Thisopinion shall not "constitute precedent or be binding upon any court Although it is posted on the internet, this opinion is binding only on the STATE OF NEW JERSEY v. ROBERT I. TANNER

NOT FOR PUBLICATION WITHOUT THE
                      APPROVAL OF THE APPELLATE DIVISION
     This opinion shall not "constitute precedent or be binding upon any court."
      Although it is posted on the internet, this opinion is binding only on the
        parties in the case and its use in other cases is limited. R. 1:36-3.




                                       SUPERIOR COURT OF NEW JERSEY
                                       APPELLATE DIVISION
                                       DOCKET NO. A-0335-16T3

STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

ROBERT I. TANNER,

        Defendant-Appellant.


              Submitted December 5, 2017 – Decided December 19, 2017

              Before Judges Yannotti and Carroll.

              On appeal from Superior Court of New Jersey,
              Law Division, Somerset County, Indictment No.
              10-09-0504.

              Joseph E. Krakora, Public Defender, attorney
              for appellant (Louis H. Miron, Designated
              Counsel, on the brief.)

              Michael   H.   Robertson,   Somerset   County
              Prosecutor, attorney for respondent (Perry
              Farhat, Assistant Prosecutor, on the brief).

PER CURIAM

        Defendant Robert I. Tanner appeals from a September 8, 2016

order     denying    his   petition     for   post-conviction      relief    (PCR)
without an evidentiary hearing.          Defendant maintains his plea

counsel rendered ineffective assistance.           We affirm.

     Defendant    and   his   brother,   Joseph     Tanner,   were   jointly

charged in Somerset County Indictment No. 10-09-0504 with first-

degree possession of cocaine with intent to distribute, 
N.J.S.A.

2C:35-5(a)(1) and 
N.J.S.A. 2C:35-5(b)(1) (count one); second-

degree possession of heroin with intent to distribute, 
N.J.S.A.

2C:35-5(a)(1) and 
N.J.S.A. 2C:35-5(b)(2) (count two); and second-

degree conspiracy to possess a controlled dangerous substance with

intent to distribute, 
N.J.S.A. 2C:35-5(a)(1), 
N.J.S.A. 2C:35-

5(b)(1), and 
N.J.S.A. 2C:5-2 (count three).            Defendant was also

separately charged with four counts of third-degree distribution

of cocaine, 
N.J.S.A. 2C:35-5(a)(1) and 
N.J.S.A. 2C:35-5(b)(3)

(counts four, five, six, and seven); and one count of third-degree

distribution of cocaine within 1000 feet of a school, 
N.J.S.A.

2C:35-5(a) and 
N.J.S.A. 2C:35-7.

     Defendant moved to suppress evidence seized pursuant to a

search warrant that was issued for his residence, detached garage,

automobile, and his person.     He contended the supporting affidavit

failed to (1) establish probable cause for the issuance of the

warrant; and (2) describe the place to be searched with sufficient

particularity because it inaccurately described the home as a

single-family    residence    instead    of   a   multi-family   residence.

                                    2                                A-0335-16T3
Following oral argument on March 6, 2012, the court denied the

motion in an order filed on March 13, 2012.

     In a written opinion, the motion judge found the search

warrant for the residence was based on probable cause.     She noted

that, in support of their application, two detectives testified

concerning the details of their investigation, which included a

series of controlled drug buys made through an undercover officer,

and surveillance they conducted on defendant's residence.         The

judge further noted that records obtained from Public Service

Electric and Gas Company (PSE&G) reflected that one account holder

paid the bills for the entire residence.

     The judge also concluded the search warrant did not violate

the particularity requirement.   She observed defendant failed to

demonstrate the home was a multi-family residence occupied by

someone else other than himself and his brother, Joseph.    Although

the building had multiple electric meters, two doorbells at the

front door, and the PSE&G records reflected that the residence was

multi-family, the judge pointed to the fact the sole account holder

for the entire residence was Joseph.   She characterized the fact

that the residence was set up for multi-family use as irrelevant,

because it was not actually being used as a multi-family residence.

     After the motion was denied, defendant entered into a plea

agreement pursuant to which the State dismissed count three of the

                                 3                           A-0335-16T3
indictment as well as the charges against Joseph Tanner and

defendant pled guilty to the remaining charges.        In accordance

with the plea agreement, defendant was sentenced to an aggregate

fifteen-year prison term with six years of parole ineligibility.

     On direct appeal, defendant's sole argument was the trial

court erred in upholding the validity of the search warrant and

denying his suppression motion.       State v. Tanner, No. A-5055-12

(App. Div. Feb. 11, 2015) (slip op. at 6). Specifically, defendant

contended the evidence should have been suppressed because (1) the

testimony of Detective Michael DeCarolis, when applying for the

search warrant, was not given under oath or affirmation as required

by the federal and state constitutions and Rule 3:5-3(a); and (2)

the warrant was not sufficiently particular about the location to

be searched and thus violated the particularity requirement of the

Fourth Amendment to the United States Constitution.    Id. (slip op.

at 6-16).

     We rejected defendant's argument that the oath requirement

was violated because defendant had the opportunity to raise this

issue in his suppression motion but failed to do so.       Id. (slip

op. at 10). We also rejected defendant's argument that the warrant

failed to describe the premises to be searched with sufficient

particularity.   We concluded:



                                  4                          A-0335-16T3
                 [T]he motion judge correctly found that
            probable cause justified the search of the
            entire residence.    We note that [defendant]
            has not challenged the finding of probable
            cause. We conclude that it is of no moment
            that the description of the residence in the
            warrant failed to mention that it could be
            used to house more than one family.        The
            warrant describes the home as a "single[-]
            family" residence, which was technically
            correct given the information available to the
            officers at the time.       While [defendant]
            points to evidence suggesting that the
            residence could be occupied by more than one
            family, there was no evidence that this was
            actually the case at the time the application
            for the warrant was made.     The PSE&G bills
            showed that Joseph paid the utility bills for
            all of the accounts, and [Detective Selim]
            Senel witnessed the brothers leave the front
            entrance of the residence together. The fact
            that there was a single front entrance
            suggested that both of them could access the
            entire dwelling.

            [Id. (slip op. at 14-15).]

     Consequently, we affirmed the denial of defendant's motion

to suppress and the conviction that followed his guilty plea.                The

Supreme    Court   denied   defendant's        petition   for    certification.

State v. Tanner, 
222 N.J. 15 (2015).

     Defendant     filed    a   timely       PCR   petition,    supported   by   a

supplemental certification claiming ineffective assistance of plea

counsel.     Among other things, defendant contended counsel was

ineffective in failing to: (1) investigate inaccurate information

contained in the search warrant concerning the address of the


                                         5                              A-0335-16T3
locations searched and the fact the premises was actually a multi-

family dwelling and not a single-family dwelling as testified to

by the detectives in securing the search warrant; (2) support

defendant's motion to suppress based on a facially defective search

warrant; and (3) challenge the chain of custody and testing of the

seized drugs.    Defendant also argued the cumulative effect of

these errors constituted ineffective assistance of counsel.

     The PCR judge considered oral argument, denied the petition,

and issued a comprehensive oral opinion.            The judge concluded

without an evidentiary hearing that defendant did not establish a

prima facie showing of ineffective assistance of counsel.

     On appeal, defendant argues:

           I.    THE INEFFECTIVE ASSISTANCE OF TRIAL
           COUNSEL DEPRIVED [DEFENDANT] OF A FAIR TRIAL
           AND   RENDERED   THE    JURY'S  VERDICT   AS
           FUNDAMENTALLY UNRELIABLE.

           II. THE PCR COURT ERRED IN NOT RULING THAT
           COUNSEL'S ERRORS, CONSIDERED CUMULATIVELY,
           CONSTITUTED INEFFECTIVE ASSISTANCE OF COUNSEL
           AND THAT [DEFENDANT] WAS PREJUDICED BY THOSE
           ERRORS AND ENTITLED TO PCR RELIEF AS A MATTER
           OF LAW.

           III. THE PCR COURT SHOULD HAVE CONDUCTED AN
           EVIDENTIARY   HEARING TO  ADDRESS   ALL  OF
           [DEFENDANT'S] CLAIMS.

     For   defendant   to   obtain       relief   based   on   ineffective

assistance grounds, he is obliged to satisfy the two-prong test

set forth in Strickland v. Washington, 
466 U.S. 668, 687          (1984),

                                     6                             A-0335-16T3
as adopted by our Supreme Court in State v. Fritz, 
105 N.J. 42,

58 (1987).    The test requires a showing of deficient performance

by counsel, and "'that the deficient performance prejudiced the

defense.'"    Fritz, 
105 N.J. at 52 (quoting Strickland, 
466 U.S.

at 687).

     In    considering    ineffective    assistance   of   counsel    claims

concerning   a   guilty   plea,   defendant   must    satisfy   a   modified

Strickland standard:

            When a guilty plea is part of the equation
            . . . "a defendant must show that (i)
            counsel's assistance 'was not within the range
            of competence demanded 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) (quoting State v. DiFrisco, 
137 N.J.
            434,   457  (1994)  (second  alteration  in
            original).]

Moreover, to obtain relief under the second prong, "a petitioner

must convince the court that a decision to reject the plea bargain

would have been rational under the circumstances."              Padilla v.

Kentucky, 
559 U.S. 356, 372 (2010) (citing Roe v. Flores-Ortega,


528 U.S. 470, 480, 486 (2000)).

     An evidentiary hearing for PCR is only required when the

defendant has made a prima facie showing of entitlement to such

relief by demonstrating "a reasonable likelihood that his or her

                                     7                               A-0335-16T3
claim will ultimately succeed on the merits."            State v. Marshall,


148 N.J. 89, 158 (1997) (citing State v. Preciose, 
129 N.J. 451,

463 (1992)).    A petitioner must establish the right to relief by

a preponderance of the evidence.         Preciose, 
129 N.J. at 459.

     Guided by these standards, we conclude based on our review

of the record that the alleged deficiencies in plea counsel's

performance    clearly   fail   to   meet   either      the   performance      or

prejudice prongs of the Strickland-Fritz test.

     As he did before the trial court and on direct appeal,

defendant focuses much of his attention on his assertion that his

residence was a multi-family dwelling rather than a single-family

residence as described in the search warrant.                  As noted, we

previously rejected this contention and concluded the motion judge

correctly   found   probable    cause    existed   to    search   the    entire

residence and its detached garage.

     Contrary to defendant's argument, plea counsel urged the

court to suppress the evidence on the basis that the residence was

a multi-family home, and the garage had a separate address and was

being used for various business purposes.            Specifically, counsel

argued the PSE&G records and the presence of two door bells and

separate meters and steps clearly showed the property was a multi-

family dwelling.    Although the motion judge found these arguments

unpersuasive, a determination we affirmed on appeal, defendant

                                     8                                  A-0335-16T3
fails to show how counsel's performance was deficient, or how his

further    investigation    would     have   led   to   a     different    result.

Moreover, the fact the detached garage had a separate street

address or a commercial use is of no moment, as the search warrant

particularly described the location of the garage and, based on

the police surveillance, there was probable cause to search it.

     Defendant further argues trial counsel was ineffective for

failing to cross-examine the police officers about the search

warrant affidavit.      However, the hearing on the validity of the

search warrant was not a testimonial hearing, and no witnesses

were presented.     In any event, defendant has again failed to show

the result would have been different had defense counsel questioned

the officers.

     Defendant next contends plea counsel "failed to challenge

meaningfully the chain of custody of the seized drugs or the fact

that only a small sample of the drugs was ever tested by the State

laboratory and confirmed to be an illegal substance."                     However,

counsel filed a separate motion to suppress the drug evidence

based upon perceived legal deficiencies in the chain of custody.

The trial court conducted an evidentiary hearing on the motion,

during    which   defense   counsel    questioned       the    State's    evidence

custodian extensively regarding issues relating to the chain of



                                       9                                   A-0335-16T3
custody. Defendant's argument on this issue is thus clearly belied

by the record.

     With respect to the testing of the drugs, defendant does not

appear    to   have    raised   this   argument   before     the    PCR    court.

"Generally, an appellate court will not consider issues, even

constitutional ones, which were not raised below."                    State v.

Galicia, 
210 N.J. 364, 383 (2012).             In any event, the record

reveals the police seized over five ounces of cocaine and more

than one-half ounce of heroin when the search warrant was executed.

Defendant cites no legal authority to support his argument that

the State was required to analyze the entirety of the drugs to

confirm    their      illegal   nature.     Rather,   case    law    instructs

otherwise.     See State v. Jester, 
68 N.J. 87, 91 (1975) (noting

"[i]f a random sample from the bulk is obtained and if that sample

tests positive for heroin, that is sufficient to support the

conclusion that the unsold residue is of the identical substance,

absent any evidence to the contrary.").

     In summary, we are satisfied from our review of the record

defendant failed to make a prima facie showing of ineffectiveness

of plea counsel under the Strickland-Fritz test.               The PCR court

correctly concluded an evidentiary hearing was not warranted.

Preciose, 
129 N.J. at 462-63.

     Affirmed.

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