SUPERIOR COURT OF NEW JERSEY 

 APPELLATE DIVISION 

 DOCKET NO. A-1552-21

STATE OF NEW JERSEY, 

 Plaintiff-Respondent, 

v.

RASAUN THOMPSON, a/k/a 

RASUAN TAYLOR, and 

RASUAN WILLIAMS, 

 Defendant-Appellant. 

_________________________

Submitted February 5, 2024 – Decided March 7, 2024 

Before Judges Gilson and DeAlmeida. 

On appeal from the Superior Court of New Jersey, Law 

Division, Hudson County, Indictment No. 17-07-0443.

Jennifer Nicole Sellitti, Public Defender, attorney for 

appellant (Howard Woodley Bailey, Designated 

Counsel, on the brief). 

Esther Suarez, Hudson County Prosecutor, attorney for 

respondent (Meagan E. Free, Assistant Prosecutor, on 

the brief). 

PER CURIAM 

NOT FOR PUBLICATION WITHOUT THE 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-1552-21

 Defendant Rasuan Thompson appeals from the September 13, 2021 order 

of the Law Division denying his petition for post-conviction relief (PCR) after 

an evidentiary hearing. We affirm. 

I.

 In 2017, a grand jury indicted defendant on sixteen counts alleging he 

possessed, and possessed with intent to distribute, controlled dangerous 

substances (CDS), conspired to distribute CDS, possessed drug paraphernalia 

with intent to distribute, and possessed a handgun while committing a CDS 

offense and while a convicted felon. The charges arose from evidence obtained 

during a traffic stop and the subsequent search of the vehicle defendant was 

driving. 

Defendant, who was represented by private counsel, filed a motion to 

suppress the evidence. After a two-day hearing, the trial court denied the motion 

in an oral opinion. The court found that two police officers had probable cause 

to stop the vehicle because it had tinted windows. In addition, the court found 

that during the stop, the officers observed open alcohol containers, two glass 

vials of suspected cocaine, and a pouch containing 194 bags of suspected heroin 

and an additional twenty-five vials of suspected cocaine in plain view, justifying 

defendant's arrest. A subsequent search of the impounded vehicle pursuant to a 
3 A-1552-21

search warrant revealed a hidden compartment containing a handgun, 

ammunition, and a bag holding 100 vials of cocaine. Defendant thereafter 

terminated his relationship with his counsel and retained another attorney. 

In 2018, defendant pleaded guilty to two counts of third-degree possession 

of CDS with intent to distribute within 1,000 feet of a school, N.J.S.A. 2C:35-

7(a), and one count of second-degree possession of a firearm by a convicted 

felon, N.J.S.A. 2C:39-7(b)(1). Pursuant to a plea agreement, the trial court 

sentenced defendant to an aggregate seven-year term of imprisonment, with a 

five-year period of parole ineligibility. The court dismissed the remaining 

counts of the indictment. Defendant did not appeal his conviction or sentence. 

 In 2019, defendant filed a petition for PCR. He alleged ineffective 

assistance of counsel based on his trial attorneys' failure to: (1) provide him with 

copies of all discovery; (2) file a motion to dismiss the indictment based on the 

contention that false information was presented to the grand jury; (3) obtain a 

copy of police dispatch report defendant believed was necessary to his defense; 

(4) submit a brief in support of the suppression motion; (5) investigate police 

misconduct; (6) properly cross-examine a detective at the hearing on the 

suppression motion; (7) subpoena defendant's parole officer, a police sergeant, 

a police officer, and two others to be witnesses at the hearing; (8) permit 
4 A-1552-21

defendant to testify at the hearing; (9) obtain personnel records of a police 

officer; (10) move to adjourn the trial, which caused defendant to enter a guilty 

plea because his counsel was not prepared for trial; and (11) assist defendant in 

filing an appeal of his conviction and sentence.1

 Defendant alleged that he wanted this trial counsel to pursue the theory at 

the suppression hearing that: (1) officers issued a ticket for tinted windows to a 

family member who was driving the vehicle two weeks earlier; (2) he was 

participating in a parole program when, at some point prior to the stop, police 

received reports that the vehicle was being used to sell CDS; and (3) the pouch 

found in the vehicle was sealed and officers opened it without a warrant. 

 The trial court held a two-day evidentiary hearing on defendant's petition. 

Four witnesses testified: the attorney who represented defendant at the 

suppression hearing, the attorney who represented defendant at the plea 

allocution and sentencing, defendant's girlfriend, and defendant. 

 On September 13, 2021, Judge Mitzy Galis-Menendez issued a 

comprehensive, twenty-one-page written opinion denying the petition. The 

judge concluded that defendant "failed to make a showing trial counsel's acts or 

1

 Defendant also alleged he was improperly denied jail credits. He did not 

appeal the trial court's resolution of that issue. 
5 A-1552-21

omissions at the suppression hearing amounted to ineffective assistance of 

counsel as measured by any objective standard." The judge found that 

defendant's counsel submitted a brief in support of the suppression motion, 

contrary to defendant's allegation. In addition, the judge found credible 

counsel's explanation that it was a reasonable professional trial strategy to not 

call witnesses at the suppression hearing because doing so would permit the 

State to cross-examine those witnesses and allow them to retell their accounts 

of why the stop and search of the vehicle were constitutional. The judge also 

credited the trial attorney's testimony that defendant did not express an interest 

in testifying at the suppression hearing and that if he had, the attorney would 

have advised against it. Noting defendant's criminal history, which would have 

been the subject of cross-examination, the judge concluded that such advice 

would have been a reasonable professional trial strategy. 

 The judge also found that defendant failed to establish his second 

counsel's failure to prepare for trial, if true, had a material bearing on the 

outcome of the case. Relying on the transcript of the plea allocution, the court 

found that defendant stated under oath that he was satisfied with the advice he 

received from his counsel. He did not express any reluctance to enter the plea 
6 A-1552-21

or any claim that he felt pressured to plead guilty because his attorney was not 

prepared for trial. 

 With respect to filing an appeal, the judge found that defendant failed to 

prove that he established an attorney-client relationship with his trial counsel 

for the purpose of filing an appeal. Although defendant testified that he directed 

his counsel to file an appeal and paid him $1,000 for that purpose, the judge 

found the record contained no corroborating evidence supporting that testimony. 

The retainer agreement entered into evidence states that defendant's counsel was 

retained for pretrial services and does not state counsel would represent 

defendant after sentencing. The judge noted that defendant's girlfriend testified 

that trial counsel informed her that his office was too busy with an ongoing trial 

to file an appeal. The judge also found that trial counsel had no obligation to 

inform defendant that he could seek representation from the Office of the Public 

Defender to file an appeal. Because counsel was not retained to file an appeal, 

he was not, the judge found, ineffective for not filing an appeal. The judge also 

rejected defendant's remaining claims. 

 A September 13, 2021 order memorializes the court's decision. 

 This appeal followed. Defendant raises the following arguments. 

 
7 A-1552-21

POINT ONE 

DEFENDANT WAS DENIED THE EFFECTIVE 

ASSISTANCE OF COUNSEL WHEN COUNSEL 

FAILED TO ASSIST HIM IN FILING A DIRECT 

APPEAL IN VIOLATION OF U.S. CONST. 

AMENDS. VI, XIV; N.J. CONST. (1947) ART. I, 

PAR. 10. 

POINT TWO 

THE INITIAL STOP OF DEFENDANT'S VEHICLE 

WAS UNLAWFUL BECAUSE IT WAS NOT BASED 

ON ANY REASONABLE AND ARTICULABLE 

SUSPICION THAT THERE HAD BEEN ANY 

VIOLATION OF A MOTOR VEHICLE OFFENSE. 

POINT THREE 

DEFENDANT WAS DENIED THE EFFECTIVE 

ASSISTANCE OF COUNSEL DURING THE 

MOTION TO SUPPRESS IN VIOLATION OF U.S. 

CONST. AMENDS. VI, XIV; N.J. CONST. (1947) 

ART. I, PAR. 10. 

II. 

Under Rule 3:22-2(a), a defendant is entitled to PCR 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." State v. Preciose, 129 N.J. 451, 459 

(1992). "To sustain that burden, specific facts" which "would provide the court 
8 A-1552-21

with an adequate basis on which to rest its decision" must be articulated. State 

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

The Sixth Amendment to the United States Constitution and Article I, 

Paragraph 10 of the New Jersey Constitution guarantee criminal defendants the 

right to the effective assistance of counsel. State v. O'Neil, 219 N.J. 598, 610 

(2014)(citing Strickland v. Washington, 466 U.S. 668, 686 (1984); State v. Fritz, 

105 N.J. 42, 58 (1987)). To succeed on a claim of ineffective assistance of 

counsel, the defendant must meet the two-part test established by Strickland and 

adopted by our Supreme Court in Fritz. 466 U.S. at 687; 105 N.J. at 58. Under 

Strickland, a defendant first must show that his or her attorney made errors "so 

serious that counsel was not functioning as the 'counsel' guaranteed the 

defendant by the Sixth Amendment." 466 U.S. at 687. Counsel's performance 

is deficient if it "[falls] below an objective standard of reasonableness." Id. at 

688.

A defendant also must show that counsel's "deficient performance 

prejudiced the defense[,]" id. at 687, because "there is a reasonable probability

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

have been different." Id. at 694. "A reasonable probability is a probability 

sufficient to undermine confidence in the outcome" of the trial. Ibid. "[A] court 
9 A-1552-21

need not determine whether counsel's performance was deficient before 

examining the prejudice suffered by the defendant as a result of the alleged 

deficiencies." Id. at 697; State v. Marshall, 148 N.J. 89, 261 (1997). "If it is 

easier to dispose of an ineffectiveness claim on the ground of lack of sufficient 

prejudice, which we expect will often be so, that course should be followed." 

Strickland, 466 U.S. at 697. 

The right to the effective assistance of counsel extends to legal assistance 

related to the entry of a guilty plea. State v. Gaitan, 209 N.J. 339, 350-51 (2012). 

To set aside a guilty plea based on ineffective assistance of counsel, the 

defendant must "show that (i) counsel's assistance was not 'within the range of 

competence demanded of attorneys in criminal cases'; and (ii) 'that there is a 

reasonable probability that, but for counsel's errors, [the defendant] would not 

have pled guilty and would have insisted on going to trial.'" State v. NunezValdez, 200 N.J. 129, 139 (2009) (quoting State v. DiFrisco, 137 N.J. 434, 457 

(1994) (citations omitted) (alteration in original)). 

We "defer to [the] trial court's factual findings made after an evidentiary 

hearing on a petition for PCR." State v. Blake, 444 N.J. Super. 285, 294 (App. 

Div. 2016). "An appellate court 'should give deference to those findings of the 

trial judge which are substantially influenced by [their] opportunity to hear and 
10 A-1552-21

see the witnesses and to have the 'feel' of the case, which a reviewing court 

cannot enjoy.'" State v. Elders, 192 N.J. 224, 244 (2007) (quoting State v. 

Johnson, 42 N.J. 146, 161 (1964)). 

Having carefully reviewed defendant's arguments in light of the record 

and applicable legal principles, we affirm the September 13, 2021 order for the 

reasons stated by Judge Galis-Menendez in her thorough and well-reasoned 

written opinion. As the judge found, defendant failed to establish that his 

counsel was ineffective during the suppression hearing. Defendant's counsel 

made a reasonable strategic decision not to call the police officers and others as 

witnesses at the hearing. The attorney also represented defendant at a hearing 

to revoke his parole based on his arrest in this matter. The officers who stopped 

defendant's vehicle and arrested him testified at the parole hearing. Counsel was 

able to evaluate their testimony and determined that any benefit from calling the 

officers at the suppression hearing would be outweighed by the State's 

opportunity to elicit favorable testimony from those witnesses during crossexamination. The same is true with respect to counsel's decision not to call 

defendant, whose criminal history could have been used by the State on crossexamination to undermine his credibility. 
11 A-1552-21

In addition, defendant did not establish that he retained his second counsel 

to file an appeal. While defendant and his girlfriend may have told counsel that 

defendant wanted to file an appeal, he informed them that his office was too 

busy with an ongoing trial to file an appeal. The retention agreement with 

counsel is limited to providing services through the sentencing. It does not state 

that the attorney would represent defendant on appeal. An attorney cannot be 

found ineffective for failing to file an appeal for which he was not retained. 

Compare Roe v. Flores-Ortega, 528 U.S. 470, 477 (2000) ("a lawyer who 

disregards specific instructions from a criminal defendant to file a notice of 

appeal acts in a manner that is professionally unreasonable."). 

The notice of appeal rights form, which defendant's counsel reviewed with 

him, stated that private counsel will direct a defendant who "cannot afford" to 

retain private counsel to file an appeal to the Criminal Division Manager's Office 

for assistance in obtaining representation from the Office of the Public 

Defender. There is, however, no evidence in the record that defendant could not 

afford to file an appeal. To the contrary, he and his girlfriend admit that they 

sought to retain private counsel to file an appeal. They both claim to have given 

defendant's attorney $1,000 for that purpose. We are, therefore, not persuaded 
12 A-1552-21

by defendant's arguments that his counsel had a duty to inform him of the 

availability of a State-funded attorney to file his appeal. 

Finally, defendant seeks review of the substantive merits of the trial 

court's denial of his suppression motion. A PCR petition, "is not, however, a 

substitute for appeal from conviction or for motion incident to the proceedings 

in the trial court . . . ." R. 3:22-3. Any ground for relief which could have been, 

but was not, raised in a direct appeal is barred from consideration through a PCR 

petition, absent circumstances not present here. R. 3:22-4(a)(1) to (3). After an 

evidentiary hearing, the trial court found defendant did not retain an attorney to 

file an appeal and the record contains no evidence that defendant took any steps 

in the year-and-a-half between his sentencing and the filing of his PCR petition 

to file an appeal challenging the denial of his motion to suppress. An appeal 

from the denial of defendant's PCR petition is not the appropriate vehicle for 

substantive review of the trial court's decision denying his motion to suppress. 

 Affirmed.