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Superior Court of New Jersey, Appellate Division.

STATE OF NEW JERSEY, Plaintiff–Respondent, v. DAVID SPENCER, Defendant–Appellant.

DOCKET NO. A–0794–12T3

    Decided: April 08, 2014

Before Judges Fisher and Koblitz.Joseph E. Krakora, Public Defender, attorney for appellant (William Welaj, Designated Counsel, on the brief). Camelia M. Valdes, Passaic County Prosecutor, attorney for respondent (Keith E. Hoffman, Senior Assistant Prosecutor, on the brief).

After careful review of the record in light of the issues raised, we reject the arguments asserted by defendant in this appeal of the denial of his post-conviction relief (PCR) petition, and affirm.

Defendant was charged in a nine-count indictment with various weapons and drug offenses.   A motion to suppress evidence was denied at the conclusion of an evidentiary hearing, and, at the conclusion of a jury trial, defendant was convicted of three counts:  second-degree possession of a controlled dangerous substance (CDS) with the intent to distribute, N.J.S.A. 2C:35–5(a)(1) and (b)(2);  third-degree CDS possession, N.J.S.A. 2C:35–10(a)(1);  and third-degree attempted hindering apprehension, N.J.S.A. 2C:29–3(b)(1).   The trial judge merged the CDS convictions and sentenced defendant to an extended sixteen-year prison term subject to an eight-year period of parole ineligibility;  the judge also imposed a concurrent five-year prison term on the attempted hindering apprehension conviction.

In his direct appeal, defendant argued that the trial judge erred in denying his suppression motion, that there were numerous “testimonial errors” that deprived him of a fair trial, that the State's request for an extended term was improperly noticed, and that the sentence was excessive.   We rejected these arguments and affirmed.  State v. Spencer, No. A–2100–07 (App.Div. Dec. 16, 2009).   The Supreme Court denied defendant's petition for certification.   202 N.J. 43 (2010).

Defendant filed a PCR petition on April 14, 2010.   In early 2012, the pro se PCR petition was amplified through the submission of assigned counsel's brief.   After hearing counsel's argument, Judge Raymond A. Reddin denied the petition for reasons expressed in a written opinion dated June 8, 2012.

Defendant appeals the disposition of his PCR petition, arguing:


A. The Prevailing Legal Principles Regarding Claims Of Ineffective Assistance Of Counsel, Evidentiary Hearings And Petitions For Post Conviction Relief.

B. Since The Defendant Presented A Prima Facie Case Of Ineffective Assistance Of Counsel As A Result Of Trial Counsel's Failure To Call A Witness Who Would Have Corrob-orated The Defense's Theory Of The Case, The Trial Court Erred In Denying His Petition For Post Conviction Relief Without Afford-ing Him An Evidentiary Hearing To Fully Address This Contention.

We find no merit in these arguments.

To put the arguments asserted in the PCR petition in context, we briefly note that the record reveals and the verdict suggests the jury found the following facts.   On September 19, 2004, police officers were conducting surveillance of an apartment building on Montgomery Street in Paterson when they observed a Pontiac minivan arrive;  defendant, as well as co-defendant David Ellis, exited the Pontiac and entered the apartment building.   The Pontiac had been rented from Enterprise.   Police surveillance continued, and police obtained a search warrant for defendant, Ellis, the Pontiac, and the first floor of the Montgomery Street residence.

At 8:30 p.m., September 29, 2004, the rented Pontiac again arrived.   Defendant, who was carrying a dark-colored bag, exited from a back seat, Ellis exited from the front passenger side, and they both approached the apartment building.   One police vehicle followed the Pontiac as it drove off, and other officers moved in on defendant and Ellis, both of whom ran up the stairs of the structure to the second floor apartment.   Once inside the structure, defendant dropped the bag, which contained ten bricks of heroin, and he and Ellis entered the second floor apartment, which police forcibly entered.   An officer securing the rear of the premises observed bricks of heroin being thrown from a window.   Defendant, Ellis, and another individual, as well as a juvenile, were secured in the second floor apartment while police obtained a search warrant for that apartment.   Pursuant to that warrant, additional evidence was seized.

In his PCR petition, defendant claimed his attorney was ineffective because he should have called to testify at trial (1) “six witnesses” to provide testimony “that they did not know the defendant and that the defendant was not in possession of the rental vehicle during the week of September 19, 2004,” and (2) a tenant who would have testified that defendant “never ran upstairs to the second floor” or dropped “a bag” of heroin “in the hallway” of the premises.   In a thorough written decision, Judge Reddin observed that, at trial, the defense called an Enterprise representative who testified the Pontiac was not rented to defendant.   The judge also found the tenant's testimony would have been cumulative because defense counsel called to testify at trial another witness to the same effect.1

The arguments posed by defendant in his PCR petition are the same arguments reprised in this appeal.   We find no merit in those arguments, and we affirm substantially for the reasons set forth in Judge Reddin's cogent and well-reasoned written decision.



FN1. As Judge Reddin recognized, there was a risk for the defense in calling two witnesses for the same purpose since a question as to the credibility of one would have the potential of calling into question the credibility of the other.   As a result, Judge Reddin found the tactical decision not to call a second tenant was reasonable..  FN1. As Judge Reddin recognized, there was a risk for the defense in calling two witnesses for the same purpose since a question as to the credibility of one would have the potential of calling into question the credibility of the other.   As a result, Judge Reddin found the tactical decision not to call a second tenant was reasonable.


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