Date: 08-16-2016

Case Style:

Case Number: A-3618-14T3

Judge: Mitchel E. Ostrer

Court: SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION

Plaintiff's Attorney:

Andrew C. Carey

Joie Piderit

Defendant's Attorney:

Joseph E. Krakora

Description: We adopt the essential facts from our previous unpublished
decision remanding defendant's PCR petition for an evidentiary
hearing:
The record reveals that, on January 10, 2006, a grand jury issued an indictment charging defendant with third-degree possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10(a)(1); third-degree possession with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(3); and third-degree possession with intent to distribute on or near school property, N.J.S.A. 2C:35-7.
On the same day, the grand jury issued another indictment, for a separate incident, charging defendant with third-degree possession of a CDS, N.J.S.A. 2C:3510(a)(1); third-degree distribution of CDS, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:355(b)(3); and third-degree distribution of CDS on or near school property, N.J.S.A. 2C:35-7.
On February 21, 2006, a grand jury issued a third indictment that charged defendant with second-degree burglary, N.J.S.A. 2C:18-2; nine counts of firstdegree armed robbery, N.J.S.A. 2C:15-1; and a disorderly persons offense for possession of drug paraphernalia, N.J.S.A. 2C:36-2.
The indictments were based on three separate events. First, on July 19, 2005, defendant allegedly sold cocaine to an undercover police officer within a school zone. Second, on October 19, 2005, defendant, armed with a BB gun, and two other men allegedly entered an apartment, forced the occupants onto the floor, and stole marijuana, cash, and other valuables.
A-3618-14T3 3
That same day, the police arrested defendant at his girlfriend's apartment after one of the robbery victims identified him from a photo array. In searching defendant incident to the arrest, the police found cocaine on his person.
When the police asked defendant for permission to search the apartment, he declined because it was his girlfriend's apartment. The police immediately contacted defendant's girlfriend, who signed a consent form allowing the police to search the apartment. The search revealed drug paraphernalia and a cell phone taken from one of the robbery victims.
After defendant's arrest, the police contacted his mother, who came to the station and, at the request of the police, spoke with defendant. As a result of their multiple conversations, defendant agreed to cooperate with police and led them to two guns utilized in the robbery. Subsequently, the police gave defendant his Miranda warnings, and he gave a formal statement implicating himself in the robbery.
On [June 15, 2006], pursuant to a plea agreement, defendant pled guilty to one count from each indictment. Specifically, he pled guilty to two counts of third-degree possession with intent to distribute on or near school property, with the State recommending two five-year terms with three years of parole ineligibility. Defendant also pled guilty to one count of firstdegree armed robbery, with the State recommending an eight-year term with an eighty-five percent parole bar pursuant to the No Early Release Act, N.J.S.A. 2C:437.2. All sentences were to be concurrent to each other.
[On August 7, 2006], the judge sentenced defendant in accordance with the
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plea agreement and, at the request of the State, dismissed all remaining counts of the three indictments. Defendant then appealed his sentence, which we affirmed. State v. Cockren, No. A-0165-06 (App. Div. Mar. 27, 2007) [(Cockren I)]. The Supreme Court denied defendant's petition for certification. State v. Cockren, 192 N.J. 293 (2007).
[State v. Cockren, No. A-0651-11 (App. Div. Oct. 29, 2013) (slip op. at 1-4) (Cockren II).]
After his petition for certification was denied, defendant
filed a PCR petition on May 4, 2010. Defendant supplied three
certifications in support of his PCR petition. We previously
summarized the certifications:
In support of defendant's petition, he supplied his girlfriend's certified statement. She asserted that she had been coerced by the police into consenting to the search when they threatened to "trash" her apartment if forced to obtain a warrant. He also supplied his mother's certified statement. She averred that one of the investigating police officers, who was her nephew and defendant's cousin, persuaded her to talk to defendant and get him to provide information to the police about the robbery. Defendant's mother claimed that the police provided questions for her to ask defendant and she conveyed the answers to the police. She stated that she only cooperated because her nephew threatened that she would lose her public housing if she did not.
Defendant also submitted his own certification, where he claimed that his attorney told him he had a "great relationship" with the police, but did not reveal that he was a friend of defendant's
A-3618-14T3 5
cousin, who investigated the robbery. He also certified that he once saw his attorney give some money to the prosecutor.
[Id. at 6-7.]
Defendant argued in his PCR petition that his trial counsel
was ineffective because counsel failed to investigate the
"coercion . . . and the threats and trickery used in obtaining
[his] pre-Miranda cooperation and statements," and, as a result,
counsel "lacked the appropriate information to make a strategic
decision regarding bringing any motions to suppress." Id. at 7.
Defendant further argued that motions to suppress the physical
evidence and statements would have been successful. Id. at 8.1
After a non-evidentiary hearing, the PCR petition was denied on
January 28, 2011. Defendant appealed, and we remanded the
matter for an evidentiary hearing "concerning counsel's failure
to move to suppress defendant's confession, evidence seized as a
result of defendant's statements, and evidence seized from the
apartment search." Id. at 16-17.
The remand hearing took place on March 18, 2014. Defendant
testified, as did his mother and girlfriend. The State
presented testimony from defendant's trial counsel. The PCR
judge denied defendant's petition in a twenty-four-page written
1 Defendant also made an argument based on defense counsel's alleged conflict of interest, which we rejected. Id. at 12-13.
A-3618-14T3 6
opinion dated June 2, 2014. The judge concluded that the
"suppression issues were 'meritorious'" because the police
conduct was "constitutionally infirm[,]" and there was "at least
a reasonable probability" that the guns, the evidence seized
from defendant's girlfriend's apartment, and his initial
statement "would have been suppressed."
However, the judge concluded that the decision by defense
counsel not to file a suppression motion and to advise defendant
to enter a favorable plea deal "was not constitutionally
deficient." The judge relied on counsel's testimony that he
spoke with both the mother and girlfriend, as well as notations
in his file "clearly indicat[ing] that he saw [defendant's]
interaction with [defendant's cousin, a police officer,] as
problematic and potentially coercive." The judge noted
counsel's testimony that had the case proceeded in the absence
of a plea, he would have filed suppression motions. The judge
further noted:
Most importantly, considering [the Middlesex County Prosecutor's Office's] escalating plea policy, [counsel] was concerned about losing a very favorable plea offer and an opportunity to resolve all three indictments at once. Although [defendant] testified that he was not particularly concerned about the drug charges, [counsel] noticed that those indictments were a real issue. A conviction on both CDS indictments would have exposed [defendant] to the extended term provisions
A-3618-14T3 7
of N.J.S.A. 2C:43-6(f). Moreover, considering the circumstances of those drug offenses, the sentences would likely have run consecutive to each other. . . . A subsequent conviction on the first-degree robbery charges would have exposed [defendant] to an additional ten to twenty years in state prison.
In light of all these permutations and the inherent risks involved in filing motions, counsel advised that [defendant] accept an eight-year sentence, [eighty-five percent] of which he would be ineligible for parole. This [c]ourt finds that counsel made a sound strategic decision to forego certain suppression issues after undertaking an adequate investigation. It was entirely permissible for counsel to consider the risk of losing a "global plea resolution" when he rendered professional advice.
Defendant raises the following arguments on appeal:
POINT I
DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL ENTITLING HIM TO POST-CONVICTION RELIEF.
A. TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO FILE A MOTION TO SUPPRESS DEFENDANT'S STATEMENTS MADE TO THE POLICE.
B. TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO FILE A MOTION TO SUPPRESS EVIDENCE FROM AN ILLEGAL SEARCH.
POINT II
UNDER THE DOCTRINE OF CUMULATIVE ERROR[,] A NEW TRIAL SHOULD BE ORDERED PURSUANT TO STATE v. ORECCHIO, 16 N.J. 125, 129 (1954).
A-3618-14T3 8
"Post-conviction relief is New Jersey's analogue to the
federal writ of habeas corpus." State v. Preciose, 129 N.J.
451, 459 (1992). Under Rule 3:22-2(a), a criminal defendant is
entitled to post-conviction relief if there was a "[s]ubstantial
denial in the conviction proceedings of defendant's rights under
the Constitution of the United States or the Constitution or
laws of the State of New Jersey[.]" "A petitioner must
establish the right to such relief by a preponderance of the
credible evidence." Preciose, supra, 129 N.J. at 459 (citations
omitted). "To sustain that burden, specific facts" that
"provide the court with an adequate basis on which to rest its
decision[]" must be articulated. State v. Mitchell, 126 N.J.
565, 579 (1992).
Claims of constitutionally ineffective assistance of
counsel are well suited for post-conviction review. See R.
3:22-4(a)(2); Preciose, supra, 129 N.J. at 460. In determining
whether a defendant is entitled to relief on the basis of
ineffective assistance of counsel, New Jersey courts apply the
two-prong test articulated by the United States Supreme Court in
Strickland v. Washington, 466 U.S. 668, 687, 694, 104 S. Ct.
2052, 2064, 2068, 80 L. Ed. 2d 674, 693, 698 (1984), and United
States v. Cronic, 466 U.S. 648, 658-60, 104 S. Ct. 2039, 2046
A-3618-14T3 9
47, 80 L. Ed. 2d 657, 667-68 (1984). Preciose, supra, 129 N.J.
at 463; State v. Fritz, 105 N.J. 42, 49-50 (1987).
Under the first prong of the Strickland test, a "defendant
must show that [defense] counsel's performance was deficient."
Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L.
Ed. 2d at 693. Under the second prong, a defendant must
demonstrate "a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would have
been different." Id. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d
at 698.
Our review of an order granting or denying PCR contains
consideration of mixed questions of law and fact. State v.
Harris, 181 N.J. 391, 415-16 (2004), cert. denied, 545 U.S.
1145, 125 S. Ct. 2973, 162 L. Ed. 2d 898 (2005). We defer to a
PCR court's factual findings and will uphold those findings that
are "supported by sufficient credible evidence in the record."
State v. Nash, 212 N.J. 518, 540 (2013). However, a PCR court's
interpretations of law are provided no deference and are
reviewed de novo. Id. at 540-41.
Defendant argues that trial counsel provided ineffective
assistance by failing to file the appropriate suppression
motions. We disagree and affirm substantially for the reasons
A-3618-14T3 10
set forth in the comprehensive and well-reasoned opinion of the
PCR judge. We briefly add the following.
We note that "[a]dequate assistance of an attorney is
measured according to whether the counsel has professional
skills comparable to other practitioners in the field." State
v. Davis, 116 N.J. 341, 351 (1989). "The test is not whether
defense counsel could have done better, but whether he [or she]
met the constitutional threshold for effectiveness." Nash,
supra, 212 N.J. at 543.
Here, when considered in conjunction with defendant's
potential exposure to a substantial period of incarceration if
convicted after trial, defense counsel procured a favorable plea
agreement. Moreover, counsel's "tactical" decision was
influenced by the State's escalating plea policy and, as the PCR
judge aptly noted, the "inherent risks" in filing the motions.
When reviewing tactical or strategic decisions we engage in
"highly deferential" scrutiny of trial counsel with an eye to
"avoid viewing [counsel's] performance under the distorting
effects of hindsight." State v. Arthur, 184 N.J. 307, 318-19
(2005) (citations and internal quotation marks omitted). "In
matters of trial strategy, we accord great deference to the
decisions of counsel[.]" State v. Biegenwald, 126 N.J. 1, 56
(1991). "Decisions as to trial strategy or tactics are
A-3618-14T3 11
virtually unassailable on ineffective assistance of counsel
grounds[.]" State v. Cooper, 410 N.J. Super. 43, 57 (App. Div.
2009), certif. denied, 201 N.J. 155 (2010). A defendant in a
PCR petition "must overcome the presumption that . . . the
challenged action 'might be considered sound trial strategy.'"
Arthur, supra, 184 N.J. at 319 (quoting Strickland, supra, 466
U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694-95). We
find trial counsel's performance with respect to his
representation of defendant — which included interviews
regarding the police investigation, as well as obtaining a
favorable plea agreement — was within the minimum standard of
effective assistance of counsel.
Accordingly, we conclude, as did the PCR judge, that there
was no basis to find that counsel's performance was deficient or
that counsel was not functioning in a manner guaranteed by the
Sixth Amendment.

Outcome:

Finally, defendant argues that the cumulative effect of defense counsel's failure to file multiple suppression motions
constituted cumulative error, and his "inaction" cannot be considered "a strategic decision." This argument is without sufficient merit to warrant discussion in a written opinion. Affirmed.

Plaintiff's Experts:

Defendant's Experts:

Comments:

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