STATE OF NEW JERSEY v. RASHAN M. BAKER

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4040-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

RASHAN M. BAKER,

Defendant-Appellant.

__________________________

July 18, 2011

Submitted January 3, 2011 - Decided

Before Judges Grall and LeWinn.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 06-10-1449.

Yvonne Smith Segars, Public Defender, attorney for appellant (Linda Mehling, Designated Counsel, on the brief).

Bruce J. Kaplan, Middlesex County Prosecutor, attorney for respondent (Joie Piderit, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant was indicted for third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b), and third-degree possession of cocaine, N.J.S.A. 2C:35-10(a)(1). Tried to a jury, defendant was convicted of the drug offense and acquitted of the weapons offense. He was sentenced to a term of five years imprisonment, with a recommendation that he receive substance abuse treatment while incarcerated; mandatory fines and assessments were also imposed.

The pertinent trial evidence may be summarized as follows. On the night of July 15, 2006, South Plainfield Police Officer Mark Bullock was patrolling the halls of the Best Western Hotel with Officer Michael Grasso. Bullock explained that the police regularly patrolled the hotels because they were the site of "a lot of problems" such as underage drinking, narcotics and burglaries.

While patrolling the hallway in front of room 229, Bullock "smelled the odor of burnt marijuana coming from the room," and observed that a towel had been "shoved underneath the door" from inside the room. The officers knocked on the door and "announced it was the police." Defendant opened the door "a minute or two" later, and allowed the officers to enter the room. Inside the room the officers also encountered a female later identified as Erica Spivey.

Upon entry, "the smell of the burnt marijuana was even stronger. There was still . . . a haze . . . in the room because the window was shut." Defendant walked toward the window and offered to open it. Bullock observed defendant looking intently at a book bag located on the floor directly under the window. Bullock ordered defendant to sit on the bed, which he did; the officer observed a folded penknife and four marijuana roaches in an ashtray on the night table.

Bullock then noticed "two large bulges" in defendant's front pants pockets. Grasso had defendant stand up and patted him down. Grasso removed a cell phone, some keys, and one small bag of suspected cocaine from defendant's pockets. Defendant said, "Personal use." Grasso then handcuffed defendant.

Bullock walked over to the book bag and saw the butt of a handgun sticking out. He notified Grasso and removed the gun from the bag. Defendant said, "she [Spivey] doesn t know anything about it." Defendant was taken into custody and charged with the two offenses.

At the conclusion of the State's case, defendant moved for a judgment of acquittal on the weapons charge, contending that the State had failed to show that the contents of the book back "did not in fact belong to . . . Spivey . . . ." The book bag had not been moved into evidence and Spivey did not testify at trial. Applying State v. Reyes, 50 N.J. 454, 458-59 (1967), the judge denied the motion.

Defendant testified. He stated that the bag containing the gun had belonged to Spivey. When Bullock retrieved the gun and asked who owned it, Spivey said she did not know. Defendant had his own two bags in the room; he did not touch the bag in which the gun was found. Defendant admitted to possessing the cocaine found in his pocket, adding that "sometimes [he] stash[es] stuff in that pocket and . . . might forget it's there . . . ."

In defense counsel's summation she told the jury:

With respect to [defendant] taking the stand, . . . [h]e told you it was his cocaine. It's not likely that somebody would take the stand under oath and admit to having cocaine and not be telling the truth . . . . So I would submit to you that he was telling the truth with respect to that.

In discussing the weapons offense, counsel stated:

I submit to you, ladies and gentlemen, that even after the conviction if you're so moved and it's still your decision on the possession of cocaine that that in and of itself does not make [defendant] guilty of possession of a handgun. . . . [T]he State has not met its burden especially with respect to . . . who actually had possession of that gun . . . .

At sentencing, the judge considered the State's motion to sentence defendant to an extended term as a persistent offender pursuant to N.J.S.A. 2C:44-3(a). Notwithstanding that defendant met the criteria for the imposition of a discretionary extended term based upon his criminal history, the judge denied the motion.

The judge determined that it was not "necessary to sentence [defendant] in the second[-]degree range in order to come up with an appropriate sentence," and concluded that five years was "sufficient and appropriate upon weighing the aggravating and mitigating factors . . . ." The judge found aggravating factors three (risk of committing another offense), six (prior criminal history), and nine (need to deter) applied. N.J.S.A. 2C:44-1(a)(3), (6), (9). The judge found no mitigating factors applicable. The judge did not impose any period of parole ineligibility and noted that defendant should receive substance abuse treatment in prison.

On appeal, defendant raises the following contentions for our consideration:

POINT I

DEFENSE COUNSEL CONCEDED BAKER'S GUILT ON THE DRUG CHARGE, THEREBY DEPRIVING BAKER OF THE EFFECTIVE ASSISTANCE OF COUNSEL.

POINT II

THE IMPOSITION OF THE MAXIMUM SENTENCE FOR THIS CRIME WAS CONTRARY TO THE CRIMINAL CODE AND AN ABUSE OF THE COURT'S DISCRETION.

Having reviewed these contentions in light of the record and the controlling legal principles, we discern no basis to reverse defendant's conviction or modify his sentence. Before the jury, defendant admitted to possessing the cocaine found in his pants pocket. The judge properly charged the jury on the elements of possession, with respect both to the cocaine and the handgun. Defense counsel clearly made a strategic decision to bolster the credibility of defendant's denial of possessing the handgun by acknowledging the "truth" of his admission of cocaine possession. This strategy worked; defendant was acquitted of the weapons offense. Thus, contrary to defendant's assertion, we are satisfied that counsel effectively "'marshal[ed] the evidence . . . before the submission of the case to judgment.'" State v. Nittolo, 194 N.J. Super. 344, 347 (App. Div. 1984) (quoting Herring v. New York, 422 U.S. 853, 862, 95 S. Ct. 2550, 2555, 45 L. Ed. 2d 593, 600 (1975)).

Nor does this contention support a claim of ineffective assistance of counsel. Such a claim is considered under the standards established in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), and adopted by our Supreme Court in interpreting our State Constitution. State v. Fritz, 105 N.J. 42, 58 (1987). In order to prevail on such a claim, a defendant first must show that his attorney's performance was deficient. Id. at 52 (citing Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693). Second, the defendant must show that counsel's deficient performance prejudiced his defense. Ibid.

In a related context the Supreme Court has recognized that this type of strategic decision by defense counsel does not support a claim of ineffective assistance.

Although defense counsel could have used less strident language in admitting [the defendant's] involvement in the incident, on this record we do not conclude that defense counsel's high-risk strategy of admitting [the defendant's] guilt to lesser-included offenses in the hope that it would enhance [his] credibility, eventually leading to a not guilty verdict of the most serious offense, was prima facie evidence of ineffective assistance of counsel.

[State v. Castagna, 187 N.J. 293, 316 (2006).]

We are satisfied the same reasoning applies here. Contrary to defendant's assertion, defense counsel's "deficiencies" did not "materially contribute[] to [his] conviction[,]" Fritz, supra, 105 N.J. at 58; rather, defendant's own testimony contributed to that result.

With respect to defendant's sentence, suffice it to say defendant was eligible for an extended term sentence between five and ten years. N.J.S.A. 2C:44-3(a). Had the judge granted the State's motion and imposed such a sentence, defendant would have received at least the minimum term in the extended range.

We are satisfied the judge's assessment of the aggravating and mitigating factors was "based upon findings of fact that are grounded in competent, reasonably credible evidence," and that the judge "appl[ied] correct legal principles." State v. Roth, 95 N.J. 334, 363 (1984). We have previously rejected an argument similar to that which defendant raises here, that his possession of a small amount of cocaine should have led the judge to find mitigating factors one and two, that he caused no "serious harm" and "did not contemplate that his conduct would cause . . . serious harm[.]" N.J.S.A. 2C:44-1(b)(1), (2). In State v. Tarver, 272 N.J. Super. 414, 435 (App. Div. 1994), we noted that drug offenses "can be readily perceived to constitute conduct which causes and threatens serious harm. There [is] also reason to believe, in view of defendant's history of drug involvement, that his violations of the law would continue."

Affirmed.