STATE OF NEW JERSEY v. AMIR W. KREPS
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APPROVAL OF THE APPELLATE DIVISION
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4766-15T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
AMIR W. KREPS, a/k/a AMIR JOHNSON
and AMIR WASSIM KREPS,
Defendant-Appellant.
___________________________________
Submitted September 18, 2017 – Decided January 24, 2018
Before Judges Sabatino and Ostrer.
On appeal from Superior Court of New Jersey,
Law Division, Essex County, Indictment No.
09-02-0580.
Joseph E. Krakora, Public Defender, attorney
for appellant (Rasheedah Terry, Designated
Counsel, on the brief).
Robert D. Laurino, Acting Essex County
Prosecutor, attorney for respondent (Lucille
M. Rosano, Special Deputy Attorney General/
Acting Assistant Prosecutor, of counsel and
on the brief).
PER CURIAM
In this post-conviction relief (PCR) appeal, defendant Amir
W. Kreps collaterally challenges his 2010 conviction, after a
guilty plea to three counts of first-degree robbery,
N.J.S.A.
2C:14-1. Defendant admitted that he participated in the gunpoint
robbery of two men, C.H. and M.G., and a woman, M.B., in Newark.
Defendant also pleaded guilty to one count of aggravated criminal
sexual contact,
N.J.S.A. 2C:14-3(a); he admitted he touched the
female victim's breasts. The PCR court granted relief as to the
aggravated criminal sexual contact count, and the State
subsequently dismissed that count, after the PCR court found
defendant had not provided a sufficient factual basis for his
plea, because he did not address the state-of-mind element of the
offense. However, the PCR court rejected defendant's challenge
to the robbery convictions.
On appeal, defendant raises the following points for our
consideration.
POINT I
THIS COURT MUST VACATE DEFENDANT'S PLEA IN ITS
ENTIRETY BECAUSE THE PCR COURT DETERMINED THAT
THE DEFENDANT DID NOT PROVIDE AN ADEQUATE
FACTUAL BASIS FOR THE THIRD-DEGREE AGGRAVATED
CRIMINAL SEXUAL CONTACT,
N.J.S.A. 2C:14-
3(A)(6) (COUNT FIFTEEN), CHARGE (NOT RAISED
BELOW).
POINT II
THE PCR COURT'S ORDER THAT DENIED DEFENDANT'S
PETITION FOR POST-CONVICTION RELIEF IN PART
MUST BE REVERSED BECAUSE DEFENDANT RECEIVED
INEFFECTIVE ASSISTANCE OF COUNSEL IN THE
PROCEEDINGS BELOW.
2 A-4766-15T1
A. Appellate Counsel's Failure to Challenge
Judge Bernstein's December 18, 2008 Order
That Denied Defendant's Motion to
Suppress Evidence Constituted
Ineffective Assistance of Counsel.
B. Trial Counsel's Failure To Challenge The
Reliability of the Out-Of-Court
Identifications Made By [M.B., C.H. and
M.G.] Constituted Ineffective Assistance
Of Counsel.
C. Trial and Motion counsels Provided
Ineffective Assistance of Counsel When
They Failed to Interview and/or Obtain a
Certification or Affidavit From
Defendant's Alibi Witness.
D. PCR Counsel Provided Ineffective
Assistance of Counsel By Failing to
Properly Present the Identification
Issue and By Failing to Obtain an
Affidavit or Certification from
Defendant's Aunt (Not Raised Below).
POINT III
THIS COURT SHOULD REMAND THE MATTER FOR AN
EVIDENTIARY HEARING.
We review de novo the PCR court's denial of relief without
an evidentiary hearing. State v. Harris,
181 N.J. 391, 421 (2004).
As we discern no merit in defendant's points on appeal, we affirm.
In return for his guilty plea, the State agreed to dismiss a
certain persons charge, and related firearms charges, and
recommend an aggregate thirteen-year sentence, consisting of three
concurrent thirteen-year sentences on the robbery counts, subject
to the No Early Release Act,
N.J.S.A. 2C:43-7.2, concurrent with
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a five-year sentence on the aggravated criminal sexual contact
count, subject to Megan's Law and Parole Supervision for Life.
After denying defendant's motion to withdraw his plea, the trial
court sentenced defendant in accord with the plea agreement. On
direct appeal, we affirmed the denial of his motion, and affirmed
the sentence. State v. Kreps, No. A-6008-09 (App. Div. Nov. 14,
2011).
Defendant contends, for the first time on PCR appeal, that
his entire plea must be vacated because the sexual offense
conviction was vacated. We disagree. First, neither the State
nor the PCR court had the opportunity to consider defendant's
newly minted contention, which may have affected the court's
analysis. For that reason alone, we reject defendant's argument.
See State v. Arthur,
184 N.J. 307, 327 (2005); Neider v. Royal
Indem. Ins. Co.,
62 N.J. 229, 234 (1973).
Second, defendant misplaces reliance on State v. Ashley,
443 N.J. Super. 10, 22-23 (App. Div. 2015), which addressed, on direct
appeal, the impact of vacating guilty pleas to attempted murder
and conspiracy — for an inadequate factual basis — on a guilty
plea to aggravated assault. Unlike the defendant in Ashley, who
sought to withdraw his plea, defendant seeks PCR. See State v.
O'Donnell,
435 N.J. Super. 351, 368-73 (App. Div. 2014) (reviewing
distinctions between motion to withdraw plea and petition for
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PCR). Defendant must show a substantial denial of his
constitutional or legal rights. R. 3:22-2(a). As defendant did
not assert a claim of innocence contemporaneous to his plea to
aggravated criminal sexual contact, it is questionable whether
that conviction should have been disturbed at all. See State v.
Belton, ___ N.J. Super. ___, ___ (App. Div. 2017) (slip op. at 18-
19) (stating that a court's failure to elicit a factual basis does
not entitle a defendant to PCR absent a contemporaneous claim of
innocence) (citing State v. Barboza,
115 N.J. 415, 421 n.1 (1989)).
In any event, defendant pleaded guilty to the robbery counts
knowingly and voluntarily, upon providing a sufficient factual
basis. Cf. Barboza,
115 N.J. at 415 n.1 (stating that a guilty
plea is "constitutionally defective if it is not voluntary and
knowing"). The court in Ashley held that the defendant's plea had
to be vacated in its entirety, although he gave an adequate factual
basis for the lesser charge, because the rejection of the plea to
the more serious counts was "a material change to the reasons why
he pled in the first instance." Ashley,
443 N.J. Super. at 22.
By contrast, vacating defendant's sexual offense conviction
did not undermine defendant's plea to the robbery counts. At the
outset of defendant's plea hearing, he hesitated to enter the plea
agreement because he said he was unaware that he had to plead to
a sex offense that would subject him to Megan's Law, although it
5 A-4766-15T1
would not affect his aggregate sentence. However, defendant raised
no objection to pleading to the robbery counts. The State's offer
was a favorable one, considering defendant's much greater
sentencing exposure, and that the State's proofs on the robbery
counts were strong. All three victims identified defendant in a
photo line-up; defendant and his co-defendant, Jason O'Neill,
possessed the victims' property when police stopped them; and
O'Neill implicated defendant in entering his own guilty plea, and
was willing to testify against him at trial. There is no reason
to believe that vacatur of the third-degree sexual offense would
have made defendant less willing to plead guilty to the first-
degree robbery counts pursuant to the plea agreement.
Defendant also contends he received ineffective assistance
of counsel at various stages of his case. He asserts his plea
counsel was ineffective by failing to move to exclude the victims'
identification of him. He also argues the attorney who represented
him on his motion to withdraw his plea was ineffective by failing
to obtain an affidavit from an alleged alibi witness, his aunt.
He contends appellate counsel was ineffective by failing to
challenge the trial court's denial of his motion to suppress
testimony about the traffic stop. And he contends, for the first
time, his PCR counsel was ineffective by failing to obtain a
certification from his aunt.
6 A-4766-15T1
As did the trial court, we apply the two-pronged Strickland
test, and determine whether counsel's performance was
constitutionally deficient, and whether defendant suffered
resulting prejudice. Strickland v. Washington,
466 U.S. 668, 687
(1984); State v. Fritz,
105 N.J. 42, 58 (1987). With respect to
the prejudice prong, we must determine in this case whether
defendant has demonstrated a "reasonable probability that, but for
counsel's errors, he would not have pleaded guilty and would have
insisted on going to trial." Hill v. Lockhart,
474 U.S. 52, 59
(1985).
It is not ineffective to withhold a meritless motion, or to
refrain from making unsuccessful legal arguments. See State v.
O'Neal,
190 N.J. 601, 619 (2007); State v. Worlock,
117 N.J. 596,
625 (1990). Furthermore, while the Constitution guarantees a
defendant the right to effective assistance of appellate counsel
on direct appeal, State v. O'Neil,
219 N.J. 598, 610 (2014),
"appellate counsel does not have a constitutional duty to raise
every nonfrivolous issue requested by the defendant," State v.
Morrison,
215 N.J. Super. 540, 549 (App. Div. 1987).
We are unpersuaded that appellate counsel was deficient,
because we are not convinced that the trial court erred in denying
the joint suppression motion. The police had reasonable and
articulable suspicion to approach defendant's vehicle, which was
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already stopped. Alerted about a nearby robbery of an elderly man
(not the three victims defendant later admitted he robbed),
plainclothes police officers in an unmarked police vehicle
observed defendant and O'Neill run to a car and speed off; drive
erratically; turn without a signal; and then come to a stop without
police compulsion. The officers had ascertained that the vehicle
belonged to a woman, but was not reported stolen.
The officers observed defendant and O'Neill actively engage
in furtive movements. The officers approached the vehicle;
obtained the occupants' identification; recognized O'Neill as a
prior narcotics arrestee; and, for their safety, asked the
occupants to exit the vehicle. The officers were justified in
doing so. They had a reasonable and articulable suspicion to
conduct an investigatory stop based on the observed traffic
violation. See, e.g., State v. Locurto,
157 N.J. 463, 470 (1999)
("It is firmly established that a police officer is justified in
stopping a motor vehicle when he [or she] has an articulable and
reasonable suspicion that the driver has committed a motor vehicle
offense."). Under the circumstances, the officers were also
justified in asking the two men to exit their car. See State v.
Bacome,
228 N.J. 94, 106-07 (2017) (stating "a police officer may
order a passenger out of a vehicle if the officer can 'point to
specific and articulable facts that would warrant heightened
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caution to justify ordering the occupants to step out of a vehicle
detained for a traffic violation'" (quoting State v. Smith,
134 N.J. 599, 618 (1994)).
Once the men exited the vehicle, the police observed, in
plain view, a ladies purse and a wallet on the floor in front of
the driver's seat; another wallet on the floor in front of the
passenger's seat; and a cellphone and pair of athletic shoes in
the console. As the officer testified, it was highly unusual for
two men to possess a ladies purse; and to keep it on the driver's
side floor. The surrounding circumstances only heightened their
suspicion.
The officers reached into the vehicle to retrieve the wallets
and purse. They were authorized to do so, based on the plain view
exception to the warrant requirement, as they were lawfully in the
viewing area, they discovered the items inadvertently, and they
appeared to be contraband. See State v. Mann,
203 N.J. 328, 340-
41 (2010) (holding that the plain view exception justified police
entry into a vehicle to seize bags of what appeared to be drugs
in plain view, notwithstanding the prior arrest of the suspect);
9 A-4766-15T1
State v. Johnson,
171 N.J. 192, 206-07 (2002) (setting forth
elements of plain view exception).1
Defendant's remaining arguments warrant only brief
discussion. Defendant contends his attorney was ineffective by
failing to file a motion to exclude the victims' identification
of him. He cites minor discrepancies in the documentary record
of the identification. However, none of these meet a threshold
showing that the State engaged in impermissible suggestiveness
sufficient to warrant a hearing, see State v. Ortiz,
203 N.J.
Super. 518, 522 (App. Div. 1985), let alone satisfy the
requirements then applicable for excluding an identification, see
State v. Madison,
109 N.J. 223, 232 (1988) (requiring a showing
that law enforcement used an impermissibly suggestive
identification procedure and it resulted in a very substantial
likelihood of irreparable misidentification); see also Manson v.
Braithwaite,
432 U.S. 98, 114-16 (1977).
1
The officers ultimately let defendant and O'Neill go after they
offered an explanation – albeit it later proved to be false – for
their possession of the items. However, that subsequent
explanation does not vitiate the probable cause the officers had
at the time of their brief seizure, to "associate the item[s] with
criminal activity . . . ." Johnson,
171 N.J. at 213 (stating
courts look "to what the police officer reasonably knew at the
time of the seizure" in evaluating whether it was immediately
apparent that the item was contraband).
10 A-4766-15T1
Nor was there ineffective assistance by trial counsel in
failing to interview defendant's aunt, whom defendant claimed was
an alibi witness. We recognize that the "[f]ailure to investigate
an alibi defense is a serious deficiency that can result in the
reversal of a conviction." State v. Porter,
216 N.J. 343, 353
(2013). Yet, "[w]hen a petitioner claims his trial attorney
inadequately investigated his case, he must assert the facts that
an investigation would have revealed, supported by affidavits or
certifications based upon the personal knowledge of the affiant
or the person making the certification." Ibid. (quoting State v.
Cummings,
321 N.J. Super. 154, 170 (App. Div. 1999)). Defendant
has not done so. Rather, he presented a memorandum from an
investigator — which is not included in the record before us. In
any event, the aunt reportedly said that defendant arrived at her
house sometime after 11:00 p.m. on the night of the robbery. That
did not describe defendant's arrival with sufficient precision to
directly controvert defendant's presence at a robbery before
midnight.
To the extent not addressed, defendant's remaining arguments
lack sufficient merit to warrant discussion in a written opinion.
R. 2:11-3(e)(2).
Affirmed.
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