STATE OF NEW JERSEY v. MICHAEL HILL

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5013-04T45013-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MICHAEL HILL,

Defendant-Appellant.

_______________________________________

 

Submitted June 7, 2006 - Decided June 28, 2006

Before Judges Parker and Grall.

On appeal from Superior Court of New

Jersey, Law Division, Union County, Indictment No. 00-04-0363.

Yvonne Smith Segars, Public Defender,

attorney for appellant (Jack Gerber, Designated Counsel, of counsel and on

the brief).

Theodore J. Romankow, Union County Prosecutor, for respondent (Steven J.

Kaflowitz, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Michael Hill appeals from the denial of his petition for post-conviction relief (PCR). We affirm that decision substantially for the reasons stated by Judge Malone in an oral decision delivered on June 25, 2004.

Defendant was indicted and tried to a jury. The jury found him guilty of the following: count one, possession of cocaine, N.J.S.A. 2C:35-10a(1), a crime of the third degree; count two, possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5b(3), a crime of the third degree; count three, possession with intent to distribute in a school zone, N.J.S.A. 2C:35-7, a crime of the third degree; and count four, resisting arrest, N.J.S.A. 2C:29-2a(1), a disorderly persons offense.

Defendant and the State filed post-trial motions that had an impact on his judgment of conviction and sentence. The judge granted defendant's motion for judgment notwithstanding the verdict on the charge of possession with intent to distribute illegal drugs in a school zone and dismissed that count. The judge merged count one into count two, and he granted the State's motion to sentence defendant to a mandatory extended term, which was based on his prior conviction for possession of a controlled dangerous substance with intent to distribute. N.J.S.A. 2C:43-6f. The judge imposed an aggregate sentence of eight years, four without possibility of parole. See ibid. (requiring a parole ineligibility term that is least three years and not less than between one-third and one-half of the sentence imposed).

On direct appeal this court affirmed defendant's conviction and sentence. We rejected the two claims he raised: the first was based on the prosecutor's use of peremptory challenges, and the second was based on the judge's consideration of aggravating and mitigating factors relevant to his sentence. State v. Hill, No. A-0984-01 (App. Div. Jan. 13, 2003) (slip op. at 3, 6). The Supreme Court denied defendant's petition for certification. State v. Hill, 177 N.J. 224 (2003).

Defendant committed these crimes on September 20, 1999. Two officers of the Elizabeth Police Department were patrolling an area of the City known for drug trafficking. They saw defendant give something to another man in exchange for money. The men fled when the officers approached. Defendant left the area on a bicycle. The officers followed and intercepted him. Although they were not in uniform, they wore their badges outside their clothing. Defendant threw his bicycle at the feet of one of the officers and ran. The officers followed defendant to a parking lot, where they saw him throw objects on the ground near the dumpster. They recovered twenty vials of cocaine. After defendant was apprehended, he kicked and punched before he was subdued.

On appeal from the denial of his motion for PCR, defendant presents the following arguments:

THE COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF.

A. INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL.

B. FAILURE TO MOVE FOR DISMISSAL OF ALL CHARGES WITH DISMISSAL OF [THE] SCHOOL ZONE CHARGE.

C. FAILURE TO MOVE FOR A POST-CONVICTION PLEA OFFER.

D. INEFFECTIVE [ASSISTANCE OF] APPELLATE COUNSEL FOR FAILURE TO RAISE THE ISSUES ABOVE.

E. THE CUMULATIVE EFFECT OF THE ERRORS [OF DEFENSE COUNSEL] WARRANTS REVERSAL AND REMAND FOR A NEW TRIAL.

F. DEFENDANT WAS ILLEGALLY SEARCHED AND SEIZED.

G. THE DEFENDANT'S SENTENCE WAS EXCESSIVE.

The arguments lack sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(2). We add a brief explanation for that conclusion with respect to each of defendant's contentions.

Defendant's first claim of ineffective assistance of counsel is based on his attorney's summation. Defense counsel argued that defendant possessed the drugs for his own use and not for distribution and conceded that he fled from the officers who were attempting to arrest him. Judge Malone, who denied defendant's application for PCR, properly considered and rejected this claim.

In order to establish a prima facie claim of ineffective assistance of counsel, a defendant must demonstrate a reasonable likelihood of success in establishing deficient performance by the attorney and a reasonable probability that the outcome would have been different but for counsel's unprofessional error. State v. Preciose, 129 N.J. 451, 463-64 (1992) (discussing the standard established in Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 2068, 80 L. Ed. 2d 674, 698 (1984), United States v. Cronic, 466 U.S. 648, 104 S. Ct. 2039, 80 L. Ed. 2d 657 (1984), and State v. Fritz, 105 N.J. 42, 58 (1987)). "In determining whether defendant has met the first prong of the Strickland/Fritz test, an appellate court will not second-guess defense counsel's trial decisions which rest upon strategic or tactical considerations. Estelle v. Williams, 425 U.S. 501, 512, 96 S. Ct. 1691, 1697, 48 L. Ed. 2d 126, 135 (1976); State v. Buonadonna, 122 N.J. 22, 38 (1991)." State v. Castagna, 376 N.J. Super. 323, 360 (App. Div.), certif. granted, 185 N.J. 35 (2005). Counsel is ineffective only in those "'rare instances' [that] trial mistakes [are] of such magnitude 'as to thwart the fundamental guarantee of [a] fair trial.'" Ibid. (quoting State v. Dennis, 43 N.J. 418, 428 (1964)).

We have recognized that it is not ineffective assistance to adopt a strategy that theoretically enhances a defendant's credibility on a central issue in the case. Castagna, supra, 376 N.J. Super. at 363. The soundness of a strategy involving an acknowledgement of elements of lesser included offenses established by overwhelming evidence in order to minimize the risk of conviction of a greater charge has been recognized by other courts. See Underwood v. Clark, 939 F.2d 473, 474 (7th Cir. 1991).

Because there was overwhelming evidence of defendant's possession of the cocaine vials and because defendant was subject to an extended term if convicted of the more serious charge of possession with intent to distribute, we agree with Judge Malone's findings that trial counsel's argument was based on sound strategy. As Judge Malone explained:

There was substantial evidence in this case that the defendant was seen to be in possession of drugs. The far more serious charge facing the defense was that he possessed drugs with intent to distribute. The strategy that the defendant did not intend to distribute drugs, the emphasis on that aspect of the charges against him was, in my view, a defensible strategy[,] . . . attempting to minimize the effect of the evidence that existed against the defendant and steer the jury in a direction away from the more serious charge. . . .

We agree. The argument did not deprive defendant of the representation guaranteed by the State and Federal Constitutions. State v. Allah, 170 N.J. 269, 283 (2002). Because trial counsel was not ineffective, there was no basis for appellate counsel to raise this issue on direct appeal.

Defendant's second and third objections to trial counsel's performance are based on his attorney's failure to move for a new trial or seek a new plea offer after the trial judge granted the motion for judgment of acquittal on the school zone offense. The State agreed to dismissal of that charge after trial upon learning that the school, which was within 1,000 feet of the site of defendant's crime, had ceased to operate as a school prior to the date of defendant's crime.

As we understand defendant's argument, his claim is that the unsupported school zone charge was prejudicial and colored both the prosecutor's initial plea offer and the jurors' view of his culpability. Defendant cites no authority in support of either proposition, and we cannot conclude that either trial or appellate counsel provided less than effective representation because they did not raise these novel arguments.

A new trial is granted only when "it clearly appears that there was a miscarriage of justice under the law." R. 2:10-1. We fail to see how a jury could be led to reach an unjust result by evidence that defendant possessed drugs near a school at 1:30 a.m.

Similarly, the State has the authority but not the obligation to offer a post-conviction plea agreement. N.J.S.A. 2C:35-12. Defendant makes no argument to demonstrate that a proper exercise of the prosecutor's discretion would have resulted in a different plea offer in this case, in which defendant's sentence was based on his successive convictions of possession with intent to distribute and not on the school zone offense. See State v. Brimage, 153 N.J. 1, 3-4 (1998).

Accordingly, both issues lack merit. When a claim is without foundation, a defendant cannot establish either deficient performance based on failure to raise it or a reasonable probability that the outcome would have been different if it had been raised. See Preciose, supra, 129 N.J. at 463-64.

Defendant also objects to the stop that lead to the discovery of the vials of cocaine. The judge who denied defendant's motion to suppress heard testimony from one of the arresting officers and defendant. He concluded that, having observed contact between two men in an area known for a high volume of drug trade at 1:33 a.m., the officers had a reasonable and articulable basis for stopping defendant for further investigation. The judge further concluded that after defendant was stopped, he fled and discarded the drugs that the police then seized as evidence. The judge properly held that the police conduct was not unreasonable and that their retrieval of the cocaine defendant discarded was permissible under State v. Ruiz, 286 N.J. Super. 155 (App. Div. 1995), certif. denied, 143 N.J. 519 (1996). Appellate counsel was not ineffective for failing to challenge this unassailable ruling on direct appeal.

Defendant's claim that his sentence is excessive is based on State v. Natale, 184 N.J. 458 (2005). The rule established in Natale has no application because this case is not before us on direct appeal. Id. at 494.

Affirmed.

 

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A-5013-04T4

June 28, 2006