STATE OF NEW JERSEY v. MARQUIS 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NOT FOR PUBLICATION WITHOUT THE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-1289-16T3

STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

MARQUIS SMITH,

     Defendant-Appellant.
______________________________

              Submitted December 19, 2017 – Decided April 12, 2018

              Before Judges Fisher and Sumners.

              On appeal from Superior Court of New Jersey,
              Law Division, Atlantic County, Indictment No.
              11-09-2373.

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

              Damon G. Tyner, Atlantic County Prosecutor,
              attorney for respondent (Mario C. Formica,
              Deputy First Assistant Prosecutor, of counsel
              and on the brief).


PER CURIAM
       Tried before a jury, defendant Marquis Smith was convicted

of one count of third-degree possession of heroin1 and three

diverse counts of second-degree possession with the intent to

distribute heroin.2     On direct appeal, we upheld his conviction

and his sixteen-year prison term with eight years of parole

ineligibility.     State v. Marquis Smith, No. A-1595-12 (App. Div.

July    28,   2014).    Defendant    did   not   file    a    petition     for

certification, but later sought post-conviction relief (PCR).

       Applying   the   well-known   two-prong    test       set   forth    in

Strickland v. Washington, 
466 U.S. 668, 687 (1984), and adopted

by our Supreme Court in State v. Fritz, 
105 N.J. 42, 58 (1987),

the PCR court denied PCR without an evidentiary hearing, expressing

its reasoning in a thorough fourteen-page single-spaced written

decision.

       Defendant now appeals the court's order denying PCR, arguing

in his single-point merits brief:





1 N.J.S.A. 2C:35-10(a)(1).
2
  Second-degree possession with intent to distribute heroin,

N.J.S.A. 2C:35-5(a)(1) and 2C:35-5(b)(2); second-degree possession
with intent to distribute heroin within 1,000 feet of school
property, 
N.J.S.A. 2C:35-7; and second-degree possession with
intent to distribute heroin within 500 feet of a public housing
facility, 
N.J.S.A. 2C:35-7.1(b).



                                     2                               A-1289-16T3
           WHETHER   DEFENDANT   WAS   DEPRIVED  OF   HIS
           CONSTITUTIONAL   RIGHT    TO   THE   EFFECTIVE
           ASSISTANCE OF COUNSEL

Specifically, defendant contends trial counsel failed to argue

that the search warrant, which was based upon a confidential

informant's (CI) four alleged drug buys from defendant and led to

the seizure of heroin and other evidence used to convict him, was

not based upon probable cause because the State did not provide

discovery regarding the CI's identity and did not present the CI's

testimony when it sought the warrant.       We are unpersuaded.

     In rejecting defendant's contention that counsel should have

sought the CI's identity to invalidate the search warrant, the

court recognized the claim spoke in terms of a Franks3 motion

without   arguing   such.   The   court,   however,   viewed   counsel's

decision not to challenge the search warrant as strategic which

is "virtually unchallengeable."        Strickland, 
466 U.S.  at 690-91.

As to its merits, citing State v. Milligan, 
71 N.J. 373, 383-84

(1976), the court found that a Franks motion would have been

unsuccessful because defendant was not charged with crimes related

to the alleged drug sales to the CI, and thus, the CI's identity



3
  In Franks v. Delaware, 
438 U.S. 154, 171-72 (1978), the Supreme
Court held a defendant may challenge the veracity of an affidavit
submitted by law enforcement to procure a search warrant only by
making a substantial preliminary showing that the affidavit was
deliberately false or made with reckless disregard of the truth.

                                   3                              A-1289-16T3
and the discovery related to those sales were not relevant.

Rather, the CI's assertions were used to establish probable cause

for the search warrant, upon which its execution uncovered the

evidence presented to convict him.     Moreover, the court determined

defendant failed to establish "a substantial preliminary showing"

that the CI's affidavit supporting the search warrant was false.

See Franks, 
438 U.S.  at 155.         Understandably, the CI was not

required to testify before the judge who issued the warrant because

his hearsay statements were acceptable.     State v. Novembrino, 
105 N.J. 95, 110 (1987); see also State v. Broom-Smith, 
406 N.J. Super.
 228, 240 (App. Div. 2009)(setting forth the manner under which a

search warrant can be obtained through the use of a controlled

drug buy by a CI, and the limit to which discovery may obtained

to meet that standard).   Lastly, the PCR court reasoned that since

there was no prima facie showing of an ineffective assistance of

counsel, an evidentiary hearing was not necessary to resolve

defendant's claims.     State v. Preciose, 
129 N.J. 451, 462-63

(1992).

     Our examination of defendant's claims and review of the record

convinces us that defendant was not denied effective assistance

of counsel, and there was no need for an evidentiary hearing.        We

affirm substantially for the reasons set forth in the PCR court's

written decision.     We only add that we part company with the

                                 4                            A-1289-16T3
court's finding that counsel's decision not to file a motion to

challenge the search warrant should be excused as strategic and

thus not ineffective assistance.    We envision no downside for

filing a motion to suppress because we see no reasonable strategy

in not filing the motion.

    Affirmed.




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