STATE OF NEW JERSEY v. JERRY WALKER

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4665-04T44665-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JERRY WALKER, JR.,

Defendant-Appellant.

__________________________________

 

Submitted November 6, 2006 - Decided November 29, 2006

Before Judges Lintner and Seltzer.

On appeal from the Superior Court of

New Jersey, Law Division, Union County,

03-10-1093.

Yvonne Smith Segars, Public Defender, attorney for appellant (Kisha M. Hebbon, Designated Counsel, of counsel and on the brief).

Theodore J. Romankow, Union County Prosecutor, attorney for respondent (Steven J. Kaflowitz, Assistant Prosecutor, of counsel and on the brief).

Appellant filed a pro se supplemental brief.

PER CURIAM

Following a two-day jury trial, defendant, Jerry Walker, was convicted on August 18, 2004, of two counts of third-degree distribution of cocaine, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(3), and two counts of third-degree distribution of cocaine within 1000 feet of school property, N.J.S.A. 2C:35-7. Defendant was sentenced on October 29, 2004. After appropriate mergers, the judge imposed concurrent mandatory extended terms, N.J.S.A. 2C:43-6f, of eight years with four years of parole ineligibility. Defendant appeals and we affirm, but remand for resentencing.

On April 10, 2003, and again on May 1, 2003, an undercover informant and Detective Keith Johnson, who was assigned to the Union County Prosecutor's Office Narcotics Strike Force, participated in undercover transactions in which Johnson purchased cocaine from defendant. The first transaction took place near the take-out window of the Ming Ting Restaurant in Roselle. At that time, Johnson was introduced to defendant by the confidential informant. Johnson asked defendant "for a 30" and defendant handed Johnson three vials containing cocaine. Johnson handed defendant thirty dollars. Sergeant Jeffrey Carhart of the Linden Police Department, assigned to the Narcotics Task Force, observed from an unmarked police unit parked across the street from the restaurant about sixty- to seventy-feet away.

The second transaction occurred between 8:00 and 8:30 p.m. at the intersection of Grand Street and Morris Street, also in Roselle. Johnson and the confidential informant were driving west on Grand Street when Johnson observed defendant and several other individuals sitting on the steps of the house located at the corner. Although it was dark, the corner was well lit with streetlights. After stopping, the confidential informant asked defendant if he had anything and defendant responded by giving instructions to park the car around the corner. Johnson complied and parked the car on Morris Street. After exiting the car, Johnson told defendant that he wanted "a 20." As defendant accompanied Johnson back toward the car, defendant handed Johnson two vials of cocaine and Johnson gave defendant twenty dollars. Sergeant Thomas Nugent of the Roselle Police Department, assigned to the Narcotics Unit and working as backup surveillance, observed the transaction from where he was parked on Morris Street. Both transactions occurred at locations within 1000 feet of a school. Because there was an ongoing investigation of street-level narcotics trafficking, defendant was not arrested until November 17, 2003.

On appeal defendant raises the following points:

POINT I

THE DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL BECAUSE COUNSEL ELICITED HIGHLY PREJUDICIAL TESTIMONY FROM DETECTIVE THOMAS NUGENT.

POINT II

THE SENTENCE IMPOSED BY THE COURT IS EXCESSIVE BECAUSE THE COURT FAILED TO PROPERLY APPLY OR BALANCE THE AGGRAVATING AND MITIGATING FACTORS AND VIOLATED THE DEFENDANT'S CONSTITUTIONAL RIGHTS UNDER BLAKELY V. WASHINGTON AND STATE V. NATALE.

In a supplemental pro se brief, defendant asserts:

POINT I

THE VERDICTS WERE SHARPLY AGAINST THE WEIGHT OF THE EVIDENCE, NECESSITATING REVERSAL.

POINT II

THE STATE HAS FAILED TO HONOR THE PLEA AGREEMENT AS WELL AS [THE JUDGE'S] ORDER TO RETURN THE $438.00 WHICH WAS CONFISCATED FROM APPELLANT.

During Nugent's cross-examination about his backup surveillance during the May 1 transaction, defense counsel asked whether defendant was alone when Nugent saw him. Nugent replied that defendant was not alone and defense counsel asked whom defendant was with. Nugent testified that defendant was with Travis Green and two other black males who were unknown to him. Nugent responded in the affirmative when asked by defense counsel whether he knew that defendant's family lived in the house on the corner where he saw defendant and the other individuals. On appeal, defendant asserts that these questions represented ineffectiveness of counsel because the answers inferred to the jury that defendant had prior dealings with law enforcement.

Claims of ineffective assistance of counsel are governed by the standards set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984); State v. Fritz, 105 N.J. 42, 58 (1987) (holding the precepts of Strickland and its tests have been adopted by New Jersey). Under Strickland, defendant must show that defense counsel's performance was deficient. Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. Additionally, defendant must demonstrate "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698.

There is a strong presumption that counsel "rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Id. at 690, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695. Further, because "prejudice . . . is not presumed," Fritz, supra, 105 N.J. at 52, defendant must demonstrate "how specific errors of counsel undermined the reliability" of the proceeding. United States v. Cronic, 466 U.S. 648, 659 n.26, 104 S. Ct. 2039, 2047 n.26, 80 L. Ed. 2d 657, 668 n.26 (1984). Moreover, such acts or omissions of counsel must amount to more than mere tactical strategy. Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694-95.

Claims of ineffective assistance of counsel are particularly well suited to post-conviction relief proceedings because in most instances the claims require development of a record beyond the trial record. State v. Preciose, 129 N.J. 451, 460 (1992). In fact, we ordinarily decline to review an ineffective assistance of counsel claim on direct appeal unless the claim can be resolved on the trial record. See State v. DeAngelis, 281 N.J. Super. 256, 265-66 (App. Div. 1995); State v. McBride, 213 N.J. Super. 255, 272 (App. Div. 1986), certif. denied, 107 N.J. 118 (1987). Defendant's claim does not require factual development beyond the trial record, therefore, it can be resolved on direct appeal. DeAngelis, supra, 281 N.J. Super. at 265-66; McBride, supra, 213 N.J. Super. at 272.

During summation, the defense essentially argued that the police targeted defendant for something that did not happen and that is why they went to defendant's home the second time. The questioning now challenged was born out of a defense strategy that was understandably employed in light of the overwhelming evidence against defendant. The questions and expected answers did not constitute deficient performance on the part of counsel. Moreover, in light of the overwhelming evidence, they did not have the capacity to change the result reached by the jury.

Defendant's Point II contention that the judge failed to properly balance the aggravating and mitigating factors and his pro se Point I contention that the verdict was against the weight of the evidence lack sufficient merit to warrant further discussion in a written opinion. R. 2:11-3(e)(2). Further, defendant's contention that the State failed to abide by a judge's ruling in a plea to an unrelated Union County Accusation, No. 04-08-1068, has no bearing on this appeal of the judgment entered on the charges arising from Union County Indictment No. 03-10-1093. We, therefore, forego any further discussion on defendant's pro se Point II contention.

Lastly, we address defendant's assertion that the mandatory extended term imposed is violative of State v. Natale (Natale II), 184 N.J. 458 (2005). The imposition of a mandatory extended term sentence under N.J.S.A. 2C:43-6f is based on defendant's record of prior criminal convictions and, thus, not violative of Blakely and Apprendi, but falls within the recidivism exception. State v. Thomas, 188 N.J. 137, 151-52 (2006); State v. Young, 379 N.J. Super. 498, 509-10 (App. Div. 2005), rev'd on other grounds, 188 N.J. 349 (2006). However, the eight-year extended term imposed is one year greater than the former presumptive term that existed prior to Natale II and Thomas. N.J.S.A. 2C:43-7a(4) and N.J.S.A. 2C:44-1f(1)(e). Likewise, the four-year period of parole ineligibility is greater than that permitted for a presumptive third-degree extended term. N.J.S.A. 2C:43-7c. Accordingly, we are constrained to remand for resentencing in accordance with Natale II and Thomas.

The judgment of conviction is affirmed and the matter is remanded for resentencing.

 

Our decision does not affect defendant's right to appeal the outcome of his purported August 17, 2006, motion for return of the money seized at the time of his arrest on Accusation 04-08-01068.

Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004).

Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000).

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A-4665-04T4

November 29, 2006