STATE OF NEW JERSEY v. WALTER LEWIS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1075-05T41075-05T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

WALTER LEWIS,

Defendant-Appellant.

___________________________

 

Submitted January 24, 2007 - Decided March 6, 2007

Before Judges Collester and Lyons.

On appeal from Superior Court of New Jersey,

Law Division, Middlesex County, 94-01-0074-I.

Yvonne Smith Segars, Public Defender, attorney

for appellant (Steven M. Gilson, Designated

Counsel, of counsel and on the brief).

Bruce J. Kaplan, Middlesex County Prosecutor,

attorney for respondent (Nancy A. Hulett,

Assistant Prosecutor, of counsel and on the

brief).

PER CURIAM

Defendant Walter Lewis appeals from an order of September 6, 2005, by Judge Deborah J. Venezia denying his petition for post-conviction relief (PCR) and from an order entered on June 28, 2001 by Judge Walter R. Barisonek denying his motion to secure discovery on the issue of racial profiling. We affirm.

Tried to a jury, defendant was convicted of third-degree possession of cocaine, N.J.S.A. 2C:35-10a(1), and first-degree possession of more than five ounces of cocaine with intent to distribute, N.J.S.A. 2C:35-5a(1). The sentencing judge granted the State's application pursuant to N.J.S.A. 2C:43-6f for the imposition of an extended term. The convictions were merged and defendant received a twenty-five-year term with a ten-year period of parole ineligibility. He appealed his convictions and sentence. We affirmed by an unpublished per curiam opinion on April 28, 1998, and the Supreme Court denied certification. State v. Lewis, 156 N.J. 408 (1998). Defendant filed his PCR petition on October 15, 1998, and in December 1999, he demanded discovery on racial profiling. Judge Barisonek denied the discovery motion and excluded his case from racial profiling. Defendant's application to this court for leave to appeal was denied. The matter was then returned to Middlesex County for disposition of the PCR application. Judge Venezia denied the petition without an evidentiary hearing.

We incorporate our detailed recitation of the trial evidence in our April 1998, decision. In summary, defendant was a passenger in a motor vehicle registered to his wife and operated by co-defendant Eugene Guilford on the southbound roadway of the New Jersey Turnpike on December 2, 1993 at about 10:45 p.m. Trooper David Beaver of the New Jersey State Police observed a white Volvo traveling at a high rate of speed in excess of the speed limit. He pursued the Volvo and activated the lights on his patrol car. Initially the car slowed down at his signal, but it then accelerated and sped away at speeds up to 110 miles an hour cruising over the three lanes of traffic and both roadway shoulders. Other police officers joined the chase and eventually stopped the vehicle. Beaver testified that he observed the defendant sitting in the backseat of the Volvo and saw a package thrown from the right rear. After the defendant and Guilford were arrested, Trooper Beaver and another officer found the package, which was a plastic bag containing 827.4 grams of cocaine.

On his direct appeal, one of the arguments made by defendant was the following:

THE APPELLATE DIVISION SHOULD REVERSE DEFENDANT'S CONVICTION BECAUSE DEFENDANT WAS THE VICTIM OF SELECTIVE ENFORCEMENT OF THE LAW.

We determined that this argument, as well as the other contentions set forth by defendant, were clearly without merit and did not warrant discussion in a written opinion. R. 2:11-3(e)(2). We added the following:

We merely note that it was uncontroverted that the Volvo was traveling at a high rate of speed when it was first observed by Trooper Beaver. The speeding violation was sufficient to justify a stop of the Volvo. The attempt to elude the officer, more than justified the subsequent chase and forcible stop of the Volvo. We have no basis for concluding that Trooper Beaver was selectively enforcing the speeding law. We conclude that the speeding violation distinguished this case from State v. Tucker, 136 N.J. 158 (1994). Thus, the bag of cocaine found by Troopers Beaver and Bianco was not seized as the result of an illegal stop and seizure of the defendant.

In his initial PCR petition the defendant argues the following:

THE DENIAL OF DEFENDANT'S PCR PETITION MUST BE REVERSED AND THIS MATTER MUST BE REMANDED FOR AN EVIDENTIARY HEARING, BECAUSE A PRIMA FACIE CASE WAS ESTABLISHED AS TO THE INEFFECTIVE-ASSISTANCE-OF-COUNSEL CLAIM.

A. TRIAL COUNSEL FAILED TO INVESTIGATE AND CALL A WITNESS WHO WOULD HAVE UNDERMINED THE CREDIBILITY OF THE STATE'S KEY WITNESS.

B. TRIAL COUNSEL FAILED TO INVESTIGATE AND OBTAIN A FINGERPRINT EXPERT.

In a supplemental letter brief defendant supplements his PCR petition by arguing,

THE LOWER COURT'S ORDER DENYING DEFENDANT'S MOTION TO SECURE DISCOVERY UNDER RACIAL PROFILING AND GRANTING THE STATE'S MOTION TO EXCLUDE THIS MATTER FROM RACIAL PROFILING MUST BE REVERSED.

Addressing defendant's petition as initially filed, we find the arguments lack sufficient merit for extensive discussion in a written opinion. R. 2:11-3(e)(2). His assertion of ineffective assistance of counsel addresses the fact that his wife was not called to testify that the windows of the Volvo were not tinted as Trooper Beaver testified. Notably, defendant testified on his own behalf and did not mention whether or not the windows were tinted. Moreover, the information obtained from defendant's wife indicated that there was some tint to the windows. Similarly, unpersuasive is the claim based on the failure of trial counsel to call a fingerprint expert to testify as to whether or not defendant's fingerprints were not on the plastic bag containing the cocaine. No offer of proof was ever made to show defendant's prints were not on the bags and, in any event, the State's proofs were addressed to joint possession. Defendant's claim of error in the denial of discovery on the issue of racial profiling relates to the actions of Trooper Beaver in stopping the Volvo. The issue of selective enforcement was in fact raised on direct appeal and adjudged to be of no merit. Defendant has not proffered any additional evidence or factual argument other than that previously presented. Since there was a prior adjudication on the merits of this ground for relief on direct appeal, it may not be considered on this PCR application. R. 3:22-5. The application for discovery is moot since its only purpose would be to make a PCR application for selective enforcement.

 
Affirmed.

(continued)

(continued)

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A-1075-05T4

March 6, 2007