STATE OF NEW JERSEY v. GEORGE MILTON

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3229-05T43229-05T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

GEORGE MILTON,

Defendant-Appellant.

_______________________________

 

Submitted: May 8, 2007 - Decided May 17, 2007

Before Judges Axelrad and R.B. Coleman.

On appeal from the Superior Court of New Jersey, Law Division, Camden County, 02-09-3300.

Yvonne Smith Segars, Public Defender, attorney for appellant (Ellen C. Borrow, Designated Counsel, on the brief).

Joshua M. Ottenberg, Special Deputy Attorney General, Acting Camden County Prosecutor (Linda A. Shashoua, Special Deputy Attorney General, Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant George Milton appeals from an order denying his petition for post-conviction relief (PCR) alleging ineffective assistance of trial counsel. On appeal, defendant claims his trial counsel was ineffective in failing to file a motion to suppress CDS found pursuant to a search warrant. We affirm.

Defendant pled guilty to first-degree possession of cocaine with intent to distribute and second-degree possession of a firearm by a convicted person. He was sentenced in accordance with a plea agreement to an aggravate term of fifteen years with a five year period of parole ineligibility, and appropriate fines and penalties. Three counts of the indictment were dismissed. At the time of the plea, defendant admitted he was inside the specific residence and had placed five or more ounces of cocaine on the table, which he intended to sell, as he had already conducted such sales. He further testified he had placed his .40 caliber handgun on the table next to the drugs, knowing his prior conviction for possession of CDS with intent to distribute in a school zone precluded him from possessing the weapon. Defendant filed an appeal but subsequently requested the appeal be withdrawn. Defendant does not dispute the factual nature or voluntariness of the plea.

Defendant contends in his PCR petition that, due to the alleged errors in the affidavit and execution of the search warrant, if trial counsel had brought the suppression motion, there would have been a "reasonable probability that it would have been granted," which would have left the State with no evidence against him. More particularly, defendant maintains that the suppression motion would likely have succeeded because (1) the search commenced five minutes before the time permitted on the face of the search warrant (5:55 a.m. rather than 6:00 a.m.), rendering the search "illegal" and (2) the affidavit supporting the warrant was "inaccurate" as the informant only told the police cocaine was being sold from the premises to be searched, whereas the warrant described "controlled dangerous substances in pills, powder, crystal, liquid or vegetation obtained in violation of the law."

In order to prevail on a claim of ineffective assistance of counsel, the party must meet the two-prong test of showing that his or her counsel's performance was seriously deficient and that it fell below an objective standard of reasonableness measured by prevailing professional norms and that the defect in performance prejudiced his or her right to a fair trial and affected the outcome of the case. Strickland v. Washington, 466 U.S. 668, 687-94, 104 S. Ct. 2052, 2064-68, 80 L. Ed. 2d 674, 693-98 (1984); United States v. Cronic, 466 U.S. 648, 104 S. Ct. 2039, 80 L. Ed. 2d 657 (1984); State v. Fritz, 105 N.J. 42, 52-58 (1987). The trial judge found defendant did not satisfy the first prong of Strickland, as she found, assuming defendant requested his trial counsel to file a motion to suppress, failure to do so was not conduct that fell below an objective standard of reasonableness.

We agree. Such a motion would not be a part of an experienced criminal defense attorney's trial strategy because there would have been no legitimate basis upon which to have filed such a motion and, contrary to defendant's assertion, he would have had no real chance of success. A five minute violation could clearly be regarded, at most, as merely a technical, rather than a vitiating violation of the search warrant. See State v. Bickham, 285 N.J. Super. 365, 367-68 (App. Div. 1995), certif. denied, 143 N.J. 516 (1996) (finding no basis to suppress evidence when the police inadvertently executed a search warrant thirty-nine minutes before the time authorized in the warrant and noting that "[t]o indiscriminately apply the exclusionary rule to such a minor and technical error would debase the judicial process and breed contempt for the deterrent thrust of the criminal law"). See also State v. Valencia, 93 N.J. 126, 134 (1983) (insignificant departures from warrant procedures tolerable). Defendant's second assertion is equally unavailing as the warrant and supporting affidavit were accurate, sufficiently particular, and the challenged language was phrased in the alternative.

Based on the trial court's assumption that defendant had requested his trial counsel to file the suppression motion, there was no need for an evidentiary hearing. State v. Preciose, 129 N.J. 451, 462 (1992). We are satisfied defendant failed to present a prima facie claim of ineffective assistance of trial counsel because there was nothing deficient about failing to pursue a suppression motion under the circumstances of this case.

Affirmed.

 

(continued)

(continued)

5

A-3229-05T4

May 17, 2007