STATE OF NEW JERSEY VS. DARRELL K. RAINEY (14-02-0402 AND 14-02-0403, ESSEX COUNTY AND STATEWIDE) ( 2021 )

NOT FOR PUBLICATION WITHOUT THE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-5661-18
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
DARRELL K. RAINEY,
Defendant-Appellant.
_______________________
Submitted January 19, 2021 – Decided March 10, 2021
Before Judges Currier and DeAlmeida.
On appeal from the Superior Court of New Jersey, Law
Division, Essex County, Indictment Nos. 14-02-0402
and 14-02-0403.
Joseph E. Krakora, Public Defender, attorney for
appellant (Suzannah Brown, Designated Counsel, on
the brief).
Theodore N. Stephens II, Acting Essex County
Prosecutor, attorney for respondent (Hannah F. Kurt,
Special Deputy Attorney General/Acting Assistant
Prosecutor, of counsel and on the brief).
PER CURIAM
Defendant Darrell K. Rainey appeals from the May 16, 2019 order of the
Law Division denying his motion for post-conviction relief (PCR) without an
evidentiary hearing. We affirm the order in part, vacate the order in part, and
remand for an evidentiary hearing.
I.
The following facts are derived from the record. Belleville police
received a 9-1-1 call relaying second-hand information that the caller's neighbor
had seen "a couple of . . . black guys with masks on their face[s]" wearing dark
clothing and walking in and out of residential backyards on Heckel Street. The
exact location of the sighting was unclear because the caller referenced the
intersection of Cross Street and Heckel Street, two roads that do not intersect.
The caller stated that the person who saw the men resided at 96 Heckel Street.
In response to that report, a dispatcher sent Officer Agosta to "Heckel
Street and Cross, or near 96 Heckel Street" to look for "[t]wo black males with
masks in the area . . . in the back of the . . . houses there." The dispatcher
subsequently informed Agosta that "[C]ross doesn't go up that far," apparently
a reference to the non-existent intersection reported by the caller. A number of
other officers simultaneously responded to the area.
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As the officers were heading to the scene, Officer Santos reported over
the radio as follows:
From a business on Brook. We see two males. One
tall, one short and possibly one white with black hood,
black- uh dark clothing. They were last seen going
towards Bloomfield Avenue on Heckel about 15
minutes in the past. They were walking, uh, very
quickly. He didn't see them doing anything at that time.
Agosta replied over the radio,
All right, on the corner of Honiss and North 7th, I got
two males that fit that description. One tall black male.
One short, light skin Hispanic male. One wearing a
hoodie.
The men Agosta saw did not match the second-hand physical description
given by the 9-1-1 caller and relayed to the officers, given that only one of the
men was black. In addition, they were not wearing masks or dark clothing and
were not on or near Heckel Street. The tall black man seen by Agosta was later
identified as defendant. He was wearing a light colored blue or grey sweatshirt
and carrying a white pharmacy bag. Agosta testified that he interpreted the
report from Santos to be a change in the earlier description of the men for whom
the officers were searching.
Immediately after Agosta made his communication, Sergeant Schwint
informed him over the radio that the men for whom the officers were searching
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"should be walking northbound on Heckel" Street. The men stopped by Agosta
were walking northbound on North 7th Street, five blocks from Heckel Street.
Agosta approached the men for the purpose of conducting an investigatory
stop. They complied with the officer's direction to stop walking and approach
him. A number of other officers arrived shortly thereafter. Agosta questioned
defendant while another officer, Alessio, questioned the light-skinned Hispanic
man. Alessio noticed a triangular bulge in the front pocket of defendant's
sweatshirt, which caused the pocket to sag. He thought the bulge might be a
weapon because the 9-1-1 caller reported that her neighbor saw men wearing ski
masks when it was not cold out.
Alessio asked defendant, "what's that?" and attempted to pat him down in
a protective frisk. Defendant backed away and brushed the officer's hand away
twice before running away. Agosta chased defendant and observed him holding
the pharmacy bag in his left hand and holding his abdomen with his right hand
as he ran.
Agosta testified that during the chase he observed defendant toss a small
black item over a fence into a residential backyard and discard the pharmacy
bag at another residence. Defendant was apprehended when he attempted to
climb over a fence. The officers recovered a loaded handgun with an obliterated
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serial number where Agosta saw defendant toss a black item over a fence and a
pharmacy bag containing twenty-five folds of heroin and dental hygiene
products where he saw defendant discard a bag.
A grand jury indicted defendant, charging him with third-degree
possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10(a);
third-degree possession of a CDS with intent to distribute, N.J.S.A. 2C:35-
5(a)(1) and (b)(3); third-degree possession of a CDS with intent to distribute
within 1000 feet of school property, N.J.S.A. 2C:35-7(a); second-degree
unlawful possession of a weapon, N.J.S.A. 2C:39-5(b); fourth-degree
possession of a defaced firearm, N.J.S.A. 2C:39-3(d); second-degree possession
of a firearm in the course of committing, attempting to commit, or conspi ring to
commit a CDS distribution offense, N.J.S.A. 2C:39-4.1(a); and fourth-degree
obstruction of the administration of law, N.J.S.A. 2C:29-1. In a separate
indictment, defendant was charged with second-degree possession of a weapon
by a convicted felon, N.J.S.A. 2C:39-7(b).
Defendant was tried on third-degree possession of a CDS, second-degree
unlawful possession of a weapon, fourth-degree possession of a defaced firearm,
and fourth-degree obstruction of the administration of law. The circumstances
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of the apparent pretrial dismissal of the remaining counts of the first indictment
are not clear from the record.
At trial, defendant testified that on the date in question he was walking
with two men he had recently met and that he intended to purchase a cellphone
from one of the men. He testified that along the way he purchased dental
hygiene products at a pharmacy, which he was carrying in a plastic bag, and had
his old cellphone in the pocket of his sweatshirt. He denied being in possession
of a weapon or heroin.
Defendant admitted that he backed away from Alessio and swatted his
hand away when the officer wanted to pat him down. He also admitted that he
ran away from the officer, who he said was making him nervous. He testified
that he lost his cellphone during the chase and that the pharmacy bag got pulled
from his arm as he was climbing over a gate.
During cross-examination, the assistant prosecutor posed the following
questions to defendant:
Q. Now, this is the first time that you had ever seen
any of these police officers, correct or ever met any of
these officers?
A. Yes.
Q. So you never had any personal issue with any of
these officers[?]
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A. No.
Q. So you don't have any knowledge as to any
personal reason why these officers would just say that
this handgun is yours, correct?
A. No.
Q. Now, did you file any complaints against the
Belleville Police Department for just falsely accusing
you of this handgun (sic)?
A. No.
The jury found defendant guilty of all counts. He was then tried on the
second indictment and found guilty of second-degree possession of a firearm by
a convicted felon.
On the first indictment, the court sentenced defendant to an aggregate term
of ten years of imprisonment, with a five-year period of parole ineligibility. On
the second indictment, the court sentenced defendant to a five-year term of
imprisonment, with a five-year period of parole ineligibility to run concurrent
with the sentences on the first indictment.
On direct appeal, we affirmed defendant's convictions and sentences , but
remanded the matter for correction of errors on the judgment of conviction .
State v. Rainey, No. A-3141-15 (App. Div. Oct. 26, 2017). The Supreme Court
denied certification. State v. Rainey, 232 N.J. 492 (2018).
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Defendant thereafter filed an amended petition for PCR. He alleged that
he was denied the effective assistance of counsel because his: (1) trial counsel
failed to heed his written request to move to suppress the evidence because the
officers lacked particularized suspicion to stop him and he was stopped solely
based on his race; and (2) his trial and appellate counsel failed to object at trial
or argue on appeal that the assistant prosecutor's question regarding his failure
to file a complaint against the arresting officers violated his right to remain
silent.1
The trial court issued a written opinion and order denying defendant's
petition without holding an evidentiary hearing. The court held that defendant
could not establish ineffective assistance of counsel because a motion to
suppress, had it been made, would not have been successful. The court found
that Agosta's investigative stop of defendant was constitutional because the
officer acted pursuant to information relayed to him by two credible sources –
1
Defendant's PCR petition also alleged his counsel was ineffective for not
questioning the arresting officers regarding defendant's outstanding warrants.
Defendant did not address this issue in his brief. We therefore deem any
argument with respect to the issue waived. "[A]n issue not briefed is deemed
waived." Pressler & Verniero, Current N.J. Court Rules, cmt. 5 on R. 2:6-2
(2020); Telebright Corp. v. Dir., N.J. Div. of Taxation, 424 N.J. Super. 384, 393
(App. Div. 2012) (deeming a contention waived when the party failed to include
any arguments supporting the contention in its brief).
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the concerned citizen whose second-hand report was transmitted via her
neighbor's call to 9-1-1 and the radio transmission of Santos, which the court
apparently interpreted as Santos's contemporaneous sighting of two men
walking in the area. The court concluded it was reasonable for Agosta to have
interpreted Santos's transmission as an update of the description of the men
being sought. The court concluded defendant's "contention that he was stopped
solely based on his race is an incorrect one" and that there were "specific and
articulable facts" that in conjunction with "reasonable inferences" could have
caused Agosta reasonably to suspect defendant of criminal wrongdoing. As a
result, the court found that any evidence obtained as a result of the stop,
including the evidence defendant abandoned during the chase, would not have
been suppressed had such a motion been made.
In addition, the court concluded that defendant's election to testify
subjected him to the assistant prosecutor's question regarding his failure to file
false accusation charges against the officers. Citing N.J.R.E. 503(d), the court
noted that defendant was subject to the rules of evidence permitting questions
that raise doubt about a witness's credibility, such as the question posed by the
assistant prosecutor. Thus, the court concluded, an objection at trial and
argument on appeal challenging the question would not have been successful.
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This appeal followed. Defendant raises the following argument for our
consideration.
THE PCR COURT ERRED IN DENYING THE
PETITION WITHOUT AN EVIDENTIARY
HEARING ON THE CLAIMS THAT TRIAL
COUNSEL WAS INEFFECTIVE FOR FAILING TO
FILE A MOTION TO SUPPRESS PHYSICAL
EVIDENCE AND FOR FAILING TO OBJECT TO
CROSS-EXAMINATION OF [DEFENDANT], THE
GOAL OF WHICH WAS TO IMPEACH HIM WITH
HIS POST-ARREST SILENCE.
II.
Under Rule 3:22-2(a), a defendant is entitled to post-conviction relief 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 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
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(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
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
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prejudice, which we expect will often be so, that course should be followed."
Strickland, 466 U.S. at 697.
We review a judge's decision to deny a PCR petition without an
evidentiary hearing for abuse of discretion. State v. Brewster, 429 N.J. Super.
387, 401 (App. Div. 2013) (citing Marshall, 148 at 157-58). A hearing is
required only when: (1) a defendant establishes a prima facie case in support of
PCR; (2) the court determines that there are disputed issues of material fact that
cannot be resolved by review of the existing record; and (3) the court determines
that an evidentiary hearing is required to resolve the claims asserted. State v.
Porter, 216 N.J. 343, 354 (2013) (citing R. 3:22-10(b)). "A prima facie case is
established when a defendant demonstrates 'a reasonable likelihood that his or
her claim, viewing the facts alleged in the light most favorable to the defendant,
will ultimately succeed on the merits.'" Id. at 355 (quoting R. 3:22-10(b)).
"[T]o establish a prima facie claim, a petitioner must do more than make
bald assertions that he was denied effective assistance of counsel." Ibid.
(quoting State v. Cummings, 321 N.J. Super. 154, 170 (App. Div. 1999)). A
PCR petition must be "accompanied by an affidavit or certification by defendant,
or by others, setting forth with particularity[,]" State v. Jones, 219 N.J. 298, 312
(2014), "facts sufficient to demonstrate counsel's alleged substandard
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performance[,]" Porter, 216 N.J. at 355 (quoting Cummings, 321 N.J. Super. at
170); see also R. 3:22-10(c).
Having carefully reviewed the record in light of the applicable law, we
conclude that the trial court mistakenly exercised its discretion when it denied
defendant's allegations of ineffective assistance of counsel relating to the
suppression motion without holding an evidentiary hearing.
Both the federal and state constitutions protect citizens against
unreasonable searches and seizures. See U.S. Const. amend. IV; N.J. Const. art.
I, ¶ 7. The parties agree that Agosta's encounter with defendant was an
investigatory stop, which constitutes a seizure under both the federal and state
constitutions. An investigatory stop or detention, sometimes referred to as a
Terry2 stop, involves a temporary seizure that restricts a person's movement. A
Terry stop implicates a constitutional requirement that there be "'specific and
articulable facts which, taken together with rational inferences from those facts,'
give rise to a reasonable suspicion of criminal activity." State v. Elders, 192
N.J. 224, 247 (2007) (quoting State v. Rodriguez, 172 N.J. 117, 126 (2002)).
The State has the burden to establish that a stop was valid. State v. Mann, 203
N.J. 328, 338 (2010); State v. Pineiro, 181 N.J. 13, 20 (2004). If there was no
2
Terry v. Ohio, 392 U.S. 1 (1968).
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reasonable suspicion of criminal activity to justify the stop, evidence discovered
as a result of the stop is subject to exclusion. State v. Chisum, 236 N.J. 530,
546 (2019).
To determine whether reasonable suspicion existed, a judge must consider
the totality of the circumstances, viewing the "whole picture" rather than taking
each fact in isolation. State v. Nelson, 237 N.J. 540, 554-55 (2019) (quoting
State v. Stovall, 170 N.J. 346, 361 (2002)). Investigative stops are justified "if
the evidence, when interpreted in an objectively reasonable manner, shows that
the encounter was preceded by activity that would lead a reasonable police
officer to have an articulable suspicion that criminal activity had occurred or
would shortly occur." State v. Davis, 104 N.J. 490, 505 (1986).
A [judge] must first consider the officer's objective
observations. The evidence collected by the officer is
"seen and weighed not in terms of library analysis by
scholars, but as understood by those versed in the field
of law enforcement. [A] trained police officer draws
inferences and makes deductions . . . that might well
elude an untrained person. The process does not deal
with hard certainties, but with probabilities." Second,
a [judge] must determine whether the evidence "raise[s]
a suspicion that the particular individual being stopped
is engaged in wrongdoing."
[Id. at 501 (quoting United States v. Cortez, 449 U.S.
411, 418 (1981)) (alterations in original) (citations
omitted).]
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As noted above, defendant did not match the second-hand description of
suspicious men given by the 9-1-1 caller and relayed to the officers. He was not
dressed in dark clothing, wearing or in possession of a mask, accompanied by
another black man, walking on or near Heckel Street, or situated in or near a
residential backyard. The only characteristic of defendant that matched the
description given to the 9-1-1 dispatcher was his skin color. The trial court
concluded that despite these circumstances, the stop was constitutional because
Agosta reasonably believed that the description of the men for whom he was
searching had been changed by Santos's radio transmission.
Yet, Santos's transmission suffers from a number of ambiguities. He
began his transmission with "[f]rom a business on Brook." It is not clear if he
is transmitting his report from a business, possibly on a street named Brook, or
if he obtained information from a business on Brook Street. He then states that
"[w]e see two males[,]" which suggests that he and one or more other people are
then presently observing the males. However, he then says "[t]hey were last
seen . . . about 15 minutes in the past" on Heckel Street going towards
Bloomfield Avenue, which suggests that he is reporting a second-hand
observation of another person from fifteen minutes earlier. The latter
interpretation of the officer's transmission is supported by his subsequent
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statement that "[h]e didn’t see them doing anything at that time." Notably,
Santos's transmission, whether it describes his personal observation or the
second-hand report of one or more others from fifteen minutes early, describes
the conduct of the men as "walking . . . very quickly" and not "doing anything[,]"
acts that do not, standing alone, suggest criminal activity.
In light of these ambiguities, and given that Agosta conceded that he
stopped defendant because he matched the description given by Santos, and not
the description relayed to him by the 9-1-1 dispatcher, it was a mistaken exercise
of the trial court's discretion to deny defendant's PCR petition without holding
an evidentiary hearing. We therefore vacate the May 16, 2019 order to the extent
that it denied defendant's PCR petition as it relates to trial counsel's failure to
make a suppression motion and remand for an evidentiary hearing on that claim.
We offer no view on the outcome of defendant's claim and leave to the
trial court the discretion to determine the parameters of the evidentiary hearing
on remand. We note, however, that in order to decide whether a motion to
suppress would have been successful the trial court must assess the credibility
and reasonableness of Agosta's claim to have believed that the description of the
men for whom he was searching had changed as a result of Santos's transmission,
particularly in light of the transmission's ambiguities and lack of a description
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of suspicious activity. In addition, it may be helpful to the resolution of this
matter for the parties to develop a record with respect to the meaning of Santos's
transmission, how he obtained the information he was transmitting, and the
geographic distance between the reported sighting of two men "[f]rom a
business on Brook" and the location at which Agosta stopped defendant. The
record suggests defendant was stopped by Agosta approximately five blocks
from Heckel Street, where the caller reported her friend had seen suspicious
activity, but the distance between the stop and the business location on Brook
from which Santos apparently made his transmission does not appear to have
been established.
Furthermore, if the court determines that a suppression motion would
likely have been successful, it will be necessary for the court to consider whether
defendant's counsel simply failed to identify the possibility of making such a
motion, or considered a motion, and decided for strategic, or other reasons, not
to file it. The record suggests defendant wrote to his counsel requesting that a
motion to suppress be filed. His counsel's response, if any, may be illuminating.
We have also considered defendant's claim to have been denied the
effective assistance of counsel as a result of the failure of trial counsel to object
to the assistant prosecutor's question regarding defendant having not filed a
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complaint against the arresting officers for making a false claim. We find no
basis to disturb the trial court decision to the extent that it denies that claim
without an evidentiary hearing. Defendant's arguments on this point lack
sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed in part, vacated in part, and remanded for an evidentiary hearing
consistent with this opinion. We do not retain jurisdiction.
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