STATE OF NEW JERSEY v. DONTAIE ANDERSON A/K/A JERRY MATTHEWS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5110-05T45110-05T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DONTAIE ANDERSON

A/K/A JERRY MATTHEWS,

Defendant-Appellant.

 

Submitted September 11, 2007 - Decided September 24, 2007

Before Judges Winkelstein and Yannotti.

On appeal from the Superior Court of New Jersey, Law Division, Union County, 03-03-0221-I.

Yvonne Smith Segars, Public Defender, attorney for appellant (Kevin G. Byrnes, Designated Counsel, on the brief).

Anne Milgram, Attorney General, attorney for respondent (Joie Piderit, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

Defendant Dontaie Anderson appeals from Judge Joseph P. Donohue's May 12, 2006, order denying defendant's petition for post-conviction relief. On appeal, defendant raises the following points:

POINT I

THE DEFENDANT WAS DENIED THE RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I PAR. 10 OF THE NEW JERSEY CONSTITUTION BY FAILING TO USE THE SUPPRESSION REMEDY.

A. THE POLICE LACKED PROBABLE CAUSE TO BELIEVE THAT THE DEFENDANT HAD COMMITTED A CRIME TO JUSTIFY A WARRANTLESS SEARCH.

B. THE WARRANTLESS STRIP SEARCH AND BODY CAVITY SEARCH WERE UNLAWFUL.

POINT II

THE DEFENDANT'S PLEA MUST BE VACATED BECAUSE IT WAS BASED ON A MATERIAL MISREPRESENTATION OF LAW.

We affirm.

On March 6, 2003, a Union County Grand Jury indicted defendant, charging him with the following offenses: third-degree possession of a controlled dangerous substance, cocaine, N.J.S.A. 2C:35-10a(1) (count one); third-degree possession of a controlled dangerous substance, cocaine, with the intent to distribute, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(3) (count two); and second-degree possession of a controlled dangerous substance, cocaine, with the intent to distribute within 500 feet of a public housing facility, N.J.S.A. 2C:35-7.1 (count three).

The charges arose from an incident that occurred on November 29, 2002, when a police detective assigned to the Plainfield Police Narcotics Division was conducting undercover surveillance in an area "well known" for narcotics transactions. He observed defendant standing on Elmwood Street in Plainfield when a pickup truck stopped, the passenger got out of the truck, and, according to the officer's report, gave defendant an unknown amount of U.S. currency. The report stated that defendant

look[ed] over his shoulder . . . as his left hand reached into his buttock area. [Defendant] kept reaching into his buttock looking around. Defendant removed a small item from that area and proceeded to count several small items. He gave them to the unknown [male], who entered the truck and left the area.

The officer reported that defendant, while walking from the area, "reached back into [his] rear buttock area placing the small items back." Based on his observations, training, education, and experience, the officer believed he saw defendant engage in a narcotics transaction.

Other officers arrested defendant and took him to police headquarters. Once inside, after permission was obtained from the watch commander, the officers conducted a strip search of defendant, locating "a quantity of narcotics" in defendant's buttocks area. Specifically, after defendant was required to remove his pants and underwear, and after he refused the officer's command to spread his buttocks, one of the police officers, using one hand, "proceeded to spread [defendant's] right buttock." When the officer did so, he "observed a clear piece of torn plastic sandwich bag tucked between the cleavage of [defendant's] buttocks." The officer retrieved the item with his other hand. He described the items as follows: "(1) piece of clear torn plastic sandwich bag [that] contained (8) small yellow Ziploc baggies each containing a white rock-type substance (C.D.S.) and (1) plastic knot containing a white rock-type substance (C.D.S.)."

Defendant's attorney subsequently filed a motion to suppress the items obtained during the search. The motion was ultimately scheduled for Friday, June 20, 2003. Prior to the return date of the motion, on June 16, 2003, defendant pleaded guilty to count one of the indictment, third-degree possession of cocaine. The judge dismissed counts two and three of the indictment pursuant to the plea agreement. Consequently, the suppression motion was never addressed by the court.

At the time of his guilty plea, defendant testified that he spoke to his lawyer about the charges before entering his plea, he was satisfied with his lawyer's representation, and he was aware that if found guilty of the charges, he was subject to five years in state prison, with a two and one-half-year parole disqualifier. He further advised the court that he was entering the plea of his own free will; no force or threats were made against him to have him enter his guilty plea; and he had read the plea form and was aware of its contents. The judge accepted the guilty plea, imposed a jail term of time served (200 days), and placed defendant on probation for a period of two years.

Defendant did not file a direct appeal, but instead moved on April 19, 2005, for post conviction relief. He claimed trial counsel was ineffective, he did not knowingly and intelligently enter his plea, and he was never informed of his right to appeal. Defendant claimed his will was overborne because his attorney had not adequately represented him and he had no choice but to enter a guilty plea.

Judge Donohue, who was not the sentencing judge, addressed defendant's arguments on May 12, 2006. In part, the judge made the following findings:

The argument fails, I think, miserably once you look at the facts behind the case, which [are] that an officer observed [defendant] . . . involved in what he believed to be a narcotics transaction, observed him reach into the back of his pants and pull out what . . . appeared to the officer to be controlled dangerous substances. He exchanged currency for those objects, and then put that in the back of his pants, again. There was probable cause to arrest him, not for loitering with the intent to sell, but for distribution of a controlled dangerous substance. He was in custody based upon probable cause in a municipal lockup. The Shift Commander approved the strip search, and a strip search was conducted.

In addressing defendant's claim that no suppression motion was filed, the court stated: "But there was a motion filed. It's not that there was no motion filed. The record shows that the motion was filed shortly after it was requested."

Next, in responding to defendant's argument that his plea was not freely and voluntarily given, Judge Donohue stated:

[Defendant] claims that . . . this was not a freely and voluntarily given plea. The transcript, clearly, belies that fact. [Defense counsel] takes that argument and claims that [defendant's] will was overborne. His will was overborne because there wouldn't be a motion to suppress filed. There was a motion to suppress filed. There was no indication that there wouldn't have been a motion to suppress hearing if [defendant] turned down this plea on that day. . . .

. . . .

. . . If . . . that plea was turned down, the likelihood was that if it was heard it was going to be . . . decided unfavorably to him, that it was going to be . . . substantially higher. . . .

I'm satisfied that there was probable cause to arrest for indictable offenses, and that the strip search was appropriate, under those circumstances.

Defendant's petition for post-conviction relief is couched in terms of ineffective assistance of counsel. The Sixth Amendment of the United States Constitution guarantees every criminal defendant the assistance of counsel. Strickland v. Washington, 466 U.S. 668, 685, 104 S. Ct. 2052, 2063, 80 L. Ed. 2d 674, 692 (1984). "'[T]he right to counsel is the right to effective assistance of counsel.'" Id. at 686, 104 S. Ct. at 2063, 80 L. Ed. 2d at 692 (quoting McMann v. Richardson, 397 U.S. 759, 771 n.14, 90 S. Ct. 1441, 1449 n.14, 25 L. Ed. 2d 763, 773 n.14 (1970)). The New Jersey Constitution extends the same right to counsel as does the federal constitution. N.J. Const. art. I, 10.

To establish a prima facie case of ineffective assistance of counsel, a defendant must demonstrate a reasonable likelihood of succeeding under the two-prong test established by Strickland, supra, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674. First, a defendant must show that defense counsel's performance was indeed deficient. Id. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. Second, a defendant must demonstrate that there exists "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. The New Jersey Supreme Court has adopted the precepts and tests as enunciated in Strickland. State v. Fritz, 105 N.J. 42, 58 (1987).

Certain factual situations warrant a presumption of prejudice, such as where the assistance of counsel is denied altogether. Strickland, supra, 466 U.S. at 692, 104 S. Ct. at 2067, 80 L. Ed. 2d at 696. "Failure to file a suppression motion, however, is not one of those circumstances." State v. Fisher, 156 N.J. 494, 501 (1998). If counsel fails to file a suppression motion, a defendant "not only must satisfy both parts of the Strickland test but also must prove that his Fourth Amendment claim is meritorious." Ibid. (citing Kimmelman v. Morrison, 477 U.S. 365, 375, 106 S. Ct. 2574, 2583, 91 L. Ed. 2d 305, 319 (1986)).

Here, the thrust of defendant's argument is that trial counsel was ineffective for failing to file a suppression motion. First, it is clear that trial counsel did, in fact, file a suppression motion; what occurred, however, was that defendant entered a guilty plea prior to the motion's return date. It cannot be said, therefore, that trial counsel's conduct fell outside "'the wide range of reasonable professional assistance'" that is required to demonstrate ineffective assistance meeting the first prong of the Strickland test. State v. Fisher, supra, 156 N.J. at 500 (quoting Fritz, supra, 105 N.J. at 52).

That said, even if we presume that no suppression motion was filed, defendant remains unable to satisfy the Strickland test in that he cannot establish that his Fourth Amendment claim is meritorious. Though defendant was arrested without a warrant, the facts as established by the officers in their police reports demonstrate probable cause to arrest and search defendant.

To determine whether probable cause exists, that is, whether there is a "well-grounded suspicion that a crime has been or is being committed," see State v. Moore, 181 N.J. 40, 45-46 (2004), the totality of the circumstances must be considered. State v. O'Neal, 190 N.J. 601, 612 (2007). Here, the record supports a finding of probable cause for defendant's arrest and subsequent search.

The police reports disclose that while conducting a surveillance operation in a high narcotics traffic area, the officer observed what he believed, based on his training, education, and experience, to be the exchange of money for drugs. He saw defendant remove and replace items in his buttocks area before and after the transaction; those items proved to be baggies containing cocaine. Aside from his own conclusionary affidavit, defendant has submitted no proof that what occurred is not accurately reflected in the police reports. We agree with the motion judge that if the suppression motion had been heard, defendant would have been unable to prove that his Fourth Amendment claim is meritorious.

Nor would the circumstances surrounding the search of defendant's person at police headquarters lead to a different conclusion. A strip search is justified when probable cause exists to believe an individual possesses a controlled dangerous substance. See N.J.S.A. 2A:161A-1b. Here, at the time he was strip searched, defendant was in custody and subsequently charged with multiple crimes. Based on the circumstances that led to defendant's arrest, the officers had probable cause to believe that he had engaged in a narcotics transaction and possessed a controlled dangerous substance.

Defendant relies on State v. Hayes, 327 N.J. Super. 373, 382 (App. Div. 2000), where the defendant's detention was merely to permit the police sufficient time to check for outstanding warrants. Under those circumstances, a search under N.J.S.A. 2A:161A-1b was not proper. Hayes, supra, 327 N.J. Super. at 383. Here, however, defendant was arrested on probable cause for engaging in narcotics transactions. At the time he was searched, he was not simply being detained for a warrant check as was the defendant in Hayes. Given the circumstances, we agree with the trial court that the strip search of defendant's person was constitutional.

Defendant next argues that he was wrongfully subjected to a body cavity search. See N.J.S.A. 2A:161A-3b, defining a body cavity search as "the visual inspection or manual search of a person's anal or vaginal cavity." Here, defendant was not subject to a body cavity search. The officer merely spread defendant's buttock with one hand after defendant refused to do so himself. The officer did not search defendant's anus. Defendant's argument that he was subject to a body cavity search is therefore without merit.

Finally, defendant claims he was coerced by events into pleading guilty. His statements to the court at the time he entered his guilty plea belie that allegation. He testified that he entered the guilty plea after discussion of the plea with his lawyer, of his own free will, and absent any force or threats.

 
We affirm substantially for the reasons expressed by Judge Donohue in his opinion from the bench on May 12, 2006.

(continued)

(continued)

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A-5110-05T4

September 24, 2007