STATE OF NEW JERSEY v. DAVIDSON DESIR

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0854-11T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DAVIDSON DESIR,

Defendant-Appellant.

_______________________________

December 20, 2012

Submitted December 12, 2012 - Decided

Before Judges Nugent and Haas.

On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 08-10-2386.

Joseph E. Krakora, Public Defender, attorney for appellant (Gilbert G. Miller, Designated Counsel, on the brief).

Christopher J. Gramiccioni, Acting Monmouth County Prosecutor, attorney for respondent (Caitlin Sidley, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Davidson Desir appeals from a September 9, 2011 order denying his petition for post-conviction relief (PCR). We affirm.

I.

A.

After his motion to suppress was denied, defendant pled guilty to first-degree possession of heroin, with intent to distribute. N.J.S.A. 2C:35-5b(1). He was sentenced to thirteen years in prison, with a six and one-half year period of parole ineligibility.

Defendant filed a direct appeal and raised the following arguments:

POINT I

BECAUSE THE STOP AND SEARCH OF THE CAR IN WHICH THE DEFENDANT WAS A PASSENGER WAS ILLEGAL, ALL EVIDENCE DISCOVERED DURING AND SUBSEQUENT TO THE MOTOR VEHICLE STOP SHOULD HAVE BEEN SUPPRESSED.

POINT II

[DEFENDANT'S MOTHER'S] CONSENT TO SEARCH HER HOME WAS NOT KNOWINGLY AND VOLUNTARILY GIVEN AND, THUS, ALL EVIDENCE SEIZED FROM MR. DESIR'S BEDROOM MUST BE SUPPRESSED.

We affirmed defendant's conviction in an unpublished opinion. State v. Desir, No. A-0380-09 (November 1, 2010).

On November 29, 2010, defendant filed a petition for PCR. He alleged he was denied the effective assistance of appellate counsel because his attorney did not argue that his mother lacked the authority to consent to the search of defendant's bedroom. On September 9, 2011, Judge Anthony J. Mellaci, Jr., who was also the judge at the time of the motion to suppress and plea, held oral argument, determined an evidentiary hearing was not required, and denied defendant's petition for PCR.

B.

We begin by referencing the essential background facts as set forth in our earlier opinion and in the transcript of the suppression hearing. Following a three-month investigation in which individuals other than defendant had sold controlled dangerous substances to undercover police officers, the police determined to arrest the targets of their investigation. Desir, supra, slip op. at 12. As they prepared to move in to arrest the targets as they were standing by a car, a second car arrived at the scene. (Id. at 13). The second car's passenger, who was later identified as defendant, got out of the car, opened the trunk, and took out a yellow plastic bag, from which he removed a pair of purple latex gloves. Ibid. According to the police, "such bags were often used by those involved in handling narcotics to avoid the drug being absorbed through their skin." Ibid. One of the targets walked over and stood next to defendant at the trunk of defendant's car and spoke to him. Ibid. Defendant then got into the car and it drove away. Ibid.

Based on these circumstances, the police believed defendant had been involved in a drug transaction with the targets of their investigation. Ibid. The police pursued and stopped defendant's car and an officer saw two bags of marijuana in plain view inside the car. Ibid. Defendant and his girlfriend, who was the driver of the car, were arrested. Judge Mellaci found that the vehicle stop and the seizure of the drugs was valid and, "perceiv[ing] no basis for reversing [the judge's] determination that the search was valid under the applicable legal principles governing investigative detention[,]" we affirmed this determination. Id. at 13-14.

After her arrest, defendant's girlfriend told the police that defendant resided with her, but he kept his "stash" of drugs at his parents' house. Id. at 14. "[T]he police went to this house believing it might contain illegal drugs owned by defendant." Ibid. Four of the officers who responded to defendant's parents' home, Detective Michael Bonanno, Officer Eddy Raisin, Detective Scott Samis, and Sergeant Thomas Nuccio, testified concerning what occurred at that time.

Initially, no one was at the residence when the police arrived around 6:00 p.m. Eventually, defendant's cousin pulled up in a car. The cousin told the officers he was staying at the home and he would contact defendant's parents to ask them to come home to speak with them. However, Officer Raisin was familiar with the family and he called defendant's father at work. The father told the officer to call defendant's mother, Iosaemze Bazeaez. Officer Raisin called her and she told him she would be there in thirty minutes.

Defendant's mother was the first parent to arrive at the home. She spoke and understood English, but Officer Raisin also translated the discussion into Creole for her. Ms. Bazeaez brought the officers into the kitchen and offered them soda. The officers explained that they believed defendant was "storing narcotics in her house." Ms. Bazeaez told Detective Samis that defendant "does not live there, does not pay rent" or utilities. Although he still received mail at the house, Ms. Bazeaez told the officers defendant was "living with his girlfriend in Long Branch." She said, "[h]e came sporadically, came and went."

Detective Samis asked Ms. Bazeaez if she would consent to the police searching the house for drugs. She replied "she didn't want any bad things or drugs inside her house." She was "concerned if there was anything in there of an illegal nature, she wanted it out. If there was any drugs in the residence, she wanted it out." Detective Samis called Detective Bonanno and asked him to bring a written consent to search form to the house.

While the officers waited for Detective Bonanno to arrive, Detective Samis asked Ms. Bazeaez to show the officers where defendant's room had been and she led them upstairs. He explained that he "wanted to make sure that that room did not have a lock on it. I wanted to make sure that that room in fact was a room that was accessible to Mrs. [Bazeaez], that it wasn't a locked facility and that there was not like another door that went out the back."

The door to the room faced the hallway and it was found unlocked and open. Ms. Bazeaez told the officers she "had items in that room, property." Detective Samis looked in and observed that all of the drawers to the dresser were open and pulled out. He saw some bedding in an open closet and a "Scarface" movie poster and some baseball hats on the walls. There was a television set with a photograph of defendant and Ms. Bazeaez's grandson on it. The room was not searched at that time and the officers returned downstairs with Ms. Bazeaez to wait for Detective Bonanno.

By this time, defendant's father had arrived at the house. He had some difficulty in understanding English and Officer Raisin translated the conversation into Creole for him. Mr. Bazeaez was "just as willing as [his wife] was to anything that was in the house, to get it out."

Detective Bonanno arrived with the written consent to search form and Detective Samis reviewed each line of it with Ms. Bazeaez and also had Officer Raisin translate it for her. Ms. Bazeaez signed the consent form. The consent form authorized the officers "to remove and retain any items of evidential value which they consider pertinent to their investigation." The form also authorized the officers to search the entire house. The form stated that Ms. Bazeaez could be present during the search and could stop the search at any time. Both of defendant's parents were present in the home throughout the search and neither asked that it be stopped.

The officers went into the room where defendant had stayed and began their search. They found women's clothing in the closet and "blankets on top of the shelves." The bed was covered with a bedspread. Under the bed, Detective Samis found a red duffel bag. The bag was zippered closed, but there was no lock on it. Inside the bag, Detective Samis found 200 grams of heroin, a scale, plastic gloves, empty plastic baggies, a cutting agent and other paraphernalia.

The officers showed these items to defendant's parents. Ms. Bazeaez told Detective Samis "she wanted me to search the entire house because she wanted everything out." The officers also found razor blades, masks, electric bands and two safes in the room, together with a jacket with money in the pocket.

After the search was completed, Ms. Bazeaez accompanied the officers to headquarters, where she gave a videotaped statement. She confirmed that the room that was searched had been defendant's room. She stated she did not keep the room clean and did not make the bed when defendant slept there. However, she "was complaining that [defendant] doesn't do the wash and he is still is asking her to do the wash[.]"

Ms. Bazeaez testified on defendant's behalf at the suppression hearing. Contrary to the officers' testimony, she claimed defendant lived in the home with her, her husband and her daughter. She said she did not keep any of her property in her son's bedroom. Ms. Bazeaez testified defendant cleaned his own room "every couple of single days" and also helped her clean the house. She denied ever going into defendant's room. She would put his mail in a basket outside his room in the hallway. She denied ever washing or folding his laundry.

Ms. Bazeaez also testified that, on the day of the search, she received a call from her husband who told her there were police in the house. She began to "shake" and "cry" as she drove to her house. When she arrived, she saw "a lot of police in the house[,]" some of whom were wearing masks or black paint on their faces. She let the police in and they went to defendant's room. Ms. Bazeaez stated they "[p]ut the beds upside down and looking for something." She initially testified she did not remember going over a consent to search form with Detective Samis. Later, she stated that Officer Raisin just put the form in front of her and told her "[i]f you sign the paper, you not going to have trouble[.]" She claimed she had difficulty understanding the officers.

In denying defendant's motion to suppress the evidence found during the search of the house, Judge Mellaci found that the police properly searched the room after Ms. Bazeaez consented to the search. In so ruling, he specifically found that Ms. Bazeaez's testimony was not believable. Her testimony at the suppression hearing differed from her videotaped statement to Detective Samis and from the testimony of each of the officers who testified. Thus, the judge "found her testimony to be incredible and . . . found the officers to be more credible in that regard."

With regard to the propriety of the search, Judge Mellaci found:

Here, this Court finds that the officers were reasonable in their belief that the defendant's mother had authority to allow them into the bedroom to search. The defendant does not claim that he paid rent or utility bills and the mother testified that he does not. The defendant's bedroom door was not locked and in fact, the testimony was that it was actually open as the officers approached. Defendant's mother also, according to the officers, stored certain items in the bedroom. She also indicated that she did the washing of the clothing of the defendant.

And there was no testimony that this was the quote unquote permanent every night residence of the defendant. In fact, according to the girlfriend in Long Branch, he spent many nights there. This was a bedroom that traditionally was his bedroom but, there was no testimony that it was his private area. The officers also confirmed that there was no private access to that bedroom. There was just the one door entrance and again, it did not have a lock on it.

In arguing that his mother did not have the authority to consent to the search, defendant relied upon our decision in State v. Younger, 305 N.J. Super. 250 (App. Div. 1997). However, Judge Mellaci found that Younger was distinguishable. He explained:

In Younger, the officers were searching for a gun as a result of a domestic violence call. The homeowner had allowed the defendant to stay in the bedroom of her granddaughter when he arrived at the house with his belongings in plastic bags. The owner of the house did not consent to a search and the Court found it would have been impossible for the officers to infer consent from the homeowner's conduct. Finally, the evidence sought to be suppressed was a deck of heroin found in a change purse, which the Court ruled was an impermissible place to search, as a gun could not possibly fit in the purse.

In our case, the defendant did not have exclusive control of his bedroom, as shown by his mother's storing of possessions in the room and her frequency of going in and out. Defendant only stayed in the room occasionally and again, spending most of his time at the girlfriend's house in Long Branch.

The officers also were looking for CDS or drug paraphernalia, which encompasses a much larger search area than that of a gun. Finally, the defendant's mother did consent to the search. Thus, it was reasonable for the officers to believe that the defendant's mother had the authority to consent to the search of her son's room. And in fact, it is reasonable to believe that someone who is keeping drugs and drug paraphernalia would keep it in an area not out in the open, but either in a drawer or a bag or something like that.

Judge Mellaci also rejected defendant's argument that his mother had been coerced into consenting to the search or that her consent was not voluntary. He found that Ms. Bazeaez's testimony that she did not understand what was happening was not credible.

In his direct appeal of this portion of the judge's ruling, defendant did "not contend that his mother lacked authority to consent; rather, his sole claim [was] that her consent was involuntary." Desir, supra, slip op. at 15. We affirmed Judge Mellaci's finding that defendant's mother "understood that she could refuse to consent and that she had voluntarily agreed to the search." Ibid.

C.

In his petition for PCR, defendant argued his appellate counsel was ineffective because she did not assert that his mother lacked the authority to consent to the search. As noted, Judge Mellaci had considered and rejected this contention at the time of the motion to suppress and, after reviewing the transcript of the suppression hearing at oral argument on the PCR petition, he held that defendant's appellate counsel had not been ineffective when she did not raise it on appeal.

Specifically, the judge found defendant did not meet the first prong of the two-prong test set forth in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674 (1984), which requires the defendant to "show that it was objectively unreasonable for appellate counsel to decide not to argue the authority to consent issue." He found that such an argument, if raised, would have lacked merit. The judge reviewed the facts he found at the suppression hearing, including that defendant primarily resided with his girlfriend; only slept as his mother's house periodically; and contributed nothing to the household expenses. The judge reiterated his findings that defendant's mother used the room for storage and that, although it may have been defendant's room "at one time," on the day of the search "all of the circumstances indicated that he no longer had exclusive control over that room."

Because "appellate counsel was no doubt aware of [the] evidence [produced] at the hearing," the judge found defendant's appellate counsel was "by no means unreasonable in her decision not to argue the issue on appeal." The judge explained:

The issue was solidly in the State's favor and counsel breached no standard of reasonableness in not raising it as a specific point of appeal. Even if appellate counsel's decision had been unreasonable, defendant has also failed to satisfy the second Strickland prong. There is ample evidence showing the defendant's mother had the authority to consent to the search and thus defendant has not shown that the result of the appeal would have been different had the issue been raised. As a result, defendant has failed to show that appellate counsel was ineffective.

This appeal followed.

II.

On appeal, defendant generally argues that the judge erred in denying his PCR petition and that he should have held an evidentiary hearing. Our review of the record convinces us that the judge acted properly in denying defendant's petition for PCR. Defendant's arguments lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We nevertheless add these brief comments.

We apply the same standard to review claims of ineffective assistance of appellate counsel as we do in assessing ineffective assistance of trial counsel claims. State v. Morrison, 215 N.J. Super. 540, 546 (App. Div. 1987). To establish a deprivation of the Sixth Amendment right to the effective assistance of counsel, a defendant must demonstrate that: (1) counsel's performance "fell below an objective standard of reasonableness," such that he or she "was not functioning as the 'counsel' guaranteed . . . by the Sixth Amendment," and (2) "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." State v. Hess, 207 N.J. 123, 146 (2011) (citing Strickland, supra, 466 U.S. at 687-88, 694, 104 S. Ct. at 2064, 2068, 80 L. Ed. 2d at 693, 698).

Courts, in reviewing such claims, apply a highly deferential standard by adopting the strong presumption that defense counsel exercised "reasonable professional judgment" and sound strategy in fulfilling his or her responsibilities. Hess, supra, 207 N.J. at 147 (citing Strickland, supra, 466 U.S. at 689-90, 104 S. Ct. at 2065-66, 80 L. Ed. 2d at 694-95). "[I]n order to establish a prima facie claim, a [defendant] must do more than make bald assertions that he was denied the effective assistance of counsel. He must allege facts sufficient to demonstrate counsel's alleged substandard performance." State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999).

Defendant contends his appellate counsel was ineffective because she failed to argue on direct appeal that his mother did not have the authority to consent to the search of his bedroom. However, we agree with Judge Mellaci's assessment that this argument plainly lacked merit. We have long held that "the consent of one who possesses common authority over premises or effects is valid against the absent, nonconsenting person with whom that authority is shared[.]" State v. Miller, 159 N.J. Super. 552, 557 (App. Div. 1978)(citing United States v. Matlock, 415 U.S. 164, 169-72, 94 S. Ct. 988, 993, 39 L. Ed. 2d 242, 250 (1974)).

Here, defendant's girlfriend told the police that defendant lived with her and only used his bedroom at his parents' house to hide his "stash." Ms. Bazeaez also told the officers defendant no longer lived in her home. Defendant did not pay rent to his parents for the room. While defendant left some of his property there, and sometimes slept in the room, his mother also used the room to store her clothing and other household items. The room was not locked and was fully accessible to defendant's parents.

Under these circumstances, defendant's mother clearly had the authority to consent to the search of the room. However, relying upon our decision in Younger, supra, defendant argues that, even if Ms. Bazeaez could properly consent to the search of the room, his appellate counsel was ineffective for not arguing that defendant's mother lacked the authority to permit Detective Samis to look inside the duffle bag that was found under the bed. We disagree.

In Younger, the defendant's grandmother consented to the search of a room in her home that was the bedroom of her eleven-year old granddaughter, who lived with the grandmother. Supra, 305 N.J. Super. at 254. The defendant had arrived at the grandmother's house with his belongings in plastic bags shortly before the event which precipitated the police presence at the house, and had been sleeping in the bedroom. Ibid. The grandmother gave the police consent to search the room for a gun. Ibid. An officer moved one of the plastic bags containing the defendant's clothing and found a small vinyl change purse. Ibid. The officer opened the change purse and found drugs. Ibid.

We suppressed this evidence for two reasons. First, because a gun could not possibly have been concealed in the change purse, the search of the purse necessarily exceeded the scope of the authority inherent in the consent. Id. at 256-57. Second, we found "no capacity to consent to a search of . . . possessions in which another person has or should be reasonably believed to have an exclusive right of control or right of privacy." Id. at 257.

The first rationale may not be used to invalidate the search of the duffel bag in this case because the record developed at the suppression hearing demonstrated that defendant's mother consented to a search for any drugs that may be found in the home. Indeed, upon hearing that illegal substances may be in her house, she admonished the officers to get them all out of her house. Thus, the nature of the items sought did not dictate a limit on the places to be searched.

As to the second rationale, Judge Mellaci found that defendant no longer resided at his mother's home and, instead, lived with his girlfriend in Long Branch. Therefore, he had no reasonable expectation of privacy in any items in the room. Thus, this is not a case like Younger where the defendant was staying in the home at the time of the search. Moreover, unlike in Younger, where the defendant had brought his items to the residence shortly before the incident that caused the police to arrive, there was nothing about the duffel bag to indicate that it was defendant's exclusive property.

In this regard, Ms. Bazeaez, who was present throughout the search, never told the officers that the duffel bag belonged to defendant. There was no testimony that he brought the bag with him when he visited his parents. Just as significantly, Ms. Bazeaez told the officers she did defendant's laundry for him when he came to the home. A duffel bag can be used to store laundry just as easily as it can be used to carry other items, such as the contraband found in this case. There is simply nothing in this record to indicate that defendant, assuming the duffel bag was his, had a legitimate expectation of privacy in it that would prevent his mother from looking into the bag or giving the police permission to do so when she told them they could search the entire house for illegal drugs.

Under these circumstances, we agree with Judge Mellaci's assessment that the argument lacked merit and, if raised on direct appeal, would not have altered the result. Therefore, neither prong of the Strickland test was met.

Defendant's appellate counsel's decision not to raise this argument on direct appeal was well within her professional discretion. An appellate counsel is not ineffective for failing to raise every issue imaginable. State v. Gaither, 396 N.J. Super. 508, 515 (App. Div. 2007), certif. denied, 194 N.J. 444 (2008). Instead, appellate counsel is afforded the discretion to construct and present what he or she deems are the most effective arguments in support of their client's position. Ibid.

Here, appellate counsel first focused on the propriety of the stop and search of defendant's car. If she was successful on that argument, all of the evidence seized in the case would have been suppressed. She then addressed the voluntariness of Ms. Bazeaez's consent to the search. She declined to dilute the strength of either argument with an "authority to consent" claim that had been seriously undermined by the testimony that defendant no longer resided at the home and that both his parents clearly wanted the police to search and remove any drugs that were found. This tactical decision by counsel was not ineffective under the Strickland test.

Finally, defendant argues that Judge Mellaci erred by denying his request for an evidentiary hearing on his petition. Because defendant failed to present a prima facie case of ineffective assistance of counsel, an evidentiary hearing was not required. State v. Preciose, 129 N.J. 451, 462 (1992).