STATE OF NEW JERSEY v. RONALD JENKINS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2960-04T42960-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

RONALD JENKINS,

Defendant-Appellant.

________________________________________________________________

 

Submitted May 23, 2006 - Decided June 16, 2006

Before Judges Lisa and S.L. Reisner.

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, 96-02-0417.

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

Jeffrey S. Blitz, Atlantic County Prosecutor, attorney for respondent (Jack J. Lipari, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant appeals from an order denying his post-conviction relief (PCR) petition. Tried to a jury, defendant was convicted of multiple drug offenses and possession of a weapon by a previously convicted person. He was sentenced on September 19, 1997 to an aggregate term of twenty-years imprisonment with a thirteen-and-one-half-year parole disqualifier. Defendant appealed, and in an unreported decision on April 27, 2000 (A-1597-97T4), we affirmed his convictions and, in all but one respect, affirmed his sentences. We remanded for reconsideration with respect to one aspect of the sentence imposed on one count. The details of the offenses in the various counts of which defendant was convicted and of the sentences imposed on each count are set forth at length in our earlier opinion. Defendant's petition to the Supreme Court for certification was denied on September 8, 2000. State v. Jenkins, 165 N.J. 528 (2000).

On September 16, 2002, defendant filed his PCR petition, followed by his filing on June 24, 2004, of his affidavit in support of the petition. Judge Garofolo heard argument on December 3, 2004, and on December 6, 2004 issued a comprehensive written decision denying defendant's petition. The judge signed an order memorializing his decision on January 27, 2005. This appeal followed.

Defendant presents these arguments on appeal:

POINT I

THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL.

POINT II

THE LOWER COURT ORDER MUST BE REVERSED SINCE THE PROSECUTOR COMMITTED MISCONDUCT.

POINT III

THE LOWER COURT MUST BE REVERSED SINCE THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION TO SUPPRESS.

POINT IV

THE LOWER COURT ORDER MUST BE REVERSED ON THE BASIS OF NEWLY DISCOVERED EVIDENCE.

A. NEWLY DISCOVERED EVIDENCE OF MISCONDUCT BY SERGEANT ZAVAGLIA.

B. NEW[LY] DISCOVERED EVIDENCE OF MISCONDUCT BY DETECTIVE REILLY.

C. NEWLY DISCOVERED EVIDENCE PROVIDED BY THE RUARK DECISION.

POINT V

THE LOWER COURT ERRED IN NOT GRANTING DEFENDANT'S REQUEST FOR AN EVIDENTIARY HEARING AND THE LOWER COURT MUST THEREFORE BE REVERSED.

POINT VI

THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE DEFENDANT'S CLAIMS ARE NOT PROCEDURALLY BARRED UNDER R. 3:22-4.

POINT VII

THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE DEFENDANT'S CLAIMS ARE NOT PROCEDURALLY BARRED UNDER R. 3:22-5.

These arguments are completely lacking in merit, R. 2:11-3(e)(2), and we reject them and affirm. We nevertheless set forth a detailed recitation of the facts underlying defendant's conviction and comment briefly on some of the appeal issues.

I

In late 1994 and early 1995, law enforcement authorities began investigating drug distribution activity in Atlantic City. Defendant became a subject of the investigation. The police used a confidential informant, Alfred Royal, to make controlled drug buys. With court permission, the police wiretapped defendant's telephone. The investigation focused on a particular brand of heroin sold by defendant, identified as "President." Royal purchased 56.38 grams of "President" heroin from defendant and others involved in the activity, and paid $8,185 in police-provided funds for the drugs. The sales occurred during the months of February, March, June, July, August and September 1995.

On September 19, 1995, law enforcement authorities learned that defendant was going to New York City to purchase a large quantity of heroin. A search warrant affidavit was prepared and presented to a judge on September 19, 1995. A warrant was issued authorizing the search of defendant's person, the automobile he was driving that day, and his residence. Law enforcement officers followed defendant on his trip to New York. He was seen entering and exiting a residence. Upon exiting, he was holding a brown paper bag. On his return trip towards Atlantic City, police stopped defendant's vehicle in Absecon and, pursuant to the search warrant, searched the car. They found in plain view near the gas pedal the brown paper bag, which contained 1,000 bags of heroin, stamped "President," weighing 44.7 grams. Defendant had about $500 in cash on his person. While in custody, and after being advised of his Miranda rights, defendant gave a statement admitting that the heroin found in the car was his and that he intended to sell it. He bragged that his arrest was the "biggest thing" the police had ever seen, and that no one else in Atlantic City was as enterprising as he was in terms of putting together such a large deal.

Pursuant to the search warrant, the police then searched defendant's residence, where they seized numerous items of drug paraphernalia and other evidence indicative of drug dealing activity. They also seized a 12-gauge shotgun. Some additional heroin and cocaine was also seized.

II

In his direct appeal, defendant raised these arguments through his counsel:

POINT I

PROBABLE CAUSE DID NOT EXIST FOR THE ISSUANCE OF A SEARCH WARRANT FOR THE 1995 WHITE OLDSMOBILE WHICH WAS OPERATED BY THE DEFENDANT. THE SEARCH OF THAT VEHICLE ON SEPTEMBER 20, 1995 SHOULD HAVE BEEN SUPPRESSED.

POINT II

THE TRIAL JUDGE ERRED WHEN HE DENIED THE DEFENDANT'S MOTION TO SUPPRESS WITHOUT A TRANSCRIPT OR SUMMARY OF THE TESTIMONY BEFORE THE JUDGE WHO ISSUED THE SEARCH WARRANT.

POINT III

THE TRIAL JUDGE ERRONEOUSLY PREVENTED THE DEFENDANT FROM DISCLOSING THAT ALFRED ROYAL WAS ARRESTED DURING THE TRIAL FOR DISTRIBUTION OF A CONTROLLED DANGEROUS SUBSTANCE.

POINT IV

THE TRIAL JUDGE ABUSED HIS DISCRETION WHEN HE IMPOSED A PAROLE INELIGIBILITY TERM OF SEVEN AND ONE-HALF YEARS ON COUNT 52.

POINT V

THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT IMPOSED CONSECUTIVE SENTENCES UPON THE DEFENDANT.

Defendant also filed a supplemental pro se brief, in which he raised these arguments:

POINT I

THE TOTALITY OF PROSECUTORIAL MISCONDUCT DENIED THE DEFENDANT A FAIR ADJUDICATION OF THE CHARGES AND/OR TRIAL PROCESS.

A. DEFENDANT DENIED A FULL AND FAIR SUPPRESSION HEARING CONCERNING THE SEARCH WARRANT. THE AFFIANT DID NOT TESTIFY AND NO NOTES OF THE WARRANT JUDGE EXISTED AT THE HEARING JANUARY 31, 1997.

B. THE AFFIDAVIT FOR THE SEARCH WARRANT CONTAINED PREVARICATION, CONCLUSIONS, MIS-QUOTES AND UNVERIFIED INFORMATION. THUS, NO PROBABLE CAUSE TO SEARCH WHITE OLDSMOBILE.

C. THE PROSECUTOR KNOWINGLY AND INTENTIONALLY OR WITH RECKLESS DISREGARD FOR THE TRUTH PRESENTS FALSE INFORMATION AT HEARINGS AND TRIAL.

D. CO-DEFENDANT'S CHILD COERCED INTO GIVING A STATEMENT. SHOWING OF RELIABILITY OR BELIEVABILITY NOT ALLOWED DEFENDANT.

Except with respect to Point IV raised by defendant's counsel, on which we remanded for reconsideration of sentence, we rejected all of defendant's arguments.

III

In his PCR petition, defendant asserted ineffective assistance of appellate counsel, newly discovered evidence, and violations of due process.

To be entitled to relief for ineffective assistance of counsel, a defendant must demonstrate that counsel's performance was deficient and that a reasonable probability exists that "but for counsel's 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). Prejudice is not presumed. State v. Fritz, 105 N.J. 42, 61-62 (1987). A defendant must demonstrate "how specific errors of counsel undermined the reliability" of the proceedings. 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). A defendant is entitled to the effective assistance of counsel in accordance with these principles at all stages of the proceedings, including on appeal. Evitts v. Lucey, 469 U.S. 387, 396-97, 105 S. Ct. 830, 836-37, 83 L. Ed. 2d 821, 830-31 (1985); State v. Morrison, 215 N.J. Super. 540, 545 (App. Div.), certif. denied, 107 N.J. 642 (1987).

Defendant criticizes appellate counsel for not presenting an argument that the verdict was against the weight of the evidence. There is no merit to this contention. Evidence of defendant's guilt on the drug offenses was overwhelming. On the weapons offense, it appears to be defendant's current position that there was insufficient evidence that he possessed the shotgun. However, as Judge Garofolo noted, the shotgun was found in defendant's residence, and was therefore under his control. There was sufficient evidence to establish constructive possession. This claim could have been raised on direct appeal and is procedurally barred under Rule 3:22-4. Further, on the merits, which Judge Garofolo addressed in the PCR proceeding, it is lacking in merit. On this point, appellate counsel was clearly not deficient for failing to present a meritless argument.

Defendant also argues that his appellate counsel was ineffective for failing to argue prosecutorial misconduct. However, in his supplemental pro se brief, defendant raised those issues on direct appeal, and we considered and rejected them. Defendant also argues that his appellate counsel did not adequately challenge the validity of the search warrant and resulting search and seizure of the evidence against him. That is not so. All of the issues defendant attempts to raise in this PCR proceeding pertaining to the search warrant affidavit and the search were raised on direct appeal and rejected. We agree with Judge Garofolo that these claims are barred under Rule 3:22-5 because they have been previously adjudicated on the merits.

Defendant's argument that he is entitled to PCR relief because he was denied the right at trial to recall Alfred Royal for cross-examination relative to events that occurred after Royal testified, of which the prosecutor properly notified defendant during trial and which may have had a tendency to undermine the credibility of Royal's testimony, was considered on direct appeal. We determined that the trial judge properly exercised his discretion in refusing to allow Royal to be recalled. Therefore, this issue has been previously considered and adjudicated on the merits and is barred from further consideration in a PCR proceeding. R. 3:22-5.

The newly discovered evidence asserted by defendant involves misconduct by two law enforcement witnesses who testified for the State, Sergeant Joseph Zavaglia and Detective Robert Reilly. However, as Judge Garofolo concluded, the new information regarding these individuals would, at best, be available for nothing more than impeachment, it was not material and not of sufficient force to have the capacity to change the outcome of the proceeding. As the judge noted, the transactions in which Zavaglia participated were all substantially corroborated by other evidence and testimony. The alleged newly discovered evidence against Reilly would probably be inadmissible if there were a new trial and, with respect to Reilly, the evidence was available long before the trial and, in the exercise of due diligence, should have been discovered before trial. Thus, we agree with Judge Garofolo that the alleged newly discovered evidence with respect to these two witnesses does not satisfy the test set forth in State v. Carter, 85 N.J. 300, 314 (1981). These issues provided no basis for a new trial.

Defendant also claimed newly discovered evidence arising out of unrelated litigation resulting in a decision by this court in 1999. Defendant contends that the decision established that the Atlantic City Police Department was not properly constituted in accordance with the controlling statutes. Thus, defendant argues, the actions of the police in his case in arresting him, searching him, his vehicle and his home, and the like, were unlawful and void. There is no merit to this argument. The activities of a public officer, carried out in good faith, have the full force and effect of law notwithstanding a later judicial declaration of infirmity in the enabling legislation establishing the office. State v. Celmer, 80 N.J. 405, 418, cert. denied, sub nom. Ocean Grove Camp Meeting Ass'n of the United Methodist Church v. Celmer, 444 U.S. 951, 100 S. Ct. 424, 62 L. Ed. 2d 321 (1979). Further, even private citizens possess the common law authority to arrest when "a felony was provable." State v. McCarthy, 123 N.J. Super. 513, 517 (Law Div. 1973).

Defendant also contends that he was improperly denied an evidentiary hearing in the PCR proceeding. We disagree. Evidentiary hearings in PCR proceedings are discretionary. State v. Preciose, 129 N.J. 451, 462 (1992). To be entitled to such a hearing, a defendant must establish a prima facie case of ineffective assistance. Ibid. The PCR petition must be verified by defendant and must set forth with specificity the facts upon which the claim is based. R. 3:22-8. Bare assertions or conclusions will not suffice to establish the requisite showing. State v. Cummings, 321 N.J. Super. 154, 168-69 (App. Div.), certif. denied, 162 N.J. 199 (1999). From our review of the record, we are satisfied that defendant failed to make the requisite showing on any of his claims to be entitled to an evidentiary hearing, and we find no error in the denial of his request for a hearing.

We affirm substantially for the reason expressed by Judge Garofolo in his thorough and well-reasoned written decision of December 4, 2004.

Affirmed.

 

Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

(continued)

(continued)

12

A-2960-04T4

June 16, 2006