STATE OF NEW JERSEY VS. LEROY MOORE (12-08-1199, MIDDLESEX COUNTY AND STATEWIDE) ( 2018 )

NOT FOR PUBLICATION WITHOUT THE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-0235-17T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
LEROY MOORE,
Defendant-Appellant.
_________________________________
Submitted November 5, 2018 – Decided November 26, 2018
Before Judges Messano and Fasciale.
On appeal from Superior Court of New Jersey, Law
Division, Middlesex County, Indictment No. 12-08-
1199.
Joseph E. Krakora, Public Defender, attorney for
appellant (Monique Moyse, Designated Counsel, on the
brief).
Andrew C. Carey, Middlesex County Prosecutor,
attorney for respondent (Joie D. Piderit, Assistant
Prosecutor, of counsel and on the brief).
Appellant filed a pro se supplemental brief.
PER CURIAM
Defendant appeals from an August 10, 2017 order denying his petition for
post-conviction relief (PCR) without an evidentiary hearing. Judge Alberto
Rivas entered the order and rendered a comprehensive written decision. We
affirm.
On appeal, defendant argues:
POINT I
[DEFENDANT] IS ENTITLED TO AN
EVIDENTIARY HEARING ON HIS CLAIM THAT
HIS ATTORNEY RENDERED INEFFECTIVE
ASSISTANCE OF COUNSEL FOR ALLOWING HIM
TO PLEAD WITHOUT A FACTUAL
BASIS/WITHOUT GUILT TO THE CRIME
CHARGED, FOR ADVISING HIM INCORRECTLY
ABOUT JAIL CREDITS, FOR MISINFORMING HIM
ABOUT THE APPEAL OF HIS MOTION TO
SUPPRESS, FOR FAILING TO REPRESENT HIM
ADEQUATELY AT SENTENCING, AND FOR
FAILING TO INVESTIGATE PRETRIAL.
POINT II
[DEFENDANT'S] GUILTY [PLEA] MUST BE
VACATED AS IT WAS NOT KNOWING AND
VOLUNTARY BECAUSE IT WAS ENTERED INTO
WITHOUT A FULL UNDERSTANDING OF THE
PENAL CONSEQUENCES.
In his pro se supplemental brief, defendant argues the following additional
points, which we have renumbered:
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POINT III
[THE] TRIAL COURT ERRED WHEN IT FAILED
TO ENTERTAIN THE CLAIM OF INEFFECTIVE
ASSISTANCE OF COUNSEL[']S FAILURE TO
INVESTIGATE THE SEARCH WARRANT THAT
FAILED TO DESCRIBE THE PLACE TO BE
SEARCHED.
POINT IV
[THE] PCR COURT MADE ERROR [BY] DENYING
[DEFENDANT THE OPPORTUNITY] TO RAISE
HIS CLAIM OF PROSECUTORIAL MISCONDUCT
DURING PCR.
POINT V
[THE] PCR COURT ERRED WHEN IT FAILED TO
ENTERTAIN [DEFENDANT'S] CLAIM OF
JUDICIAL MISCONDUCT AND SAME WAS ALSO
OUTSIDE OF THE RECORD UNTIL [DEFENSE
COUNSEL] BROUGHT IT TO [THE] ATTENTION
OF PCR COUNSEL.
As to his PCR contentions, defendant primarily maintains that his counsel
rendered ineffective assistance in the plea and non-plea process. As to the plea
process, defendant argues his counsel encouraged him to plead guilty to a drug
crime he did not commit; allowed him to plead guilty to that drug charge without
obtaining an adequate factual basis; misled him about jail credits; misinformed
him about appealing from the denial of his motion to suppress; and otherwise
A-0235-17T1
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failed to investigate pretrial. For his PCR claim unrelated to the plea process,
defendant argues that his counsel failed to represent him adequately at
sentencing.
Judge Rivas correctly denied the petition without conducting an
evidentiary hearing. A defendant is entitled to an evidentiary hearing only when
he "has presented a prima facie [case] in support of [PCR]," State v. Marshall,
148 N.J. 89, 158 (1997) (first alteration in original) (quoting State v. Preciose,
129 N.J. 451, 462 (1992)), meaning that a "defendant must demonstrate a
reasonable likelihood that his . . . claim will ultimately succeed on the merits."
Ibid. For a defendant to obtain relief based on ineffective assistance grounds,
he is obliged to show not only the particular manner in which counsel's
performance was deficient, but also that the deficiency prejudiced his right to a
fair trial. Strickland v. Washington, 466 U.S. 668, 687 (1984); accord State v.
Fritz, 105 N.J. 42, 58 (1987). As to all of his PCR arguments, defendant failed
to demonstrate a prima facie case of ineffectiveness under either prong of
Strickland.
Additionally – regarding defendant's contention that his counsel rendered
ineffective assistance during the plea process – both the United States Supreme
Court and the New Jersey Supreme Court have extended the Strickland test to
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challenges of guilty pleas based on ineffective assistance of counsel. Lafler v.
Cooper, 566 U.S. 156, 162-63 (2012); Missouri v. Frye, 566 U.S. 134, 140
(2012); State v. DiFrisco, 137 N.J. 434, 456-57 (1994). Defendant must
demonstrate with "reasonable probability" that the result would have been
different had he received proper advice from his attorney. Lafler, 566 U.S. at
163 (quoting Strickland, 466 U.S. at 694). Defendant did not meet this test.
As to the plea process, defendant pled guilty to multiple charges in three
separate indictments. 1 Defendant's assertion that his counsel encouraged him to
plead guilty, and that he then gave an inadequate factual basis, pertains solely
to the 1000-foot school zone drug charge, which is Count Fourteen of Indictment
No. 12-08-01199. In May 2013, defendant testified voluntarily at the plea
hearing – at which he provided an adequate factual basis for the charge – that he
1
Defendant pled guilty to three counts of third-degree possession of a controlled
dangerous substance (CDS), N.J.S.A. 2C:35-10(a)(1) and N.J.S.A. 2C:35-
5(a)(1); two counts of second-degree possession of CDS with intent to distribute
within 500 feet of public housing, N.J.S.A. 2C:35-7.1; third-degree possession
of CDS with intent to distribute within 1000 feet of a school, N.J.S.A. 2C:35-7;
and third-degree bail jumping, N.J.S.A. 2C:29-7.
The court initially sentenced defendant to an aggregate prison term of
seventeen years with eight years of parole ineligibility. The court then modified
that sentence – as the court said giving him an "extraordinary opportunity" – and
imposed a five-year probationary term conditioned on him entering a long-term
drug treatment program. But defendant then violated probation, which led to
the re-imposition of the original sentence.
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possessed cocaine with the intent to distribute within 1000 feet of Co lumbus
Elementary School on August 28, 2009. The indictment, however, identified
the wrong school.
Naming the wrong school in the indictment, plea papers, and during the
plea hearing itself – as Judge Rivas correctly recognized – did not warrant PCR
relief. The judge concluded, and we agree with him on this record, that the
reference to Columbus Elementary School "did not materially and prejudicially
influence[] [defendant's] decision to plead guilty." Defendant pled guilty
because he was guilty. At the PCR hearing, and on this appeal, he failed to show
with "reasonable probability" that the result would have been different had he
received proper advice from his attorney. Defense counsel did not render any
improper advice. Rather, defendant testified that he possessed the drugs with
the intent to distribute within 1000 feet of a school. On this last point, Judge
Rivas determined that defendant pled guilty without any pressure, freely,
knowingly, and voluntarily.
There is no basis whatsoever to support defendant's contention that his
counsel misled him about the amount of jail credits he would receive.
Defendant's jail-credits contentions amount to no more than bald assertions.
Defense counsel questioned defendant on the record at the plea hearing abou t
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the penal consequences of the guilty pleas, especially the amount of jail credit s
that defendant would receive. Defendant himself explained on the record what
he understood the jail credits to be. And after testifying about his understanding
of the penal consequences and jail credits, defendant had no questions. Once
again, Judge Rivas found – on this issue – that defendant pled guilty freely,
knowingly, and intelligently. 2 Even at the sentencing hearing, defense counsel
reiterated on the record defendant's understanding of the jail credits, which was
consistent with the plea agreement and defendant's testimony when he pled
guilty.
Defendant had moved to suppress the drugs because he believed the search
warrant failed to specify which apartment to search in the multi-dwelling
building. Defendant now argues that after the court denied his suppression
motion, he learned that the police entered other apartments in the building before
finding his apartment. Defendant contends that his counsel failed to investigate
the matter and did not effectively pursue his pro se motion for reconsideration
of the order denying his motion to suppress. He maintains that this purported
2
On his direct appeal, we rule affirmed defendant's pro se argument that the
sentencing judge erred by denying jail and gap-time credits. State v. Moore,
No. A-1695-13 and No. A-0805-14 (App. Div. June 7, 2016) (slip op. at 8).
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ineffectiveness led to his guilty pleas and an inadequate presentation of his direct
appeal.
Defendant raised three arguments on his direct appeal pertaining to the
search warrant.
POINT I
THE SEARCH WARRANT AFFIDAVIT DID NOT
PROVIDE PROBABLE CAUSE TO BELIEVE
CONTRABAND WOULD BE DISCOVERED IN
APARTMENT J-10, IN DEFENDANT'S CAR, OR ON
DEFENDANT'S PERSON.
POINT II
BECAUSE THE SEARCH WARRANT DID NOT
INCLUDE THE APARTMENT NUMBER IN A
MULTI-UNIT DWELLING, THE WARRANT
FAILED THE PARTICULARITY REQUIREMENT
AND THE EVIDENCE DISCOVERED MUST BE
SUPPRESSED.
....
POINT [III]
[THE] TRIAL COURT ERRED WHEN DEN[YING]
DEFENDANT[']S MOTION TO SUPPRESS THE
SEARCH WARRANT WHICH FAILED TO
DESCRIBE THE PLACE TO BE SEARCHED AND
FOR THOSE REASONS THE CONVICTIONS MUST
BE VACATED AND SEARCH WARRANT
QUASHED.
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We fully considered defendant's search-warrant contentions in our unpublished
opinion affirming his convictions.
We reject defendant's contention the police
lacked probable cause to suspect contraband would be
found at 100 Roosevelt, in his vehicle, or on his person.
The search warrant affidavit related numerous
controlled drug transactions between police and
defendant, corroborating the CI's information that
although defendant no longer resided in 100 Roosevelt,
he still distributed drugs from the location. The police
also corroborated the CI's tip that defendant sold drugs
from his vehicle by performing a controlled drug
transaction with defendant from the GMC and by
observing him driving the GMC several times,
including transporting items defendant maintained
under the staircase at 651 Roosevelt.
We also reject defendant's argument that the
warrant affidavit did not describe the place to be
searched in 651 Roosevelt with sufficient particularity
because it did not identify an apartment number.
The affiant supported the warrant request with
photographs of the building and described the premises
in detail:
651 Roosevelt Ave[.] (front right door
from Roosevelt [A]ve[.] ) . . . is described
as a multi-family residence. 651 Roosevelt
i[s] located on the corner of Leick Ave. and
Roosevelt Ave. The exterior of the
building on the Leick Ave[.] side and the
Roosevelt Ave[.] side consists of tan
colored brick. The front right door is
brown in color with a white colored door
frame. The brown colored door has brass
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colored hardware on the middle and top
part of [the] door. The brown colored front
right door has a black colored mail[box] on
the left side. There are also two white
trimmed windows to the left side of the
mailbox. 651 Roosevelt Ave[.] (front right
door from Roosevelt [A]ve[.]) . . . and all
common areas related to 651 Roosevelt
Ave[.] . . . which [defendant] has access to
and is able to store CDS in.
The affiant was not unsure which apartment defendant
occupied; there were no inaccuracies in the description;
and the warrant did not authorize a search of the entire
building. The description of the area to be searched was
detailed; an officer using reasonable effort would be
able to determine the intended premises.
[Moore, slip op at 8-10 (alterations in original)
(citations omitted).]
We reiterate that probable cause existed to support the issuance of the search
warrant.
Even assuming that the police entered other apartments in the building,
the State did not charge defendant with possession of CDS seized from the other
apartments; there is no credible evidence in this record showing that the police
seized CDS from other apartments. Furthermore, pursuing reconsideration of
the order denying suppression of the CDS would have been futile. Therefore,
even if defendant had satisfied prong one of Strickland – which he has not done
– he is unable to satisfy prong two. And defendant has failed to show with
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"reasonable probability" that the result would have been different had he
received proper advice from his attorney about a reconsideration motion or
additional arguments on the direct appeal.
We conclude that defendant's remaining arguments are "without sufficient
merit to warrant discussion in a written opinion." R. 2:11-3(e)(2). We only add
that purported prosecutorial misconduct and judicial misconduct – both of which
are completely unsupported on this record – are not claims of ineffective
assistance of counsel.
Affirmed.
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