STATE OF NEW JERSEY v. HAROLD J. HOWELL

NOT FOR PUBLICATION WITHOUT THE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.

HAROLD J. HOWELL,

Defendant-Appellant.

__________________________________

December 9, 2015

Submitted November 9, 2015 Decided

Before Judges Fasciale and Nugent.

On appeal from Superior Court of New Jersey, Law Division, Cape May County, Indictment No. 08-12-0919.

Joseph E. Krakora, Public Defender, attorney for appellant (Karen A. Lodeserto, Designated Counsel, on the brief).

Robert L. Taylor, Cape May County Prosecutor,attorney forrespondent (Gretchen A.Pickering, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Harold J. Howell appeals from a January 23, 2014 order denying his petition for post-conviction relief (PCR) and his request for an evidentiary hearing. Defendant contends his trial counsel was ineffective for failing to file a motion to suppress statements defendant made to law enforcement officers executing a search warrant at his residence. Finding no merit in defendant's argument, we affirm.

In 2010, a jury found defendant guilty of third-degree possession of a controlled dangerous substance, cocaine, N.J.S.A. 2C:35-10(a)(1), and a disorderly persons offense, possession of a controlled dangerous substance, marijuana, N.J.S.A. 2C:35-10(a)(4). A judge sentenced him to concurrent three-year probationary terms. Defendant appealed; we affirmed, State v. Howell, No. A-2935-10 (App. Div. May 17, 2012), and the Supreme Court denied certification, 212 N.J. 460 (2012). One year after the Supreme Court denied certification, defendant filed his PCR petition. Counsel was appointed, and defendant filed a supplemental petition.

Following argument on January 15, 2014, Judge Patricia M. Wild delivered a comprehensive oral opinion in which she denied defendant's PCR petition as well as his request for an evidentiary hearing. Judge Wild rejected defendant's thirteen arguments, including his argument trial counsel was ineffective for not filing a motion to suppress statements defendant made to law enforcement officers executing a search warrant at his home. Defendant appealed from the implementing order.

In our opinion affirming defendant's convictions on direct appeal, we recounted the facts leading to his arrest, including his statements to police

At approximately 11:00 a.m., on July 29, 2008, police executed a search warrant at the residence of defendant, who was then living with his nineteen-year-old daughter. After the S.W.A.T. team secured the premises, Detective Kenneth Martin informed defendant and his daughter that the police were executing the warrant to search for controlled dangerous substances. Detective Martin, who knew defendant from prior contact, showed defendant the search warrant, and defendant said, "Come on, Kenny, . . . I only got a little marijuana in here. I'll show you where it's at." Defendant then led Detective Martin to his bedroom and pointed out the marijuana on a shelf attached to the bed's headboard.

Investigator Mark A. Higginbottom proceeded to defendant's bedroom, where Detective Martin informed him that defendant was under arrest. As Investigator Higginbottom escorted defendant out of the bedroom, defendant said, "I'm going to lose my house and my job, can you help me[?]" Defendant then said, "[T]here's a little cocaine in my orange boot in my bedroom, Mark, help me out." Investigator Higginbottom returned to defendant's bedroom and informed Detective Martin what defendant had told him. Detective Martin then located an orange Timberland-style boot on the bedroom floor near the closet and found a bag of cocaine inside the boot. Investigator Higginbottom found three more bags of cocaine inside a white Nike sneaker, and Investigator John Norton found a bag of cocaine on the top of a dresser in defendant's bedroom. Other officers found two items of drug paraphernalia in the same room.

[Howell, supra, slip op. at 2-3 (alterations in original) (footnote omitted).]

On this appeal, defendant makes one argument

POINT ONE

DEFENDANT SHOULD BE ENTITLED TO AN EVIDENTIARY HEARING BECAUSE HIS TRIAL COUNSEL WAS INEFFECTIVE IN FAILING TO REQUEST A MIRANDA[1] HEARING.

We reject defendant's argument and affirm the denial of his PCR petition substantially for the reasons given by Judge Wild. We add only the following comments.

To prove ineffective assistance of counsel, a defendant must satisfy the Strickland two-part test by demonstrating "counsel's performance was deficient[,]" that is, "that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment"; and "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington, 466 U.S. 668, 687, 694, 104 S. Ct. 2052, 2064, 2068, 80 L. Ed. 2d 674, 693, 698 (1984); accord, State v. Fritz, 105 N.J. 42, 58 (1987). When defendants establish a prima facie claim of ineffective assistance of counsel, they are entitled to a hearing. State v. Preciose, 129 N.J. 451, 462 (1992); R. 3:22-10(b).

Here, defendant did not establish either part of the Strickland test with respect to his attorney not seeking a Miranda hearing. "The safeguards of Miranda 'come into play whenever a person in custody is subjected to either express questioning or its functional equivalent.'" State v. Mallozzi, 246 N.J. Super. 509, 514-515 (App. Div. 1991) (quoting Rhode Island v. Innis, 446 U.S. 291, 300-01, 100 S. Ct. 1682, 1689-90, 64 L. Ed. 2d 297, 307-08 (1980)). When, during encounters with police, defendants make incriminating statements that are the product of their own conduct here, defendant's improper attempt to obtain favorable treatment they are not entitled to have their statements suppressed on the ground police have not first advised them of their Miranda rights. See, e.g., State v. Cryan, 363 N.J. Super. 442, 453 (App. Div. 2003).

Defendant's statements were the product of his own conduct, not police interrogation, and defendant has filed no affidavit suggesting any other basis for suppressing his statements. A defendant must do more than make bald assertions that he was denied effective assistance of counsel; he must allege specific facts sufficient to demonstrate counsel's alleged substandard performance. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999).

Moreover, defendant has not demonstrated or even credibly argued how the outcome of the trial might have been different had his statements been suppressed. When defendant made his statements, police officers were conducting a methodical search of his home, which likely would have resulted in the seizure of the controlled dangerous substances defendant pointed out. Additionally, the police seized cocaine defendant had not pointed out.

We agree with Judge Wild that defendant failed to establish a prima facie ineffective-assistance-of-counsel claim.

Affirmed.

1 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).