STATE OF NEW JERSEY v. JOHN SCOTT

NOT FOR PUBLICATION WITHOUT THE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-1071-17T1

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

JOHN SCOTT,

     Defendant-Appellant.
____________________________

                    Submitted December 10, 2018 – Decided December 26, 2018

                    Before Judges Messano and Fasciale.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Camden County, Indictment No. 13-01-0070.

                    Joseph E. Krakora, Public Defender, attorney for
                    appellant (Monique D. Moyse, Designated Counsel, on
                    the brief).

                    Mary Eva Colalillo, Camden County Prosecutor,
                    attorney for respondent (Maura Murphy Sullivan,
                    Assistant Prosecutor, of counsel and on the brief).

PER CURIAM
      Defendant appeals from a July 28, 2017 order denying his petition for

post-conviction relief (PCR) without an evidentiary hearing.             Defendant

maintains that his trial counsel rendered ineffective assistance.

      On appeal, defendant argues:

              MR. SCOTT IS ENTITLED TO AN EVIDENTIARY
              HEARING ON HIS CLAIM THAT HIS ATTORNEY
              RENDERED INEFFECTIVE ASSISTANCE OF
              COUNSEL BY FAILING TO PRESENT A
              COMPLETE DEFENSE.

We affirm.

      In our unpublished opinion upholding his convictions, 1 we upheld an order

that denied defendant's motion to suppress. State v. Scott, No. A-5718-12 (App.

Div. Feb. 10, 2015) (slip op. at 5-9). In doing so, we relied on the community

caretaker doctrine as well as the plain view exception to the warrant

requirement. Id. at 8-9. We summarized the facts leading to defendant's arrest

as follows:

                    A State Police trooper (the "Trooper") and his
              partner (collectively the "Troopers"), were patrolling a
              non-residential, high crime area. At approximately
              1:00 a.m., the Troopers observed a taxi in an alleyway
              with the "brake lights being energized on and off . . .

1
  Defendant had appealed from his convictions for second-degree unlawful
possession of a weapon,  N.J.S.A. 2C:39-5(b); second-degree unlawful
possession of an assault firearm,  N.J.S.A 2C:39-5(f); and fourth-degree
possession of a weapon and devices,  N.J.S.A. 2C:39-3(j).
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            like . . . maybe someone was in distress." The Troopers
            entered the alleyway, and the taxi began driving in an
            abnormal manner of accelerating and suddenly
            stopping. The taxi stopped at an intersection, the
            Troopers activated their emergency lights, and exited
            their unmarked SUV.

                   As the Troopers approached, they noticed the taxi
            was a four-door Lincoln sedan with tinted windows.
            The Trooper spoke to the front seat passenger, heard a
            "rustling" from the back seat, and noticed the taxi was
            "shaking." The Trooper then opened the rear passenger
            door of the taxi because he could not see inside the
            vehicle, and observed defendant "seated . . . and down
            between his legs." The Trooper ordered defendant to
            show his hands and at that point, the Trooper observed
            a semi-automatic pistol magazine at defendant's feet.
            The Trooper removed defendant from the taxi and
            arrested him at the scene. A semi-automatic pistol was
            found in the taxi's passenger cabin.

            [Id. at 2.]

      In his petition, and on this appeal, defendant focuses on his trial counsel's

investigation and cross-examination of the troopers and taxi driver (a defense

witness) as to the route the taxi took before the police pulled it over. Defendant

maintains that the Troopers and taxi driver testified at the motion to suppress

hearing and at trial that the taxi took a route that was impossible to drive.

Defendant argues that had his trial counsel investigated and become more

familiar with the alleged route taken, which included one-way streets and

intersections, then she would have cross-examined the witnesses more

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effectively. He contends that he is entitled to an evidentiary hearing because his

PCR claim is "dependent on outside evidence." That is, to show the PCR judge

a video of the streets in question taken multiple years after the incident.

      A defendant is entitled to an evidentiary hearing only when he "has

presented a prima facie [case] in support of [PCR]," State v. Marshall,  148 N.J.
 89, 158 (1997) (first alteration in original) (quoting State v. Preciose,  129 N.J.
 451, 462 (1992)), meaning that a "defendant must demonstrate a reasonable

likelihood that his . . . claim will ultimately succeed on the merits." Ibid. 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 v. Washington,  466 U.S. 668, 687 (1984); accord State v. Fritz,  105 N.J. 42, 58 (1987).

      As the PCR judge pointed out, neither the Trooper nor the taxi driver were

clear on the route taken. The PCR judge stated that the taxi driver's testimony

– again, a defense witness – "contradicted the general layout of the streets."

Regardless of the route taken, the judge who denied defendant's motion to

suppress stated:




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                   I can't find any plausible explanation for stopping
            this [taxi], other than the observations the [T]rooper
            said he made.

                   . . . [O]n balance, given the high crime area, given
            the time of night, given the six . . . abrupt stops . . . it's
            not unreasonable to stop the vehicle to make sure
            everything's all right.

The PCR judge emphasized correctly that at the trial and suppression motion,

the route taken by the taxi was irrelevant. Rather, the relevant testimony "was

the erratic driving by the taxi driver and the location of the weapon." The seizure

of the semi-automatic gun magazine at defendant's feet, and the verdict of guilt,

was based on that testimony, rather than on the witnesses' recollection of the

street configurations.

      We therefore conclude that defendant failed to demonstrate a reasonable

likelihood that his PCR claim will ultimately succeed on the merits. And we

conclude further that defendant has failed to satisfy either prong of Strickland.

      Affirmed.




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