STATE OF NEW JERSEY v. ANTHONY SMITH

NOT FOR PUBLICATION WITHOUT THE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-3316-15T3

STATE OF NEW JERSEY,

        Plaintiff-Respondent,

V.

ANTHONY SMITH, a/k/a
TONE NOYD,

        Defendant-Appellant.

_______________________________________________________________

              Submitted October 26, 2017 – Decided December 7, 2017

              Before Judges Haas and Rothstadt.

              On appeal from Superior Court of New Jersey,
              Law Division, Camden County, Indictment No.
              11-12-0175.

              Joseph E. Krakora, Public Defender, attorney
              for appellant (Frank M. Gennaro, Designated
              Counsel, on the brief).

              Christopher S. Porrino, Attorney General,
              attorney for respondent (Jana Robinson, Deputy
              Attorney General, of counsel and on the
              brief).

PER CURIAM
      Defendant   Anthony       Smith   appeals   from   the    denial   of   his

petition for post-conviction relief (PCR) without an evidentiary

hearing.    For the reasons that follow, we affirm.

      Defendant pled guilty to first-degree racketeering, 
N.J.S.A.

2C:41-2(c), pursuant to a plea              agreement in which the State

recommended that he be sentenced to ten years, subject to the No

Early Release Act (NERA), 
N.J.S.A. 2C:43-7.2.                  The court later

sentenced defendant to that term in accordance with his plea

agreement.

      Defendant   filed     a    direct     appeal,   only     challenging    his

sentence.    An excessive sentence panel of this court affirmed his

sentence.    See State v. Smith, No. A-5223-12 (App. Div. October

23, 2013).

      The facts underlying defendant's convictions are summarized

as   follows.     In   2010,      through    court-authorized      electronic,

telephone, and physical surveillance, the New Jersey State Police

and the Camden County Police discovered that defendant's co-

defendant Reynel Delvalle and others were distributing heroin,

cocaine and firearms.1          As part of the investigation, a police

undercover officer arranged for a controlled purchase of 150 grams

of heroin from Delvalle and defendant.            After making the purchase,


1
    The investigation led to a grand jury issuing a thirty-eight
count indictment charging twenty-eight individuals, including
defendant, with numerous crimes.
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the officer realized he did not receive the correct amount of

heroin.     In   order    to    resolve      the   undercover   officer     being

"shorted," defendant delivered a firearm to him to make up for the

short sale.

      The   police   continued        their    investigation    and    obtained

authorization     from    a     judge   to     conduct    electronic    wiretap

surveillance of Delvalle and other co-defendants.                   Through the

wiretap, police learned about a scheduled drug transaction and

they arranged surveillance at the location where it was to occur.

Police observed defendant arriving at the location in his vehicle,

while Delvalle arrived in another vehicle with several passengers.

The   police   witnessed       no   criminal   activity    before     defendant,

Delvalle and his passengers left in the two vehicles, which the

police followed.         The two vehicles stopped and the occupants

transferred from Delvalle's vehicle into defendant's vehicle.                     A

short while later, the police conducted a stop of defendant's

vehicle and asked for permission to search it, which defendant

refused.    The police detained defendant and his passengers until

a canine search could be conducted.

      The canine arrived and alerted to the presence of drugs near

the vehicle.     The police allowed defendant and his passengers to

go, but they impounded the car.              Detectives obtained a warrant,

searched the vehicle, and found a revolver loaded with hollow

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point bullets and a shotgun.        Defendant was subsequently arrested

and found with additional firearms in his possession.

       When   defendant   pled   guilty,    he    testified     to   the    facts

underlying the crime he committed.          Defendant told the court that

he was involved in the group's enterprise of selling heroin and

buying and selling firearms.

       After being sentenced and pursuing his appeal, defendant

filed a PCR petition on April 30, 2014. In his petition, defendant

argued that he received ineffective assistance from his trial

counsel    because   counsel     failed   to    submit   to   the    prosecutor

exculpatory statements from three individuals, and failed to file

motions.      He also contended that counsel was inexperienced and

because of counsel's ineffectiveness, defendant's sentence was

subjected to NERA.        In a brief filed by defendant's PCR counsel

in    September   2015,   defendant   specifically       argued      that   trial

counsel was ineffective for failing to file a motion to suppress

the weapons found in his vehicle and the evidence acquired from

the    wiretap    based   on   inadequate      minimization,2   and    for    not

providing the State with exculpatory evidence.



2 See N.J.S.A. 2A:156A-12(f), the minimization provision of the
New Jersey Wiretapping and Electronic Surveillance Control Act,
N.J.S.A. 2A:156A-1 to -34, which requires that government
officials monitoring wiretaps "mak[e] reasonable efforts" to
minimize or eliminate the interception of conversations other than
those they have been authorized to hear.     State v. Catania, 
85 N.J. 418, 428-29 (1981).
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     Judge John T. Kelley denied defendant's petition by order

dated January 8, 2016, after finding defendant failed to present

a prima facie claim of ineffective assistance of counsel.             In his

comprehensive oral decision, Judge Kelley rejected defendant's

argument that his plea counsel was ineffective for failing to file

a motion to suppress because there was no likelihood it would have

been successful.       The judge found that the information obtained

through the wiretap and the ongoing investigation that "suggested

an upcoming drug transaction" provided the requisite probable

cause for the officers to stop defendant's vehicle and to have the

canine search the vehicle's exterior.

     Judge    Kelley    also    addressed      and   rejected    defendant's

arguments that counsel failed to file a motion to suppress the

information obtained from the wiretap, finding that defendant did

not identify which conversation should have been minimized or

demonstrate that a motion to suppress such evidence would have

been successful.    The judge also held that defense counsel was not

ineffective   because    he    strategically    decided   to    withhold   the

alleged exculpatory statements to achieve a better plea agreement

for defendant.3    After finding that defendant failed to establish




3
    We granted the State's motion to expand the record to include
evidence that, contrary to defendant's PCR argument, at least two
of the "exculpatory" statements were provided to the prosecutor.
                                5                         A-3316-15T3
a prima facie claim, the judge denied defendant's request for an

evidentiary hearing.    This appeal followed.

     Defendant presents the following issue for our consideration
in his appeal.
                 THE TRIAL COURT ERRED IN DENYING
                 DEFENDANT'S   MOTION    FOR   POST-
                 CONVICTION RELIEF WITHOUT AFFORDING
                 DEFENDANT AN EVIDENTIARY HEARING.

     We are not persuaded and affirm, substantially for the reasons

expressed by Judge Kelley in his thorough oral decision.

     The standard for determining whether counsel's performance

was ineffective for purposes of the Sixth Amendment was formulated

in Strickland v. Washington, 
466 U.S. 668, l
04 S. Ct. 2052, 
80 L. Ed. 2d 674 (1984), and adopted by our Supreme Court in State v.

Fritz, l
05 N.J. 42 (l987).     In order to prevail on a claim of

ineffective assistance of counsel, defendant must meet the two-

prong test of establishing that: (l) "counsel's performance was

deficient" and he or she made errors that were so egregious "that

counsel was not functioning" effectively as guaranteed by the

Sixth Amendment to the United States Constitution; and (2) the

defect in performance prejudiced defendant's rights to a fair

trial such that there exists a "reasonable probability that, but

for counsel's unprofessional errors, the result of the proceeding

would have been different."    Strickland, supra, 
466 U.S.  at 687,

694, l
04 S. Ct.  at 2064, 2068, 
80 L. Ed. 2d    at 693, 698.

                                 6                          A-3316-15T3
     This two-prong analysis applies equally to convictions after

a trial or after a defendant pleads guilty.             In the context of a

PCR petition challenging a guilty plea, the first Strickland prong

is   satisfied       when    a   defendant    establishes     a    "reasonable

probability that, but for counsel's errors, [he or she] would not

have pled guilty. . . ."             State v. Gaitan, 
209 N.J. 339, 351

(2012).   The second prong is met when a defendant establishes a

reasonable probability he or she "would have insisted on going to

trial."      Ibid.      "When    a   defendant   has   entered    into    a   plea

agreement, a deficiency is prejudicial if there is a reasonable

probability that, but for counsel's errors, the defendant would

not have decided to forego the plea agreement and would have gone

to trial."    State v. McDonald, 
211 N.J. 4, 30 (2012) (citing Hill

v. Lockhart, 
474 U.S. 52, 59, 
106 S. Ct. 366, 370, 
88 L. Ed. 2d 203, 210 (1985); State v. Nuñez-Valdéz, 
200 N.J. 129, 139 (2009)).

     We conclude from our review of the record that, as Judge

Kelley found, defendant failed to make a prima facie showing of

ineffective assistance of trial counsel within the Strickland-

Fritz test.      We note that, in addition to not establishing that

counsel's performance was deficient, defendant failed to make any

showing   that   had    he   established     that   trial   counsel      rendered

deficient performance, how the outcome in his case would have been

any different – i.e., he would have passed on the plea offer and

                                        7                                 A-3316-15T3
successfully gone to trial, facing what could have amounted to,

in the aggregate, a life sentence.

    Accordingly, we agree with Judge Kelley that an evidentiary

hearing was not warranted.   See State v. Preciose, 
129 N.J. 452,

462-63 (1992).

    Affirmed.




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