STATE OF NEW JERSEY v. HERBY CHANOINE

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4536-07T44536-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

HERBY CHANOINE,

Defendant-Appellant.

_______________________________

 

Submitted November 5, 2009 - Decided

Before Judges Graves and Sabatino.

On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 04-04-0330.

Yvonne Smith Segars, Public Defender, attorney for appellant (Steven M. Gilson, Designated Counsel, of counsel and on the brief).

Theodore J. Romankow, Union County Prosecutor, attorney for respondent (Meredith L. Balo, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Herby Chanoine appeals an order of the trial court dated March 3, 2008, denying his petition for post-conviction relief ("PCR") from his 2004 conviction of various drug offenses. We affirm.

I.

The indictment of defendant stemmed from the seizure by Elizabeth police officers of a plastic bag containing vials of cocaine, which they found while they were inside an apartment building on November 9, 2003. The patrolmen had entered the building in response to complaints by neighbors about ongoing drug dealing taking place there. When they arrived at the building, the officers discovered the rear door kept shut by a makeshift wire hanger. They severed the wire with a utility knife and went inside the premises.

The officers walked through a basement hallway, where they encountered defendant, a resident of the building. Defendant was bending over storage cabinets located under the stairwell. After noticing the officers, defendant dropped the aforementioned black plastic bag onto the floor. He then began to run towards his upstairs apartment. One of the officers picked up the bag that defendant had dropped and observed inside vials of what was later confirmed to be cocaine. The officer put the bag into his pocket. Both officers then chased defendant up the stairs.

Once upstairs, the officers spotted defendant in the hallway trying to get into his apartment. They ordered him to stop. Defendant was told that he was being placed under arrest because of the drugs found in the plastic bag. He was given Miranda warnings, and frisked. The officers found cash in defendant's front right pocket. The officers then went into defendant's apartment, where they found drug paraphernalia and more currency.

Defendant denied that he had been in the basement of his apartment building on the morning of November 9. He further denied possessing the black plastic bag, or leaning over the storage cabinets in the basement hallway. According to defendant, he had called for a taxi in order to go shopping, and he had been periodically checking the front area of the building to see if the taxi had come. He then noticed police officers standing at the bottom of the stairway. Defendant claimed that he had walked towards, not away from, the officers, when they ordered him to stop. The officers placed him in handcuffs and questioned him. He claimed that there were other persons in the hallway at the time, who also were questioned. Unlike defendant, however, those unidentified persons were allowed to leave.

A grand jury indicted defendant and charged him with third-degree possession of a controlled dangerous substance ("CDS"), specifically cocaine, N.J.S.A. 2C:35-10a(1) (count one); third-degree possession of CDS with intent to distribute it, N.J.S.A. 2C:35-5a(1) and -5b(3) (count two); and second-degree possession of CDS with intent to distribute it in or within 500 feet of a public park, N.J.S.A. 2C:35-7.1a (count three).

Prior to trial, defense counsel moved to suppress the items seized in the warrantless search of her client's apartment. The trial judge granted the motion. Although it was stipulated that the police officers had a lawful right to be in the hallway of the apartment building, the judge found that they had no right to enter defendant's apartment without his valid consent or a warrant, and that no recognized exception to the warrant requirement applied to justify the apartment search.

The State presented testimony from the two arresting officers at trial. It also called an expert witness on narcotics distribution. The expert opined that defendant could have been using the basement hallway as a "stash location" for the cocaine, and that the plastic bag was probably being used to store the vials. He explained how the packaging of the vials was consistent with an intent to distribute the cocaine. The expert further testified that the cash found on defendant's person likely represented the proceeds of earlier drug sales. Defendant did not call a competing expert witness. In fact, defendant was the sole witness in his own defense. He continued to maintain that the black plastic bag was not his, that he had no intention to distribute cocaine, and that the money found in his pocket was for clothes shopping.

Following deliberations, the jury convicted defendant of all three counts of the indictment. At sentencing, the judge merged the first two counts into the third count charging the second-degree park zone offense, and imposed a seven-year prison term.

Defendant filed a direct appeal of his conviction and sentence. In that appeal, he argued that the verdict was against the weight of the evidence, that he was entitled to acquittal because he had not intended to distribute cocaine, and that he should have been sentenced as a third-degree offender because of mitigating factors. We rejected those arguments in an unpublished opinion. See State v. Chanoine, No. A-3195-04T4 (App. Div. Feb. 2, 2006), certif. denied, 186 N.J. 604 (2006). Thereafter, defendant was deported to Haiti.

Prior to his deportation, defendant filed a pro se PCR petition in the trial court. An attorney was assigned to represent his interests. Defendant argued that his trial counsel was ineffective in several respects and that, consequently, his conviction must be set aside. The PCR application was heard by the same judge who had presided over defendant's trial. Following oral argument, the judge issued a decision from the bench, denying the PCR application.

On appeal, defendant raises the following points:

DEFENDANT'S CONVICTIONS MUST BE REVERSED DUE TO INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL; IN THE ALTERNATIVE, THIS MATTER MUST BE REMANDED BECAUSE A PRIMA FACIE CASE OF INEFFECTIVENESS OF COUNSEL WAS ESTABLISHED

A. Trial Counsel Failed To File A

Suppression Motion Regarding The Police Officers' Illegal Entry Into The Apartment Building

B. Trial Counsel Misinformed Defendant Regarding The Deportation Consequences Of His Being Convicted At Trial, Rather Than His Pleading Guilty To A Lesser Charge

C. Trial Counsel Failed To Elicit Crucial Information During Defendant's Direct Examination

D. Trial Counsel's Representation Of Defendant's Cousin On A Similar Charge Constituted A Conflict Of Interest

II.

Each of defendant's arguments involves a contention that his trial attorney was constitutionally ineffective. We evaluate those contentions with well-settled legal principles in mind. Under the Sixth Amendment of the United States Constitution, a person accused of crimes is guaranteed the effective assistance of legal counsel in his defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984). To establish a deprivation of that right, a convicted defendant must satisfy the two-part test enunciated in Strickland by demonstrating that: (1) counsel's performance was deficient, and (2) the deficient performance actually prejudiced the accused's defense. Ibid.; see also State v. Fritz, 105 N.J. 42, 58 (1987) (adopting the Strickland two-part test in New Jersey).

In reviewing such claims of alleged ineffectiveness, courts apply a strong presumption that defense counsel "rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Strickland, supra, 466 U.S. at 690, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695. "[C]omplaints 'merely of matters of trial strategy' will not serve to ground a constitutional claim of inadequacy . . . [.]" Fritz, supra, 105 N.J. at 54 (quoting State v. Williams, 39 N.J. 471, 489 (1963), cert. denied, 382 U.S. 964, 86 S. Ct. 449, 15 L. Ed. 2d 366 (1965), overruled in part on other grounds by, State v. Czachor, 82 N.J. 392, 402 (1980)); see also State v. Perry, 124 N.J. 128, 153 (1991).

Having reviewed the record in this case in light of the governing substantive law, we concur with the PCR judge that defendant's trial attorney was not constitutionally ineffective. None of the four separate contentions of ineffectiveness raised in the PCR application have merit. Nor was there any obligation for the trial court to conduct an evidentiary hearing on those issues. See State v. Preciose, 129 N.J. 451, 462 (1992) (instructing that trial courts are not required to conduct evidentiary hearings on PCR applications where defendant has not presented a prima facie meritorious basis for relief). We briefly address defendant's four main contentions.

First, we are unpersuaded that defendant's trial attorney was ineffective because she did not move to suppress the plastic bag found by the officers in plain view in the basement hallway, or challenge the officers' right to be present there. The police have a lawful right to enter the common areas of a multi-family housing unit in furtherance of an investigation. See State v. Smith, 37 N.J. 481, 496 (1962), cert. denied, 374 U.S. 835, 83 S. Ct. 1879, 10 L. Ed. 2d 1055 (1963). As a tenant in the building, defendant did not have a reasonable expectation of privacy in the basement hallway and the stairwell, which are common areas. State v. Brown, 282 N.J. Super. 538, 547 (App. Div.), certif. denied, 143 N.J. 322 (1995). The fact that the police gained entry to the building by cutting the wire used to fasten the rear door does not change the analysis, because defendant did not have a right to exclude the police from the building's common areas. Moreover, the Supreme Court has upheld the police's lawful "community caretaking" authority to enter an apartment building without a warrant, after the police received a report that criminal activity had recently occurred on the premises. See State v. Bogan, 200 N.J. 61, 77 (2009).

For these numerous reasons, a motion to suppress the plastic bag seen in plain view in the hallway would have failed, and defendant's trial counsel was not ineffective in eschewing such an application. State v. Worlock, 117 N.J. 596, 625 (1990). Instead, counsel wisely and successfully focused her efforts on getting the court to suppress the contraband that the police had seized without a warrant from defendant's own apartment. Although that successful motion did not prevent defendant from being found guilty at trial, it substantially advanced his interests and made the State's burden of proof more difficult.

Second, as to the deportation issue, we do not read the Supreme Court's recent decision in State v. Nunez-Valdez, 200 N.J. 129 (2009), as warranting any relief to defendant in this case. In Nunez-Valdez, the Court recognized that a criminal defense attorney may be constitutionally ineffective in providing misleading information to a client about deportation consequences before he or she enters an uninformed plea of guilty to charges that, in fact, could lead to the client's deportation upon conviction. Id. at 140. Here, we are not reviewing a conviction arising from a guilty plea but rather one resulting from a jury verdict. Defendant went to trial, thereby maintaining the possibility of being acquitted of the CDS offenses and being spared deportation. Had he instead pled guilty, his conviction would have triggered deportation consequences. Hence, it does not matter whether defendant's trial counsel did or did not provide him with sound advice about the potential for deportation. The scenario here simply is not akin to the "uninformed plea" scenario that justified PCR relief in Nunez-Valdez.

Third, we reject defendant's claim that his trial attorney should have attempted to question him in more detail on direct examination about the conduct of the police officers in the apartment building. When defendant started to recount in his direct testimony what had occurred after the police had handcuffed him, the judge convened a sidebar conference. At that sidebar, the judge cautioned counsel to avoid inquiries that might cause her client to divulge to the jury the suppressed evidence that the police had recovered from his apartment. The judge obviously did so to guard against a potential mistrial. There was nothing wrong in counsel heeding the court's admonition.

Defendant now argues that his attorney should have delved into those post-arrest matters, despite the court's prophylactic direction, because they would have provided further grounds for impeaching the recollections and credibility of the officers. We are unpersuaded by this claim. Trial counsel ably pointed out in summation certain alleged discrepancies in the officers' testimony. She also underscored defendant's testimony that he saw other persons in the hallway that morning who could have left behind the plastic bag. We do not see how defendant's claim of innocence would have been materially enhanced by delving into the excluded subject matters.

Defendant's final argument is that his trial attorney had a conflict of interest because she apparently had represented defendant's cousin after he had been arrested for possession of drugs in the same apartment building on a previous day. We concur with the trial judge that defendant has not demonstrated any actual conflict of interest arising from the cousin's representation, either under R.P.C. 1.7 (regarding concurrent present clients), R.P.C. 1.9 (regarding former clients), or any other applicable ethics rules or principles.

The cousin and defendant were not co-defendants in the same indictment. Defendant never claimed at trial that the cocaine found in the hallway on November 9, 2003 belonged to his cousin. His present suggestion that his cousin might have left the black plastic bag there on a previous day is speculative and uncorroborated. It also bears repeating that the officers did not find the plastic bag tucked away in a concealed location, but rather stated that they observed defendant holding the bag and then drop it on the floor. The prior arrest of the cousin on the premises is a red herring.

In sum, defendant's PCR claims have no merit. We therefore affirm the trial court's dismissal of his petition.

 
Affirmed.

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

We agree with the trial judge that the main cases cited by defendant on this issue are inapposite. In State v. Nunez, 333 N.J. Super. 42 (App. Div. 2000), certif. denied, 167 N.J. 87 (2001), we held that the police were generally required to knock and announce their presence before entering through the door of an individual apartment unit. However, we rejected in Nunez the contention that the police were also obligated to knock and announce their presence at the outer door of the apartment building. Id. at 52. Nunez therefore supports, rather than defeats, the State's distinction between the common areas of a multi-family apartment building and the individual apartment units inside of that building. Additionally, defendant's reliance on State v. Penalber, 386 N.J. Super. 1 (App. Div. 2006), is misplaced. Although we invalidated in Penalber the police's entry into an individual's apartment unit, we specifically declined to reach whether the occupant had a right of privacy in a hallway and stairway leading to his second-floor apartment. Id. at 11.

(continued)

(continued)

12

A-4536-07T4

November 30, 2009