STATE OF NEW JERSEY v. YOAN PERALTA

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5281-08T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

YOAN PERALTA,

Defendant-Appellant.

_______________________________________

November 22, 2010

Submitted November 9, 2010 Decided

Before Judges Parrillo and Yannotti.

On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 05-11-1559.

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

CameliaM. Valdes, Passaic County Prosecutor, attorney for respondent (Steven E. Braun, Chief Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Yoan Peralta appeals from an order entered by the Law Division on December 12, 2008, denying his petition for post-conviction relief (PCR). We affirm.

Defendant was charged under Passaic County Indictment No. 05-11-1559-I, with fourth-degree possession of a controlled dangerous substance (CDS) with intent to distribute, N.J.S.A. 2C:35-5(a)(1) (count one); two counts of third-degree possession of a CDS with intent to distribute within 1000 feet of school property; N.J.S.A. 2C:35-7 and N.J.S.A. 2C:35-5(a) (counts two and six); two counts of third-degree possession of a CDS with intent to distribute within 500 feet of public housing, park or building N.J.S.A. 2C:35-7.1 and N.J.S.A. 2C:35-5(a) (counts three and seven); third-degree possession of a CDS, N.J.S.A. 2C:35-10(a)(1) (count four); and second-degree possession of a CDS with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(3) (count five).

At trial, the State presented evidence which established that on the evening of May 20, 2005, three officers of the Passaic Police Department were on routine patrol in a police vehicle at a point within 1000 feet of Public School #11. The officers observed three men and a woman on the street corner drinking beer. The officers exited their vehicle and approached the group.

Defendant was one of the persons in the group, as was co-defendant Christian Rolon (Rolon). Officer John Vaccaro (Vaccaro) observed defendant toss a brown paper bag to the ground. Rolon started to walk away. Officer Marvin Eugene (Eugene) followed Rolon and saw him throw a clear plastic bag to the ground. Eugene picked up the bag, which contained what appeared to be crack cocaine, and arrested Rolon.

Vaccaro then picked up the brown paper bag that defendant had discarded. The bag contained nine small plastic baggies of marijuana and six plastic bags of marijuana laced with PCP. Officer Raymond Rodriguez (Rodriguez) arrested defendant and patted him down. Rodriguez found eighty-three small, unused plastic bags in defendant's jacket pocket. The baggies were identical to those found in the brown paper bag that defendant had discarded.

The jury found defendant guilty on counts one, two, six, four and five. At sentencing, the trial court granted the State's motion for an extended term pursuant to N.J.S.A. 2C:43-6(f) and imposed, after appropriate mergers, an aggregate twelve-year term of incarceration, with a four-year period of parole ineligibility. Defendant appealed and we affirmed his conviction. State v. Peralta, No. A-3731-06 (App. Div. Mar. 4, 2008).

On May 19, 2008, defendant filed a pro se petition for PCR. PCR counsel was appointed and filed a brief on October 11, 2008, in which he argued that: 1) defendant's claims were not barred by the court rules; 2) defendant was denied the effective assistance of trial counsel; and 3) defendant should be afforded an evidentiary hearing on his petition.

The PCR court considered the matter on December 12, 2008 and placed its decision on the record. The court concluded that defendant had not been denied the effective assistance of counsel and an evidentiary hearing was not required. The court entered an order dated December 12, 2008, denying PCR. This appeal followed.

Defendant raises the following arguments for our consideration:

POINT I

THE LOWER COURT COMMITTED REVERSIBLE ERROR WHEN IT DENIED DEFENDANT'S REQUEST FOR AN EVIDENTIARY HEARING ON HIS CLAIMS OF INEFFECTIVE ASSISTANCE OF COUNSEL.

POINT II

DEFENDANT WAS DEPRIVED OF HIS RIGHT TO COUNSEL WHEN HIS POST-CONVICTION RELIEF ATTORNEY DID NOT ADEQUATELY REPRESENT HIM.

We have carefully considered the record and conclude that these arguments are without merit. We accordingly the affirm the denial of defendant's petition for PCR substantially for the reasons stated by the PCR court in the decision placed on the record on December 12, 2008. We add the following brief comments.

Defendant's claim that he was denied the effective assistance of counsel is considered under the standards enunciated in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). In order to prevail on such a claim, a defendant first must show that his attorney's handling of the matter "fell below an objective standard of reasonableness." Id. at 688, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. A defendant also must show 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. Our Supreme Court has adopted this standard for evaluating ineffective-assistance-of-counsel claims under our State Constitution. State v. Fritz, 105 N.J. 42, 58 (1987).

Defendant argues that his trial attorneys were deficient because they did not have the brown paper bag tested for fingerprints. We disagree. As we have explained, Vaccaro testified that he observed defendant crumple and toss the brown paper bag onto the ground. In light of that evidence, counsel reasonably chose not to have the bag tested for fingerprints. Moreover, as the PCR court found, even if defendant's fingerprints were not on the bag, the absence of fingerprints could be explained. Furthermore, such evidence probably would not have benefited defendant because Vaccaro testified that he saw defendant possess the bag.

Defendant additionally argues that his trial attorney was deficient because he failed to seek a limiting instruction concerning the evidence obtained from Rolon. At the trial, the court instructed the jury to disregard the evidence concerning Rolon and to concentrate upon evidence implicating defendant. The PCR court correctly determined that defendant failed to establish that the instruction was erroneous or that a further instruction was required.

Next, defendant contends that his trial attorney should have filed a motion to suppress the evidence obtained in the brown paper bag prior to trial. Again, we disagree. We are convinced that, had such a motion been made, it would have been denied as entirely without merit. Thus, trial counsel's failure to file a suppression motion does not represent the ineffective assistance of counsel.

Defendant further contends that the PCR court should have afforded him an evidentiary hearing on his petition. Again, we disagree. An evidentiary hearing was not required here because defendant failed to establish a prima facie case of ineffective assistance of counsel. State v. Preciose, 129 N.J. 451, 462 (1992).

We have considered defendant's other arguments and find them to be without sufficient merit to warrant discussion in this opinion. R. 2:11-3(e)(2).

Affirmed.