STATE OF NEW JERSEY v. JAMES LONG

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3583-09T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JAMES LONG, a/k/a CHRISTOPHER

LASTER, JAMES CURSEY and

JOSEPH ISHAIA,

Defendant-Appellant.

_________________________

March 21, 2012

Submitted March 13, 2012 - Decided

Before Judges Payne and Simonelli.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 90-04-0500.

Joseph E. Krakora, Public Defender, attorney for appellant (Michael C. Kazer, Designated Counsel, on the brief).

John L. Molinelli, Bergen County Prosecutor, attorney for respondent (Annmarie Cozzi, Senior Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant James Long appeals from the October 13, 2009 Law Division order, which denied his petition for post-conviction relief (PCR). We affirm.

Defendant was arrested by the Bergen County Police following a motor vehicle stop of a car driven by Lavetta Rei Stewart. Both defendant and Stewart are African-American. Defendant was charged with third-degree unlawful possession of a weapon (a .380 caliber semi-automatic pistol), N.J.S.A. 2C:39-5b; fourth-degree unlawful possession of a weapon (hollow nose bullets), N.J.S.A. 2C:39-3f; second-degree aggravated assault on a police officer, N.J.S.A. 2C:12-1b(5); and fourth-degree hindering apprehension, N.J.S.A. 2C:29-3b(2).

Defendant filed a motion to suppress evidence found during a search of the car. At the suppression hearing, Stewart testified that the police officer who stopped her car said to her, "what's a pretty white girl like you doing with a black thing like that." The officer then opened the car door, found a gun in the car, and pointed the gun at defendant saying, "look what I found . . . maybe I should pull the trigger." The trial judge found Stewart's testimony was not credible, and denied the motion.

Stewart gave the above testimony at trial, and also said that the police assaulted defendant after they arrested and handcuffed him. A jury found defendant guilty of unlawful possession of the gun and hindering apprehension, but not guilty of unlawful possession of the hollow nose bullets and aggravated assault on a police officer. In September 1990, the trial judge imposed an extended term of seven years' imprisonment on the weapons conviction, to be served consecutive to a sentence defendant was serving in North Carolina,1 and a concurrent eighteen-month term of imprisonment on the hindering apprehension conviction.

Defendant did not file an appeal. Instead, almost eighteen years later, on August 11, 2008, he filed a PCR petition, arguing that: (1) his petition was not time-barred because he raised constitutional violations relating to racial profiling by a Bergen County police officer; and (2) trial counsel was ineffective because he failed to raise the racial profiling issue during the motion to suppress and at trial.

Judge Lipton denied the petition as time-barred by Rule 3:22-12. She found that defendant presented no evidence to warrant relaxation of the time-bar, and the State would be "highly prejudiced" because both the State's and defense counsel's trial files and the trial evidence no longer existed. The judge concluded that "[t]his is the poster case for the reason [R]ule 3:22-12 exists. There's got to be a point where it's too late for very practical reasons, these reasons." Addressing the merits, the judge found there was no evidence of racial profiling by the Bergen County Police, and the evidence established that the stop of Stewart's car was lawful. This appeal followed.

On appeal, defendant raises the following contentions:

POINT I THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED BECAUSE THE REASONS FOR THE DELAY AND THE IMPORTANCE OF THE ISSUES RAISED WARRANTED RELAXATION OF THE 5[-] YEAR TIME BAR UNDER THE "EXCUSABLE NEGLECT" EXCEPTION OF R[ULE]3:22-12 AND UNDER THE "INJUSTICE" CLAUSE OF R[ULE]1:1-2.

POINT II THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED AND THE MATTER REMA[N]DED FOR A FULL EVIDENTIARY HEARING BECAUSE TRIAL COUNSEL'S FAILURE TO INCORPORATE A RACIAL PROFILING ARGUMENT INTO THE SUPPRESSION MOTION WAS PRIMA FACIE 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.

We have considered these contentions in light of the record and applicable legal principles and conclude they are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We affirm substantially for the reasons expressed by Judge Lipton in her oral opinion rendered on October 2, 2009. However, we make the following brief comments.

The racial profiling issue did not come to light until 1999, nine years after defendant filed his motion to suppress. Thus, trial counsel had no reasonable basis to raise this issue at the motion to suppress or at trial. Even if trial counsel had raised the issue at the motion to suppress, it was unlikely defendant would have prevailed. The trial judge found that Stewart's testimony, on which a profiling claim would rest, was not credible.

In addition, defendant presented nothing that would warrant a relaxation of Rule 3:22-12. There is no evidence whatsoever that the Bergen County Police engaged in racial profiling.

1 Defendant had escaped from prison in North Carolina and traveled to New Jersey, where he committed the crimes at issue here.