SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A

- 0408

- 19

STATE OF NEW JERSEY,

Plaintiff

- Respondent,

v.

SALIM ROLLINS,

Defendant

- Appellant.

__________________________

Submitted January 19, 2021

– Decided December 6, 202 1

Before Judges Messano and Smith.

On appeal from the Superior Court of New Jersey,

Law Division, Passaic County, Indictment No. 15

- 09

- 0741.

Joseph E. Krakora

, Public Defender, attorney for appellant (John J. Bannan, Designated Counsel, on the brief).

Camelia M. Valdes, Passaic County Prosecutor, attorney for respondent (Mark Niedziela, Assi stant Prosecutor, of counsel and on the brief).

The opinion of the court was delivered by

NOT FOR PUBLICATION WITHOUT THE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

- 3.2 A

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SMITH, J.A.D.

Defendant Salim Rollins appeals from the order denying his petition for

post

- conviction relief (PCR) without an evidentiary hearing. He raises several

issues, including that the PCR court erred by not finding defendant received

ineffective assistance of counsel, by failing to find defendant's guilty plea was

defective, and by denying an evidentiary hearing. We find defendant did not

re ceive ineffective assistance of counsel and affirm for the reasons set forth

below.

I.

On May 14, 2015, Detective Lazu of the Paterson Police Department

was conducting surveillance during a narcotics investigation in the area of

Franklin Street and Merc er Street in Paterson, New Jersey. The area is known

to be a high crime and drug trafficking area, where Detective Lazu made

several narcotics related arrests in the past. Detective Lazu observed an

individual, Daquan Sadler, walk towards a vehicle and p lace a small square

shaped package into the vehicle window. Detective Lazu observed the driver

exit the vehicle and converse with Sadler. After a brief interval, the driver

quickly re

- entered the vehicle and sped away. Detective Lazu notified his

back

- u p investigative team, who stopped the vehicle. Detective Sergeant3 A

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Esposito then approached the vehicle and observed what appeared to be a

wrapped bundle of suspected heroin on the rear seat of the car. The driver,

identified by police as Freddie Smith, w as escorted out of the vehicle. Upon

search of the rear seat, the police recovered several bricks of heroin. After

seizing the heroin, the police returned to Franklin and Mercer Street and

approached Daquan Sadler to question him. When the police asked him where

he lived, he gave an address belonging to the defendant, even though he did

not live there.

Detectives responded to the address to confirm Sadler's residence. As

detectives responded, they heard loud noises which sounded like people

arguing c oming from the first

- floor rear apartment. Detective Macolino

walked to the rear yard of the property, and observed a black male, later

identified as defendant, toss a black handgun from the rear yard of the property

into a neighboring yard. Detective Ma colino then immediately secured and

handcuffed defendant. While securing defendant, Detective Macolino

recovered two bags of marijuana from his pocket. Detective Sergeant Esposito

and Detective Miyasato recovered the handgun from the adjacent yard.

On February 10, 2017, under indictment 15

- 09

- 0 741 , defendant pleaded

guilty to first degree unlawful possession of a weapon. Defendant also pleaded4 A

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guilty to third degree possession of a controlled dangerous substance in

Accusation 16

- 12

- 001118A.

At the p lea hearing, defendant testified that he resided at the address

where he was arrested, and that he possessed the Smith and Wesson handgun

recovered by police in the neighboring backyard. He also testified that at the

time he possessed the gun, he had been convicted of an indictable offense

fifteen years earlier. He further stated that he had an opportunity to consult

with his trial counsel, and that he was satisfied with her services. During his

plea allocution, the trial court ordered a recess to ensure defendant had ample

opportunity to consult with trial counsel regarding the charges against him and

his exposure as recommended in the plea deal. After the recess, he completed

his factual basis and pleaded guilty to both charges. On June 2, 2017, the

ju dge sentenced defendant on the violation of N.J.S.A. 2C:39

- 5(j) to a term of

ten

- years' incarceration, with a five

- year period of parole ineligibility, and a

lesser concurrent sentence on the CDS plea.

On direct appeal, we remanded for entry of a corrected judgment of

conviction pursuant to a consent agreement on jail credits. 1 Defendant then

1 State v. Rollins , No. A

- 005536

- 16 (App. Div. Dec. 1, 2014) ( remanding matter to trial court to award defendant three additional days of jail credit that were erroneously omitted).5 A

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filed a petition for post

- conviction relief supported by two certifications, the

first on October 22, 2018, and an amended certification on April 27, 2019. In

his petition, defendant argued trial counsel was ineffective for three reasons:

(1) failing to "file any motions on [his] behalf despite [his] requests"; (2)

failing to negotiate a second

- degree weapons charge, instead pressuring him to

plead guilty t o the first

- degree weapons charge; and (3) failing to argue

applicable mitigating factors at sentencing. In his amended certification,

defendant attested to the fact that, on the date of the incident which led to his

arrest and conviction, he resided at the address given by Daquan Sadler.

The PCR court denied the petition without a hearing in a written opinion

on July 5, 2019. The court made findings, concluding that trial counsel's

failure to file pretrial motions on behalf of defendant did not repres ent

deficient performance. The PCR judge focused particularly on defendant's

argument that trial counsel should have filed a pre

- trial motion to suppress the

gun defendant tossed into a neighboring backyard. The PCR judge balanced

the "the potential down side to the [defendant] if such motion were not

successful" against the fact that the State dismissed multiple drug related

charges stemming from the incident, and the court concluded trial counsel's

failure to file was not ineffective assistance of counse l. Concerning6 A

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defendant's argument that he was pressured by his counsel to plead guilty to

the first

- degree weapons charge, the judge found that defendant engaged in a

knowing, voluntary, and intelligent plea. He found the record showed

defendant had suf ficient time to consult with trial counsel to review the

evidence and consider the State's offer in advance of the plea. The judge

further found the record showed defendant was satisfied with trial counsel's

services. After analyzing the record, the PCR judge concluded trial counsel's

performance was not "deficient in any fashion."

On appeal, defendant challenges the PCR judge's denial of relief,

arguing:

POINT I

BECAUSE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL, THE

PCR COURT ERRED IN DENY ING DEFENDANT'S

PETITION FOR PCR.

POINT II

BECAUSE DEFENDANT DID NOT MAKE A KNOWING, INTELLIGENT, AND VOLUNTARY PLEA, THE PCR COURT ERRED IN DENYING

DEFENDANT'S PETITION FOR PCR.

POINT III

IN THE ALTERNATIVE, BECAUSE THERE ARE

GENUINE ISSUES OF MATE RIAL FACT IN7 A

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AN EVIDENTIARY HEARING.

II.

W here the PCR court does not conduct an evidentiary hearing, we

"conduct a de novo review of both the factual findings and legal conclusions of

the PCR court." State v. Blake

, 444 N.J. Super. 285, 294 (App. Div. 2016)

(quoting State v Harris

, 181 N.J. 391, 421 (20 04)). When petitioning for PCR,

a defendant must establish he is entitled to "PCR by a preponderance of the

evidence." State v. O'Donnell

, 435 N.J. Super. 351, 370 (App. Div. 2014)

(quoting State v. Preciose

, 129 N.J. 451, 459 (1992) ).

We analyze ineff ective assistance of counsel claims by using the two

prong test established by the Supreme Court in Strickland v. Washington

, 466

U.S. 668 (1984)

. See Preciose

, 129 N.J. at 463; see also State v. Fritz

, 105

N.J. 42, 58 (1987). The first prong of the Stri ckland test requires a defendant

to establish counsel's performance was deficient. Preciose

, 129 N.J

. at 463.

"The second, and far more difficult, prong is whether there exists 'a reasonable

probability that, but for counsel's unprofessional errors, the result of the

proceeding would have been different.'" Id. at 463

- 64 (quoting Strickland

, 466

U.S. at 694).8 A

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There exists a strong presumption that counsel rendered adequate

assistance and made all significant deci sions in the exercise of reasonable

professional judgment. Strickland

, 466 U.S. at 689. Further, because

prejudice is not presumed, defendant must demonstrate how specific errors by

counsel undermined the reliability of the proceeding. State v. Drisco

, 355 N.J.

Super 283, 289

- 90 (App. Div. 2002) (citing United States v. Cronic

, 466 U.S.

648, 659 n.26 (1984)).

We turn to the controlling statutes in this matter. N.J.S.A. 2C:39

- 5(b)

reads as follows:

b. Handguns. (1) Any person who knowingly has in his p ossession any handgun, including any antique handgun, without first having obtained a permit to carry the same as provided in N.J.S. 2C :58

- 4, is guilty of a crime of the second degree. (2) If the handgun is in the nature of an air gun, spring gun or pistol or other weapon of a similar nature in which the propelling force is a spring, elastic band, carbon dioxide, compressed or other gas or vapor, air or compressed air, or is ignited by compressed air, and ejecting a bullet or missile smaller than thre e

- eighths of an inch in diameter, with sufficient force to injure a person it is a crime of the third degree.

N.J.S.A. 2C:39

- 5(j) reads as follows: " A violation of subsection a., b., c.

or f. of this section by a person who has a prior conviction of an y of the crimes

enumerated in [N.J.S.A. 2C :43

- 7.2 (d)] is a first

- degree crime."9 A

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For the trial court to accept defendant's plea to N.J.S.A. 2C:39

- 5(j), the

factual basis given at the plea allocution had to first satisfy the following

elements under subse ction (b):

1. [That the weapon defendant tossed into the neighboring yard] was a handgun ;

2. That the defendant knowingly possessed the handgun; and

3. That the defendant did not have a permit to possess such a weapon.

[ Model Jury Charges (Criminal) , "Unlawful

Possession of a Handgun ( N.J.S.A. 2C:39

- 5b)" ( rev. Feb. 26 , 20 01 ). 2 ]

To complete a plea under subsection (j), the next step required a factual

showing that defendant was "a person who ha[d] a prior conviction of any of

the crimes e numerated in [N.J.S.A. 2C:43

- 7.2]." N.J.S.A. 2C:39

- 5(j). See also

Model Jury Charges (Criminal) , "Unlawful Possession of a Handgun Prior

NERA Conviction (First Degree) ( N.J.S.A. 2C:39

- 5(j))" (approved June 11,

2018) (itemizing elements needed for a conviction under N.J.S.A. 2C:39

- 5(j))

.

2 This was the model criminal jury charge at the time of defendant's plea. The model charge was revised in 2018 but the elements of the crime were not substantively changed. See Model Jury Charges (Criminal) , "Unlawful

Possession of a Handgun (Second Degree) N.J.S.A. 2C:39

- 5(b)" ( rev. June 11, 2018).10 A

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Defendant argues that his trial counsel should have moved to suppress

the seizure of the gun

- and that such an omission was ineffective assistance of

counsel under Strickland

. We disagree. Defendant has failed to show "that his

Fourth Amendment claim is meritorious." State v. O'Neal

, 190 N.J. 601, 618

-

19 (2007). It is undisputed that Detective Macolino directly observed

defendant toss the handgun from his backyard into his neighbor's backyard.

This act by the defendant represents a combination of probable cause and

exigency sufficient to serve as an exception to the exclusionary rule. See State

v. Johnson , 193 N.J. 528, 553 (2007). 3 On this record, we concur with the tr ial

court that a motion to suppress would not have been successful. Defendant did

3 At the PCR hearing, defendant argued that Detective Macolino 's presence in the backya rd was an unconstitutional search and trespass. Based on the police report and testimony from the PCR hearing, it appears Detective Macolino was walking down a narrow alleyway between 67 and 69 Mercer Street towards the rear of the property after hearing loud noises in the first

- floor apartment. Even if the detective was on private or semi

- private property at the time of this observation, his action of walking down the alleyway would not trigger constitutional scrutiny

. L aw enforcement may approach the fro nt or back door of private property to conduct an investigation without offending the Fourth

Amendment. See State v. Domicz , 188 N.J. 285, 302

- 03 (2006) (finding no unconstitutional intrusion onto defendant's property where detective and another officer p assed through a gate into the backyard and approached the back door).11 A

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not make a prima facie showing that counsel provided ineffective assistance by

failing to file the suppression motion.

While not raised on appeal, we note there is a resid ence based statutory

exemption to N.J.S.A. 2C:39

- 5 crimes. N.J.S.A. 2C:39

- 6(e) reads in pertinent

part:

[n] othing in subsections b., c., and d. of N.J.S.2C:39

- 5

shall be construed to prevent a person keeping or carrying about the person’s place of business, residence, premises or other land owned or possessed by the person, any firearm, or from carrying the same, in the manner specified in subsection g. of this section, from any place of purchase to the person’s

residence or place of business, betwe en the person’s dwelling and place of business, between one place of

business or residence and another when moving, or between the person’s dwelling or place of business

and place where the firearms are repaired, for the

purpose of repair. For the purposes of this section, a place of business shall be deemed to be a fixed

location.

Subsection (e) exempts persons from being charged with unlawful

possession of a handgun in their residence, or while properly transporting their

handgun between their residenc e and certain designated locations. The record

shows that defendant was in his residence when the police knocked on his

door, however, he left his residence and physically threw the handgun onto

another property. We discern no basis to conclude that defe ndant was12 A

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apprehended in his residence in possession of the handgun, and we find that

this defense, had it been raised, would have ultimately failed. Cf. State v.

Montalvo , 229 N.J. 300 (2017).

Defendant next argues his plea was not knowing, voluntary, and

intelligent. We find no merit in defendant's claim. The record reveals the trial

court's painstaking effort to ensure that defendant understood the charges

against him and his exposure if he elected to plead guilty. The trial court took

a recess to ensure that defendant had time to further consult with trial counsel.

After being provided an opportunity to reflect on whether he wished to

withdraw his guilty plea and proceed to trial, defendant testified to a detailed

factual which satisfied all of t he elements required for conviction under

N.J.S.A. 2C:39

- 5(j). Defendant's trial counsel stated on the record that she had

conferred with her client, and defendant's decision to plead guilty was not a

"rush[ed] decision." Defendant clearly understood the penal consequences of

his plea, State v. Buford , 163 N. J .16, 21

- 22 (2000). Defendant has failed to

make a prima facie case for ineffective assistance of counsel under this theory.

Finally, defendant argues that the trial court should have conducted an

evidentiary hearing. Where defendant has not been able to show a prima facie

case of ineffective assistance of counsel, a PCR court need not conduct an13 A

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evidentiary hearing. Preciose , 129 N.J. at 462. Any other arguments made by

defendant no t addressed here lack sufficient merit to warrant discussion in a

written opinion. R

. 2:11

- 3(e)( 2 ).

Affirmed.