                                NOT FOR PUBLICATION WITHOUT THE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-3366-16T1

STATE OF NEW JERSEY,

           Plaintiff-Respondent,

v.

JOSEPH SMITH,

     Defendant-Appellant.
___________________________

                    Submitted February 7, 2018 – Decided March 12, 2019

                    Before Judges Fuentes and Suter.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Essex County, Indictment Nos. 14-04-1128
                    and 14-04-1129.

                    Joseph E. Krakora, Public Defender, attorney for
                    appellant (Suzannah Brown, Designated Counsel, on
                    the brief).

                    Robert D. Laurino, Acting Essex County Prosecutor,
                    attorney for respondent (Tiffany M. Russo, Special
                    Deputy Attorney General/Acting Assistant Prosecutor,
                    of counsel and on the brief).

           The opinion of the court was delivered by
FUENTES, P.J.A.D.

      An Essex County Grand Jury indicted defendant Joseph Smith, charging

him with second degree unlawful possession of a handgun while in the course

of committing or attempting to commit a drug-related offense, N.J.S.A. 2C:39-

4.1(a); second degree unlawful possession of a loaded handgun, N.J.S.A. 2C:39-

5(b); fourth degree unlawful possession of armor piercing ammunition, N.J.S.A.

2C:39-3(f), fourth degree unlawful possession of marijuana with intent to

distribute in a quantity of less than one ounce, N.J.S.A. 2C:35-5(a)(1), (b)(12);

and fourth degree unlawful possession of drug paraphernalia, N.J.S.A. 2C:36-3.

The Grand Jury found probable cause that defendant committed these offenses

on December 17, 2013.

      On September 15, 2014, defendant entered into a negotiated agreement

with the State through which he pled guilty to second degree unlawful

possession of a loaded handgun and fourth degree unlawful possession of armor

piercing ammunition. The State agreed to dismiss the remaining charges in the

indictment and recommend the court sentence defendant to an aggregate term of

five years imprisonment, with forty-two months of parole ineligibility.       On

February 6, 2015, the court sentenced defendant in accordance with the plea

agreement. The sentencing judge found aggravating factors, N.J.S.A. 2C:44-


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                                       2
1(a)(3), (6), and (9), and no mitigating factors. Defendant did not seek appellate

review of the plea hearing or the sentence imposed by the court.

      On August 11, 2015, defendant filed a pro se petition seeking post-

conviction relief (PCR), in which he claimed his counsel provided ineffective

assistance by failing to investigate and file a motion to suppress the handgun

found inside the car. The PCR judge assigned an attorney to represent defendant

in the prosecution of this petition. On March 18, 2015, PCR counsel filed a brief

with the court arguing prior defense counsel was ineffective when he failed to

challenge the constitutionality of the search of defendant's motor vehicle

conducted by Newark police officers.

      The PCR court heard oral argument on defendant's petition on June 24,

2016. PCR counsel argued the police officers stopped defendant's car without

probable cause and unlawfully detained defendant and other persons in

defendant's parked car.    Under these circumstances, PCR counsel claimed

defense counsel should have challenged the constitutionality of the motor

vehicle stop and search, as well as defendant's subsequent detention related

thereto. PCR counsel emphasized that defense counsel did not conduct any

investigation nor make any effort to ascertain the location of the police officers

at the time they were allegedly surveilling defendant. Defense counsel also did


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                                        3
not make any effort to locate the man who was seated in the passenger-side of

defendant's vehicle at the time of the arrest.      Without giving a specific

description or proffer of this witness's testimony, PCR counsel claimed this

person would have been able "to testify . . . [at the] suppression hearing," and

provide" an alternate version of the facts, which could be supported by Mr.

Smith."

      PCR counsel argued defense counsel's failure to seek this information left

defendant unable to challenge the police officers' claim of probable cause.

According to PCR counsel, this satisfied the first prong under Strickland v.

Washington, 466 U.S. 668, 687 (1984). The second prong in Strickland requires

defendant to show there was "a reasonable probability that, but for counsel's

unprofessional errors, the result of the proceeding would have been different."

Id. at 694. PCR counsel argued there was a strong likelihood the court would

have granted a motion to suppress the evidence seized from defendant's car, thus

satisfying the second prong under Strickland.

      The State argued the facts did not support defendant's claim of ineffective

assistance of counsel. According to the State, on the date of defendant's arrest,

Essex County Narcotics Task Force Detectives received information from a

citizen that a man was selling marijuana in the area of Osborne Terrace and


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                                       4
Renner Avenue. The caller described the alleged dealer as "a heavy set black

male with long dreadlocks." The man selling the marijuana was seated in a

parked blue Ford SUV. Narcotics Task Force Detectives responded to the area

identified by the caller in an unmarked police vehicle.     Upon arrival, they

observed a motor vehicle that matched the caller's description. Seated behind

the SUV's steering-wheel was an African American man who also matched the

physical description of the alleged drug dealer. The Detectives also saw another

African American man seated in the front passenger-side of the SUV. From

their vantage point, the Detectives saw an unknown African American man

approach the passenger-side of the SUV, at which point defendant extended his

arm across the passenger seated next to him, and handed the unknown African

American man an indiscernible amount of currency in exchange for an equally

unknown object. Based on the belief they had witnessed a hand-to-hand illicit

drug transaction, the Detectives decided to approach defendant's car. As they

approached, the Detectives noticed defendant "fumbling with items in and

around the center console area."

      The Detectives ordered defendant and the other two occupants of the SUV

"to show their hands."     Except defendant, the other two occupants, later

identified as William Johnson and Robert Anthony Lee, complied with the


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                                       5
Detectives' command.        However, defendant continued to "fumble around."

Defendant finally complied after the Detectives again ordered him to show his

hands. One of the Detectives saw a black bag fall from the center console to the

driver-side of the SUV. The Detective saw the bag contained "a green vegetative

substance."    As he opened the SUV's driver-side door, the Detective

immediately detected an odor of raw marijuana. After removing defendant and

the two other occupants from the SUV, the Detective saw "a black handgun in

the center console area."

      After reviewing the relevant case law that discusses the constitutional

principles governing automobile stop and searches, the PCR judge found he

"may need to hear from trial counsel as regard to the conversations that . . . were

had regarding the possible motion and whether an alternative version of facts . .

. were known to trial counsel." The PCR judge concluded that an evidentiary

hearing would "allow the [c]ourt to make a better determination of whether it

was ultimately a trial strategy not to pursue the motion to suppress." 1




1
  Although not a part of this appeal, the PCR judge also considered and rejected
as "meritless" defendant's argument that he was entitled to withdraw his guilty
plea. The PCR judge cited to the Supreme Court's decision in State v. Slater,
189 N.J. 145 (2009) to reach this decision.

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                                        6
      The PCR judge conducted an evidentiary hearing on November 10, 2016.

Defendant's original defense counsel testified as a witness for the State. No

other witnesses were called. In response to the prosecutor's questions, defense

counsel explained that based on his criminal record, defendant was facing

consecutive terms of ten years, with five years of parole ineligibility, for a total

potential penal exposure of twenty years with ten years of parole ineligibility.

Defendant was also exposed to discretionary and mandatory extended terms. As

defense counsel explained, because defendant was charged with the possession

of a handgun without a permit, "his potential exposure was 30 years [in] New

Jersey State Prison with 15 years parole ineligibility" under the Graves Act. See

N.J.S.A. 2C:43-6(c).

      Defense counsel also testified that he reviewed police reports that stated

defendant "essentially blurted out and took ownership of that gun and drugs."

In fact, defense counsel testified that defendant gave an inculpatory statement

concerning ownership of the handgun and marijuana after he was informed of

and waived his constitutional rights under Miranda v. Arizona, 384 U.S. 436

(1966). On cross-examination, PCR counsel asked defense counsel why he

never considered contacting or tried to contact the two passengers in the SUV.

Defense counsel gave the following explanation:


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                                         7
            I didn’t contact them because, based upon A, the offer
            that we had and the fact that it would be withdrawn
            again, for lack of a better term, roll the dice with the
            motion to suppress, I -- when speaking with [defendant]
            we balanced the risk versus the reward. The risk of the
            offer going up substantially, the risk of there being no
            offer at the motion and having to go to trial and be
            subjected to 30 with 15 versus the reward of winning
            the motion to suppress based upon what we had there.

            So based upon that a determination was made that there
            really wasn’t anything that would be sufficient to
            justify passing up that offer at that time.

      The PCR judge reserved decision at the conclusion of the November 10,

2016 evidentiary hearing. On January 20, 2017, the judge delivered an oral

decision from the bench denying defendant's PCR petition. After reviewing the

case law that has addressed how to apply the two-prong standard for determining

ineffective assistance of counsel under Strickland, the judge found defense

counsel made a sound, fully informed strategic decision not to file a motion to

suppress in exchange for securing defendant a reasonably favorable plea

agreement. The judge found defense counsel thoughtfully weighed the risk of

presenting the motion judge with "testimony that would have contradicted his

client's, which may have seemed beneficial at the moment [but] would later be

used to discredit petitioner's entire statement."




                                                                       A-3366-16T1
                                         8
      The PCR judge found defense counsel's testimony credible and

dispositive. The judge found defendant made a knowing, voluntary decision to

accept the State's plea offer after weighing all of the risks involved in going to

trial and receiving sound legal advice from his attorney. The judge provided the

following explanation in support of his ruling:

            Together [defendant and defense counsel] they reached
            a consensus that accepting a plea rather than risking
            going to trial was the best [course] of action. Knowing
            the plea offer would be withdrawn petitioner and
            [defense counsel] had to make the strategic decision to
            determine whether it would be best to forego filing any
            motions and accept five years with 42 months parole
            ineligibility or risk going to trial and face up to 30 years
            in prison.

            The [c]ourt has considered the briefs and heard the
            testimony regarding [defense counsel's] determination
            to not file a motion to suppress. Petitioner had the
            burden to satisfy both prongs of the Strickland/Fritz2
            test and also show that the suppression motion had
            merit. The petitioner has failed to meet that burden.

            Regarding the issue of whether the police had probable
            cause to search petitioner and his car there was no
            reason for [defense counsel] to question petitioner's
            accounts of the events that transpired, thus, not
            notifying him of a basis to file a motion to dismiss.




2
  Our State Supreme Court adopted the Strickland two-prong test in State v.
Fritz, 105 N.J. 42, 58 (1987).
                                                                           A-3366-16T1
                                         9
      Against this factual and procedural backdrop, defendant now appeals

raising the following argument.

            POINT ONE

            THE PCR COURT ERRED IN DENYING MR.
            SMITH'S   CLAIM   THAT    HE  RECEIVED
            INEFFECTIVE ASSISTANCE OF COUNSEL.

      Defendant's argument lacks sufficient merit to warrant discussion in a

written opinion.   R. 2:11-3(e)(2).   We affirm substantially for the reasons

expressed by Judge Arthur J. Batista in his oral opinion delivered from the bench

of January 20, 2017.

      Affirmed.




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