SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3255-17T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

RICARDO J. CUNHA,

Defendant-Appellant.

_____________________________

Submitted March 18, 2019 – Decided April 1, 2019

Before Judges Sabatino and Haas.

On appeal from Superior Court of New Jersey, Law 

Division, Hudson County, Indictment No. 15-03-0308.

Joseph E. Krakora, Public Defender, attorney for 

appellant (Monique Moyse, Designated Counsel, on the 

briefs).

Gurbir S. Grewal, Attorney General, attorney for 

respondent (Lila B. Leonard, Deputy Attorney General, 

of counsel and on the briefs).

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NOT FOR PUBLICATION WITHOUT THE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.
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Defendant Ricardo Cunha appeals from the December 7, 2017 Law 

Division order denying his petition for post-conviction relief (PCR) without an 

evidentiary hearing. We affirm.

After a confidential informant provided information to the police that 

defendant was selling large quantities of cocaine, the Hudson County 

Prosecutor's Office Narcotics Task Force arranged a series of controlled buys of 

cocaine from defendant by the informant and an undercover detective. As part 

of these transactions, the police put defendant's home1 under surveillance, and 

then called defendant on his cell phone. After each call, the police watched as 

defendant left his home, got in his car, and drove to the agreed upon location to 

complete the sales.

The police then obtained a search warrant for defendant's home, 2car, and 

person. In his detailed affidavit in support of the warrant application, the 

supervising detective gave his opinion, based on his extensive training and 

expertise in drug trafficking investigations, that there was probable cause to 

believe that defendant was

 

1 Defendant lived in the first-floor apartment of a two-family home. In addition 

to conducting a surveillance to confirm his residence, the detectives ran a "postal 

address check" to confirm that defendant lived in that apartment. 

2

 The search warrant was limited to the apartment where defendant lived.
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utilizing his residence . . . for the purposes of storing 

and distributing cocaine. The justifications for these 

opinions are contained in the facts and circumstances 

of this investigation as detailed in [the detective's 

twenty-one page affidavit] and are consistent with [the 

detective's] experience involving locations such as this. 

In order to conduct this type of business [as defendant] 

. . . is conducting, [defendant] must necessarily keep in 

his possession and close at hand in the subject location 

not only the drugs he is storing, transporting and 

selling[,] but also the paraphernalia and material 

routinely used to prepare, process, package and store 

those drugs. The items which [the detective] has 

probable cause to believe will be found in and about the 

subject premises . . . include packaging material and 

equipment, storage containers, scales, measuring 

devices, telephone numbers, lists, books and records of 

drug transaction and contraband money from drug 

transactions.

In the search of defendant's first-floor apartment that followed, the police 

found five ounces of cocaine, a handgun, digital scales, over $6000 in cash, two 

large bags of marijuana, over fifty syringes, and many other drug-related items. 

Based upon this evidence, a Hudson County grand jury returned a sixteencount indictment charging defendant with second-degree distribution of cocaine, 

N.J.S.A. 2C:35-5(a)(1) (counts one and four); third-degree distribution of 

cocaine within 1000 feet of school property, N.J.S.A. 2C:35-7 (counts two, five, 

and nine); second-degree distribution of cocaine within 500 feet of a public 

building or park, N.J.S.A. 2C:35-7.1 (counts three and ten); first-degree 
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possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and 

N.J.S.A. 2C:35-5(b)(1) (counts six and seven); third-degree possession of 

cocaine with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-

5(b)(11) (count eight); and second-degree possession of a weapon for an 

unlawful purpose, N.J.S.A. 2C:39-4(a)(1) (count eleven).

The indictment also charged defendant with second-degree possession of 

a firearm during the commission of a narcotics transaction, N.J.S.A. 2C:39-

4.1(a) (count twelve); fourth-degree possession of hollow point bullets, N.J.S.A. 

2C:39-3(f) (count thirteen); third-degree possession of cocaine, N.J.S.A. 2C:35-

10(a)(1) (count fourteen); third-degree resisting arrest, N.J.S.A. 2C:29-2(a) 

(count fifteen); and third-degree aggravated assault on a law enforcement 

officer, N.J.S.A. 2C:12-1(b)(5)(a) (count sixteen).

Defendant and his attorney then negotiated a plea agreement with the 

State, and defendant pled guilty to counts seven and eleven in return for the 

State's recommendation that the court dismiss the other fourteen charges, and 

sentence defendant to a ten-year aggregate term, subject to a forty-two month 

period of parole ineligibility. The court thereafter sentenced defendant in 

accordance with his negotiated plea. 
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Defendant did not file a direct appeal, but subsequently submitted a timely 

petition for PCR. Defendant argued that his attorney provided ineffective 

assistance by failing to challenge the propriety of the search warrant on probable 

cause grounds. Specifically, defendant argued that even though the police 

observed him leaving his home to go to the site of each of the drug transactions, 

and despite the detective's statement that high-volume drug dealers like 

defendant keep the drugs and the other tools of their trade "close at hand," the 

police did not have probable cause to search defendant's home.

In a thorough written opinion, the trial court rejected defendant's 

argument. The court noted that the judge who reviewed the warrant application 

"concluded that probable cause existed as a result of a detailed and extensive 

investigation" conducted by the police. The court further found:

The police observed the defendant making multiple 

controlled purchases to undercover officers. 

Additionally, the police utilized a confidential 

informant to obtain more information in support of the 

search warrant. The Drug Enforcement Administration 

was also involved in the investigation and placed a GPS 

device on [defendant's] vehicle, which provided further 

support for the search warrant. The confidential 

informant also informed police that [defendant] 

distributes large quantities of cocaine. The totality of 

the circumstances support the judge's finding that 

probable cause did exist.
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[Defendant] points to no defense in law or in fact 

that would have precluded a judge from concluding, 

that under these facts, probable cause existed. 

Therefore, the assertion that [no] probable cause 

existed is meritless. As a matter of law, counsel cannot 

be deemed ineffective for failing to raise a meritless 

issue.

The court found that an evidentiary hearing was not necessary because 

defendant failed to prove a prima facie case of ineffective assistance. This 

appeal followed.

On appeal, defendant again argues that he "is entitled to an evidentiary 

hearing on his claim that counsel rendered ineffective assistance by failing to 

file a motion to suppress the items seized in his home because the search warrant 

lacked probable cause."

When petitioning for PCR, the defendant must establish, by a 

preponderance of the credible evidence, that he or she is entitled to the requested 

relief. State v. Nash, 212 N.J. 518, 541 (2013); State v. Preciose, 129 N.J. 451, 

459 (1992). To sustain that burden, the defendant must allege and articulate 

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).

The mere raising of a claim for PCR does not entitle the defendant to an 

evidentiary hearing and the defendant "must do more than make bald assertions 
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that he [or she] was denied the effective assistance of counsel." State v. 

Cummings, 321 N.J. Super. 154, 170 (App. Div. 1999). Rather, trial courts 

should grant evidentiary hearings and make a determination on the merits only 

if the defendant has presented a prima facie claim of ineffective assistance. 

Preciose, 129 N.J. at 462. 

To establish a prima facie claim of ineffective assistance of counsel, the 

defendant is obliged to show not only the particular manner in which counsel's 

performance was deficient, but also that the deficiency prejudiced his or her 

right to a fair trial. Strickland v. Washington, 466 U.S. 668, 687 (1984); State 

v. Fritz, 105 N.J. 42, 58 (1987). The United States Supreme Court has extended 

these principles to a criminal defense attorney's representation of an accused in 

connection with a plea negotiation. Lafler v. Cooper, 566 U.S. 156, 162-63 

(2012); Missouri v. Frye, 566 U.S. 134, 143-44 (2012).

There is a strong presumption that counsel "rendered adequate assistance 

and made all significant decisions in the exercise of reasonable professional 

judgment." Strickland, 466 U.S. at 690. Further, because prejudice is not 

presumed, Fritz, 105 N.J. at 52, the defendant must demonstrate "how specific 

errors of counsel undermined the reliability" of the proceeding. United States 

v. Cronic, 466 U.S. 648, 659 n.26 (1984).
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We have considered defendant's contentions on appeal in light of the 

record and applicable legal principles and conclude that they are without 

sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We 

affirm substantially for the reasons expressed by the trial court in its written 

opinion, and add the following comments.

Where, as here, a defendant asserts his attorney was ineffective by failing 

to file a motion, he must establish that the motion would have been successful. 

"It is not ineffective assistance of counsel for defense counsel not to file a 

meritless motion[.]" State v. O'Neal, 190 N.J. 601, 619 (2007). For example, 

where a defendant complains his or her counsel should have filed a suppression 

motion, "the defendant not only must satisfy both parts of the Strickland test but 

also must prove that his [or her] Fourth Amendment claim is meritorious." State 

v. Fisher, 156 N.J. 494, 501 (1998).

"[S]earch warrants must be based on sufficient specific information to 

enable a prudent, neutral judicial officer to make an independent determination 

that there is probable cause to believe that a search would yield evidence of past 

or present criminal activity." State v. Keyes, 184 N.J. 541, 553 (2005). 

"Probable cause for the issuance of a search warrant requires 'a fair probability 

that contraband or evidence of a crime will be found in a particular place.'" State 
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v. Chippero, 201 N.J. 14, 28 (2009) (quoting United States v. Jones, 994 F.2d 

1051, 1056 (3d Cir. 1993)).

When issuing a search warrant, a court must consider the totality of the 

circumstances to determine whether probable cause exists. State v. 

Novembrino, 105 N.J. 95, 122 (1987) (adopting the totality of the circumstances 

test set forth in Illinois v. Gates, 462 U.S. 213, 238 (1983)). When reviewing 

whether probable cause exists for a warrant, a reviewing court must consider the 

"four corners" of the affidavit and any sworn testimony given before the issuing 

judge. State v. Wilson, 178 N.J. 7, 14 (2003). A defendant has the burden to 

show the absence of probable cause. Keyes, 184 N.J. at 554.

Applying these principles, we are satisfied that the trial court properly 

concluded that there was ample probable cause to support the State's application 

for a search warrant for defendant's home. The police surveillance operation 

demonstrated that defendant was using his residence as the base for his drug 

transactions. Defendant was at home prior to each of the sales and, after the 

detectives contacted him there, he went directly from his apartment to the sites 

where he sold cocaine to the confidential informant and the undercover officer. 

Thus, there was a sufficient nexus between defendant's illegal activities and his 

home base to support the issuance of a search warrant for his first-floor 
10 A-3255-17T1

residence. State v. Myers, 357 N.J. Super. 32, 39-40 (App. Div. 2003) 

(concluding that police officers had sufficient probable cause to believe drug 

evidence would be found at the defendant's residence because on the same day 

the officers observed drug transactions at a nearby location, they observed the 

defendant leaving his residence and giving a brick of suspected heroin to one of 

the dealers at that location). Thus, any challenge to the warrant on probable 

cause grounds would not have succeeded.

In addition, the experienced detective who prepared the warrant 

application opined in his detailed affidavit in support of the warrant that dealers 

like defendant, who sell large quantities of narcotics, need to store the drugs and 

their equipment close at hand in a safe location. Here, defendant went straight

from his apartment to the scene were the drug transactions occurred, which 

further supported the warrant judge's finding that there was probable cause to 

search defendant's residence for evidence of drug trafficking. Under these 

circumstances, there was simply no basis for any challenge to the warrant.

Defendant citation to the Supreme Court's decision in State v. Boone, 232 

N.J. 417 (2017) in support of his argument to the contrary is unavailing because 

that case is readily distinguishable from the matter at hand. In Boone, the Court 

found that a search warrant for the defendant's apartment was invalid because 
11 A-3255-17T1

the application submitted by the police did not specify how they knew that the 

defendant lived in that specific apartment as opposed to one of the twenty-nine 

other units in the building. Id. at 429-30. Specifically, the Court stated that 

"there was nothing in the affidavit to indicate where [the defendant] lived, how 

police knew which apartment was his, or how the apartment was connected to 

his drug dealing." Id. at 430.

That was certainly not the case here. As discussed above, the detectives 

knew defendant lived in the first-floor apartment of the two-family home 

because they conducted an extensive surveillance of that location. They also 

performed a postal address check to confirm that defendant lived in that 

apartment. In addition, the detectives meticulously demonstrated how the 

apartment was connected to defendant's drug dealing3 by showing that he was 

home when they called him to arrange the drug buys, and he then went directly 

from his apartment to meet the undercover officer with copious amounts of 

cocaine in his possession. Thus, unlike in Boone, the detectives clearly had 

 

3

 The detective who prepared the search warrant application also opined that 

drug dealers like defendant, who package and sell cocaine on this scale, need to 

keep the drugs in their possession and close at hand. This further buttressed the 

warrant judge's conclusion that probable cause existed for the issuance of the 

warrant.
12 A-3255-17T1

probable cause to support the search warrant application to search defendant's 

first-floor apartment.4 

In sum, defendant's attorney was not ineffective because he failed to file 

a motion to suppress the evidence seized when the police executed the warrant. 

Because defendant did not establish a prima facie case of ineffective assistance 

of counsel under Strickland, the court was not required to conduct an evidentiary 

hearing on defendant's PCR application. Preciose, 129 N.J. at 462.

Affirmed.

 

4

 Defendant mistakenly argues that the search warrant "covered the entire twofamily home, even though police knew that [defendant] received mail at the 

first-floor residence." Contrary to defendant's assertion, the warrant was 

specifically limited to defendant's apartment on the first floor and that was the 

only portion of the building that the police searched pursuant to the warrant.