STATE OF NEW JERSEY VS. RICARDO J. CUNHA (15-03-0308, HUDSON COUNTY AND STATEWIDE) ( 2019 )

NOT FOR PUBLICATION WITHOUT THE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.
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
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 home 1 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, 2 car, 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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2
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 sixteen-
count 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.
A-3255-17T1
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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.
A-3255-17T1
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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
A-3255-17T1
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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).
A-3255-17T1
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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
A-3255-17T1
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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
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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.
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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 two -
family 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.
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