STATE OF NEW JERSEY v. JAMES DAVIS

NOT FOR PUBLICATION WITHOUT THE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.

JAMES DAVIS,

Defendant-Appellant.

___________________________________

Submitted May 7, 2014 Decided May 29, 2014

Before Judges Waugh and Accurso.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 12-09-1628.

Sethi & Mazaheri, LLC, attorneys for appellant (Reza Mazaheri, on the brief).

Gaetano T. Gregory, Acting Hudson County Prosecutor, attorney for respondent (Jeffrey M. Lichtstein, Special Deputy Attorney General/Acting Assistant Prosecutor, on the brief).

PER CURIAM

Defendant James Davis appeals his conviction, following a guilty plea, for violation of N.J.S.A. 2C:39-7(a), which makes it a fourth-degree crime for certain persons to possess a firearm. We affirm.

I.

We discern the following facts and procedural history from the record on appeal.

In the early morning hours of June 25, 2012, Jersey City Police Officer Matthew Kilroy observed a black Lexus occupied by two males and one female at the intersection of Bidwell Avenue and Martin Luther King, Jr. Drive. The driver and front-seat passenger were not wearing seatbelts.1 He effectuated a motor-vehicle stop.

Kilroy and his partner approached the vehicle, with Kilroy on the driver's side and his partner on the passenger's side. Kilroy asked Davis, who was the driver, for his driving credentials. Davis produced his license. Despite several additional requests, Davis failed to produce his registration. At one point, he reached toward the glove compartment, but stopped and pulled his hand back.

Kilroy then directed Davis to get out of the Lexus. He detected what he believed to be the odor of PCP. When he asked Davis if he had any PCP on his person, Davis responded in the negative. Kilroy asked about the location of the registration and insurance card, and Davis responded that they were in the glove compartment. When Kilroy asked if the officers could retrieve them, Davis responded "okay" and "there ain't nothing in there anyway." As Kilroy's partner started to open the glove compartment, Davis fled the scene. He was subsequently apprehended by other officers.

After Kilroy's partner opened the glove compartment, he immediately observed the handgun that was the subject of the guilty plea. A subsequent inventory search of the vehicle revealed a plastic imitation firearm in the shape of a submachine gun, which was the subject of one of the counts that were ultimately dismissed as part of the plea agreement.

In September 2012, Davis was indicted for possession of a weapon for an unlawful purpose, contrary to N.J.S.A. 2C:39-4(a); unlawful possession of a weapon, contrary to N.J.S.A. 2C:39-5(b); unlawful possession of an imitation firearm, contrary to N.J.S.A. 2C:39-4(e); selling/receiving/buying handgun ammunition without a proper license or permit, contrary to N.J.S.A. 2C:58-3.3(b); obstructing administration of the law, contrary to N.J.S.A. 2C:29-1; resisting arrest, contrary to N.J.S.A. 2C:29-2(a); and certain persons not to have a weapon, contrary to N.J.S.A. 2C:39-7(b).

In November, Davis moved to suppress the evidence. The hearing on the motion was scheduled for December 18. Davis's attorney, who had apparently intended to have an associate handle the motion, appeared in court at 9:00 a.m. and requested a delay or adjournment. He explained to the motion judge that he had not received the State's opposing brief, did not have the file, and did not know anything about the case. He asked the judge to wait until the associate arrived from Essex County.

The judge responded that defense counsel did not need the State's brief inasmuch as he allowed post-hearing briefing.2 Because Kilroy, the State's witness, had been on duty all night, the judge refused to delay or adjourn the hearing, even refusing to allow defense counsel to get the file from his office "across the street." The judge allowed defense counsel to telephone his office to have the file brought to court, but insisted that the hearing continue even though defense counsel was still without the file. After Kilroy began his testimony, defense counsel asked for leave to withdraw the motion, which the judge denied.

Kilroy testified to the facts outlined above. Defense counsel was reluctant to cross-examine because he was unfamiliar with the facts of the case, but did ask Kilroy whether his partner was looking for Davis's "I.D." in the glove compartment. Kilroy responded that his partner was looking for the registration as proof of ownership. He denied that the other officer was "searching for contraband or anything like that."

After the prosecutor advised the judge that she had no other witnesses, the judge asked defense counsel whether he had a witness or wanted an adjournment so he could call witnesses. He informed the judge that he did not.

Before making his argument, defense counsel again asked the judge to allow him to withdraw the motion. He reiterated his unfamiliarity with the case and asserted that his associate had the file in Essex County. Rather than responding to the request, the judge proceeded to deliver an oral opinion explaining his reasons for denying the motion.

The judge found Kilroy's testimony to be "extremely credible." He found that Davis and the front-seat passenger were not wearing seatbelts, that the stop was lawful, that Davis produced no registration or proof of ownership, that he advised Kilroy that the registration was in the glove compartment, that the officers had the right to obtain proof of ownership, and that the gun was in plain sight. He denied the motion, citing no cases. This appeal followed.

II.

Davis raises the following issues on appeal:

POINT I: DEFENDANT WAS SEVERELY PREJUDICED BY INEFFECTIVE ASSISTANCE OF COUNSEL WHEN HIS ATTORNEY APPEARED UNPREPARED TO ARGUE A MOTION TO SUPPRESS THAT HAD MERIT.

POINT II: THE JUDGE FAILED TO CONSIDER FACTORS REQUIRED UNDER LAW WHEN DETERMINING WHETHER TO GRANT A PARTY AN ADJOURNMENT.

POINT III: THE AUTOMOBILE EXEMPTION TO THE FOURTH AMENDMENT WARRANT REQUIREMENT DID NOT JUSTIFY THE OFFICERS' SEARCH. AS SUCH, ANY EVIDENCE OBTAINED AFTER THE UNLAWFUL SEARCH MUST BE [SUPPRESSED] AS FRUIT OF THE POISONOUS TREE.

A.

We review the denial of a motion for an adjournment, which involves the court's ability to control its own calendar, under a deferential standard. State v. Miller, 216 N.J. 40, 65 (2013), cert. denied, ___ U.S. ___, 134 S. Ct. 1329, 188 L. Ed. 2d 339 (2014). "'[W]hether a trial court should grant or deny a defendant's request for an adjournment . . . requires a balancing process informed by an intensely fact-sensitive inquiry.'" Id. at 66 (quoting State v. Hayes, 205 N.J. 522, 538 (2011), cert. denied, ___ U.S. ___, ___ S. Ct. ___, ___ L. Ed.2d ___ (2014)).

In Hayes, the Court outlined some factors to be weighed by the trial judge in deciding the motion, including:

the length of the requested delay; whether other continuances have been requested and granted; the balanced convenience or inconvenience to the litigants, witnesses, counsel, and the court; whether the requested delay is for legitimate reasons, or whether it is dilatory, purposeful, or contrived; whether the defendant contributed to the circumstance which gives rise to the request for a continuance; whether the defendant has other competent counsel prepared to try the case, including the consideration of whether the other counsel was retained as lead or associate counsel; whether denying the continuance will result in identifiable prejudice to defendant's case, and if so, whether this prejudice is of a material or substantial nature; the complexity of the case; and other relevant factors which may appear in the context of any particular case.

 
[Hayes, supra, 205 N.J. at 538 (quoting State v. Furguson, 198 N.J. Super. 395, 402 (App. Div.),certif. denied, 101 N.J.266 (1985)).]

In reviewing a trial court's discretionary determination on a defendant's motion to adjourn, "'there are two conditions which must exist to warrant' reversal of the conviction." Miller, supra, 216 N.J.at 66 (quoting Hayes, supra, 205 N.J.at 539). "First, '"the judicial action must have been clearly unreasonable in the light of the accompanying and surrounding circumstances."'" Ibid.(quoting Hayes, supra, 205 N.J.at 539). Second, the decision must have prejudiced the defendant such that "'the defendant suffered manifest wrong or injury.'" Id.at 66-67 (quoting Hayes, supra, 205 N.J.at 537) (internal quotation marks omitted).

Our review of the record before us suggests that the trial judge abused his discretion in denying the motion. He did not discuss any of the considerations outlined in Hayes other than witness convenience, citing the fact that Kilroy had been on duty all night and would have to wait longer to testify in the event of a delay or return on another day in the event of adjournment. While we agree that inconvenience to Kilroy was an appropriate factor to consider, the judge failed to weigh any other Hayes factors, particularly the fact that defense counsel was not familiar with the case and did not even have access to the file.

Counsel's initial request was only for a delay so he could obtain the file or the attorney familiar with the case could travel to Jersey City from Essex County. There is no suggestion in the record that there had been any prior continuances, that the request was for purposes of delay or made in bad faith, or that Davis himself was in any way responsible for the problem. The State did not object to the request. Under the circumstances, the risk of prejudice to Davis in having an unprepared attorney handle a significant motion warranted a delay of the hearing or, if necessary, an adjournment.

We must now determine whether Davis "suffered [a] manifest wrong or injury" as a result of the trial judge's action. Miller, supra, 216 N.J. at 66-67. Davis does not challenge the legality of the stop, which was based on motor-vehicle violations observed by Kilroy, specifically failure to wear seatbelts. See State v. Amelio, 197 N.J. 207, 211 (2008), cert. denied, 556 U.S. 1237, 129 S. Ct. 2402, 173 L. Ed. 2d 1297 (2009). Davis argues only that, because there were no exigent circumstances, the search of the glove compartment was not justified by the "automobile exception" to the general requirement that searches of personal property be authorized by a search warrant.3 The State counters by arguing that the police officers did not require a warrant because they were searching for proof of ownership in the glove compartment and also had Davis's consent.

Because Davis was unable to produce the Lexus's registration, Kilroy had an objectively reasonable basis to detain him "to confirm that it was not stolen." State v. Hickman, 335 N.J. Super. 623, 635 (App. Div. 2000). In similar circumstances, we have noted that "[t]he fact that the driver of a vehicle cannot immediately produce the vehicle's registration or proof of insurance supports a reasonable suspicion that the vehicle is stolen." State v. Holmgren, 282 N.J. Super. 212, 215 (App. Div. 1995). "That suspicion authorizes a police officer to conduct a limited warrantless search of areas in the vehicle where such papers might normally be kept by an owner." Ibid. The search "must be reasonable in scope and tailored to the degree of the violation. . . . [A] search to find the registration would be permissible if confined to the glove compartment or other area where a registration might normally be kept in a vehicle." State v. Patino, 83 N.J. 1, 12 (1980) (citations and internal quotation marks omitted); see also State v. Boykins, 50 N.J. 73, 77 (1967) ("A traffic violation as such will justify a search for things related to it. So, for example, if the operator is unable to produce proof of registration, the officer may search the car for evidence of ownership . . . . ").

The limited search of a glove compartment for proof of ownership in a case such as this is an exception to the general requirement that the police obtain a search warrant. Davis's reliance on the cases requiring exigent circumstances for an automobile search, such as State v. Pena-Flores, 198 N.J. 6, 25-30 (2009), is consequently misplaced.

When Kilroy's partner opened the glove compartment, the gun was in plain view. There was no constitutional violation in such a plain view observation and seizure of the weapon under the circumstances. See State v. Johnson, 171 N.J. 192, 206-07 (2002).

Consequently, although we conclude that the trial judge's denial of defense counsel's request was "clearly unreasonable in the light of the accompanying and surrounding circumstances," Miller, supra, 216 N.J. at 66 (citations and internal quotation marks omitted), we nevertheless affirm the judge's decision on the motion because we are convinced that Davis was not actually prejudiced by the judge's action, however ill advised.

B.

Davis also raises the issue of constitutionally ineffective assistance of counsel, an issue normally reserved for post-conviction relief (PCR). State v. Preciose, 129 N.J. 451, 460 (1992). However, Davis has raised it and the basis for his claim is reflected in the transcript of the motion hearing.

"Post-conviction relief is New Jersey's analogue to the federal writ of habeas corpus." Id. at 459. Under Rule 3:22-2(a), a criminal defendant is entitled to post-conviction relief if there was a "[s]ubstantial denial in the conviction proceedings of defendant's rights under the Constitution of the United States or the Constitution or laws of the State of New Jersey." "A petitioner must establish the right to such relief by a preponderance of the credible evidence." Preciose, supra, 129 N.J. at 459. "To sustain that burden, specific facts" that "provide the court with an adequate basis on which to rest its decision" must be articulated. State v. Mitchell, 126 N.J. 565, 579 (1992). In determining whether a defendant is entitled to such relief, New Jersey courts apply the test articulated by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 2068, 80 L. Ed. 2d 674, 698 (1984), and United States v. Cronic, 466 U.S. 648, 658-60, 104 S. Ct. 2039, 2046-47, 80 L. Ed. 2d 657, 667-68 (1984). Preciose, supra, 129 N.J. at 463; State v. Fritz, 105 N.J. 42, 58 (1987).

Under the first prong of the Strickland test, a "defendant must show that [defense] counsel's performance was deficient." Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. Under the second prong, a defendant must demonstrate "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.

In demonstrating that counsel's performance was deficient under the first prong of Strickland, a defendant must overcome "a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Fritz, supra, 105 N.J. at 52 (quoting Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694) (internal quotation marks omitted). Further, because prejudice is not presumed, ibid., in satisfying the second prong, a defendant must typically demonstrate "how specific errors of counsel undermined the reliability of the finding of guilt," Cronic, supra, 466 U.S. at 659 n.26, 104 S. Ct. at 2047, 80 L. Ed. 2d at 668; see also Roe v. Flores-Ortega, 528 U.S. 470, 482, 120 S. Ct. 1029, 1037, 145 L. Ed. 2d 985, 998 (2000). There must be "a probability sufficient to undermine confidence in the outcome." Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698.

Finally, a defendant seeking post-conviction relief is not entitled to an evidentiary hearing unless he presents a prima facie case of ineffective assistance of counsel. Preciose, supra, 129 N.J. at 462-64. "As in a summary judgment motion, courts should view the facts in the light most favorable to a defendant to determine whether a defendant has established a prima facie claim." Id. at 462-63.

Our analysis of this issue is similar to our analysis of the denial of the adjournment. Counsel's appearance on the day of the motion without the file and unprepared to handle the motion bespeaks a prima facie case of the first prong of the Strickland standard. However, just as we determined that Davis was not harmed by the trial judge's denial of the adjournment, we conclude that the result of the motion would not have been changed had counsel been prepared. Davis does not point to any argument not made, other than lack of a search warrant or the exigent circumstances, both of which we have decided were not required. Kilroy's testimony was quite brief and relatively simple, and Davis has not pointed to avenues of cross-examination that would have undermined his credibility. There is no suggestion that any other witness should have been called, and the judge offered defense counsel the opportunity to adjourn to another day for that purpose. As a result, Davis has failed to establish a prima facie case of the second Strickland prong.

Affirmed.

1 Kilroy also testified about pine-scented air fresheners in the shape of trees hanging from the rearview mirror and purportedly obstructing the driver's rear view, but it was not the focus of his testimony.

2 The judge subsequently decided the motion without any further briefing.

3 Under the Fourth Amendment of the United States Constitution and Article 1, Paragraph 7 of the New Jersey Constitution, "[a] warrantless search is presumed invalid unless it falls within one of the recognized exceptions to the warrant requirement." State v. Cooke, 163 N.J. 657, 664 (2000).