STATE OF NEW JERSEY v. LAMONT BOYD

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3.

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

LAMONT BOYD,

Defendant-Appellant.

____________________________

November 2, 2016

Submitted October 19, 2016 Decided

Before Judges Alvarez and Accurso.

On appeal from Superior Court of New Jersey, Law Division, Bergen County, Indictment Nos. 06-01-0133 and 07-08-1357.

Joseph E. Krakora, Public Defender, attorney for appellant (Steven M. Gilson, Designated Counsel, on the brief).

Gurbir S. Grewal, Acting Bergen County Prosecutor, attorney for respondent (Catherine A. Foddai, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Lamont Boyd appeals from the dismissal of his petition for post-conviction relief, contending he established a prima facie case of ineffective assistance of counsel requiring an evidentiary hearing. Because the trial judge correctly determined the evidence insufficient to sustain defendant's burden, we affirm.

Following the denial of his motion to suppress evidence seized in a warrantless search of a seemingly abandoned or stolen car, defendant pled guilty to first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a(4); and three counts of first-degree armed robbery, N.J.S.A. 2C:15-1; and was sentenced in conformity with the plea agreement. We affirmed defendant's conviction and sentence on direct appeal, State v. Boyd, No. A-5797-08 (App. Div. Mar. 30, 2012), and the Supreme Court denied certification, 212 N.J. 288 (2012).

Defendant filed a petition and, with the assistance of appointed counsel, an amended petition for post-conviction relief based on claims of ineffective assistance of counsel. Specifically, he claimed his counsel failed to effectively argue that there was no legal basis for the officers to have searched the car under the community caretaking exception urged by the State.

The officer conducting the search testified at the suppression hearing. He claimed he entered the car, which had severe damage to the driver's side, including that the driver's door appeared to be held closed by a belt wound through the open windows and wrapped around the pillar, only after being advised by dispatch that the license plate he called in was "not on file." The State, however, conceded that the police quickly learned the car was properly registered. Defendant contended in his petition that had his counsel effectively focused the court on the officer's error in concluding the car was unregistered, it would have realized there was no basis to search the validly registered car under the community caretaking exception and voided the search.

After hearing argument by counsel, the judge issued a written opinion denying the petition under the test established in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), and adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987), on the basis that defendant had failed to establish a prima facie claim for relief. See State v. Preciose, 129 N.J. 451, 462-64 (1992). The judge noted that defendant's counsel argued in his brief on the suppression motion that "the officers could not have 'reasonably' believed that the vehicle was stolen because they immediately [w]ere able to identify . . . its registered owner." After reviewing both the trial court's written opinion denying the motion and our opinion affirming it, the judge concluded that the issue was simply not dispositive and did not invalidate the search.1

On appeal, defendant reprises the argument he made to the Law Division

THIS MATTER MUST BE REMANDED FOR AN EVIDENTIARY HEARING BECAUSE DEFENDANT ESTABLISHED A PRIMA FACIE CASE OF TRIAL COUNSEL'S INEFFECTIVENESS FOR FAILING TO IMPRESS UPON THE COURT THE ILLEGAL SEARCH AND SEIZURE OF THE CAR, WHICH WOULD HAVE RESULTED IN THE SUPPRESSION OF THE INCRIMINATING EVIDENCE.

We reject this argument and affirm the denial of defendant's petition substantially for the reasons set forth in Judge Guida's thorough and thoughtful written opinion of December 12, 2014.

Affirmed.

1 We wrote in our prior opinion that "[t]he initial contact in this case involved an extremely dilapidated, seemingly abandoned motor vehicle parked on a public roadway, a classic instance in which the community caretaking doctrine is applicable." See N.J.S.A. 39:5-47; State v. Hock, 54 N.J. 526, 534-35 (1969), cert. denied, 399 U.S. 930, 90 S. Ct. 2254, 26 L. Ed. 2d 797 (1970) (stating that police have the right to impound vehicles that appear stolen). State v. Boyd, supra, slip op. at 27-28.