SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3366-16T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JOSEPH SMITH,

Defendant-Appellant.

___________________________

Submitted February 7, 2018 – Decided March 12, 2019

Before Judges Fuentes and Suter.

On appeal from Superior Court of New Jersey, Law 

Division, Essex County, Indictment Nos. 14-04-1128

and 14-04-1129.

Joseph E. Krakora, Public Defender, attorney for 

appellant (Suzannah Brown, Designated Counsel, on 

the brief).

Robert D. Laurino, Acting Essex County Prosecutor, 

attorney for respondent (Tiffany M. Russo, Special 

Deputy Attorney General/Acting Assistant 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NOT FOR PUBLICATION WITHOUT THE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.
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FUENTES, P.J.A.D.

An Essex County Grand Jury indicted defendant Joseph Smith, charging 

him with second degree unlawful possession of a handgun while in the course 

of committing or attempting to commit a drug-related offense, N.J.S.A. 2C:39-

4.1(a); second degree unlawful possession of a loaded handgun, N.J.S.A. 2C:39-

5(b); fourth degree unlawful possession of armor piercing ammunition, N.J.S.A. 

2C:39-3(f), fourth degree unlawful possession of marijuana with intent to 

distribute in a quantity of less than one ounce, N.J.S.A. 2C:35-5(a)(1), (b)(12); 

and fourth degree unlawful possession of drug paraphernalia, N.J.S.A. 2C:36-3. 

The Grand Jury found probable cause that defendant committed these offenses 

on December 17, 2013.

On September 15, 2014, defendant entered into a negotiated agreement 

with the State through which he pled guilty to second degree unlawful 

possession of a loaded handgun and fourth degree unlawful possession of armor 

piercing ammunition. The State agreed to dismiss the remaining charges in the 

indictment and recommend the court sentence defendant to an aggregate term of 

five years imprisonment, with forty-two months of parole ineligibility. On 

February 6, 2015, the court sentenced defendant in accordance with the plea 

agreement. The sentencing judge found aggravating factors, N.J.S.A. 2C:44-
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1(a)(3), (6), and (9), and no mitigating factors. Defendant did not seek appellate 

review of the plea hearing or the sentence imposed by the court.

On August 11, 2015, defendant filed a pro se petition seeking postconviction relief (PCR), in which he claimed his counsel provided ineffective 

assistance by failing to investigate and file a motion to suppress the handgun 

found inside the car. The PCR judge assigned an attorney to represent defendant 

in the prosecution of this petition. On March 18, 2015, PCR counsel filed a brief 

with the court arguing prior defense counsel was ineffective when he failed to 

challenge the constitutionality of the search of defendant's motor vehicle

conducted by Newark police officers.

The PCR court heard oral argument on defendant's petition on June 24, 

2016. PCR counsel argued the police officers stopped defendant's car without 

probable cause and unlawfully detained defendant and other persons in 

defendant's parked car. Under these circumstances, PCR counsel claimed 

defense counsel should have challenged the constitutionality of the motor 

vehicle stop and search, as well as defendant's subsequent detention related 

thereto. PCR counsel emphasized that defense counsel did not conduct any 

investigation nor make any effort to ascertain the location of the police officers 

at the time they were allegedly surveilling defendant. Defense counsel also did 
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not make any effort to locate the man who was seated in the passenger-side of 

defendant's vehicle at the time of the arrest. Without giving a specific 

description or proffer of this witness's testimony, PCR counsel claimed this 

person would have been able "to testify . . . [at the] suppression hearing," and 

provide" an alternate version of the facts, which could be supported by Mr. 

Smith."

PCR counsel argued defense counsel's failure to seek this information left 

defendant unable to challenge the police officers' claim of probable cause. 

According to PCR counsel, this satisfied the first prong under Strickland v. 

Washington, 466 U.S. 668, 687 (1984). The second prong in Strickland requires 

defendant to show there was "a reasonable probability that, but for counsel's 

unprofessional errors, the result of the proceeding would have been different." 

Id. at 694. PCR counsel argued there was a strong likelihood the court would 

have granted a motion to suppress the evidence seized from defendant's car, thus 

satisfying the second prong under Strickland.

The State argued the facts did not support defendant's claim of ineffective 

assistance of counsel. According to the State, on the date of defendant's arrest, 

Essex County Narcotics Task Force Detectives received information from a 

citizen that a man was selling marijuana in the area of Osborne Terrace and 
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Renner Avenue. The caller described the alleged dealer as "a heavy set black 

male with long dreadlocks." The man selling the marijuana was seated in a 

parked blue Ford SUV. Narcotics Task Force Detectives responded to the area 

identified by the caller in an unmarked police vehicle. Upon arrival, they 

observed a motor vehicle that matched the caller's description. Seated behind 

the SUV's steering-wheel was an African American man who also matched the 

physical description of the alleged drug dealer. The Detectives also saw another 

African American man seated in the front passenger-side of the SUV. From 

their vantage point, the Detectives saw an unknown African American man 

approach the passenger-side of the SUV, at which point defendant extended his 

arm across the passenger seated next to him, and handed the unknown African 

American man an indiscernible amount of currency in exchange for an equally 

unknown object. Based on the belief they had witnessed a hand-to-hand illicit 

drug transaction, the Detectives decided to approach defendant's car. As they 

approached, the Detectives noticed defendant "fumbling with items in and 

around the center console area."

The Detectives ordered defendant and the other two occupants of the SUV 

"to show their hands." Except defendant, the other two occupants, later 

identified as William Johnson and Robert Anthony Lee, complied with the 
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Detectives' command. However, defendant continued to "fumble around." 

Defendant finally complied after the Detectives again ordered him to show his 

hands. One of the Detectives saw a black bag fall from the center console to the 

driver-side of the SUV. The Detective saw the bag contained "a green vegetative 

substance." As he opened the SUV's driver-side door, the Detective 

immediately detected an odor of raw marijuana. After removing defendant and 

the two other occupants from the SUV, the Detective saw "a black handgun in 

the center console area."

After reviewing the relevant case law that discusses the constitutional 

principles governing automobile stop and searches, the PCR judge found he 

"may need to hear from trial counsel as regard to the conversations that . . . were 

had regarding the possible motion and whether an alternative version of facts . . 

. were known to trial counsel." The PCR judge concluded that an evidentiary 

hearing would "allow the [c]ourt to make a better determination of whether it 

was ultimately a trial strategy not to pursue the motion to suppress." 1

 

1

 Although not a part of this appeal, the PCR judge also considered and rejected 

as "meritless" defendant's argument that he was entitled to withdraw his guilty 

plea. The PCR judge cited to the Supreme Court's decision in State v. Slater, 

189 N.J. 145 (2009) to reach this decision.
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The PCR judge conducted an evidentiary hearing on November 10, 2016. 

Defendant's original defense counsel testified as a witness for the State. No 

other witnesses were called. In response to the prosecutor's questions, defense 

counsel explained that based on his criminal record, defendant was facing 

consecutive terms of ten years, with five years of parole ineligibility, for a total 

potential penal exposure of twenty years with ten years of parole ineligibility. 

Defendant was also exposed to discretionary and mandatory extended terms. As 

defense counsel explained, because defendant was charged with the possession 

of a handgun without a permit, "his potential exposure was 30 years [in] New 

Jersey State Prison with 15 years parole ineligibility" under the Graves Act. See

N.J.S.A. 2C:43-6(c).

Defense counsel also testified that he reviewed police reports that stated 

defendant "essentially blurted out and took ownership of that gun and drugs." 

In fact, defense counsel testified that defendant gave an inculpatory statement 

concerning ownership of the handgun and marijuana after he was informed of 

and waived his constitutional rights under Miranda v. Arizona, 384 U.S. 436 

(1966). On cross-examination, PCR counsel asked defense counsel why he 

never considered contacting or tried to contact the two passengers in the SUV. 

Defense counsel gave the following explanation:
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I didn’t contact them because, based upon A, the offer 

that we had and the fact that it would be withdrawn 

again, for lack of a better term, roll the dice with the 

motion to suppress, I -- when speaking with [defendant] 

we balanced the risk versus the reward. The risk of the 

offer going up substantially, the risk of there being no 

offer at the motion and having to go to trial and be 

subjected to 30 with 15 versus the reward of winning 

the motion to suppress based upon what we had there.

So based upon that a determination was made that there 

really wasn’t anything that would be sufficient to 

justify passing up that offer at that time.

The PCR judge reserved decision at the conclusion of the November 10, 

2016 evidentiary hearing. On January 20, 2017, the judge delivered an oral 

decision from the bench denying defendant's PCR petition. After reviewing the 

case law that has addressed how to apply the two-prong standard for determining 

ineffective assistance of counsel under Strickland, the judge found defense 

counsel made a sound, fully informed strategic decision not to file a motion to 

suppress in exchange for securing defendant a reasonably favorable plea 

agreement. The judge found defense counsel thoughtfully weighed the risk of 

presenting the motion judge with "testimony that would have contradicted his 

client's, which may have seemed beneficial at the moment [but] would later be 

used to discredit petitioner's entire statement."
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The PCR judge found defense counsel's testimony credible and 

dispositive. The judge found defendant made a knowing, voluntary decision to 

accept the State's plea offer after weighing all of the risks involved in going to 

trial and receiving sound legal advice from his attorney. The judge provided the 

following explanation in support of his ruling:

Together [defendant and defense counsel] they reached 

a consensus that accepting a plea rather than risking 

going to trial was the best [course] of action. Knowing 

the plea offer would be withdrawn petitioner and 

[defense counsel] had to make the strategic decision to 

determine whether it would be best to forego filing any 

motions and accept five years with 42 months parole 

ineligibility or risk going to trial and face up to 30 years 

in prison.

The [c]ourt has considered the briefs and heard the 

testimony regarding [defense counsel's] determination 

to not file a motion to suppress. Petitioner had the 

burden to satisfy both prongs of the Strickland/Fritz2

test and also show that the suppression motion had 

merit. The petitioner has failed to meet that burden.

Regarding the issue of whether the police had probable 

cause to search petitioner and his car there was no 

reason for [defense counsel] to question petitioner's 

accounts of the events that transpired, thus, not 

notifying him of a basis to file a motion to dismiss.

 

2 Our State Supreme Court adopted the Strickland two-prong test in State v. 

Fritz, 105 N.J. 42, 58 (1987).
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Against this factual and procedural backdrop, defendant now appeals 

raising the following argument.

POINT ONE

THE PCR COURT ERRED IN DENYING MR. 

SMITH'S CLAIM THAT HE RECEIVED 

INEFFECTIVE ASSISTANCE OF COUNSEL.

Defendant's argument lacks sufficient merit to warrant discussion in a 

written opinion. R. 2:11-3(e)(2). We affirm substantially for the reasons 

expressed by Judge Arthur J. Batista in his oral opinion delivered from the bench 

of January 20, 2017.

Affirmed.