STATE OF NEW JERSEY v. WASIU ONIGBANJO

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

WASIU ONIGBANJO, a/k/a

LARRY,

Defendant-Appellant.

______________________________________

June 9, 2014

Submitted March 31, 2014 Decided

Before Judges Yannotti and St. John.

On appeal from Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 07-03-0206.

Joseph E. Krakora, Public Defender, attorney for appellant (Mark H. Friedman, Assistant Deputy Public Defender, of counsel and on the brief).

Geoffrey D. Soriano, Somerset County Prosecutor, attorney for respondent (James L. McConnell, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Wasiu Onigbanjo appeals from an order entered by the Law Division on June 5, 2012, denying his petition for post-conviction relief (PCR). We affirm.

Defendant was charged under Somerset County Indictment No. 07-03-0206 with various offenses related to the possession and distribution of a controlled dangerous substance (CDS), specifically cocaine. After his motion to suppress was denied, defendant was tried before a jury.

The evidence presented at the trial established that investigators from the Middlesex County Prosecutor's Office had received information that defendant was selling narcotics in Piscataway. Further investigation indicated that defendant had moved his base of operations to Green Brook Township in Somerset County. On February 6, 2007, an undercover officer attempted to purchase drugs from defendant. Officers observed defendant exit room 211 at the Ivory Tower Motel for the sale and return to the room afterwards.

Another transaction was arranged for the following day. The undercover officer called defendant on the phone number that defendant had provided the previous evening. The officer said she was interested in purchasing more crack cocaine. Defendant said he could help her out, and said she should return to the motel. Officers again observed defendant leave room 211 to meet with the officer in the parking lot. Defendant received one-hundred dollars in exchange for two plastic bags containing a substance later determined to be crack cocaine.

Based on the two undercover drug transactions, Officer Joshua Alexander obtained a search warrant on February 8, 2007, which covered defendant's person and room 211 of the motel. Shortly thereafter, the officers observed defendant and another man, later identified as Michael Emmanuel, exit room 211 and enter room 224. They were carrying a couple of bags. Several minutes later, the motel's cleaning crew entered room 211.

The motel's manager told Officer Daniel Muntone that the man in room 211 was having a problem with his toilet. The officer said that the police had a warrant to execute in room 224. He asked the motel manager to knock on the door and, when the person inside opened the door, step aside. The manager agreed to cooperate.

The manager knocked on the door. Defendant opened the door and the manager stepped aside. Defendant was standing on the threshold. The officers grabbed him and they fell inside the room. The officers picked defendant up and observed a quantity of CDS on the bed. Defendant and Emmanuel were arrested. An officer asked them for consent to search the room. They declined.

The officers secured the room and a telephone application was made for issuance of a search warrant. The judge granted the application, and the police undertook a thorough search of room 224. The police found various drugs and drug-related items, including plastic bags with suspected cocaine, pipes and other items that could be used as pipes for smoking cocaine, and a CD case with about fifteen pieces of a white rock-like substance suspected to be cocaine.

The jury found defendant guilty of third-degree possession of cocaine with intent to distribute, contrary to N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(2) (count four); third-degree possession of cocaine, contrary to N.J.S.A. 2C:35-10(a)(1) (count five); and two counts of third-degree distribution of cocaine, contrary to N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(3) (counts six and seven). The trial judge also convicted defendant of the disorderly persons offense of possession of drug paraphernalia, contrary to N.J.S.A. 2C:36-2.

The judge granted the State's motion to sentence defendant to an extended term pursuant to N.J.S.A. 2C:43-6(f), based on his prior convictions in Essex and Union Counties on various offenses, including charges for the possession and distribution of CDS. After merging several counts, the judge sentenced defendant to a seven-year extended term, with a three-year period of parole ineligibility, on one count of distribution of CDS. The judge also imposed a consecutive sentence of five years, with two-and-one-half years of parole ineligibility, on the other count of distribution of CDS.

Defendant appealed, challenging his conviction and the sentence imposed. He raised the following arguments:

POINT I:

THE TRIAL COURT ERRED BY DENYING DEFENDANT'S MOTION TO SUPPRESS EVIDENCE.

POINT II:

THE FAILURE OF THE COURT ISSUING THE TELEPHONIC WARRANT TO RECORD THE TESTIMONY OF SERGEANT M[U]NTONE OR TO TAKE CONTEMPORANEOUS NOTES VIOLATED DEFENDANT'S RIGHT TO CONFRONT THE WITNESS AGAINST HIM AND EFFECTIVELY CONTEST THE SEARCH WARRANT.

POINT III:

DEFENDANT'S CONVICTION MUST BE REVERSED BECAUSE THE TRIAL COURT ERRED BY FAILING TO PROVIDE A CURATIVE INSTRUCTION TO REMOVE THE TAINT ON THE JURY FROM THE PROSECUTOR'S UNDULY PREJUDICIAL CONDUCT DURING SUMMATION WHERE THE PROSECUTOR ASSEMBLED CERTAIN EXHIBITS ADMITTED INTO EVIDENCE INTO A MAKESHIFT HEATING APPLIANCE NECESSARY TO MAKE CRACK COCAINE.

POINT IV:

THE SENTENCE[S] IMPOSED ON DEFENDANT'S CONVICTION FOR POSSESSION OF CDS, POSSESSION OF CDS WITH INTENT TO DISTRIBUTE AND DISTRIBUTION OF CDS WERE MANIFESTLY EXCESSIVE AND CONSTITUTED AN ABUSE OF DISCRETION.

We affirmed defendant's conviction but found nothing in the record to support the imposition of consecutive sentences. State v. Onigbanjo, No. A-5875-07 (App. Div. Jan. 4, 2010) (slip op. at 21). We remanded the matter to the trial court for re-sentencing. Ibid. On remand, the trial court imposed the same sentences, explaining its reasons for the consecutive sentences. The Supreme Court thereafter denied defendant's petition for certification. State v. Onigbanjo, 202 N.J. 348 (2010).

In April 2011, defendant filed a pro se petition for PCR with supporting brief. Here, defendant claimed that his attorney was ineffective because he failed to: (1) consult with him to review the evidence and prepare possible defenses; (2) to challenge the affidavit in support of the initial arrest and search warrant; (3) request a hearing to assess the veracity of the confidential informant; (4) request a Wade1 hearing; (5) zealously advocate on his behalf at the hearing to determine the admissibility of defendant's prior conviction for possession of CDS with intent to distribute; (6) object to numerous instances of alleged police misconduct; (7) effectively argue for acquittal and judgment notwithstanding the verdict; (8) argue applicable mitigating factors at sentencing. In addition, defendant alleged that he was denied the effective assistance of appellate counsel because he failed to raise allegedly meritorious and significant issues on direct appeal. Finally, defendant alleged cumulative error as grounds for PCR.

The court assigned counsel to represent defendant, and PCR counsel filed a brief in support of the petition. In addition, PCR counsel filed a supplemental brief in support of the petition.

On May 1, 2012, the PCR court heard oral argument on the petition. On June 5, 2012, the court filed a written opinion, in which the court concluded that PCR should be denied. The court found that defendant was not denied the effective assistance of counsel due to counsel's alleged failure to consult with defendant to review the evidence. The court determined that defendant was barred by Rules 3:22-4(a) and 3:22-5 from raising a claim regarding the arrest and search warrant, and the claim regarding the alleged instances of police misconduct, because these claim could have been raised on direct appeal.

In addition, the court determined that counsel did not err by failing to request a hearing to assess the veracity of the confidential informant because the undercover officer's "face-to-face observations of [defendant] on two occasions, coupled with the drugs received at each transaction (which tested positive for narcotics), corroborated the confidential informant's tip to police." The court stated that counsel reasonably chose, as a matter of trial strategy, to forgo a Wade hearing and to challenge the out-of-court identification of defendant during the cross-examination of the officer involved.

The court added that the identification would have been admitted, regardless of whether counsel had requested a Wade hearing, noting that the undercover officer involved in the drug transactions had provided two in-court identifications of defendant. The court therefore found that defendant had not been prejudiced by counsel's failure to seek a Wade hearing.

The court further found that counsel advocated zealously on behalf of defendant at the hearing on the admissibility of defendant's prior conviction. The court determined that defendant was not denied the effective assistance of counsel by counsel's motion for acquittal and judgment notwithstanding the verdict because the State presented sufficient evidence to support the charges. The court also determined that defendant was barred from challenging the effectiveness of defense counsel's sentencing arguments because those issues had been adequately addressed by this court in the direct appeal.

The PCR court entered an order dated June 5, 2012, denying PCR. This appeal followed.

Defendant raises the following arguments for our consideration:

POINT I:

THE COURT BELOW ERRED IN DENYING DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF WITHOUT AFFORDING HIM AN EVIDENTIARY HEARING TO FULLY ADDRESS HIS CONTENTIONS THAT HE DID NOT RECEIVE EFFECTIVE LEGAL REPRESENTATION AT THE TRIAL AND APPELLATE LEVEL.

A. The PCR Court Erred By Refusing To Hold An Evidentiary Hearing Regarding Trial Counsel's Ineffective Response To the Improper Mention During Re-Cross Examination Of Officer Alexander Of The Presence Of A Confidential Informant During The Alleged Sales, As Well As Appellate Counsel's Failure To Raise This Issue On Direct Appeal.

B. The PCR Judge Erred By Refusing To Hold An Evidentiary Hearing Regarding Defense Counsel's Failure To Request A Pre-Trial Wade Hearing.

C. Summary.

For the reasons that follow, we reject these arguments and affirm the denial of PCR.

Rule 3:22-10(b) provides that the trial court should conduct an evidentiary hearing on a PCR petition

only upon the establishment of a prima facie case in support of [PCR], a determination by the court that there are material issues of disputed fact that cannot be resolved by reference to the existing record, and a determination that an evidentiary hearing is necessary to resolve the claims for relief.

The PCR court should conduct an evidentiary hearing to resolve claims of ineffective assistance of counsel if facts outside the trial court record must be reviewed to resolve the claim. State v. Porter, 216 N.J. 343, 354 (2013). Moreover, a hearing is required when there are disputed issues of material fact related to defendant's claimed entitled to PCR. Ibid.

Defendant's claim that he was denied the effective assistance of counsel must be considered under the test established by Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), for claims of ineffective assistance of counsel raised under the Sixth Amendment to the United States Constitution. Our Supreme Court has adopted this standard for evaluating such claims under our State Constitution. State v. Fritz, 105 N.J. 42, 58 (1987).

In order to prevail on a claim of ineffective assistance of counsel, a defendant first must show that his attorney's handling of the matter "fell below an objective standard of reasonableness." Strickland, supra, 466 U.S. 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.

Defendant contends that his trial attorney was ineffective because he failed to file a motion to seek disclosure of the identity of the confidential informant who was present when the drugs were sold. Defendant says that his attorney maintained that his identification was unreliable because the actual seller of the drugs was not identified. Officer Muntone and the undercover officer pointed out in their testimony that an arrest at the time of the drug transaction would have compromised the effectiveness of the undercover officer.

Neither the undercover officer nor Muntone mentioned the confidential informant who was with the undercover officer during both sales. However, when defendant's counsel questioned Officer Alexander, he asked whether it would have been "safer" to arrest defendant after one of the deals. Alexander replied that when you have an undercover officer and a confidential informant, "you don't generally arrest the person right after that sale because, first of all, you don't want to blow out your undercover. You want to make sure."

Defense counsel objected to the mention of the confidential informant. However, counsel did not seek any relief, which defendant contends would have eliminated or minimized the potential damage from this disclosure. The trial judge asked defendant's counsel what he wanted the judge to do, and counsel replied, "I'll move on. I'll move on, judge." Counsel stated that he was "just concerned." Defendant contends that he was prejudiced by counsel's handling of the reference to the confidential informant.

We are convinced that an evidentiary hearing was not required on this issue. The trial record provided a sufficient basis for resolution of the claim, and there was no genuine issue of material fact pertinent to this issue. We are additionally convinced that defendant was not denied the effective assistance of counsel because his attorney did not seek further relief concerning inadvertent disclosure of the fact that a confidential informant had been involved in the drug sales.

Counsel chose, as a matter of reasonable trial strategy, not to draw further attention to the mention of the confidential informant. Furthermore, defendant has not shown that he was prejudiced by counsel's failure to seek a mistrial or a curative instruction. Defendant has not shown that the result here would probably have been different if counsel sought such measures. A mistrial would not have been granted, and a curative instruction would have only drawn further attention to the involvement of the confidential informant.

Defendant additionally contends that his attorney was ineffective because he did not seek a Wade hearing. Defense counsel's trial strategy was to show that the undercover officer identified defendant based on her observation of a photograph, rather than on her observations during the two drug sales. Defendant contends that a successful Wade hearing would have led to the suppression of the undercover officer's out-of-court identification, which would have undermined the State's case. Defendant says that this would have been "far more satisfactory" than allowing the undercover officer to testify about her identification, and then cross-examine her about the photo. This was not, defendant contends, a reasonably informed strategy.

Again, we note that the trial record is sufficient to resolve this claim. Moreover, the record makes clear that the PCR court correctly determined that, even if defense counsel had requested a Wade hearing, the undercover officer's out-of-court identification would have been admitted at trial.

The trial testimony established that during the two undercover drug sales, the undercover officer had unobstructed views of defendant on two separate occasions, both times in a lighted, parked vehicle. In court, the undercover officer positively identified defendant twice, as the person who sold her cocaine. Thus, defendant was not prejudiced by the lack of a Wade hearing, and he has not shown that the result here would have been different if his attorney had requested such a hearing.

We have considered defendant's other contentions and find that they are without sufficient merit to warrant discussion. R. 2:11-3(e)(2).

Affirmed.

1 United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967).