PER CURIAM.
Defendant Felicia Dwight appeals from the Law Division's March 16, 2010 order denying her petition for post-conviction relief (PCR), which alleged ineffective assistance of trial counsel and requested an evidentiary hearing. We affirm.
The record reflects that defendant was convicted by a jury of third-degree possession of cocaine, a controlled dangerous substance (CDS),
Defendant did not file a direct appeal of her conviction or sentence. Instead, on or about September 17, 2008, she filed a PCR petition by a pro se submission and through counsel. Defendant claimed her trial attorney was ineffective in failing to challenge the validity of the search warrant and move to suppress the evidence obtained as a result of the faulty warrant. Defendant urged that Detective Marquise Carter's affidavit in support of the search warrant was clearly misleading because he used the pronoun "we" and "our" to describe what he himself saw when he went to her apartment on October 10, 2005 to conduct surveillance. According to defendant, that inconsistency gave the impression there were multiple people who conducted the surveillance and unfairly bolstered the testimony contained in the affidavit. Defendant argued that if trial counsel had filed a motion to suppress the search, these inconsistencies would have been revealed, and a motion to suppress the evidence obtained as a result of the faulty warrant would have been successful.
Defendant further asserted that trial counsel was ineffective in unduly pressuring her into not testifying at trial. Although she conceded the court questioned her on the record regarding her right to testify or remain silent, defendant asserted that this colloquy was tainted by prior discussions where counsel pressured her to waive this right. Defendant also claimed she had established a prima facie case sufficient to require an evidentiary hearing.
Following oral argument on March 12, 2010, with defendant present, Judge McCormack denied defendant's PCR petition, finding there was no need for an evidentiary hearing. After reviewing the briefs, transcripts, search warrant, and affidavit in support of the warrant, the judge concluded defendant had failed to establish she received ineffective assistance of trial counsel. The order denying the petition was filed on March 16, 2010. This appeal ensued.
On appeal, defendant renews the claims and arguments made to the PCR judge of ineffective assistance of trial counsel in failing to file a motion to suppress the search warrant and in unduly pressuring her into not testifying at trial, and her contention that she demonstrated a prima facie case of ineffective assistance warranting an evidentiary hearing. She additionally asserts, in general terms, that trial counsel failed to: (1) object to the prosecutor's improper comments made during summation; (2) make a motion for a judgment of acquittal at the end of the State's case; and (3) request that she be sentenced to a term one degree lower than the crime to which she was sentenced. Based on our review of the record and applicable law, we do not find any of these arguments to be persuasive.
None of defendant's claimed deficiencies even meet the first
Because the search warrant affidavit contained sufficient facts to establish probable cause for issuance of the warrant, it would have been futile for trial counsel to file a motion to suppress the evidence. The warrant was properly issued under the standard set forth by the United States Supreme Court in
Moreover, there may not have been inconsistencies in the search warrant as nothing in the trial transcript cited by defendant establishes that Detective Carter conducted the surveillance by himself on October 10, 2005. The officer simply testified he personally was dressed in street clothing and positioned across the street to avoid being noticed during the surveillance. He was never asked during direct or cross-examination if he was working alone. It is likely he had back-up during the surveillance, which is why defense counsel chose not to make an issue at trial of the detective's characterization of his observations in the affidavit.
We also note Detective Carter's testimony that Sergeant Robinson accompanied him during the second surveillance on October 12, 2005. There was no inaccuracy or attempt to mislead when Detective Carter used the verbiage "we" in the search warrant affidavit regarding the second date. Viewing the search warrant affidavit in its totality, even if Detective Carter were, in fact, working alone on October 10, his use of the plural pronoun in recounting his observations on that date was inconsequential to the validity of the affidavit and warrant.
Defendant has failed to adduce any facts demonstrating undue pressure from defense counsel regarding her right to testify. Judge McCormack conducted a thorough voir dire of defendant about her election not to testify. Defendant had the opportunity to voice any concerns to the court at that time and she chose not to do so. The colloquy revealed that defendant was expressly informed by her trial counsel that if she testified, her prior conviction from 2003 may have been admitted to impeach her credibility. Thus it appears defendant considered that risk and made a conscious choice not to testify. Trial counsel was not ineffective on that basis.
Defendant's other newly minted claims of ineffective assistance of trial counsel are without sufficient merit to warrant further discussion in this opinion. R. 2:11-3(e)(2).
Affirmed.