State of New Jersey v. Emile G. Constable, Jr. ( 2024 )

NOT FOR PUBLICATION WITHOUT THE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-2190-21
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
EMILE G. CONSTABLE, JR.,
Defendant-Appellant.
_________________________
Submitted November 6, 2023 – Decided February 20, 2024
Before Judges DeAlmeida and Berdote Byrne.
On appeal from the Superior Court of New Jersey, Law
Division, Middlesex County, Indictment No. 16-08-
1292.
Joseph E. Krakora, Public Defender, attorney for
appellant (Andrew Robert Burroughs, Designated
Counsel and on the briefs).
Yolanda Ciccone, Middlesex County Prosecutor,
attorney for respondent (Joie D. Piderit, Assistant
Prosecutor, of counsel and on the brief).
PER CURIAM
Defendant, Emile Constable, appeals from an October 20, 2021, order
denying his petition for post-conviction relief (PCR) without an evidentiary
hearing and denying his motion to withdraw his guilty plea. Defendant argues
the PCR court improperly found he failed to demonstrate a prima facie case of
ineffective assistance of counsel on multiple claims. Discerning no error, we
affirm.
I.
On February 24, 2016, Edison police arrived at Hillcrest Avenue, where
officers found an unresponsive male — later identified as Aniq Ali (decedent)
— in a vehicle still running. The decedent had no pulse, and ten empty bags
marked "Magoo" surrounded his body. The bags later tested positive for heroin
and fentanyl. Upon searching decedent's phone, officers observed a text
conversation between decedent and "Oatmeal" organizing a drug sale for earlier
that night. Officers also found an unsent message from decedent to "Oatmeal,"
stating "[y]o, brah, I'm going to keep six, and . . . a thousand percent . . . that
shit had barely anything in it, and . . . three bags were pretty much empty, and .
. . it wasn't even dope. That shit was some white epoxy crushed up."
Although defendant was known by various aliases, he was positively
identified by a former high-school classmate, a confidential informant/buyer
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(CI), and two of his associates as "Oatmeal," and as the owner of the phone
number ascribed to "Oatmeal" in decedent's phone. Additionally, the CI told
police she purchased heroin stamped "Magoo" from defendant on the same day
decedent died. One day after decedent's death, the CI arranged for defendant to
sell her drugs at a motel. As police tracked "Oatmeal's" phone, they found it
was moving in the direction of the same motel. Officers intercepted the vehicle
defendant was traveling in and searched him incident to his arrest. They found
twenty-three bags containing an unknown substance, some stamped "Magoo."
One bag later tested positive for fentanyl and heroin.
Although the medical examiner did not complete an internal autopsy of
decedent because of decedent's family's religious beliefs, he conducted an
external exam and toxicology assessment. The decedent's cause of death was
determined to be acute combined drug toxicity due to fentanyl and heroin.
Defendant was charged with the following offenses: first-degree strict
liability for drug induced death, contrary to N.J.S.A. 2C:35-9 (count one); third-
degree distribution and possession with intent to distribute a controlled
substance, contrary to N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(13)(counts
two and four); third-degree possession of controlled substance, contrary to
N.J.S.A. 2C:35-10a(1)(count three); fourth-degree hindering apprehension,
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contrary to N.J.S.A. 2C:29-3b(1)(count five); and third-degree hindering
apprehension, contrary to N.J.S.A. 2C:29-3b(4)(count six).
Approximately one month before defendant's rescheduled trial date, his
trial counsel filed a motion to be relieved, stating there was a "total lack of
cooperation" from defendant over the previous four months. As the PCR court
noted, trial counsel attempted to schedule multiple meetings and telephone
conversations with defendant to no avail, and defendant failed to respond to any
of trial counsel's requests to meet and prepare. Days before trial was set to
commence on the rescheduled trial date, and approximately one month after trial
counsel's motion to be relieved had been denied, defendant accepted a plea offer.
Pursuant to the plea agreement, defendant pleaded guilty to first-degree
strict liability for drug induced death, and third-degree possession with intent to
distribute a controlled substance. The State agreed to dismiss the remaining four
counts and recommended an eight-year sentence on count one, subject to the No
Early Release Act (NERA), 1 to run concurrent to a three-year sentence on count
four.
Following extensive questioning, the trial court accepted the plea, finding
the plea was entered "knowingly, freely, and intelligently" and grounded in
1
N.J.S.A. 2C:43-7.2
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sufficient factual basis. The trial court later sentenced defendant in accordance
with the plea agreement to eight years, subject to NERA, with a five-year parole
supervision period, a concurrent term of three years on count four, and dismissed
the four remaining counts. The trial court found aggravating factors three and
nine and no mitigating factors.
Defendant challenged his sentence pursuant to Rule 2:9-11 on the
Sentencing Oral Argument ("SOA") calendar, arguing the sentencing court
failed to find any mitigating factors, although five factors were present. We
affirmed the sentence. State v. Constable, No. A-2189-21 (App. Div. Jan. 9,
2023) (slip op. at 1).
In 2019, defendant filed a PCR petition asserting numerous claims of
ineffective assistance of counsel. Additionally, he claimed he successively
asserted a colorable claim of innocence, requiring withdrawal of his guilty plea.
The trial court applied the two-prong test established in Strickland v.
Washington, 466 U.S. 668 (1984), and the four factors in State v. Slater, 198
N.J. 145 (2009), and entered an order denying defendant relief. This appeal
followed.
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II.
A PCR judge's legal conclusions are reviewed de novo, and where, as here,
the judge declines to hold an evidentiary hearing, we may "conduct a de novo
review of both the factual findings and legal conclusions" of the PCR judge.
State v. Harris, 181 N.J. 391, 419, 421 (2004).
A. Ineffective assistance of counsel.
In a petition for PCR asserting ineffective assistance of counsel, we are
guided by the standards set forth in Strickland, 466 U.S. 668 and State v. Fritz,
105 N.J. 42 (1987), which adopted the Strickland standard in New Jersey.
Moreover, the PCR court should grant an evidentiary hearing only where
defendant has established a prima facie case of ineffective assistance of counsel
pursuant to Strickland. See R. 3:22-10(b).
A defendant will be entitled to PCR for ineffective assistance of counsel
if he shows, by a preponderance of the evidence, (1) "[defendant's] counsel's
performance was deficient," and (2) this "deficient performance prejudiced the
defense." Fritz, 105 N.J. at 52 (quoting Strickland, 466 U.S. at 687); State v.
Echols, 199 N.J. 344, 357 (2009). When the matter involves a guilty plea, the
second prong requires defendant establish "a reasonable probability that, but for
counsel's errors, [the defendant] would not have pled guilty and would have
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insisted on going to trial." State v. Nuñez-Valdéz, 200 N.J. 129, 139 (2009)
(alteration in original) (quoting State v. DiFrisco, 137 N.J. 434, 457 (1994)).
Moreover, the defendant must show "that a decision to reject the plea bargain
would have been rational under the circumstances." Padilla v. Kentucky, 559
U.S. 356, 372 (2010); State v. Maldon, 422 N.J. Super. 475, 486 (App. Div.
2011).
Defendant claims several errors made by trial counsel prejudiced him,
including: 1) failure to consult an independent forensic pathologist to determine
whether defendant had a causality defense as to decedent's cause of death; 2)
failure to advise defendant about the strengths and weaknesses of the State's case
and the probability of success of a lack of causality defense; 3) failure to seek a
lower sentence and advocate for mitigating factors; and 4) failure to investigate
and file a suppression motion for evidence seized during the search incident to
defendant's arrest.
The trial court detailed the dates and times of trial counsel's repeated
attempts to meet or speak with defendant to establish a defense, then ruled:
Based upon this prior history, [defendant] cannot be
heard to complain about the performance of plea
counsel since he, himself, abdicated his opportunity and
responsibility to engage with plea counsel in
developing a defense. There is no basis upon which
[defendant] can now assess the adequacy of plea
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counsel’s performance since plea counsel, due to
[defendant's] absence, was left to his own decision-
making regarding choices to be made in preparation for
trial, in addition to the development of certain legal
contentions to be advanced on behalf of the defense
without input from [defendant]. Through his willful
absence and void of any attempts to meet with plea
counsel, it seems clear that [defendant] entrusted all
such determinations to the sound discretion of plea
counsel, a choice which this [c]ourt will not now second
guess as "unreasonable" given the circumstances
leading up to the [defendant's] plea. This is in keeping
with the understanding that a reviewing court must not
"second guess" what, on its face, were reasonable and
professional judgments by plea counsel, evaluating the
challenged conduct from plea counsel’s perspective at
the time. Kimmelman v. Morrison, 477 U.S. 365, 382
(1986); Strickland v. Washington, 466 U.S. 668, 690
(1984); State v. Fritz, 105 N.J. 42, 52 (1987).
The court also found trial counsel's performance was effective, in light of
the evidence and circumstances, and benefitted defendant:
[N]one of the decisions made by plea counsel inured to
the detriment of [defendant], since the filing of a
motion without consulting [defendant] would trigger
the State's escalating plea offer policy and prevent
[defendant] from being able to negotiate a more
favorable sentencing recommendation just as he did on
the [rescheduled trial date]. This would also include
the choice by plea counsel not to retain an expert to
contest the State's failure to conduct a full autopsy of
the victim.
We agree. Defendant cannot voluntarily abstain from interacting with his
appointed trial counsel, refuse to participate in the preparation of any legal
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strategy or defense, then claim ineffective assistance of counsel after a carefully
negotiated and properly allocuted plea deal is entered.
Additionally, even if trial counsel's performance had been deficient in
some regard, defendant fails to demonstrate there is a reasonable probability he
would have rejected the offered plea pursuant to the second prong of Strickland.
See State v. O'Donnell, 435 N.J. Super. 351, 369-70 (App. Div. 2014) (quoting
Hill v. Lockhart, 474 U.S. 52, 59 (1985)). The trial court aptly noted trial
counsel negotiated a plea agreement which presented defendant with less than
half the exposure he would have faced at trial, and the decision to negotiate a
favorable plea offer was an informed strategic choice based on the evidence
presented. See Strickland, 466 U.S. at 690-91.
The record shows, prior to the adjournment of the first trial date for
unrelated reasons, trial counsel and defendant initially discussed a plea with the
State in exchange for cooperation, but those efforts did not result in a plea deal.
Ultimately, defendant pleaded guilty to only two counts of the indictment in
exchange for dismissal of the four remaining counts, for a maximum term of
eight years subject to NERA, although he was facing an exposure of a possible
thirty years. Defendant fails to demonstrate a rational person would have
rejected this plea deal.
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At his plea colloquy, defendant confirmed he reviewed all discovery with
his trial counsel, was satisfied by the representation he received, and did not
need additional time to confer with trial counsel. On appeal, defendant makes
bald assertions regarding trial counsel's ineffective performance, stating he
would not have pleaded guilty to strict liability for drug-induced death if he
knew he could have challenged the decedent's cause of death. In doing so, he
ignores the weight of the evidence against him, including the text messages to
and from decedent on decedent's phone, the CI information and identification,
his identification from three other witnesses as "Oatmeal," and the positive
toxicology results for the drugs found in decedent's body and on defendant's
person. A suppression motion, even if successful, would have suppressed the
drugs found on defendant's person, relevant only to the plea for possession .
Because that sentence ran concurrently with the eight-year sentence on count
one, it would not have affected the overall length of the sentence. We conclude
defendant's failure to demonstrate a prima facie case of ineffective assistance of
counsel did not warrant an evidentiary hearing. See State v. Preciose, 129 N.J.
451, 462-63 (1992); R. 3:22-10(b).
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B. Withdrawal of Guilty Plea.
The decision to allow the withdrawal of a guilty plea lies within the trial
court's discretion, Slater, 198 N.J. at 156, and we review for abuse of discretion.
State v. Simon, 161 N.J. 416, 444 (1999).
A court must consider and balance four factors when evaluating a motion
to withdraw a guilty plea: "(1) whether the defendant has asserted a colorable
claim of innocence; (2) the nature and strength of defendant's reasons for
withdrawal; (3) the existence of a plea bargain; and (4) whether withdrawal
would result in unfair prejudice to the State or unfair advantage to the accused."
Slater, 198 N.J. at 157-58.
Defendant argues he met the four factors required to necessitate a plea
withdrawal pursuant to Slater, and the court's denial of his withdrawal motion
was in error. Specifically, he contends: (1) "even if [he] did [what] he admitted
to [doing in] his plea hearing, his conduct did not cause [the] decedent's death,"
proving a colorable claim of innocence; (2) there is reasonable probability his
conduct did not cause the decedent's death; (3) the third factor should "receive[]
the least weight in the overall analysis[,]" State v. Munroe, 210 N.J. 429, 443
(2012); and (4) "the passage of time is an insufficient reason not to correct an
injustice[,]" State v. Ways, 180 N.J. 171, 197 (2004).
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The PCR court disagreed, finding:
[Defendant] does not assert a colorable claim of
innocence for several reasons. First, [defendant]
provided this [c]ourt with a factual basis for guilt
wherein he admitted to meeting with Aniq Ali to sell
him a quantity of heroin Mr. Ali had solicited from him
by way of text message communications. Having sold
him the heroin as he had arranged to do, [defendant]
also admitted that he knew that said heroin caused Mr.
Ali’s death when Mr. Ali consumed the substance after
the purchase. [Defendant] also admitted to being in
possession of heroin on the day of his arrest, which was
found on his person by way of a search incident to his
arrest. He clarified that he had the heroin with the
purpose to distribute it to others. He also confirmed
that he knew the drugs found on his person were tested
by the laboratory and came back as a combination of
heroin and fentanyl. [Defendant] concluded his plea
voir dire by admitting that he sold Mr. Ali, whom he
knew from middle school and high school, heroin that
was tested by the laboratory with positive results for a
mixture of fentanyl and heroin combined. As per
photographs and text messages that he reviewed,
[defendant] concluded that he was aware that Mr. Ali
was ingesting those drugs as he was attempting to
contact [defendant] about the quality of his purchase,
and as he died as a result of ingesting those drugs.
[Defendant] confirmed that he understood that though
he sold what was believed to be heroin to Mr. Ali,
because that heroin was also mixed with fentanyl
[defendant] was “strictly liable” for causing Mr. Ali’s
death. [Defendant], during this voir dire, also admitted
that a review of his cellphone messages on his IPhone
contradicted his attempt to call another individual as an
alibi witness because those messages confirmed that he
was never with that individual at the time and date
proposed in support of said alibi. His final statement
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was that he was pleading guilty because he was, in fact,
guilty to the charges and that he was entering his plea
in lieu of continuing with his trial.
In the end, it is clear that [defendant] did commit
the crimes to which he [pleaded] guilty based on his
own admissions under oath, admissions which he
asserted were made knowingly, intelligently, and
voluntarily, and upon the advice of counsel with whom
he was satisfied, and after reviewing all of the State’s
discovery. His attempt to demonstrate otherwise by
alleging in his petition for relief that he did not have the
phone utilized to arrange the transaction with Mr. Ali,
and that the drugs he possessed at the time of his arrest
were not for purposes of distribution, are without merit
and belied by his plea voir dire. He fails to identify the
requisite specific and credible facts in the record
required to support a colorable claim of innocence, thus
he is not innocent of the charges and has failed to
satisfy the first prong of Slater.
We agree with the trial court defendant is unable to satisfy any of the
elements set forth in Slater. Defendant cannot demonstrate a colorable claim of
innocence on this record. Even if Xanax was also found in decedent's system,
his own after-retained medical expert did not opine Xanax caused decedent's
death, only that acute combined drug toxicity, including the fentanyl and heroin,
caused his death, which is consistent with the medical examiner's report. Given
the timing of decedent's death, immediately after ingesting the fentanyl, in a car
still running, with an unsent text to defendant on his phone complaining of the
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drugs defendant sold him, defendant cannot colorably claim the fentanyl was
not the cause of decedent's death.
In sum, we affirm the denial of PCR, the denial of an evidentiary hearing,
and the denial of defendant's motion to withdraw his guilty plea. To the extent
we have not addressed plaintiff's remaining arguments, we find they are without
sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed.
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