                                NOT FOR PUBLICATION WITHOUT THE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-5479-17T1

STATE OF NEW JERSEY,

           Plaintiff-Respondent,

v.

ERIC MELVIN, a/k/a ERICK
MELVIN,

     Defendant-Appellant.
_________________________

                    Submitted September 9, 2019 – Decided September 16, 2019

                    Before Judges Sabatino and Geiger.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Union County, Indictment No. 11-10-1096.

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

                    Jennifer Davenport, Acting Union County Prosecutor,
                    attorney for respondent (Carlos Paul Morrow, Special
                    Deputy Attorney General/Acting Assistant Prosecutor,
                    of counsel and on the brief).

PER CURIAM
      Defendant Eric Melvin appeals from the denial of his petition for post-

conviction relief (PCR) without an evidentiary hearing. We affirm.

      On June 28, 2011, at about 11:00 p.m., Elizabeth Police Department

Officers Guido Quelopana and Scott Giannone observed a vehicle stop in the

middle of a street adjacent to Miller Park in Elizabeth, an area known to police

for narcotics transactions, gang activity, and shootings.       The vehicle was

blocking the lanes of traffic. According to Quelopana, the way the vehicle was

stopped seemed suspicious due to recent shootings in the area.

      Quelopana activated his emergency lights and conducted a traffic stop.

Defendant was the driver and sole occupant of the vehicle. Defendant rolled

down his window as the officers approached. Quelopana smelled raw marijuana

emanating from the vehicle and observed an open small black plastic bag in

plain view on the passenger-side floor, with several clear plastic baggies sticking

out. Some of the baggies appeared to contain marijuana. Quelopana removed

the bag, which contained six baggies of suspected marijuana, two baggies of

suspected cocaine, a digital scale, a razor, and a large quantity of empty baggies.

It was later confirmed the baggies contained marijuana and cocaine.

      When he was asked to exit the vehicle, defendant stated, "I just have some

weed, that's all." Defendant was removed from the vehicle, arrested, and taken


                                                                           A-5479-17T1
                                        2
to police headquarters, where a search incident to arrest revealed he had a 5-

Methoxy-N, N-Diisopropyltryptamine1 pill and $285 cash on his person.

Defendant's vehicle was impounded. A further search of the vehicle revealed

no additional evidence.

      Defendant was indicted for five counts of possessory controlled dangerous

substance (CDS) offenses. State v. Melvin, No. A-3058-13 (App. Div. June 3,

2016) (slip op. at 2). Defendant moved to suppress the evidence seized from his

vehicle.

      Quelopana was the only witness to testify at the suppression hearing. The

motion judge found Quelopana's testimony credible, noting he was an

experienced narcotics officer with eleven years of experience as a police officer.

His assignment was "as a plain clothes officer, whose regular patrol

responsibilities include investigating incidents involving narcotics, guns and

high crime areas." The judge found Quelopana testified in a "straight-forward,

clear and unwavering" manner. Any discrepancies between his police report

and his testimony were immaterial and "were sufficiently explained by the

officer during his testimony." The court also noted Quelopana's "clear view or



1
   Sometimes called "Foxy," 5-Methoxy-N, N-Diisopropyltryptamine is a
psychedelic Schedule I controlled dangerous substance (CDS).
                                                                          A-5479-17T1
                                        3
vantage point of the events that transpired" allowed him to "describe[] the events

of the incident in detail."

      The motion judge held the vehicle stop was lawful because defendant

violated N.J.S.A. 39:4-67, when he obstructed the roadway, which required

other vehicles to travel into the oncoming lane to circumvent his vehicle. The

judge also held the stop was lawful because the officers had a reasonable

suspicion defendant was engaged in, or about to engage in, criminal activity,

based upon: the late hour; defendant's abrupt stop next to a closed public park;

defendant's apparent surveillance of the area; and the location, which was a high-

crime rate area known for narcotics transactions, shootings, and gang activity.

      The judge held the warrantless search and seizure was lawful as well. He

found the stop was unplanned and unexpected, the smell of marijuana emanating

from defendant's vehicle provided probable cause to believe the vehicle

contained evidence of a crime, and there were exigent circumstances that made

it impracticable to obtain a search warrant. The judge found the same facts that

justified the stop, including the possibility others may have been interested in

moving the narcotics located in the vehicle, together with the absence of back-

up officers, constituted exigent circumstances to justify the removal of the black

bag the officer suspected contained narcotics.


                                                                          A-5479-17T1
                                        4
      The case proceeded to trial. Defendant elected not to testify. The jury

found defendant guilty of all counts. After appropriate mergers, defendant was

sentenced to an aggregate ten-year prison term with a five-year parole

disqualifier.

      On direct appeal, defendant contended the trial court erred in denying his

motion to suppress. Defendant argued the record lacked sufficient, credible

evidence to support the judge's findings. We rejected defendant's argument and

held the stop of defendant's vehicle was justified based on the totality of the

circumstances. We held "the stop was justified because the officers had a

reasonable and articulable suspicion that defendant committed a motor vehicle

offense." Melvin, slip op. at 14. We also held "[t]he stop . . . was justified

because the officers had a reasonable and articulable suspicion that defendant

was engaged or about to engage in criminal activity." Ibid. We further held the

warrantless search was justified under both the automobile exception and the

plain view doctrine.

      Defendant did not object to the admission of evidence of his statement to

the officers, "I just have some weed, that's all." On appeal, he contended the

trial court committed plain error by failing to sua sponte issue a




                                                                        A-5479-17T1
                                       5
Hampton/Kociolek2 charge.        We disagreed.     We noted "the judge gave an

instruction regarding witness credibility at the outset and close of the trial . . . ,

and there was other evidence that clearly established defendant's guilt." Id. at

30.   We, thus, found "no error, let alone plain error, in the lack of a

Hampton/Kociolek instruction." Ibid.

      We affirmed defendant's conviction and sentence. The Supreme Court

denied certification. State v. Melvin, 227 N.J. 381 (2016).

      In December 2016, defendant filed a pro se petition for PCR. Counsel

was assigned to represent defendant. Defendant raised the following issues: (1)

he was denied effective assistance of trial counsel due to trial counsel's failure

to properly advise him about his right to testify at the motion to suppress and

failure to request a jury charge that would have provided the proper assessment

of statements he allegedly made; (2) he established a prima facie case sufficient

to require an evidentiary hearing; and (3) his claims are not procedurally barred.

      In a supplemental certification, defendant stated his trial counsel never

explained to him his right to testify at the suppression hearing, or that if he did

testify, that did not mean he had to testify at trial. Defendant also stated his trial



2
  State v. Hampton, 61 N.J. 250, 271-72 (1972); State v. Kociolek, 23 N.J. 400,
421 (1957).
                                                                              A-5479-17T1
                                          6
counsel made those decisions without consulting him. Defendant claimed he

wanted to testify at the suppression hearing because he "never stopped the

vehicle in front of the park" and "was not looking around" as the officer claimed.

Defendant contended his suppression motion would have been granted if he had

testified.

       Following oral argument before the PCR judge (who had also presided

over defendant's trial), the judge issued a June 29, 2018 order and twenty-four

page written opinion denying the petition without an evidentiary hearing. This

appeal followed.

       Defendant raises the following issues:

             POINT I
             DEFENDANT'S    CLAIM     HE   RECEIVED
             INEFFECTIVE ASSISTANCE OF COUNSEL FOR
             COUNSEL'S FAILURE TO REQUEST A JURY
             INSTRUCTION REGARDING AN INCRIMINATING
             STATEMENT ALLEGEDLY MADE AT THE TIME
             OF ARREST SHOULD NOT BE BARRED BECAUSE
             DEFENDANT'S CLAIM WAS NOT EXPRESSLY
             ADJUDICATED BY THE APPELLATE DIVISION.

             POINT II
             DEFENDANT     WAS   DENIED   EFFECTIVE
             ASSISTANCE OF COUNSEL ENTITLING HIM TO
             POST     CONVICTION  RELIEF   OR    AN
             EVIDENTIARY HEARING ON THE ISSUES OF
             FAILURE OF COUNSEL TO INFORM HIM OF HIS
             RIGHT TO TESTIFY AT THE SUPPRESSION
             HEARING, AND COUNSEL'S FAILURE TO

                                                                          A-5479-17T1
                                        7
            REQUEST A LIMITING INSTRUCTION ON THE
            USE OF AN INCRIMINATING STATEMENT BY
            THE JURY DURING DELIBERATIONS.

                  (a) Applicable Law.

                  (b) Counsel Was Ineffective For Failing To
                  Inform Defendant Of His Right To Testify
                  At His Suppression Motion.

                  (c) Counsel Was Ineffective For Failing To
                  Request A Limiting Jury Instruction
                  Regarding    The    Use     Of    Alleged
                  Incriminating Statements Made By
                  Defendant In Their Deliberations.

      Based on our review of the record and the applicable legal principles, we

affirm substantially for the reasons stated by Judge Robert J. Mega in his

comprehensive written opinion. We add the following comments.

      "A petitioner must establish the right to [post-conviction] relief by a

preponderance of the credible evidence." State v. Preciose, 129 N.J. 451, 459

(1992). To sustain that burden, the petitioner must set forth specific facts that

"provide the court with an adequate basis on which to rest its decision." State

v. Mitchell, 126 N.J. 565, 579 (1992).

      To establish a PCR claim that trial counsel was constitutionally

ineffective, a defendant must prove two elements: first, that "counsel's

performance was deficient," that is, "that counsel made errors so serious that


                                                                         A-5479-17T1
                                         8
counsel was not functioning as the 'counsel' guaranteed the defendant by the

Sixth Amendment;" second, that "there is a reasonable probability that, but for

counsel's unprofessional errors, the result of the proceeding would have been

different." Strickland v. Washington, 466 U.S. 668, 687, 694 (1984); accord

State v. Fritz, 105 N.J. 42, 58 (1987). "A reasonable probability is a probability

sufficient to undermine confidence in the outcome." State v. Harris, 181 N.J.

391, 432 (2004) (quoting Strickland, 466 U.S. at 694). To prove the first

element, a defendant must "overcome a strong presumption that counsel

exercised reasonable professional judgment and sound trial strategy in fulfilling

his responsibilities." State v. Nash, 212 N.J. 518, 542 (2013) (quoting State v.

Hess, 207 N.J. 123, 147 (2011)). To prove the second element, a defendant must

demonstrate "how specific errors of counsel undermined the reliability of the

finding of guilt." United States v. Cronic, 466 U.S. 648, 659 n.26 (1984).

      PCR courts are not required to conduct evidentiary hearings unless the

defendant establishes a prima facie case and "there are material issues of

disputed fact that cannot be resolved by reference to the existing record." R.

3:22-10(b).   "To establish such a prima facie case, the defendant must

demonstrate a reasonable likelihood that his or her claim will ultimately succeed

on the merits."    State v. Marshall, 148 N.J. 89, 158 (1997).        Speculative


                                                                          A-5479-17T1
                                        9
assertions are insufficient to establish a prima facie case of ineffective assistance

of counsel. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div. 1999).

      Defendant claims his trial counsel was ineffective by failing to request a

jury instruction regarding an incriminating statement allegedly made at the time

of arrest. The PCR judge found this issue was previously litigated on direct

appeal and is procedurally barred under Rule 3:22-5, which provides that "[a]

prior adjudication upon the merits of any ground for relief is conclusive ."

Notwithstanding that finding, the PCR judge considered the merits of the claim,

and found defendant failed to establish a prima facie case of ineffective

assistance of counsel. The judge noted there was "other evidence suggesting

[d]efendant's guilt in this matter, independent of his statement. Defendant was

found to be in possession of CDS, which would have been recovered by the

[o]fficers even without his statement. Th[e] [c]ourt instructed the jury that it

was [their] role to assess the witness' credi[bility]." These findings are well

supported by the record.

      Defendant also claims his trial counsel was ineffective by failing to inform

him of his right to testify at the suppression hearing even if he chose not to

testify at trial. The PCR judge noted, after the State rested at the suppression

hearing, defense counsel stated to the court, "I just want to speak to my client


                                                                             A-5479-17T1
                                        10
regarding his right to testify." There was no further discussion on the record

regarding defendant's decision to testify or remain silent at the hearing other

than trial counsel later advising the court "[t]he defense rests" without calling

any witnesses. The PCR judge concluded "trial counsel should have at the very

least advised [d]efendant that he had a right to testify and discuss the pros and

cons of doing so. The fact that a criminal defendant is usually unlikely to testify

at a suppression hearing does not minimize the importance of him or her being

informed of his or her right to do so." Hence, the first prong of the Strickland

test was satisfied.

      The PCR judge then analyzed the second prong to determine if counsel's

deficient performance prejudiced the defense. The judge found trial counsel

"extensively cross-examined Officer Quelopana after his direct testimony."

Moreover, the court "asked a number of follow-up questions of Officer

Quelopana." This led to "further probing of Officer Quelopana's testimony" by

trial counsel. The court concluded the "record supports the conclusion that

Officer Quelopana's version of events leading to [d]efendant's arrest[] were

sufficiently tested during the [s]uppression [h]earing." The judge determined

defendant did not establish a reasonable probability that, but for trial counsel's




                                                                           A-5479-17T1
                                       11
failure to advise him of his right to testify, the result of the hearing would have

been different.

      The record amply supports the PCR judge's findings and conclusions.

Defendant has not shown "there is a reasonable probability that, but for counsel's

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

Strickland, 466 U.S. at 694. He is unable to demonstrate the required prejudice.

Having failed to establish a prima facie case, defendant was not entitled to an

evidentiary hearing. Preciose, 129 N.J. at 462.

      Affirmed.




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                                       12
