STATE OF NEW JERSEY v. BLAKE S. ELFAND

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1064-10T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

BLAKE S. ELFAND,

Defendant-Appellant.

_______________________________________

April 11, 2012

Submitted March 20, 2012 - Decided

Before Judges Baxter and Maven.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 09-08-1682.

Blake S. Elfand, appellant pro se.

Jeffrey S. Chiesa, Attorney General, attorney for respondent (Emily R. Anderson, Deputy Attorney General, on the brief).

PER CURIAM

Defendant appeals his conviction for second-degree conspiracy to distribute over five pounds of marijuana in violation of N.J.S.A. 2C:5-2 and N.J.S.A. 2C:35-5b(10)(b). He was sentenced to five years in prison with fines and penalties. We find no merit in the arguments presented. We affirm.

I.

United States Postal Inspectors intercepted a parcel headed to an address in Freehold, New Jersey from California. After a narcotics detection dog alerted to the parcel, postal inspectors detained the parcel and secured a search warrant. The opened parcel revealed fourteen sealed metal canisters. Upon opening two canisters and discovering marijuana, all of the canisters were turned over to the Monmouth County Prosecutor's Office, which obtained an anticipatory search warrant for the intended residence. Police arrested co-defendant William McGrath after he accepted delivery of the parcel at the residence. Defendant was arrested when he came to the residence to pick up the parcel.

After filing a motion to suppress evidence alleging that the federal search warrant was improperly issued, defendant voluntarily withdrew the motion and pleaded guilty to conspiracy to distribute marijuana.1 To establish a factual basis for the plea, defendant admitted to conspiring with the co-defendant to distribute more than five pounds of marijuana in Freehold. Defendant also acknowledged that he and co-defendant arranged for the marijuana to be delivered to the residence where defendant would pick it up. Defendant acknowledged that he knew the parcel contained marijuana and knew it was illegal to possess and distribute marijuana in New Jersey. The trial judge accepted defendant's plea as knowing and voluntary.

Defendant raises the following points on appeal:

POINT I:

THE ENACTMENT OF NEW JERSEY COMPASSIONATE USE ACT LEGALIZED MARIJUANA FOR MEDICAL USE AND THUS REDACTED IT FROM ITS SCHEDULE I LISTING LEAVING THE TRIAL COURT WITHOUT JURISDICTION TO CONVICT THE APPELLANT OF THE CHARGED OFFENSES.

A. The NJCSA and its underlying criminal statutes can only charge crimes involving drugs defined as controlled substances.

B. Case law and state legislative actions from other medical marijuana states seem to insinuate appellant's argument has merit.

POINT II:

COUNSEL'S REPRESENTATION BECAME INEFFECTIVE REPRESENTATION WHEN HE DID NOT ARGUE THAT THE NARCOTICS DETECTION CANINE USED IN THIS CASE WAS A SEARCH COVERED UNDER THE FOURTH AMENDMENT, MAKING THE SEARCH OF THE PARCEL UNLAWFUL.

Defendant contends New Jersey's recently promulgated New Jersey Compassionate Use Medical Marijuana Act (Act)2, "redacted" marijuana from its list of Schedule I controlled substances and did not reclassify it as a substance under another schedule, thereby effectively removing marijuana from the criminal statutes. As a result, defendant maintains that the trial court had no jurisdiction to convict him of the charged offense.

Defendant's reliance upon the Act is misplaced. The Act was approved by the State Legislature on January 18, 2010, and became effective October 1, 2010.3 Defendant was arrested on January 22, 2009, and entered a guilty plea on March 10, 2010. The Act was neither enacted at the time of defendant's arrest nor in effect at the time of the guilty plea; therefore, the Act does not apply to defendant.

If the Act were in effect at any time between defendant's arrest and conviction, it would not apply to defendant. "[T]he purpose of this act is to protect from arrest, prosecution, property forfeiture, and criminal and other penalties, those patients who use marijuana to alleviate suffering from debilitating medical conditions, as well as their physicians, primary caregivers, and those who are authorized to produce marijuana for medical purposes." N.J.S.A.24:6I-2e. The affirmative defense provided by the Act is applicable to a defendant who is exempted or excepted from criminal liability by virtue of any provision of the Act. The Act defines "qualifying patient," "physician" or "caregiver" and entitles such persons to an affirmative defense. N.J.S.A. 24:6I-3. The Act requires the establishment of a registry of qualifying patients and caregivers who have satisfied the application and certification processes and been issued a registry identification card. N.J.S.A. 24:6I-4. A defendant must prove the affirmative defense by a preponderance of the evidence. N.J.S.A. 2C:35-18. Here, defendant has not produced any evidence that he was a qualifying patient, physician or caregiver, as contemplated by the Act, at the time he conspired to possess and distribute the marijuana. As such, defendant failed to meet his burden of proof to establish that the affirmative defense applies to him.

We conclude the Act and affirmative defense are not applicable to defendant. Defendant's remaining arguments on this claim lack sufficient merit to warrant further discussion in a written opinion. R. 2:11-3(e)(2).

II.

We turn now to defendant's claim of ineffective assistance of counsel. Defendant alleges that his counsel failed to address a particular issue in the suppression motion that, arguably, would have rendered the federal search unlawful.

The United States Supreme Court enunciated the standard for ineffective assistance of counsel in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Our Supreme Court adopted the Stricklandstandard in State v. Fritz, 105 N.J.42, 58 (1987). To establish a prima facie case of ineffective assistance of counsel, defendant must establish that: (1) counsel's performance was deficient; and (2) the deficient performance prejudiced the defense. Id.at 52 (citing Strickland, supra, 466 U.S.at 687, 104 S. Ct. 2064, 80 L. Ed.2d 693). We are persuaded that the alleged deficiency fails to meet the first prong of the Stricklandtest.

The motion to suppress was timely filed and raised three issues: (1) the Superior Court's jurisdiction to review a challenge to the federal search warrant; (2) the sufficiency of the federal search warrant and the legality of the search; and (3) the lawfulness of defendant's arrest. Defense counsel arduously pursued the motion, particularly on the issue pertaining to the use of the narcotics canine. On the initial motion hearing date, counsel requested time to pursue his additional discovery requests pertaining to the nature and extent of the canine's training in bomb and narcotics detection. The State took the position that the additional information was irrelevant as beyond the four corners of the search warrant. After an extensive discussion on defendant's reasons for the additional information, the trial judge expressed skepticism and declined to address the relevance of the information without formal consideration of a motion to compel and an evidentiary hearing.

On the next motion hearing date, after meeting with defendant for an hour, counsel informed the judge that defendant wanted to accept the State's plea offer. However, once the parties were before the court, counsel reported that defendant reconsidered and wanted to proceed with the suppression motion. Given defendant's changing positions, the judge explained the meaning of "plea cutoff," R. 3:9-3(g), the potential sentence if convicted, and answered defendant's additional questions. Defendant and counsel had another off-the-record consultation, after which defendant voluntarily entered into a plea agreement with the State in exchange for withdrawal of his pre-trial motion to suppress and dismissal of other charges.

Defendant's specific claim of ineffective assistance of counsel arises from counsel's failure to argue in the motion to suppress that "the narcotics dog detection itself was a Fourth Amendment search in these circumstances." However, raising this position on appeal belies defendant's motivation at the time he entered his plea. In the reply brief, defendant makes clear his state of mind:

Appellant refused the initial plea offer in this case because the defense was anticipating success with the suppression issue, but did accept the second offer because his trial counsel was alerted on the day the motion was to be filed that the dog was not actually trained for bomb detection and thus success on any other suppression issue was unlikely. Judge Mellaci's explanation of the various options available to the appellant did assist in appellant's and counsel's decision, but the change in the facts for the suppression argument was the deciding factor.

We conclude that defendant's claim of counsel error is not supported by the facts, which indicate that counsel pursued the proffered legal theory and was prepared to argue the motion, until defendant decided to accept the plea.

The claim also fails because defendant voluntarily withdrew the motion to suppress. Defendant told the trial judge he was withdrawing the motion of his own free will after discussions with his attorney. He acknowledged that by withdrawing the motion with prejudice, he would not be able to reactivate the motion and was not preserving his right to appeal any denial of his suppression motion because the judge had not made any decision based on the withdrawal. Defendant then pleaded guilty to a single charge of conspiracy to distribute marijuana, signed the plea form, and acknowledged his understanding and voluntariness on the record.

It is well established that an individual who pleads guilty to violating a law is foreclosed from claiming a constitutional infringement on appeal. State v. Owens, 381 N.J. Super. 503, 508 (App. Div. 2005) (quoting State v. Knight, 183 N.J.449, 470 (2005)). "[A] guilty plea waives all issues, including constitutional claims, that were or could have been raised in prior proceedings." Id.at 508-09. That would include any errors or defects in the proceedings that preceded the plea. Id. at 510. Defendant did not preserve any issues or affirmative defense for appeal. Appellate review would be permitted if there were a denial of a motion to suppress. R. 3:5-7(d). However, in this instance, there was no denial of a motion, but rather a withdrawal of same by defendant.

We have reviewed the record and conclude that defendant knowingly and voluntarily withdrew the suppression motion and pleaded guilty, thereby waiving all issues on appeal, including the right to make any constitutional claims.

Lastly, once defendant decided to accept the State's plea offer, which was contingent upon his withdrawing the motion to suppress, defense counsel was obligated to withdraw the motion. "In a criminal case, the lawyer shall consult with the client and, following consultation, shall abide by the client's decision on the plea to be entered." R.P.C. 1.2(a); see also State v. Barlow, 419 N.J. Super. 527, 535 (App. Div. 2011). To do otherwise would have placed counsel in violation of his professional responsibilities. Furthermore, irrespective of any legal points counsel may have raised in the motion, defense counsel could not argue a motion defendant specifically agreed to withdraw.

As a consequence of the foregoing analysis, we conclude that defendant has failed to satisfy the first prong of the Stricklandtest in that he failed to establish that his "counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Strickland, supra, 466 U.S.at 686, 104 S. Ct. 2064, 80 L. Ed. 2d 692-93. Defendant was not deprived of the effective assistance of counsel under standards set forth in Strickland.

Defendant cannot satisfy the second prong of Strickland, and establish prejudice by alleged counsel error, because he withdrew the suppression motion thereby leaving unanswered any issues raised therein. Defendant is entitled to competent representation, not clairvoyant representation. State v. Keys, 331 N.J. Super. 480, 492 (Law Div. 1998), aff'd o.b., 331 N.J. Super.429 (App. Div.), certif. denied, 165 N.J.607 (2000). We conclude that defendant has not proven that trial counsel was ineffective.

A

1 Defendant is not challenging the withdrawal of the motion to suppress or the guilty plea agreement.

2 N.J.S.A. 24:6I-1 et. seq.

3 "New Jersey Compassionate Use Medical Marijuana Act" L. 2009, c. 307, 19, as amended by L. 2010, c. 36.