STATE OF NEW JERSEY v. INGER STEVENS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2118-09T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

INGER STEVENS,

Defendant-Appellant.

April 25, 2011

Submitted January 31, 2011 - Decided

Before Judges Reisner and Alvarez.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 06-06-1765.

Yvonne Smith Segars, Public Defender, attorney for appellant (Alan I. Smith, Designated Counsel, on the brief).

Robert D. Laurino, Acting Essex County Prosecutor, attorney for respondent

(Lucille M. Rosano, Assistant Essex County Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Inger Stevens appeals from the August 20, 2009 denial of her application for post-conviction relief (PCR). For the reasons that follow, we affirm.

Defendant was sentenced on February 2, 2007, to an aggregate term of seven years imprisonment subject to thirty-six months of parole ineligibility, after being convicted by a jury of fifteen counts of drug distribution offenses. The most serious offense was second-degree possession of a controlled dangerous substance with intent to distribute within 500 feet of a public housing complex, N.J.S.A. 2C:35-7.1. Defendant's appeal and petition for certification were denied. State v. Inger Stevens, No. A-3505-06 (App. Div. May 2, 2008), certif. denied, 197 N.J. 258 (2008). On appeal, defendant's sole claim of error was that the testimony elicited from the officers during trial violated the principles enunciated in State v. Bankston and its progeny. 63 N.J. 263, 270-73 (1973) (limiting, on hearsay and confrontation clause grounds, the testimony a police officer may provide to describe why he or she approached the defendant). In the direct appeal, we deferred for PCR consideration defendant's additional pro se claims of ineffective assistance of counsel.

On October 23, 2008, defendant filed a pro se petition for post-conviction relief (PCR) and was thereafter assigned counsel by the Office of Public Defender. The PCR judge rendered a decision from the bench denying the application on August 20, 2009, and this appeal followed.

Defendant was convicted of selling cocaine to an undercover police officer in a public park in East Orange. The transaction was witnessed by a police detective who, along with the undercover officer, testified at trial. On cross-examination, defendant's attorney asked several questions with reference to the undercover officer's sources of information and familiarity with the details of defendant's identity, and elicited information that defendant was a target of an ongoing investigation. This line of questioning was intended to establish the foundation for the defense theory that the police's failure to immediately arrest defendant after she was alleged to have sold drugs to the undercover officer cast doubt upon the veracity and reliability of their identification.

The PCR judge ruled the petition lacked merit because any violation of the Bankston principles was elicited by defense counsel in aid of "the only defense that appeared to be available," that of identification. As he noted, the testimony advanced defendant's theory that either: (1) the police unfairly targeted her for unspecified reasons; or (2) that police were being untruthful about their identification as, if they had known who she was, they would have immediately arrested her after the transaction. The fact that the defense theory was unsuccessful alone did not satisfy the familiar Strickland standard. Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). As the judge also noted, possible defenses were limited in a case where one of the participants in a transaction is an undercover officer, and the transaction is observed by a second officer. The judge also briefly touched upon defendant's pro se claims of error, concluding they too lacked merit.

On appeal, counsel raises the following points:

POINT I

THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED AND THE MATTER REMANDED FOR A FULL EVIDENTIARY HEARING BECAUSE THE "OUTCOME DETERMINATIVE" TEST APPLIED BY THE COURT WAS INCONSISTENT WITH THE "PRIMA FACIE" CRITERIA OF R. 3:22

POINT II

THE COURT ERRED IN DENYING POST-CONVICTION RELIEF BECAUSE TRIAL COUNSEL'S FAILURE TO MOVE FOR A N.J.R.E. 404(B) LIMITING INSTRUCTION AFTER ELICITING TESTIMONY THAT THE DEFENDANT WAS A TARGET OF AN ONGOING CRIMINAL INVESTIGATION PRIOR TO THE ALLEGED DRUG SALE TO OFFICER HERESTON SATISFIED BOTH PRONGS OF THE STRICKLAND/FRITZ TEST FOR INEFFECTIVE ASSISTANCE OF COUNSEL

POINT III

THE COURT'S RULING DENYING POST-CONVICTION RELIEF VIOLATED THE DEFENDANT'S RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ARTICLE I, PAR. 10, OF THE NEW JERSEY CONSTITUTION

POINT IV

DEFENDANT REASSERTS ALL OTHER ISSUES RAISED IN DEFENDANT'S PRO SE PETITION FOR POST-CONVICTION RELIEF

A. Prior to my indictment, the same officers in the indictment above arrested me on June 24, 2006. I was arrested for a warrant they claimed they had for the indictment. The results to that case were thrown out due to lack of prosecution; for not having the warrant. (They also claimed I had drugs at the time of the arrest, which was also thrown out at the pretrial motion to suppress evidence at East Orange Municipal Court.) All the information from the East Orange arrest, along with the transcript minutes of the East Orange Trial/Motion was given to my lawyer for the Superior Court trial to be against the police, were crucial issues counsel should have presented and did not, thus supporting complete ineffective assistance of counsel.

B. My lawyer at the time also failed to challenge the superseded indictment, due to the 9 charges that were dismissed which were important to the case, including but not limited to the informant/phone calls, etc.

C. My lawyer also ignored that I was never arrested, arra[ign]ed, or offered any pre/post indictment, Probable Cause hearing, as well as my rights to the "Scope of Discovery" or "No Bill."

D. Counsel didn't file any motions in regards to any evidence to review before trial. If he did, my lawyer [would have] known that the date of the evidence didn't coincide with the arrest date. Also, my attorney allowed the officer to state that it was the evidence lab department that changed the date on the evidence package. This supports hearsay, which must be challenged and cannot be ignored.

E. Further, my lawyer was rude when I provided valuable information and facts about my case that would have helped us win at trial or motions.

F. Counsel never subpoenaed the East Orange Police Department for the evidence log, chronological reports in regards to the drugs, money for the sting, tapes, etc., which are all crucial to know if there had been any break in the chronological chain of events and information. Once a gap is uncovered, the entire case falls within the purview of being in favorable light to the defendant.

G. Ineffective assistance of counsel is abounding in my case, including but not limited to failure of trial defense counsel to file an appeal of the indictment and stay of proceedings pending interlocutory appeal.

H. I also filed my own Motion for New Trial to Judge Vena which was ignored. My [pro se] motion detailed many reasons why I should be granted a new trial and incorporated the blatant ineffectiveness of counsel. All the information above, with Exhibits A through D were sent to Chief Judge, Judge Vena, who gave copies of my motions/complaints and Exhibits to my counsel and prosecutor.

I would also like to mention 18 [U.S.C.A.] 3501 Delay of Arraignment/ confession suppressed due to the delay of interrogation, delay of time starting from the time taken into custody. The period between custody, confession, and arra[ign]ment is the factor for suppression. U.S. v. Wilson, 838 F.2d 108 (9th Cir. 1988).

In addition any indictments produced now or before a Pre-Trial hearing must be challenged on the validity of the evidence [given] to the Grand Jury. (No evidence of drugs/money etc., was given to the Grand Jury at any time prior to its deliberation and handing down an indictment.)

Please see the Supreme Court Committee on Criminal Procedure, 96 N.J.L.J. Index pages 449, 459-462 (1973).

Please also see N.J. Const. Art. 1:

[] It is a fundamental legal guarantee[] by the Constitution that one accused of a crime shall be informed of the nature of the accusation in the form of an indictment found and presented by the Grand Jury. State v. Pitman, 119 A.[2d] 438 (1992). I wasn't arrested to know about these charges prior to being indicted.

In regard to the existence or nonexistence of a formal Criminal Complaint, the State Constitutional guarantee that no person shall be held to answer for a criminal offense unless charged by a Grand Jury in the form of an indictment requires the State to present to the Grand Jury proof to support every element of the offense unless charge[d] before the return of an indictment and requires every element to be alleged in the indictment. State v. Fortin, 178 N.J. 540, 8 A.2d 974 (2004) clarified.

In regards to these matter[s], I believe I had ineffective counsel that failed to do many things which has led me to believe there was a "Conflict of Interest[.]"

Under the Sixth Amendment of the United States Constitution, a person accused of crimes is guaranteed the effective assistance of legal counsel in his defense. Strickland, supra, 466 U.S. at 684-85, 104 S. Ct. at 2063-64, 80 L. Ed. 2d at 691-92. To establish a deprivation of that right, a convicted defendant must demonstrate that: (1) counsel's performance was deficient, and (2) the deficient performance actually prejudiced the accused's defense. Id. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693; see also State v. Fritz, 105 N.J. 42, 58 (1987) (adopting the Strickland test in New Jersey). In reviewing such claims, courts apply a strong presumption that defense 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. "[C]omplaints 'merely of matters of trial strategy' will not serve to ground a constitutional claim of inadequacy . . . [.]" Fritz, supra, 105 N.J. at 54 (quoting State v. Williams, 39 N.J. 471, 489 (1963), cert. den., 382 U.S. 964, 86 S. Ct. 449, 15 L. Ed. 2d 366 (1965), overruled on other grounds, State v. Czachor, 82 N.J. 392 (1980)); see also State v. Perry, 124 N.J. 128, 153 (1991).

In accord with State v. Preciose, 129 N.J. 451, 462-63 (1992), defendant contends she established a prima facie case such that the PCR judge should have ordered a plenary hearing on her entitlement to relief. We do not agree. Under these circumstances, the proofs were so overwhelming that, even if more harmful than beneficial, cross-examination of the officer was not outcome determinative. See generally State v. Macon, 57 N.J. 325, 335-37 (1971). The decision to present a defense to the jury that appeared consistent with the State's proofs was a reasonable exercise of professional judgment. Hence defendant did not establish a prima facie case. As one of few trial strategies available to defendant, given the facts of her case, required the specific cross-examination she now finds objectionable, counsel's performance was accordingly not deficient, and the cross-examination did not prejudice the outcome.

Defendant also contends counsel's failure to request a limiting instruction after cross-examining the officers about the investigation constituted ineffective assistance of counsel which materially affected the outcome. If the omission was error, it was harmless. In light of the overwhelming proofs proffered by the State, the absence of a limiting instruction was harmless error.

Lastly, pursuant to State v. Rue, 175 N.J. 1, 19 (2002), and State v. Webster, 187 N.J. 254, 257 (2006), counsel repeats all of defendant's pro se arguments made in the trial court. These points, which include the claim that defense counsel was "rude," lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).