STATE OF NEW JERSEY v. ROOSEVELT DOWDY

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6557-05T46557-05T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ROOSEVELT DOWDY,

Defendant-Appellant.

________________________________________________________________

 

Submitted October 1, 2007 - Decided

Before Judges Gilroy and Baxter.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 05-05-0718.

Yvonne Smith Segars, Public Defender, attorney for appellant (Abby P. Schwartz, Assistant Deputy Public Defender, of counsel and on the brief).

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

PER CURIAM

Defendant Roosevelt Dowdy appeals from his conviction on two counts of possession of a controlled dangerous substance, N.J.S.A. 2C:35-10(a)(1) (counts one and six). At the close of the State's case, the court granted the State's motion to dismiss the distribution counts (counts four, five, nine and ten), and the jury acquitted defendant of the possession with intent to distribute counts (counts two and seven).

On June 8, 2006, prior to sentencing, the court denied the State's motion to sentence defendant to an extended term of imprisonment as a persistent offender, pursuant to N.J.S.A. 2C:44-3(a). Afterward, the court sentenced defendant to a three-year term of imprisonment on counts one and six, concurrent to each other. Three weeks after sentencing, on June 29, 2006, defendant filed a motion for reduction of sentence, pursuant to Rule 3:21-10. The court denied that motion, finding that defendant had not presented any meritorious arguments to warrant a change of sentence.

On appeal, defendant presents the following arguments for our consideration:

I. THE SEIZURE OF THE HEROIN AND COCAINE WAS NOT BASED ON PROBABLE CAUSE AND VIOLATED DEFENDANT'S CONSTITUTIONAL RIGHTS UNDER STATE AND FEDERAL LAW; DEFENSE COUNSEL WAS CONSTITUTIONALLY INEFFECTIVE IN FAILING TO MAKE A MOTION TO SUPPRESS THE EVIDENCE. U.S. CONST. AMENDS. VI AND XIV; N.J. CONST., (1947), ART. I, PARS. 1 AND 10. (Not Raised Below)

II. THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING THE MOTION FOR RECONSIDERATION OF SENTENCE.

After a careful review of the record, we conclude that each of these claims lacks merit, and we affirm the conviction and sentence.

I.

We begin by addressing defendant's claim that his conviction should be reversed because he received ineffective assistance of counsel. In particular, defendant argues that because the seizure of the heroin and cocaine was not based on probable cause, his attorney was required to file a motion to suppress that evidence. He further argues her failure to do so demonstrates that her level of performance fell below required Sixth Amendment standards; that had she done so, the motion to suppress would have been granted; and that her deficient performance resulted in a conviction that would otherwise have been avoided.

In reply, the State argues that there is no record upon which to weigh the effectiveness of defense counsel's pretrial performance. In particular, the State argues that because defendant did not move to suppress the evidence, there is no record establishing the facts relevant to a suppression hearing nor was there an opportunity for the judge to make a credibility determination concerning the surveilling officer's reasons for arresting defendant. The State further argues that "defendant seeks to transform counsel's realistic appraisal of the police investigation and counsel's successful trial strategy--that defendant possessed the narcotics for personal use and not distribution--into a claim of ineffectiveness." The State urges us to reject "[d]efendant's transparent tactic."

Although the State argues that there is an insufficient evidentiary record against which to evaluate counsel's performance, the State nonetheless has addressed in considerable detail the question of whether the seizure of heroin and cocaine from defendant's person was supported by probable cause. Claims of ineffective assistance of counsel are generally preserved for post-conviction review because the resolution of such claims requires evaluation of evidence not contained in the trial record. State v. Preciose, 129 N.J. 451, 462 (1992). Claims of inadequate investigation and failure to call witnesses, for example, can seldom be resolved by relying on the trial record. Ibid.

Here, in contrast, the record does present sufficient evidence to enable us to squarely address defendant's argument that his counsel's performance was deficient because she failed to file a motion to suppress. We recognize that ordinarily a trial judge would be required to establish the credibility of the officer's testimony as it relates to the issue of probable cause. Here, the trial judge was not presented with that opportunity, and an appellate court is not equipped to make a credibility determination because it did not hear and see the witnesses. State v. Johnson, 42 N.J. 146 (1964). In this case, however, the jury has already made a credibility determination. By finding defendant guilty, the jury accepted as true the officer's description of defendant's conduct on the day in question. Under those circumstances, we find it unnecessary to remand this matter for a credibility determination by the trial judge.

At trial, the State produced four witnesses. The first to testify was Officer Raymond Regalatto, an eleven-year veteran of the Jersey City Police Department who had extensive training and experience in narcotics investigations. On January 14, 2005, at 1:00 p.m., Regalatto was in an unmarked police car, surveilling the area of Bostwick Avenue and Martin Luther King Drive in Jersey City, an area marked by frequent narcotics activity. While in his car, Regalatto observed defendant standing on the sidewalk, waving to two women who were approaching defendant on foot. After defendant and the two women engaged in a brief conversation, Regalatto saw defendant look "in every direction" before he reached into his pants pocket and handed one of the females a small object. In return, she handed him currency. Defendant and the female "both kept walking, she . . . going south, he . . . going north."

Based upon Regalatto's training and experience, he believed the exchange was a narcotics transaction. He immediately pulled his vehicle to the side of the road, and used his police radio to notify officers parked a block or two away that he had observed a drug transaction. Regalatto described defendant, the two women and the directions in which they were walking to the officers in the perimeter units. Before leaving the witness stand, Regalatto identified defendant as the person he saw engaging in a narcotics transaction with the unidentified female on January 14, 2005.

On cross-examination, Regalatto agreed that the description he provided to the officers in the perimeter units was limited to defendant wearing blue jeans, a black jacket, and a gray hooded sweatshirt. Regalatto acknowledged that because he was not present when officers from one of the perimeter units arrested defendant, he was not able to confirm that the person they arrested was the person he had observed engaging in the exchange of a small item for currency.

Officer Walter Chewanick testified that he was working with one of the perimeter units that afternoon. After receiving a radio transmission from Regalatto, Chewanick stopped defendant at the corner of Martin Luther King Drive and Grant Avenue based upon the description of the suspect and the direction of travel that Regalatto had provided. Only thirty seconds elapsed between the time Chewanick received the radio transmission from Regalatto and the time he stopped defendant. When Chewanick stopped defendant, Chewanick told him that officers were stopping him in order to conduct a narcotics investigation. Chewanick and his partner then immediately conducted a search of defendant and recovered thirty-two purple vials of cocaine, thirty bags of heroin and $8 in currency. The heroin and cocaine were bundled by rubber bands into groups of ten. In court, Chewanick identified defendant as the person he had stopped that day.

Officer Terrence Doran testified that he searched for the woman Regalotta described, but was unable to locate anyone matching that description.

Defendant rested without calling any witnesses.

II.

Pursuant to the Sixth Amendment of the United States Constitution, every criminal defendant is guaranteed assistance of counsel. Strickland v. Washington, 466 U.S. 668, 685, 104 S. Ct. 2052, 2063, 80 L. Ed. 2d 674, 692 (1984). Whether "retained or appointed," such counsel must "ensure that the trial is fair"; therefore, "'the right to counsel is the right to the effective assistance of counsel.'" Id. at 685-86, 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. N.J. Const. art. 1, 10.

In order to establish a prima facie case of ineffective assistance of counsel, defendant must demonstrate a reasonable likelihood of success under the two-prong test established by Strickland. First, defendant must show that defense counsel's performance was indeed deficient. Strickland, supra, 466 U.S. 687, 104 S. Ct. at 2064, 80 L. Ed. at 693. Second, 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 precepts of Strickland and its tests have been adopted by New Jersey. State v. Fritz, 105 N.J. 42, 58 (1987).

III.

To determine whether defense counsel's failure to file a motion to suppress constitutes ineffective assistance, we must determine whether there was a reasonable prospect that the motion would have been granted. If there was, defendant has been prejudiced and a prima facie case of ineffective assistance of counsel is demonstrated. State v. O'Neal, 190 N.J. 601, 618-19 (2007). When, however, the underlying claim itself lacks merit, no prejudice is established and defendant has not been denied effective assistance of counsel. Ibid.

Warrantless searches are presumptively unreasonable and are thus prohibited unless they fall within a recognized exception to the warrant requirement. State v. Wilson, 178 N.J. 7, 12 (2003). Among those exceptions is a search incident to a lawful arrest. State v. Anaya, 238 N.J. Super. 31, 36 (App. Div. 1990). In order for any search incident to arrest to be valid, the arrest itself must be lawful. Ibid. "Whether that arrest was constitutionally valid depends in turn upon whether, at the moment the arrest was made, the officers had probable cause to make it--whether at that moment the facts and circumstances within their knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent man in believing the [defendant] had committed or was committing an offense." Ibid. (emphasis omitted) (quoting State v. Contursi, 44 N.J. 422, 429 (1965)).

In Anaya, we held that the arrest of the defendant was lawful after police observed an unknown male speak to defendant's companion and give the companion money; saw the companion point to defendant; and observed the unknown male approach the defendant, after which defendant reached down the front of her pants, removed a small object and gave it to the unknown male. Ibid. Under those circumstances, we held that the trial judge was correct when he concluded, based on the totality of the circumstances, that a crime had been committed. Ibid. We further concluded that the motion to suppress the evidence was properly denied because the arrest was based on probable cause and the search in question was performed incident to that lawful arrest. Ibid.

The same is true here, where Regalatto observed an unknown female approach defendant in a high drug trafficking area, after which the female gave defendant currency, and he immediately reached into his pants pocket and gave her a small object. Indeed, the facts here are virtually identical to those in Anaya. We conclude as we did in Anaya, that the warrantless search of defendant was incident to a lawful arrest and was therefore constitutional.

Accordingly, we determine that trial counsel's performance was not deficient when she failed to file a motion to suppress evidence. There was no reasonable prospect that such motion would have been granted, and we therefore reject defendant's claim of ineffective assistance of counsel. O'Neal, supra, 190 N.J. at 618-19.

IV.

We turn to defendant's argument that the trial judge erred when he denied defendant's motion for reduction of sentence pursuant to Rule 3:21-10. Defendant did not move pursuant to subsection (b)(1) of the Rule for a reduction of sentence to permit him to enter into a custodial or non-custodial drug treatment program. Instead, he argued the same mitigating factors that he had advanced at the time of sentencing, and contended that a proper balancing of aggravating and mitigating factors entitled him to a probationary sentence. Preliminarily, we agree with the trial judge's observation that such motion was procedurally barred because defendant failed to provide notice to the Appellate Division, as required by Rule 3:21-10(d), of his effort to obtain a sentence reconsideration during the pendency of his appeal. In the interest of justice, we nonetheless consider defendant's argument.

At the time of original sentencing and again when he considered defendant's motion for sentence reconsideration, Judge Callahan thoroughly and carefully reviewed the three aggravating factors and one mitigating factor that were present. Judge Callahan's denial of defendant's motion for reconsideration was based upon his careful and well-reasoned consideration of those factors. We have thoroughly considered defendant's arguments, and they are not of sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We add only that sentence reconsideration is particularly inappropriate here where the court sentenced defendant to the minimum term of imprisonment available for the crime in question, and where defendant's prior record includes four drug distribution convictions.

Affirmed.

(continued)

(continued)

12

A-6557-05T4

October 12, 2007