STATE OF NEW JERSEY v. MORRELL HOYLE

NOT FOR PUBLICATION WITHOUT THE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.

MORRELL HOYLE,

Defendant-Appellant.

_______________________________

February 11, 2014

Submitted January 29, 2014 Decided

Before Judges Fuentes and Fasciale.

On appeal from the Superior Court of New Jersey, Law Division, Cape May County, Indictment No. 06-05-0324.

Joseph E. Krakora, Public Defender, attorney for appellant (Philip Lago, Designated Counsel, on the brief).

Robert L. Taylor, Cape May County Prosecutor, attorney for respondent (J. Vincent Molitor, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant appeals from a February 1, 2011 order denying his petition for post-conviction relief (PCR). Defendant contends that plea counsel was ineffective by failing to file a motion to suppress. We affirm.

Defendant was charged with third-degree possession with intent to distribute cocaine, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(3); third-degree possession with intent to distribute marijuana, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(11); fourth-degree possession with intent to distribute drug paraphernalia, N.J.S.A. 2C:36-3; fourth degree obstructing the administration of the law, N.J.S.A. 2C:29-1; fourth-degree attempted hindering apprehension, N.J.S.A. 2C:29-3b(1) and N.J.S.A. 2C:5-1; fourth-degree aggravated assault on a police officer, N.J.S.A. 2C:12-1b(5); and third-degree resisting arrest, N.J.S.A. 2C:29-2.

In June 2006, defendant pled guilty to third-degree possession with intent to distribute cocaine. Judge Raymond A. Batten dismissed the remaining charges and, in accordance with the plea agreement, sentenced defendant to ten years in prison with a five-year period of parole ineligibility, consecutive to a sentence under a separate indictment. In March 2009, we affirmed on our excessive sentencing calendar. State v. Hoyle, No. A-4808-06 (App. Div. Mar. 31, 2009). The Supreme Court denied certification. State v. Hoyle, 200 N.J. 368 (2009).

In October 2010, defendant filed his petition for PCR. The judge conducted oral argument, denied defendant's petition, and stated

Defendant argues that [plea] counsel's failure to file a viable suppression motion with regard to the recovered drugs obtained after the no[-]knock entry constituted such ineffective assistance as recognized and required by the case law. . . .

Police do not need to knock and announce their presence when executing a search warrant if, one, immediate action is required to preserve evidence, two, the officers' peril would be increased, or three, an arrest would be frustrated[. State v. Bilancio, 318 N.J. Super. 408, 413 (App. Div. 1999), certif. denied, 160 N.J. 478 (1999)].

. . . .

Here, it is . . . the finding of this [c]ourt that either of the three exceptions to the no[]knock[]and[]announce requirement are satisfied.

. . . .

First, . . . police had a legitimate fear that the [d]efendant would flush the drugs into the toilet upon entering the apartment, and this for the second time. . . .[1]

Second, the officers' safety could be jeopardized if they needed to knock and announce. The facts alleged in the affidavit did not show any particularly menacing threat of violence, the [c]ourt concedes, but there is legitimate basis to assume the [d]efendant was likely capable of causing harm to law enforcement . . . . Defendant's criminal record and, again, recent conviction for hindering from 2005 show that he had assaulted and resisted police officers in the past.

Finally, it is possible the arrest could be frustrated in the sense that the [d]efendant could rid the premises of evidence pertinent to his arrest. The arrest of the [d]efendant required the police to find drugs. Defendant would've had a better chance to rid himself and the premises of the drugs with the traditional knock[-]and[-]announce warrant, potentially eliminating the evidence and frustrating the arrest.

The judge then found that plea counsel was not ineffective under Strickland2:

As a result, it is clear to the [c]ourt that the [d]efendant does not enjoy a reasonable likelihood of success in challenging the search warrant affidavit. . . .

Counsel's conduct, in this [c]ourt's view, was objectively reasonable, given the circumstances, and [d]efendant was not unfairly prejudiced.

On appeal, defendant raises the following point:

POINT I

THE LOWER COURT ERRED IN NOT GRANTING DEFENDANT'S REQUEST FOR AN EVIDENTIARY HEARING. THE LOWER COURT ORDER MUST THEREFORE BE REVERSED AND THIS MATTER MUST REMANDED FOR AN EVIDENTIARY HEARING.

Defendant's arguments lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We thus affirm substantially for the oral reasons expressed by Judge Batten. We add only the following brief comments. In order for defendant to obtain relief based on ineffective assistance grounds, he is obliged to show not only the particular manner in which counsel's performance was deficient, but also that the deficiency prejudiced his right to a fair trial. Strickland, supra, 466 U.S. at 687, l04 S. Ct. at 2064, 80 L. Ed. 2d at 693; State v. Fritz, 105 N.J. 42, 58 (1987). The United States Supreme Court has extended these principles to a criminal defense attorney's representation of an accused in connection with a plea negotiation. Lafler v. Cooper, 566 U.S. ___, ___, 132 S. Ct. 1376, 1384-85, 182 L. Ed. 2d 398, 406-07 (2012); Missouri v. Frye, 566 U.S. ___, ___, 132 S. Ct. 1399, 1407-08, 182 L. Ed. 2d 379, 390 (2012). A defendant must demonstrate with "reasonable probability" that the result would have been different had he received proper advice from his trial attorney. Lafler, supra, 566 U.S. at ___, 132 S. Ct. at 1384, 182 L. Ed. 2d at 406-07 (citing Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698). The New Jersey Supreme Court has also established standards for vacating a guilty plea based on a claim of ineffective assistance of counsel:

[t]o set aside a guilty plea based on ineffective assistance of counsel, a defendant must show that (i) counsel's assistance was not 'within the range of competence demanded of attorneys in criminal cases'; and (ii) 'that there is a reasonable probability that, but for counsel's errors, [the defendant] would not have pled guilty and would have insisted on going to trial.'

[State v. Nunez-Valdez, 200 N.J. 129, 139 (2009) (alterations in original) (quoting State v. DiFrisco, 137 N.J. 434, 457 (1994), cert. denied, 516 U.S. 1129, 116 S. Ct. 949, 133 L. Ed. 2d 873 (1996)).]

We are persuaded that the alleged deficiencies here clearly fail to meet either the performance or prejudice prong of the Strickland test as well as the standard established under Nunez-Valdez.

1 In an affidavit supporting the no-knock warrant, the affiant indicated that when police executed an earlier warrant, defendant had disposed of drugs by flushing them down the toilet.

2 Strickland v. Washington, 466 U.S. 668, l 04 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).