consideration of the arguments advanced on appeal.

Defendant was charged in Middlesex County Indictment Number 01-07-0769 with third-degree possession of cocaine, N.J.S.A. 2C:35-10a(1) (count one); third-degree possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5a(1) and -5b(3) (count two); third-degree possession of cocaine with intent to distribute in a school zone, N.J.S.A. 2C:35-7 (count three); and fourth-degree criminal contempt, N.J.S.A. 2C:29-9, for allegedly violating a restraining order issued pursuant to The Drug Offender Restraining Order Act of 1999, N.J.S.A. 2C:35-5.4 to -5.10 (the "Act") (count four). Tried to a jury, defendant was convicted of the third-degree drug charges contained in counts one through three, and was acquitted of the criminal contempt charge in count four.

At the time of these convictions, defendant was serving a period of probation on convictions of third-degree burglary and third-degree possession of heroin. As a result, defendant was also charged with a violation of probation on each of those convictions. Following his convictions on the charges in Indictment Number 01-07-0769-I, defendant pled guilty to the violation of probation charges.

Defendant was sentenced to a four-year term of imprisonment, with a three-year parole disqualifier, on the third-degree conviction in count three of possession of cocaine with intent to distribute in a school zone. The convictions on counts one and two were merged. On the violation of probation convictions, the trial judge imposed concurrent three-year terms of imprisonment, but ran those consecutive to the school zone sentence. Thus, the aggregate term of imprisonment imposed was seven years, with a three-year period of parole ineligibility.

The charges against defendant arose from an incident occurring on June 6, 2001, in New Brunswick. The evidence adduced by the State during a suppression hearing, and at trial, disclosed that the police had established a surveillance of the front area of an apartment complex located at 33 Commercial Avenue, across the street from an elementary school, where drug activity was suspected. Detective Samuel Hillyer, who was familiar with defendant, observed defendant engage in two hand-to-hand transactions. The first transaction involved a female handing defendant currency in exchange for an item that Hillyer was unable to observe. The second transaction, five minutes later, involved a male handing defendant currency in exchange for a clear plastic bag containing a white powdery substance. After each transaction, Hillyer saw defendant walk to a nearby fence and shove something into the fence.

As Hillyer and other officers converged on the scene to arrest him, defendant was alerted to the presence of police officers and fled the pursuing officers by escaping over a fence. Several minutes later, defendant was arrested in a nearby store for purportedly violating a drug restraining order that had been issued against him on May 9, 2001. Pursuant to that order, defendant was prohibited from being within five hundred feet of the corner of Carmen and George Streets. He was arrested within the prohibited area and transported to police headquarters; no drugs were found on defendant's person.

While at police headquarters, defendant requested permission to make a telephone call. Defendant was given access to a telephone at a desk where Detective Hillyer was sitting a few feet away; Detective Michael Sutton was standing in the doorway, four or five feet from defendant. In the presence and hearing of Hillyer and Sutton, defendant placed a call to his girlfriend, Flora Smith, and told her "to go to the back of the middle building, Building Six, go to the biggest tree, to the left of the tree near the fence, the stuff is there." Detective Hillyer stated he heard defendant make that statement "[a]t least twice."

Upon hearing those statements, Hillyer and Detective Victor DeFilippo drove to the described location, where they discovered a black magnetic key case containing nine bags of cocaine, the bags resembling the bag Hillyer had observed defendant hand to the male earlier that day.

A hearing on defendant's motion to suppress the drugs was conducted on February 20, 2002. Detective Hillyer testified concerning the drug surveillance operation, his observations of defendant, defendant's arrest, and the statements defendant had made during his telephone conversation.

Detective Patrick Frigiola testified that on June 6, 2001, he was part of the narcotics surveillance unit. He stated that he saw defendant running from the surveillance area and enter a store. Frigiola followed defendant into the store and arrested him. Frigiola explained that he was familiar with defendant and was aware that defendant was in violation of the restraining order because he had sought and obtained the order and then had served it upon defendant on or about May 9, 2001.

Defense counsel argued at the suppression hearing that defendant's arrest on the restraining order was invalid because it had not been signed by a judge, and had not been issued in accordance with the procedures set forth in the Act. Defense counsel asserted that "anything stemming from the arrest needs to be suppressed as fruit of the poisonous tree." Defense counsel also argued that the statement made by defendant during the telephone conversation must be suppressed because defendant was only in the police station due to the invalid arrest. The suppression motion was denied.

On his direct appeal, defendant presented the following arguments:

POINT I

THE COURT BELOW ERRED IN DENYING DEFENDANT'S MOTION TO SUPPRESS.

POINT II

THE COURT BELOW ERRED IN FAILING TO GRANT DEFENDANT'S MOTION FOR A MISTRIAL.

POINT III

THE SENTENCE IMPOSED BY THE COURT BELOW WAS EXCESSIVE AND, ACCORDINGLY, SHOULD BE REDUCED.

In an unpublished opinion, we affirmed the conviction and sentences imposed. State v. Steele, A-4809-01T4 (Aug. 13, 2003). We specifically concluded that the trial court had properly denied the motion to suppress. Id., slip op. at 7. Defendant's petition for certification was denied by the Supreme Court on November 24, 2003. State v. Steele, 178 N.J. 252 (2003).

On or about February 5, 2004, defendant filed an application for post-conviction relief, alleging he had been provided ineffective assistance of counsel. Defendant asserted that trial counsel was ineffective because he had failed to challenge the validity of the narcotics restraining order; failed to properly investigate the scene of the crime; and failed to vigorously cross-examine the police officers during the suppression hearing and at trial.

A hearing on defendant's petition was conducted in the Law Division before the trial judge on December 17, 2004. In denying the application for post-conviction relief, the judge found that defendant had failed to establish a prima facie case of ineffective assistance of counsel to warrant a plenary hearing.

The judge first concluded there was no merit in defendant's contention that his trial attorney had been ineffective for failure to move to suppress the overheard telephone conversation in police headquarters. In so concluding, the judge noted there was no basis for a suppression motion because, when defendant made the telephone call, he was not being subjected to interrogation, and he had made the call at his own request and in the presence of the officers without any expectation of privacy.

The judge also found that during the trial defense counsel had vigorously represented defendant. On January 11, 2005, the court issued an order denying defendant's petition.

On appeal, defendant presents the following argument for our consideration:

BECAUSE DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF TRIAL, APPELLATE OR POST-CONVICTION RELIEF COUNSELS, HIS PETITION SHOULD BE GRANTED AND HIS CONVICTION REVERSED OR THE MATTER SHOULD BE REMANDED FOR A NEW POST-CONVICTION HEARING AND NEW COUNSEL SHOULD BE ASSIGNED. (PARTIALLY RAISED BELOW).

The Sixth Amendment of the United States Constitution guarantees every criminal defendant the assistance of legal counsel in his or her defense. Strickland v. Washington, 466 U.S. 668, 685, 104 S. Ct. 2052, 2063, 80 L. Ed. 2d 674, 692 (1984). Moreover, the right to counsel is expansively viewed as the right to the effective assistance of counsel. Ibid.

In order to establish a claim for ineffective assistance of counsel, a defendant must satisfy the two-prong test set out by the Strickland Court:

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 or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.

[Supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693.]

The standards embodied in the Strickland test have been adopted by our courts. State v. Fritz, 105 N.J. 42, 58 (1987).

"'Judicial scrutiny of counsel's performance must be highly deferential,' and must avoid viewing the performance under the 'distorting effects of hindsight.'" State v. Norman, 151 N.J. 5, 37 (1997) (quoting, Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694). Moreover, 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.

Additionally, adequate assistance of counsel should be measured by a standard of "reasonable competence." Fritz, supra, 105 N.J. at 60-61. That standard does not require "the best of attorneys," but rather requires that attorneys be "not . . . so ineffective as to make the idea of a fair trial meaningless." State v. Davis, 116 N.J. 341, 351 (1989).

After analyzing the record in the light of these standards and the written arguments advanced by the parties, we conclude that the contentions of defendant on appeal are without sufficient merit to warrant extensive discussion in a written opinion. R. 2:11-3(e)(2). We make the following comments.

The record demonstrates that the validity of the drug restraining order was fully challenged by trial counsel and was discussed and considered on direct appeal. However, for the first time on this appeal, defendant now contends that his trial counsel was ineffective because he failed to request the trial judge to provide the jurors with a charge pursuant to State v. Kociolek, 23 N.J. 400 (1957) and State v. Hampton, 61 N.J. 250 (1972), concerning the jury's evaluation of defendant's statements during the overheard telephone conversation. Likewise, defendant asserts that appellate counsel and post-conviction relief counsel were ineffective for failing to raise that issue.

We first note that "Hampton requires a trial court to specifically instruct a jury to consider the credibility of a defendant's statement only if it was elicited in the 'physical and psychological environment' of police interrogation." State v. Baldwin, 296 N.J. Super. 391, 398 (App. Div.), certif. denied, 149 N.J. 143 (1997). Here, the telephone conversation was not the product of interrogation; therefore, the principles in Hampton are inapplicable. See also State v. Wilson, 335 N.J. Super. 359, 367 (App. Div. 1999) (holding that Hampton does not apply when the offered statements were made to non-police witnesses).

In State v. Kociolek, 23 N.J. 400 (1957), the Court focused on the evaluation of witness testimony of purported admissions made by an accused, stating that the trial court had "erred in refusing to charge the request that the jury 'should receive, weigh and consider such evidence with caution,' in view of the generally recognized risk of inaccuracy and error in communication and recollection of verbal utterances and misconstruction by the hearer." Id. at 421.

Here, however, Detective Hillyer was subjected to extensive cross-examination concerning his recollection of the content of the phone conversation, and discrepancies between his recollection and that of Detective Sutton were fully explored. Moreover, Flora Smith testified at trial, and denied that defendant had instructed her, during the phone conversation, to go to a specific location to get his "stuff." Therefore, the issue of the content of the telephone conversation in the light of the differing versions presented the jury with an issue of credibility. In that regard, in his charge, the trial judge provided the jurors with appropriate guidance in the evaluation and assessment of the credibility of the witnesses. A charge pursuant to Kociolek was unnecessary and would not have benefited either party. Here, as in State v. Feaster, 156 N.J. 1 (1998), cert. denied sub. nom., Kenney v. New Jersey, 532 U.S. 932, 121 S. Ct. 1380, 149 L. Ed. 2d 306 (2001), "in light of the testimony, arguments and instructions, the critical issue of the reliability of defendant's incriminating statements was thoroughly and sufficiently placed before the jury." Id. at 73.

Accordingly, defendant failed to establish a prima facie case that either the first or second prongs of the Strickland test had been met.

Affirmed.

 

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A-2824-04T4

July 13, 2006