STATE OF NEW JERSEY v. NESTOR CERCET, JR

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

NESTOR CERCET, JR.,

Defendant-Appellant.

_________________________________________

September 24, 2015

Submitted September 8, 2015 Decided

Before Judges St. John and Manahan.

On appeal from Superior Court of New Jersey, Law Division, Camden County, Indictment No. 12-01-0223.

Joseph E. Krakora, Public Defender, attorney for appellant (Suzannah Brown, Designated Counsel, on the brief).

Mary Eva Colalillo, Camden County Prosecutor, attorney for respondent (Robin A. Hamett, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Nestor Cercet, Jr. appeals from the denial of his petition for post-conviction relief (PCR) without an evidentiary hearing. For the reasons that follow, we affirm.

We glean the following facts and procedural history from the record on appeal. Defendant was charged with third-degree possession of a controlled dangerous substance (CDS), cocaine, N.J.S.A. 2C:35-10(a)(1), (count one), and third-degree possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5(a)(1), and N.J.S.A. 2C:35-5(b)(3), (count two). The State intended to prove the following at trial. The charges stemmed from defendant's arrest on October 23, 2011 in the Township of Stratford following a motor vehicle stop for speeding.1 The officer asked defendant to exit the vehicle and informed him that he detected the odor of marijuana on his clothing and from his vehicle. The officer then conducted a pat-down of defendant and recovered from the breast pocket of his jacket a sandwich bag containing suspected cocaine and a large sum of money.

These State charges violated defendant's federal parole imposed as a result of his convictions for weapons related offenses. While being held in the Federal Detention Center pending a hearing on his parole violation, defendant called certain relatives and offered money and other compensation in exchange for his brother falsely confessing to the State charges against defendant. As a result, the State revoked a probationary term plea offer and informed defendant that it intended to charge him with second-degree witness tampering pursuant to N.J.S.A. 2C:28-5.

However, a new plea offer was extended of five years imprisonment on count two to be served consecutively to any sentence defendant would receive as a result of his federal parole violation. Also, pursuant to the offer, the remaining count of the indictment would be dismissed and the State would forego prosecution of the witness tampering charge. At a hearing on May 14, 2012, defendant, pursuant to his negotiated plea agreement, set forth a factual basis and pleaded guilty to count two.

Defendant appeared in Federal District Court and pled guilty to a violation of his parole and was sentenced to twenty-four months imprisonment to run consecutively to the State's term of imprisonment. Thereafter, defendant was sentenced in the Law Division in accordance with his plea agreement.

Defendant did not file a direct appeal, but filed a pro se petition for PCR "in an attempt to have his state sentence run concurrent with his federal violation." Appointed counsel filed a brief on defendant's behalf which asserted ineffective assistance of trial counsel. On August 20, 2013, the court entertained oral argument but did not conduct an evidentiary hearing.

In a comprehensive oral opinion, the PCR judge denied defendant's petition, determining that defendant failed to present a prima facie claim of ineffective assistance of counsel. The court found defendant only made "blatant assertions about the level of success he would have had at a suppression hearing but has not demonstrated a basis to suppress the evidence." The PCR judge determined that "the defendant has failed to make a prima facie showing that had this motion been filed it would have been meritorious."

The court further concluded defendant's contention that his trial counsel was deficient for failure to argue for a sentence concurrent with his federal parole violation sentence was without merit. The PCR judge reviewed the record of aggravating and mitigating factors and referenced the "lengthy series of plea negotiations which took place between prosecutor, defense counsel and defendant to dispose of these charges." The judge stated that "the record shows that as part of the plea agreement, the State forfeited a right to pursue any witness tampering charges against this defendant."

On appeal, defendant presents the following issue for our consideration

POINT I

THE PCR COURT ERRED IN DENYING MR. CERCET AN EVIDENTIARY HEARING TO DETERMINE THE MERITS OF HIS CLAIM THAT TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO FILE A MOTION TO SUPPRESS CONCERNING THE EVIDENCE SEIZED FROM MR. CERCET WITHOUT A WARRANT.

We find no merit to these contentions, R. 2:11-3(e)(2), and affirm substantially for the reasons stated by the PCR judge in her comprehensive oral opinion addressing the merits of defendant's petition.

We add these brief comments. In order for defendant to obtain relief based on ineffective assistance grounds, he is obliged to show not only the particular manner in which counsel's performance was deficient, but also that the deficiency prejudiced his right to a fair trial. Strickland v. Washington, 466 U.S. 668, 687, l 04 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984); State v. Fritz, 105 N.J. 42, 58 (1987). The United States Supreme Court has extended these principles to a criminal defense attorney's representation of an accused in connection with a plea negotiation. Lafler v. Cooper, 566 U.S. ___, ___, 132 S. Ct. 1376, 1384-85, 182 L. Ed. 2d 398, 406-07 (2012); Missouri v. Frye, 566 U.S. ___, ___, 132 S. Ct. 1399, 1407-08, 182 L. Ed. 2d 379, 390 (2012). A defendant must demonstrate with "reasonable probability" that the result would have been different had he received proper advice from his trial attorney. Lafler, supra, 566 U.S. at ___, 132 S. Ct. at 1384, 182 L. Ed. 2d at 407 (citing Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698). We are persuaded that the alleged deficiencies here clearly fail to meet either the performance or the prejudice prong of the Strickland test.

As to the issue of suppression, "'New Jersey courts have [long] recognized that the smell of marijuana itself constitutes probable cause "that a criminal offense ha[s] been committed and that additional contraband might be present."'" State v. Walker, 213 N.J. 281, 290 (2013) (quoting State v. Nishina, 175 N.J. 502, 516-17 (2003) (quoting State v. Vanderveer, 285 N.J. Super. 475, 479 (App. Div. 1995))); accord, e.g., State v. Pena-Flores, 198 N.J. 6, 30 (2009); State v. Birkenmeier, 185 N.J. 552, 563 (2006); State v. Legette, 441 N.J. Super. 1, 15 (App. Div. 2015).

Cases have "'repeatedly recognized that . . . the smell of burning marijuana establishes probable cause that there is contraband in the immediate vicinity and that a criminal offense is being committed,' and that the detection of that smell satisfies the probable-cause requirement." Walker, supra, 213 N.J. at 287-88. Here, the "smell of marijuana emanating from [the defendant and] the automobile gave the officer probable cause to believe that it contained contraband." Pena-Flores, supra, 198 N.J. at 30.

Also, cases have held that the odor of marijuana gives "rise to probable cause 'to conduct a warrantless search of the persons in the immediate area from where the smell has emanated.'" Legette, supra, 441 N.J. Super. at 15 (quoting Vanderveer, supra, 285 N.J. Super. at 481); see, e.g., Pena-Flores, supra, 198 N.J. at 12 (an officer smelling marijuana in an automobile ordered the driver out of the car and searched him for drugs). Here, the search of defendant revealed he possessed cocaine.

Therefore, we agree with the PCR judge that counsel was not ineffective for failing to file a motion to suppress the cocaine and currency seized from defendant by the officer.

Finally, we recognize, as did the PCR judge, "[i]t is well-settled that, to the extent that a petition for [PCR] involves material issues of disputed facts that cannot be resolved by reference to the trial record, an evidentiary hearing must be held." State v. Porter, 216 N.J. 343, 347 (2013). We agree with the court's conclusion that an evidentiary hearing was not required and would not have assisted the court in its determination. State v. Marshall, 148 N.J. 89, 158 (1997) ("If the court perceives that holding an evidentiary hearing will not aid the court's analysis of whether the defendant is entitled post-conviction relief . . . then an evidentiary hearing need not be granted.").

Defendant's pro se PCR contention concerning his sentence is without sufficient merit to warrant discussion in this opinion. R. 2:11-3(e)(2).

Affirmed.

1 Defendant was issued a traffic ticket for speeding. N.J.S.A. 39:4-98. Defendant was also issued summonses for other motor vehicle violations.