STATE OF NEW JERSEY v. WILLIAM B. MALLOY

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1081-05T41081-05T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

WILLIAM B. MALLOY,

Defendant-Appellant.

________________________________________

 

Submitted March 28, 2007 - Decided August 7, 2007

Before Judges A. A. Rodr guez and Collester.

On appeal from the Superior Court of New Jersey, Law Division, Passaic County, 99-11-1080.

Yvonne Smith Segars, Public Defender, attorney for appellant (Brian D. Driscoll, Designated Counsel, of counsel and on the brief).

James F. Avigliano, Passaic County Prosecutor, attorney for respondent (Jason F. Statuto, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant William B. Malloy appeals from the denial of his petition for post-conviction relief (PCR). We affirm.

Defendant was convicted, following a jury trial, of three counts of first degree armed robbery, N.J.S.A. 2C:15-1a(1); third degree possession of a weapon (a knife) for an unlawful purpose, N.J.S.A. 2C:39-4d; and fourth degree unlawful possession of a weapon (a knife), N.J.S.A. 2C:39-5d. On November 16, 2001, Judge Donald R. Reenstra imposed the following sentences: on count one of the robbery convictions, an extended thirty-year term with a NERA parole disqualifier; on the other two armed robbery convictions, twenty-year term with a NERA parole disqualifier; on the third degree crime, a five-year term; and on the fourth degree crime, an eighteen-month term. All to run concurrent to the first sentence.

We affirmed on direct appeal, State v. Malloy, No. A-2725-01T4 (App. Div. October 6, 2003), certif. denied, 179 N.J. 311 (2004), but remanded for correction of sentence. We held that the NERA period must be limited to the twenty-year ordinary term for a first degree crime, not the thirty-year extended term. We ordered that the two possessory convictions be merged with the armed robbery convictions.

The charges arise from the armed robbery of an ophthalmologist's office in Passaic. The facts are set forth in detail in our opinion on direct appeal. This is a summary of the proofs presented by the State. The witnesses in the office testified that at about 3:30 p.m. on Friday, August 13, 1999, a masked intruder, later identified as defendant, entered the premises on the ground floor of a professional building on Gregory Avenue. The four people were present: Dr. Mitchell Vogel, Jeffrey Vogel, Theresa Quintana and Pamela Simmons. Jeffrey Vogel and Quintana were working at the reception desk when defendant, wearing a ski mask and gloves, stormed through the office door while another man stood watch outside. Defendant wielded a knife and demanded money. He pushed Jeffrey Vogel to the floor, poking him in the side with the knife while he struggled to remove a wallet from Vogel's back pocket. Defendant pointed to the petty cash drawer, which turned out to be empty. Then, defendant pointed the knife at Quintana and demanded money.

Simmons, who was in the filing room out of defendant's presence, quietly closed the filing room door, turned off the lights and dialed 9-1-1. Defendant demanded Dr. Vogel's wallet. Dr. Vogel said it was in his office. Defendant pressed the knife into the doctor's back and pushed him to the back office. As Dr. Vogel searched his desk for his wallet, defendant cut Dr. Vogel's shirt with the knife and demanded the money, "or I'll kill you." Dr. Vogel handed over his wallet and a personal electronic organizer. In the meantime, Quintana hit the emergency call button on the front desk to alert the police. Defendant ran out of the building.

Detective Kenneth Williams responded to the office, where the robbery took place. There, he spoke with the victims. He radioed a description of the robber. Contemporaneously, Detective Luis Guzman was driving in an unmarked police car when he received a radio transmission that a robbery was occurring on Gregory Avenue. He saw defendant, who appeared to act suspicious, walking a short distance from the location of the robbery. Guzman followed defendant to an apartment building on High Street and radioed for back-up units. As defendant walked up the steps of the building, Guzman, with his gun drawn, ordered him to halt, turn around slowly and show his hands. Defendant complied and dropped a hat. Inside the hat were two wallets, a small personal computer and keys. Guzman seized these objects. Defendant was handcuffed and driven in a police car to the scene.

Julissa Chiquito, an employee of a law office above the ophthalmology practice, identified defendant as one of two men she saw standing near the elevators on the first floor next to the ophthalmologist's office moments before the robbery was committed. Guzman returned to the area where he first observed defendant. He found a long, serrated blade knife wrapped in a paper towel about 100 yards from the ophthalmologist's office.

The robbery victims were brought to police headquarters and were asked to look at a suspect, defendant, through a one-way mirror. They all later testified that defendant fit the physical appearance of the masked robber and was wearing similar clothing. Quintana made a positive identification based on the suspect's height and clothing. Dr. Vogel stated that the suspect closely resembled the robber in height and build and that his sneakers and pants matched those worn by the culprit. All of the victims identified the serrated blade knife recovered by Guzman as the one used by the perpetrator during the robbery.

Two days later, after receiving Miranda warnings, defendant gave a formal written statement to Detective Michael La Greca. In the statement, defendant admitted to walking on the street with Sean Simpson. Simpson told him he was going to commit a robbery. Defendant told him that he would not participate in the robbery. Defendant walked across the street and toward Paulison Avenue. After a few minutes, Simpson ran up to him and handed him a baseball cap with two wallets in it. Simpson told him to hold on to them because the victims did not have defendant's description. Simpson ran off. Defendant walked to Simpson's apartment building on High Street. At this point, Guzman arrived and detained him.

Defendant did not testify or present any witnesses. No motion was filed to suppress the items seized or defendant's statement. Trial counsel filed a speedy trial motion. However, the judge would not hear it due to procedural errors. The motion was not refiled.

After we affirmed the convictions, defendant filed a pro se first petition for PCR. Counsel was assigned to represent defendant. In the brief filed by PCR counsel, defendant argued that he was denied his federal and state constitutional rights because trial and appellate counsels rendered ineffective assistance by failing to challenge the warrantless seizure of physical evidence, the admission of his statement to the police and the lack of a speedy trial.

Judge Ernest M. Caposela heard oral argument. In a written opinion dated August 16, 2005, Judge Caposela denied an evidentiary hearing and the PCR petition. The judge wrote in pertinent part:

The State argues that Detective Guzman had reasonable suspicion to stop and perform an investigatory stop and search for weapons, and thus, did not need probable cause. This court agrees. An investigatory stop, as the one in question is sometimes referred to as a Terry stop. A Terry stop is valid, "if it is based on specific and articulable facts which, taken together with rational inferences from those facts, give rise to a reasonable suspicion of criminal activity." State v. Nishina, 175 N.J. 502, 510-511 (2003). In Terry v. Ohio, the United States Supreme Court established the standards by which the reasonableness of police conduct during an investigatory stop should be evaluated. Terry v. Ohio, 392 U.S. 1 (1968). The Court, in Terry, stated that the reasonableness of the police conduct in conducting an investigatory stop in light of the Fourth Amendment could be generally assessed by "balancing the need to search or seize against the invasion which the search or seizure entails." Id. at 21. The Court further stated that the facts used in the balancing test are to be judged objectively and the question is whether the facts available to the officer at the moment of the search or seizure warranted a man of reasonable caution to believe that the action taken was appropriate. State v. Arthur, 149 N.J. 1, 7 (1997) (citing Terry [supra, 392 U.S.] at 21-22). The officer "must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant the intrusion." Ibid. In the case at hand, the facts mentioned above constitute reasonable suspicion, and Petitioner failed to prove that the outcome of his case would have been different under the prejudice prong of the Strickland test. Therefore, Petitioner's argument that he received ineffective assistance of trial counsel based on failure to file a suppression motion and ineffective assistance of Appellate Counsels based on failure to challenge the warrantless search and the resulting statement as fruit of the poisonous tree is without merit.

. . .

Petitioner's final argument is that he was denied effective assistance of counsel because his trial attorney failed to challenge denial of his right to a speedy trial. This court agrees with the State's position that even had defense counsel more vigorously pursued this issue the Court would not have dismissed the indictment against Petitioner, because the case moved through the criminal court system in the ordinary course. Thus, Petitioner's argument that he received ineffective assistance of trial counsel based on failure to challenge the denial of his right to a speedy trial is without merit.

On appeal, defendant contends:

THE PCR COURT ERRED IN DENYING DEFENDANT AN EVIDENTIARY HEARING.

We disagree. When the details of trial counsel's alleged deficiencies are not part of the trial record, a hearing is required to obtain the testimony of defendant, his trial counsel and any other witness who may have information regarding this issue, pursuant to State v. Preciose, 129 N.J. 451, 462 (1992). However, when the trial record is sufficient to decide the issue, an evidentiary hearing is not required. State v. Moore, 273 N.J. Super. 118, 126-27, certif. denied, 137 N.J. 311 (1994). Moreover, evidentiary hearings on PCR petitions are neither mandated nor necessary to fully and properly evaluate each issue for relief asserted. See State v. Marshall, 148 N.J. 89, 157-58, cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997); State v. Russo, 333 N.J. Super. 119, 138 (App. Div. 2000). R. 3:22-10 recognizes the PCR court's discretion to conduct evidentiary hearings.

Here, the trial record established the facts necessary to decide whether a motion to suppress evidence and the statement or for a speedy trial, would have been successful; therefore, an evidentiary hearing was not required. See Moore, supra, 273 N.J. Super. at 126-27.

Defendant also contends:

THE PCR COURT ERRED IN DENYING DEFENDANT'S CLAIM OF INEFFECTIVE ASSISTANCE OF TRIAL AND APPELLATE COUNSELS' FAILURE TO CHALLENGE THE ILLEGAL ARREST AND ADMISSION OF EVIDENCE SEIZED.

We disagree. A charge of ineffective assistance of counsel must be evaluated in light of the two-pronged test set forth in Strickland v. Washington, 466 U.S. 558, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). The Supreme Court has adopted the Strickland

standard in evaluating ineffective assistance of counsel cases. State v. Fritz, 105 N.J. 42, 58 (1987). Under Strickland, a defendant seeking to vacate a conviction on the grounds of ineffective assistance of counsel has the heavy burden of proving both that counsel's performance was deficient and that such deficiency prejudiced the defense. Strickland,

supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693.

Deficient performance is a failure to exercise the skill and diligence of a reasonably competent attorney under a similar circumstance. Counsel's conduct must be viewed, without hindsight, from counsel's perspective at the time of trial. Id. at 687-89, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. Representation is constitutionally deficient only when it falls "outside the wide range of professionally competent assistance." Id. at 690, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695. Prejudice is proved by producing evidence that creates "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. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Ibid. In short, defendant has to demonstrate that the motion to suppress would have been granted in order to establish the second Strickland, prong.

Judicial scrutiny of counsel's performance must be highly deferential. A strong presumption exists that counsel rendered adequate assistance and made all significant decisions in the exercise of reasonably professional judgment. Strickland, supra, 466 U.S. at 690, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695. However, "strategic choices made after less than complete investigation are reasonable precisely to the extent that profession judgments support the limitation of investigation." Id. at 690-91, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695.

Defendant's challenge to trial and appellate counsels' competence rests upon their decision not to move to suppress evidence and a statement. Counsels' decisions are unexplained, and although unusual, we assume that it was based on the conclusion that such motion would have been futile. Because we conclude that a motion to suppress physical evidence or the statement would not have been successful, we conclude defendant suffered no prejudice.

We base our decision on the following principles. A police officer may detain an individual pursuant to an investigative stop if, based on the totality of the circumstances, he has a reasonable and particularized suspicion that individual has just engaged in criminal activity. State v. Stovall, 170 N.J. 346, 356 (2002). "Reasonable suspicion necessary to justify an investigatory stop is a lower standard than the probable cause necessary to sustain an arrest." Ibid. "The principle components of a determination of reasonable suspicion are the events which occurred leading up to the stop, and then the decision whether these historical facts, viewed from the standpoint of an objectively reasonable police officer, amount to reasonable suspicion." Ibid. Thus, if an officer's actions were justified at their inception, and reasonably related in scope to the circumstances presented, the limited interference of an investigatory stop is justified. State v. Dickey, 152 N.J. 468, 476 (1998).

Based on Guzman's observations, his order to defendant to turn around slowly and show his hands, was justified. We reject defendant's argument that Guzman's conduct amounted to a "de facto" arrest.

Defendant relies on State v. Caldwell, 158 N.J. 452 (1999). However, this reliance is misplaced. In Caldwell, the police stopped the defendant based solely on the description of the suspect as a black male. Id. at 455. Here, aside from the vague description of the suspect, there were other factors which gave rise to a justified stop such as defendant's proximity to the crime scene, the short time span between the commission of the crime and Guzman's observations. We note that defendant was located only a block and a half away from the crime scene walking in the opposite direction moments after the robbery took place. See State v. Reynolds, 124 N.J. 559, 569 (1991) (considering defendant's proximity to the crime scene in determining that the police had a reasonable suspicion). Additionally, defendant was sweating profusely and attempting to conceal something behind his back. See State v. Todd, 355 N.J. Super. 132, 138 (App. Div. 2002) (finding the fact that defendant was profusely sweating relevant in determining if the police had a reasonable suspicion); see also State v. Valentine, 134 N.J. 536, 551 (1994) (finding the fact that defendant attempted to avoid the police was a relevant factor in determining if the police had a reasonable suspicion). The cumulative effect of these innocent circumstances would support a finding of reasonable suspicion. State v. Stovall, 170 N.J. 346, 356-57 (2002).

Based on the foregoing, we conclude that if a motion to suppress evidence had been filed it would have been denied. See Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698. Therefore, defendant suffered no prejudice due to counsels' failure to file such a motion. For the same reasons, the failure to move to suppress defendant's statement to the police as "fruit of the poisonous tree" did not result in actual prejudice to defendant. Once a witness to the robbery identified defendant, his arrest was lawful. State v. Herrera, 187 N.J. 493, 504 (2006) (holding that a near-the-scene identification is permitted because they are likely to be accurate, taking place, as they do, before memory has faded and because they facilitate and enhance fast and effective police action and they tend to avoid or minimize inconvenience and embarrassment to the innocent).

Finally, defendant contends that:

THE PCR COURT ERRED IN DENYING DEFENDANT'S PETITION ON THE SPEEDY TRIAL ISSUE.

Again, we are not persuaded. Defendant spent two years and forty-two days in jail awaiting trial because he could not post the bail of $100,000. In February 2000, defendant appeared before Judge Ronald B. Sokalski for a status conference. Defendant indicated that he would not accept a plea agreement and he was ready for trial. The judge set the trial date in April 2000. However, the trial did not take place. In September 2000, defense counsel moved to set a "date certain." Judge Randolph M. Subryan set an April 2001 date certain for the trial. However, the trial did not take place on that date because the State was not ready for trial. Judge Subryan set a May 2001 trial date. However, on the May date Judge Subryan conducted another status conference instead of a trial. The trial was rescheduled for July 23, 2001.

Defendant filed a pro se motion to dismiss the indictment for failure to proceed to trial on the date certain. His counsel moved for a bail reduction. Judge Subryan refused to hear the speedy trial motion without a certification. Defense counsel indicated that he had prepared and filed a certification in support of the motion. The judge denied both motions.

On July 23, 2001, Judge Subryan stated that he was covering PIP court all week, adjourned the case. The new date was September 24, 2001. The trial started on that date before Judge Reenstra.

After carefully reviewing the timeline in this case against the standard set forth in State v. Szima, 70 N.J. 196, 201 (1976), we conclude that the speedy trial motion would not have brought about an earlier trial date. In considering a speedy trial motion, a court must consider the following four factors: (1) the length of the delay; (2) the reason for the delay; (3) the defendant's assertion of the right; and (4) any prejudice to the defendant caused by the delay. Ibid.; Barker v. Wingo, 407 U.S. 514, 530, 92 S. Ct. 2182, 2192, 33 L. Ed. 2d 101, 117 (1972). None of these factors are either a necessary or sufficient condition for a court to find a deprivation of the right to a speedy trial. Szima, 70 N.J. at 201. The delay here was not caused by the State, but by the congested criminal calendar. This does not warrant a reversal of the conviction.

 
Affirmed.

No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.

Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

There was no ten percent cash bail option, pursuant to R. 3:26-4(g).

(continued)

(continued)

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A-1081-05T4

August 7, 2007