State v. Fitzgerald

Full title: STATE OF NEW JERSEY, Plaintiff-Respondent, v. DAWSHON FITZGERALD…

Court: SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION

Date published: Feb 15, 2012

DOCKET NO. A-5134-09T3 (App. Div. Feb. 15, 2012)

Opinion

DOCKET NO. A-5134-09T3 DOCKET NO. A-5810-09T1 DOCKET NO. A-5814-09T4

02-15-2012

STATE OF NEW JERSEY, Plaintiff-Respondent, v. DAWSHON FITZGERALD, Defendant-Appellant. STATE OF NEW JERSEY, Plaintiff-Respondent, v. DAWUD FITZGERALD, Defendant-Appellant. STATE OF NEW JERSEY, Plaintiff-Respondent, v. DAWMEEN FITZGERALD, Defendant-Appellant.

Joseph E. Krakora, Public Defender, attorney for appellant Dawshon Fitzgerald (Alan I. Smith, Designated Counsel, on the brief). Joseph E. Krakora, Public Defender, attorney for appellant Dawud Fitzgerald (Monique Moyse, Designated Counsel, on the brief). Joseph E. Krakora, Public Defender, attorney for appellant Dawmeen 1 Fitzgerald (Philip Lago, Designated Counsel, of counsel and on the brief). Appellants Dawshon Fitzgerald, Dawud Fitzgerald and Dawmeen Fitzgerald submitted pro se supplemental briefs.

PER CURIAM

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

Before Judges Carchman and Fisher.

On appeal from the Superior Court of New

Jersey, Law Division, Union County,

Indictment Numbers 03-08-00819, 03-08-00844,

03-08-00846 and 03-08-00849.

Joseph E. Krakora, Public Defender, attorney

for appellant Dawshon Fitzgerald (Alan I.

Smith, Designated Counsel, on the brief).

Joseph E. Krakora, Public Defender, attorney

for appellant Dawud Fitzgerald (Monique

Moyse, Designated Counsel, on the brief).

Joseph E. Krakora, Public Defender, attorney

for appellant Dawmeen¹ Fitzgerald (Philip

1 Although in his case caption, this defendant spells his name "Daween," it appears from the briefs and the record that his name is in fact "Dawmeen." We refer to him by the latter spelling.

Lago, Designated Counsel, of counsel and on

the brief).

Paula T. Dow, Attorney General, attorney for

respondent in A-5134-09T3, A-5810-09T1 and

A-5814-09T4 (Natalie A. Schmid Drummond,

Deputy Attorney General, of counsel and on

the briefs).

Appellants Dawshon Fitzgerald, Dawud

Fitzgerald and Dawmeen Fitzgerald submitted

pro se supplemental briefs.
PER CURIAM

Following a jury trial, defendants Dawshon Fitzgerald, Dawud Fitzgerald and Dawmeen Fitzgerald² were convicted of first-degree leader of a narcotics trafficking network, N.J.S.A. 2C:35-3 (Count One); second-degree conspiracy to distribute a controlled dangerous substance (CDS), heroin and/or cocaine, N.J.S.A. 2C:35-5a(1), N.J.S.A. 2C:35-5b(2), and N.J.S.A. 2C:5-2 (Count Two); second-degree employment of a juvenile in a drug distribution scheme, N.J.S.A. 2C:35-6 (Count Three); first-degree maintaining or operating a CDS production facility, heroin and/or cocaine, N.J.S.A. 2C:35-4 (Count Four); two counts of third-degree possession of heroin, in violation of N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(1) (Dawmeen Count Six³); two counts of third-degree possession of heroin, N.J.S.A. 2C:35-10a(1) (Dawud, Dawshon Counts Five and Eleven); first-degree possession of heroin with intent to distribute, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(1) (Dawud, Dawshon Count Six); two counts of third-degree distribution of heroin within 1000 feet of school property, N.J.S.A. 2C:35-7 (Counts Seven and Thirteen); two counts of third-degree possession of cocaine, N.J.S.A. 2C:3510a(1) (Counts Eight and Fifteen); second-degree possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(2) (Count Nine); two counts of third-degree distribution of cocaine within 1000 feet of school property, N.J.S.A. 2C:35-7 (Counts Ten and Seventeen); second-degree possession of heroin with intent to distribute, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(2) (Count Twelve); second-degree distribution of heroin within 500 feet of a public park, N.J.S.A. 2C:35-7.1 (Count Fourteen); third-degree possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(3) (Count Sixteen); second-degree distribution of cocaine within 500 feet of a public park, N.J.S.A. 2C:35-7.1 (Count Eighteen); first-degree financial facilitation of criminal activity, N.J.S.A. 2C:21-25 (Count Nineteen); third-degree unlawful possession of an assault firearm, N.J.S.A. 2C:39-5f (Count Twenty); and second-degree possession of a firearm during the commission of a controlled dangerous substance offense, N.J.S.A. 2C:39-4.1 (Count Twenty-One).

2 For ease of reference, each defendant will be referred to by his first name or, collectively, as the Fitzgerald brothers, as appropriate. Defendants' uncle, John Fitzgerald, was also convicted but is not the subject of this appeal. He too will also be referred to by his first name. References to "the Fitzgeralds" include the three Fitzgerald brothers as well as John.

3 As indicated in the parenthetical comment here, only Dawmeen was convicted on this count. In general, the defendants named in each parenthetical comment are the only defendants convicted on these counts; where no defendants are named, that signifies that all defendants are convicted on that count.

After mergers, the trial judge sentenced each of the Fitzgerald brothers to an aggregate sentence of life imprisonment plus 100 years, with a sixty-five year period of parole ineligibility. This sentence included an extended term, pursuant to N.J.S.A. 2C:43-6f, of life imprisonment with a thirty-year period of parole ineligibility on the conviction of first-degree leader of a narcotics trafficking network (Count One).

Defendants, individually, filed notices of appeal. We affirmed the convictions and remanded for resentencing. Defendants filed petitions for certification, which were denied. State v. Dawshon Fitzgerald, 196 N.J. 597 (2008); State v. Dawud Fitzgerald, 196 N.J. 597 (2008); State v. Daween Fitzgerald, 196 N.J. 597 (2008). The remand resulted in the same aggregate sentences being imposed on Dawmeen and Dawud; Dawshon's aggregate sentence remained the same except that his period of parole ineligibility was reduced by five years to a sixty-year period. Thereafter, they filed Petitions for Post-Conviction Relief (PCR). The PCRs were likewise denied. Defendants appeal, and we affirm.⁴

4 For the purposes of this opinion, we consolidate these appeals.

I.

Our consideration of this appeal requires an expansive recitation of the facts.

A.

For several years until their arrests in late 2002, the Fitzgeralds were trafficking cocaine and heroin throughout New Jersey ("the Fitzgerald organization" or "the organization"). The Fitzgerald organization consisted of numerous "employees," who were involved in selling, transporting, and packaging the narcotics.

At trial, two members of the Fitzgerald organization - Angel Aviles and Sherrodd Britt⁵ - explained how the Fitzgeralds divided up the responsibilities for the organization. Dawmeen was responsible for the cocaine, Dawshon was in charge of the heroin, and Dawud was the "enforcer," ensuring that all of the organization's operations ran smoothly.

5 At trial, Aviles and Britt, as part of negotiated plea agreements, testified on behalf of the State. In exchange, the State agreed to recommend for Aviles that a total sentence of twenty years, with eight years of parole ineligibility, be imposed. As a result of his agreement to cooperate with police, Aviles gave two statements to police, one in April 2003 and the other in July 2003, and met with Detectives John Sheridan and Suzanne Deegan on two other subsequent occasions. During the interviews, Aviles listened to tapes of phone calls that had been intercepted as a result of a court-ordered wiretap, and identified for the detectives who was speaking in each call. Detectives Sheridan and Deegan had also listened to all of the intercepted calls before meeting with Aviles, and they prepared transcriptions of each of the calls.
Britt entered a plea of guilty to possession of a CDS with the intent to distribute. In exchange for his trial testimony, the State recommended that he receive a custodial sentence of eighteen years with eight years of parole ineligibility. Aviles and Britt explained the operations of the organization, as well as the content of several intercepted phone calls between themselves, the Fitzgeralds and other members of the organization. A total of 128 intercepted calls were admitted into evidence at trial and were played for the jury.

The Fitzgerald organization used an apartment in Newark (the Newark apartment) as a "lab" for cutting and packaging heroin and cocaine. After the heroin was obtained from a supplier, the employees broke it down into smaller quantities and packaged it for distribution.

The Fitzgerald organization sold the narcotics at an apartment in Elizabeth (the Elizabeth apartment). On any given day, three or four people worked inside the Elizabeth apartment selling drugs, while three or four others worked outside as lookouts. Aviles, Britt and Shariek Hiett were the primary sellers. Those inside of the house communicated with the lookouts using walkie-talkies. Dawud came to the Elizabeth apartment every day to check on operations.

The house opened for drug sales on a daily basis at 5:30 a.m. and closed at 10:00 p.m. On average, 500 to 600 customers came to the Elizabeth apartment each day. They bought an aggregate of fifty to seventy bricks of heroin per day, or a total of 3500 glassine bags, and between 800 and 1000 bottles of cocaine per day. The Fitzgeralds sold glassine bags of heroin for $7 each, whereas the going rate in Elizabeth at that time was $10 a bag. Each bottle of cocaine sold for $5. The profits from the cocaine sales were between $2500 and $5000 per day. Any change in the sale price of drugs required prior approval.

The Fitzgerald organization kept a .38 caliber handgun and a TEC 9, an assault firearm, at the Elizabeth apartment. At some point, the .38 caliber handgun was missing, and the TEC 9 was also removed from the house and taken to another location. Dawshon also had a .40 caliber handgun that he had taken from Jahmin Muse, an employee of the Fitzgerald organization, which was sometimes kept at the Elizabeth apartment.

According to Aviles, the Fitzgerald organization relied on code words when referring to drugs. For example, in a phone conversation with Aviles, Dawmeen referred to bricks of heroin as "doughnuts" and to a pack of cocaine as a piece of "candy." Members of the organization also referred to bricks of heroin as "cheeseburgers" and vials of cocaine as "French fries."

The Fitzgerald brothers continuously communicated with Aviles and other members of the organization about resupplying the Elizabeth apartment with cocaine and heroin. When the supply of heroin and cocaine was running low at the house, Aviles or Britt would contact the Fitzgerald brothers for more. Typically, Aviles or Britt would call Dawmeen when the cocaine supply was low and Dawshon when the heroin was low. Defendants would then drive drugs from the Newark apartment to the Elizabeth apartment or have their employees do so.

For example, during a phone call on November 20, 2002, Aviles told Dawshon that he had only eight bricks of heroin left. Aviles told Dawshon to bring the drugs because there were a lot of customers to serve. In another call on November 27, 2002, Dawmeen asked Aviles how many "walls" were left. By "walls," Dawmeen was referring to packs of cocaine.

The Fitzgerald brothers communicated with Aviles about picking up money from the drug sales and either collected the money themselves or had it picked up for them. The Fitzgerald brothers also kept track of how much money was coming back to them on the drug sales; on multiple occasions, Dawmeen and Dawshon were angry that money from the sales was short and questioned Aviles about this.

The Fitzgerald brothers communicated with Aviles about picking up money from the drug sales and either collected the money themselves or had it picked up for them. The Fitzgerald brothers also kept track of how much money was coming back to them on the drug sales; on multiple occasions, Dawmeen and Dawshon were angry that money from the sales was short and questioned Aviles about this.

The Fitzgerald brothers often communicated with their employees about police presence and activity. The organization used lookouts to monitor police presence around the Elizabeth apartment.

The Fitzgeralds paid their employees on a weekly basis. The employees were paid in cash, and each was paid a different amount. Usually Dawud or Dawshon would organize the money and then give the money to Aviles or another employee, who distributed it to the workers. When the employees did something wrong, money was deducted from their pay.

The Fitzgerald brothers did not tolerate employees selling their own drugs at the Elizabeth apartment. For example, on November 27, 2002, Dawmeen realized that bottles of cocaine were not his because they were too small. Dawmeen threatened that because of this, Aviles and Patterson would be "bleeding today." At another time, Dawshon warned Aviles that he was going to come to the house to check if anyone was selling other drugs there, and if so, everyone in the house was "gonna be hit," meaning that they would be charged money or beaten up. Similarly, in November 2002, Dawmeen, Dawshon, and three employees went to Muse's apartment and threatened him with guns because he had been selling his own drugs at the Elizabeth apartment.

On November 6, 2002, Detective Clifford Spencer attempted to make an undercover purchase of raw, uncut heroin from John. Spencer met John at the marina in Elizabeth. During their encounter, John indicated that "we['re] willing to sell the grams [of heroin] at a nice price [be]cause we['re] doing good right now," meaning the Fitzgerald organization was making good money. John stated that the organization was selling seventy to eighty bricks a day and that each brick was selling for $350. John told Spencer that he would get Spencer a price on the heroin and instructed Spencer to call the next day for the price. John also told Spencer that he would let the "two guys in the house by the phones" know why Spencer was calling and to give Spencer the price that was agreed upon. John further indicated that if Spencer was not satisfied with the price that they could "rearrange things" and that "something can always be worked out." At the conclusion of the meeting, John said that things had been "working for us for four years straight."

One means by which the members of the organization communicated was through cellular telephones that the Fitzgeralds provided to their employees. During their various telephone communications, members of the organization discussed matters related to the trafficking of heroin and cocaine.

Between November 19, 2002, and December 17, 2002, the members of the Union County Prosecutor's Office Narcotics Strike Force — which included officers from the Elizabeth Police Department, the United States Drug Enforcement Administration (DEA), the Union County Prosecutor's Office and the Linden Police Department — were involved in a wiretap investigation in which they monitored intercepted telephone calls within the Fitzgerald organization. Pursuant to a warrant, the police wiretapped three cellular phone numbers used by members of the Fitzgerald organization. The phone numbers were in the name of "Tamisha Fitzgeral" or "Tamisha Fitzgerald." The phones were identified as Wiretap 4, Wiretap 4 push-to-talk,⁶ Wiretap 5, Wiretap 5 push-to-talk, Wiretap 6 and Wiretap 6 push-to-talk.

6 The phones used by the Fitzgerald organization had a "push-to-talk" function, which made them operate similar to a walkie-talkie.

The monitor stations for these phones were in the same room, and all of the officers monitored each of the wiretapped phones. During the monitoring, a computer recorded: the date, time and duration of the call; the number of the phone being used; the number that was dialed; the wiretap number from which the call originated; and whether the call was incoming or outgoing. The officers monitored the calls by listening to each one and determining whether it was pertinent to the investigation. If so, the officer listened to the call, and once the call was completed, the officer would write a synopsis or a verbatim transcription. As the officers monitored the phone calls, they provided information to law enforcement teams conducting surveillance upon the Fitzgeralds and other associates of the organization.

Following the completion of the wiretap investigation, Detectives John Sheridan and Suzanne Deegan were able to determine the individuals who used each of the wiretapped phones based on the familiarity with the individuals' voices the detectives developed over the course of the investigation. Detective Sheridan concluded that Wiretap 4 was primarily used by those who sold drugs at the Elizabeth apartment, including Britt, Aviles and Hiett, as well as Al Raheem Campbell and Al Shariek Harris. This phone was continuously in contact with Wiretap 5 and Wiretap 6. Dawud was the primary user of the phone under Wiretap 5, and Dawshon was the primary user of the phone under Wiretap 6.

The computer used during the wiretap investigation recorded the phone numbers of the incoming and outgoing calls, which included landline phone numbers. Based on this information, the police obtained phone subscriber information, from which the police ascertained the identities and addresses of the Fitzgerald brothers, as well as those of their associates and the organization's stash houses.

On December 17, 2002, at 6:00 a.m., officers from the Elizabeth Police Department, the DEA, the Union County Prosecutor's Office, the Newark Police Department, and the Roselle Police Department simultaneously executed nine search warrants at the Elizabeth apartment, five other Elizabeth apartments, the Newark apartment, and a Roselle apartment.

Dawmeen was arrested at one of the Elizabeth apartments. A total of $89,241 was found hidden in various locations throughout the apartment, including inside dresser drawers, under a baby's crib mattress, and under the couch.

Dawud was arrested at another of the Elizabeth apartments, where he was found hiding in a closet. In the residence, Detective Deegan found the cellular phone that was the subject of Wiretap 5. The police also recovered a total of $6447 at that location.

Dawshon was arrested at the Newark apartment. The police found the cellular phone that was the subject of Wiretap 6.

From these nine locations, the police recovered, among other things: the cellular phones that were the subject of the wiretaps; items used to weigh and package drugs and drug paraphernalia; a total of 188.876 grams of heroin, 3.2 grams of cocaine and 99.39 grams of procaine (a prescription anesthetic); and a total of $739,289 in cash.

B.

As we have noted, at trial, the State relied, in part, on evidence amassed from the wiretaps. Before trial, a hearing was held to address the admissibility of the recordings of the wiretapped conversations. See State v. Driver, 38 N.J. 255 (1962). During the Driver hearing, Union County Prosecutor's Detective Richard Stamler described the wiretap investigation. He was the lead detective in the investigation. He monitored the intercepted phone calls and instructed other monitors. The trial court ruled that the recorded conversations were admissible.

C.

Following their convictions, defendants appealed. On their direct appeal, they collectively and individually raised the following issues:⁷

7 The issues include issues raised by John Fitzgerald, who is not a party to this appeal. Any issues only raised by John have been omitted.

I. THE TRIAL COURT ERRED IN DENYING DEFENDANTS' MOTIONS TO SUPPRESS EVIDENCE[,] THE ELECTRONIC SURVEILLANCE AUTHORIZATIONS AND RELATED EVIDENCE AS
WELL AS ALL EVIDENCE OBTAINED THROUGH THE VARIOUS SEARCH WARRANTS ISSUED.

A. THE EVIDENCE OBTAINED FROM THE EXECUTION OF THE VARIOUS SEARCH WARRANTS AND THE SUPPORTING AFFIDAVIT'S FAILURE TO ESTABLISH A SUFFICIENT BASIS TO AUTHORIZE THE ISSUANCE OF "NO KNOCK" SEARCH WARRANTS [SIC].
B. THE EVIDENCE OBTAINED FROM THE ELECTRONIC SURVEILLANCE AUTHORIZATIONS [SIC].

II. THE TRIAL COURT'S CHARGE TO THE JURY WAS INADEQUATE, INSUFFICIENT, AND FATALLY DEFECTIVE IN NATURE.

A. THE TRIAL COURT ERRED BY REPEATEDLY INSTRUCTING THE JURY TO CONSIDER THE DEFENDANT'S "GUILT OR INNOCENCE" (NOT RAISED BELOW).
B. THE TRIAL COURT FAILED TO PROVIDE THE JURY ADEQUATE GUIDANCE ON HOW THEY SHOULD ASSESS THE CREDIBILITY OF CO-DEFENDANTS ANGEL AVILES AND SHERROD BRITT IN LIGHT OF THE PLEA AGREEMENTS THEY ENTERED INTO WITH THE STATE (NOT RAISED BELOW).⁸
C. THE TRIAL COURT'S CHARGE TO THE JURY REGARDING ACCOMPLICE LIABILITY WAS INADEQUATE, INSUFFICIENT AND FATALLY DEFECTIVE IN NATURE (NOT RAISED BELOW).⁹
D. THE TRIAL COURT FAILED TO ADEQUATELY INSTRUCT THE JURY ON

"EMPLOYING A JUVENILE" (NOT RAISED BELOW).¹⁰
E. THE TRIAL COURT'S INSTRUCTION ON THE "FINANCIAL FACILITATION" COUNT WAS PATENTLY INSUFFICIENT, UNCLEAR, AND CONFUSING.¹¹
F. WHEN CHARGING THE "LEADER" COUNT, THE TRIAL COURT ERRONEOUSLY EMPHASIZED THAT DEFENDANT NEED ONLY HAVE UPPER-ECHELON STATUS IN RELATION TO "ONE OTHER" PERSON IN THE ENTERPRISE.¹²

III. THE TRIAL COURT ABUSED ITS DISCRETION AND DEPRIVED THE DEFENDANT OF A FAIR TRIAL BY SURRENDERING CONTROL OF THE COURTROOM TO THE SHERIFF WITHOUT ADEQUATE INQUIRY (NOT RAISED BELOW).¹³
IV. THE TRIAL JUDGE ERRED BY ADMITTING CERTAIN EVIDENCE.

A. THE TRIAL COURT ERRED IN ADMITTING A BAIL RECEIPT, WHICH WAS AN UNAUTHENTICATED HEARSAY DOCUMENT, WHICH THE STATE RELIED UPON TO PROVE A LINK BETWEEN DAWUD AND THE $500,000 IN CASH THAT WAS FOUND AT ANOTHER RESIDENCE, IN ORDER TO CONVICT DAWUD OF "FINANCIAL FACILITATION."¹⁴

. . . .
C. THE TRIAL COURT ERRED IN ALLOWING TESTIMONY BY AVILES AS TO WHAT DEFENDANT AND OTHER ALLEGED CO-CONSPIRATORS "MEANT" IN CONVERSATIONS TO WHICH AVILES HIMSELF WAS NOT A PARTY.¹⁵

V. THE TRIAL JUDGE ERRED IN DENYING DAWUD'S MOTION TO SEVER AND LIMITING CROSS-EXAMINATION OF WITNESSES REGARDING THE LEADER OF A DRUG TRAFFICKING NETWORK CHARGE.¹⁶
VI. THE TRIAL JUDGE ERRED IN DENYING DAWUD'S MOTION FOR ACQUITTAL ON THE FINANCIAL FACILITATION CHARGE.¹⁷
. . . .
VIII. THE TRIAL JUDGE ERRED IN PASSING SENTENCE ON THESE DEFENDANTS.

A. THE BASE SENTENCES AND BLAKELY AND NATALE CONSIDERATIONS.
B. THE IMPOSITION OF EXTENDED TERMS.
C. THE DETERMINATION OF PAROLE INELIGIBILITY PERIODS.¹⁸
D. THE IMPOSITION OF CONSECUTIVE TERMS.
E. MERGER ISSUES.¹⁹

8 Only Dawmeen raised this issue.

9 Dawmeen did not raise this issue.

10 Dawmeen did not raise this issue.

11 Only Dawud raised this issue.

12 Only Dawud raised this issue.

13 Only Dawmeen raised this issue.

14 Only Dawud raised this issue.

15 Only Dawud raised this issue.

16 Only Dawud raised this issue.

17 Only Dawud raised this issue.

18 Only Dawmeen and Dawud raised this issue.

19 Only Dawud raised these issues.

In a sixty-eight page written opinion of June 30, 2008, we affirmed the convictions but remanded for resentencing.²⁰

20 Our earlier opinion provides a more in-depth description of the nature and detail of this expansive narcotics operation. See State v. Fitzgerald, A-5387-04, A-6158-04, A-6176-04 and A-1282-05 (consolidated) (App. Div. June 30, 2008) (slip op. at 3-25).

Following their various and unsuccessful petitions for certification, defendants filed their PCRs.

In his PCR, Dawmeen raised the following issues:

POINT ONE: THE PETITIONER WAS DEPRIVED OF HIS SIXTH AMENDMENT CONSTITUTIONAL RIGHT TO EFFECTIVE ASSISTANCE OF TRIAL COUNSEL AT THE SUPPRESSION HEARING THEREFORE, THE CONVICTION SHOULD BE REVERSED [SIC].
POINT TWO: THE PETITIONER WAS DEPRIVED OF HIS SIXTH AMENDMENT CONSTITUTIONAL RIGHT TO EFFECTIVE ASSISTANCE OF APPELLATE COUNSEL ON HIS DIRECT APPEAL THEREFORE THE CONVICTION
SHOULD BE REVERSED [SIC].

In the brief in support of Dawmeen's PCR, counsel raised the following issues:

POINT I
PETITIONER IS ENTITLED TO POST-CONVICTION RELIEF INCLUDING ORAL ARGUMENT AND AN EVIDENTIARY HEARING BASED ON THE TIMELY FILING OF THE VERIFIED PETITION AND THE FOREGOING ARGUMENTS
POINT II
PETITIONER IS ENTITLED TO POST CONVICTION RELIEF BASED ON INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL

A. Petitioner Asserts That Trial Counsel Was Ineffective In His Failure To Zealously Challenge The Applications For The Wiretap And The "No-Knock" Warrants

1. Trial Counsel was Ineffective for his Failure to Adequately Challenge the Authorization of the Interceptions of Wiretap Communications

a. Trial Counsel Was Ineffective In His Failure To Request A Hearing To Challenge The Qualifications Of The Police Detectives And Expose Defects In The Affidavit
b. Trial Counsel was Ineffective for Failure to Move for Disclosure of a Confidential Informant Mentioned throughout the Wiretap Application Affidavit by Detective Sheridan

2. Trial Counsel was Ineffective In his Failure to Adequately Challenge the Application for a No-Knock Search Warrant

B. Appellate Counsel Failed To Argue That The Elements Pursuant To The "Kingpin" Statute Were Not Met
C. Petitioner Additionally Argues Ineffective Assistance of Counsel for the Following Reasons

POINT III
PETITIONER'S CLAIMS ARE NOT BARRED BY THE PROVISIONS OF RULE 3:22-2 AS THEY ASSERT CONSTITUTIONAL ISSUES A RISING [SIC] UNDER THE STATE CONSTITUTION

In his pro se supplemental brief in support of his PCR, Dawmeen raised the following issues:

POINT ONE
THE PETITIONER WAS DENIED HIS SIXTH AMENDMENT CONSTITUTIONAL RIGHT TO THE EFFECTIVE ASSISTANCE OF TRIAL COUNSEL BY COUNSEL'S FAILURES TO: (A) TO SUBJECT THE STATE'S CASE TO AN ADVERSARIAL TESTING DURING THE PRETRIAL SUPPRESSION HEARINGS TO CHALLENGE THE ADMISSIBILITY OF EVIDENCE OBTAINED PURSUANT TO WIRETAP WARRANTS AND NO-KNOCK SEARCH WARRANTS; (B) TO OBJECT TO THE STATE'S ADMISSION OF NUMEROUS HEARSAY WIRETAP TAPES AND TESTIMONY; (C) TO OBJECT TO PROSECUTORIAL MISCONDUCT OF THE STATE'S RELIANCE ON AN UNTESTED INFORMANT; AND (D) FAILING TO OBJECT TO ERRONEOUS JURY INSTRUCTIONS THEREFORE, THE CONVICTIONS SHOULD BE REVERSED [SIC]
POINT TWO
THE PETITIONER WAS SUBJECTED TO THE INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL BY THE FAILURE OF COUNSEL TO RAISE THE UNDERLYING SUBSTANTIVE CLAIMS TO THOSE RAISED ABOVE ON DIRECT APPEAL THEREFORE, THE PCR SHOULD BE GRANTED AND THE CONVICTIONS SHOULD BE REVERSED [SIC]
POINT THREE
BECAUSE PETITIONER HAS MADE A PRIMA FACIE SHOWING AN EVIDENTIARY HEARING IN THIS MATTER SHOULD BE GRANTED.

In his PCR petition, Dawud raised the following issues:

POINT ONE: THE PETITIONER WAS DEPRIVED OF HIS SIXTH AMENDMENT CONSTITUTIONAL RIGHT TO EFFECTIVE ASSISTANCE OF TRIAL COUNSEL AT THE SUPPRESSION HEARING THEREFORE, THE CONVICTION SHOULD BE REVERSED [SIC].
POINT TWO: THE PETITIONER WAS DEPRIVED OF HIS SIXTH AMENDMENT CONSTITUTIONAL RIGHT TO EFFECTIVE ASSISTANCE OF APPELLATE COUNSEL ON HIS DIRECT APPEAL THEREFORE THE CONVICTION
SHOULD BE REVERSED [SIC].

In the brief in support of Dawud's PCR petition, counsel raised the following issues:

POINT I
PETITIONER WAS DENIED HIS CONSTITUTIONAL RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL (U.S. CONST., (Amend.VI,XIV:N.J.CONST., (1947),Art.I,par.10) [SIC]
POINT II
PETITIONER WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL CONSTITUTIONALLY GUARANTEED TO HIM AT TRIAL BECAUSE TRIAL COUNSEL FAILED TO FILE AND ARGUE A VIABLE MOTION TO CHALLENGE THE WIRETAP EVIDENCE, NECESSITATING GRANTING HIS PETITION FOR POST-CONVICTION RELIEF. U.S. CONST., AMENDS. VI, XIV; N.J. CONST. ART. I, PAR. 10. [SIC]
POINT III
THE TRIAL COURT VIOLATED THE DEFENDANT'S RIGHT TO A FAIR AND IMPARTIAL JURY BY FAILING, UPON COUNSEL'S REQUEST, TO QUESTION JURORS CONCERN-ING THEIR POSSIBLE EXPOSURE TO HIGHLY PREJUDICIAL NEWS REPORTS. U.S. Const., Amends. VI, XIV; N.J. Const. (1947), Art. I, par. 10. [SIC]
POINT IV
THE SENTENCE IMPOSED ON DEFENDANT WAS MANIFESTLY EXCESSIVE

In his pro se supplemental brief in support of his PCR petition, Dawud raised the following issues:

POINT ONE
THE PETITIONER WAS DENIED HIS SIXTH AMENDMENT CONSTITUTIONAL RIGHT TO THE EFFECTIVE ASSISTANCE OF TRIAL COUNSEL BY COUNSEL'S FAILURES TO: (A) TO SUBJECT THE STATE'S CASE TO AN ADVERSARIAL TESTING DURING THE PRETRIAL SUPPRESSION HEARINGS TO CHALLENGE THE ADMISSIBILITY OF EVIDENCE OBTAINED PURSUANT TO WIRETAP WARRANTS AND NO-KNOCK SEARCH WARRANTS; (B) TO OBJECT TO THE STATE'S ADMISSION OF NUMEROUS HEARSAY WIRETAP TAPES AND TESTIMONY; (C) TO OBJECT TO PROSECUTORIAL MISCONDUCT OF THE STATE'S RELIANCE ON AN UNTESTED INFORMANT; AND (D) FAILING TO OBJECT TO ERRONEOUS JURY INSTRUCTIONS THEREFORE, THE CONVICTIONS SHOULD BE REVERSED [SIC]
POINT TWO
THE PETITIONER WAS SUBJECTED TO THE INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL BY THE FAILURE OF COUNSEL TO RAISE THE UNDERLYING SUBSTANTIVE CLAIMS TO THOSE RAISED ABOVE ON DIRECT APPEAL THEREFORE, THE PCR SHOULD BE GRANTED AND THE CONVICTIONS SHOULD BE REVERSED [SIC]
POINT THREE
BECAUSE PETITIONER HAS MADE A PRIMA FACIE SHOWING AN EVIDENTIARY HEARING IN THIS MATTER SHOULD BE GRANTED

In a letter memorandum in further support of Dawud's PCR petition, counsel raised the following issue:

PETITIONER WAS DENIED HIS CONSTITUTIONAL RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL WHEN IT FAILED TO CHALLENGE THE IDENTITY OF THE INFORMANT IN THE MATTER SUB JUDICE.

In his PCR petition, Dawshon raised the following issues:

POINT ONE
THE PETITIONER WAS DEPRIVED OF HIS SIXTH AMENDMENT CONSTITUTIONAL RIGHT TO EFFECTIVE ASSISTANCE OF TRIAL COUNSEL AT THE SUPPRESSION HEARING THEREFORE, THE CONVICTION SHOULD BE REVERSED [SIC]
POINT TWO
THE PETITIONER WAS DEPRIVED OF HIS SIXTH AMENDMENT CONSTITUTIONAL RIGHT TO EFFECTIVE ASSISTANCE OF APPELLATE COUNSEL ON HIS DIRECT APPEAL THEREFORE THE CONVICTION SHOULD BE REVERSED [SIC]

In the brief in support of Dawshon's PCR petition, counsel raised the following issues:

POINT I: PETITIONER IS ENTITLED TO A VACATION OF HIS CONVICTION BECAUSE OF A DENIAL OF EFFECTIVE ASSISTANCE OF COUNSEL IN THE PRESENTATION OF HIS MOTIONS TO SUPPRESS WIRETAP AND DERIVATIVE EVIDENCE
POINT II: APPELLATE COUNSEL PROVIDED INEFFECTIVE ASSISTANCE IN THE DIRECT APPEAL BY NOT RAISING THE ISSUES OF THE INADEQUACY OF THE INITIAL WIRETAP APPLICATION AND INEFFECTIVE TRIAL COUNSEL
POINT III: PETITIONER'S APPLICATION IS NOT BARRED BY THE PROCEDURAL BARRIERS OF FAILURE
TO RAISE THE ISSUES IN DIRECT APPEAL AND PRIOR ADJUDICATION.
POINT IV: TRIAL AND APPELLATE COUNSELS' ERRORS CREATED A REASONABLE PROBABILITY THAT THEY MATERIALLY CONTRIBUTED TO THE CONVICTION; THE COURT MUST VACATED THE CONVICTION OR, AT A MINIMUM, IT MUST CONDUCT AN EVIDENTIARY HEARING TO RESOLVE THE ISSUE OF INEFFECTIVE ASSISTANCE OF COUNSEL
POINT V: COMPLIANCE WITH STATE V. WEBSTER

In his pro se supplemental brief in support of his PCR petition, Dawshon raised the following issues:

POINT ONE
THE PETITIONER WAS DENIED HIS SIXTH AMENDMENT CONSTITUTIONAL RIGHT TO THE EFFECTIVE ASSISTANCE OF TRIAL COUNSEL BY COUNSEL'S FAILURES TO: (A) TO SUBJECT THE STATE'S CASE TO AN ADVERSARIAL TESTING DURING THE PRETRIAL SUPPRESSION HEARINGS TO CHALLENGE THE ADMISSIBILITY OF EVIDENCE OBTAINED PURSUANT TO WIRETAP WARRANTS AND NO-KNOCK SEARCH WARRANTS; (B) TO OBJECT TO THE STATE'S ADMISSION OF NUMEROUS HEARSAY WIRETAP TAPES AND TESTIMONY; (C) TO OBJECT TO PROSECUTORIAL MISCONDUCT OF THE STATE'S RELIANCE ON AN UNTESTED INFORMANT; AND (D) FAILING TO OBJECT TO ERRONEOUS JURY INSTRUCTIONS THEREFORE, THE CONVICTIONS SHOULD BE REVERSED [SIC]
POINT TWO
THE PETITIONER WAS SUBJECTED TO THE INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL BY THE FAILURE OF COUNSEL TO RAISE THE UNDERLYING SUBSTANTIVE CLAIMS TO THOSE RAISED ABOVE ON DIRECT APPEAL THEREFORE, THE PCR SHOULD BE GRANTED AND THE CONVICTIONS SHOULD BE REVERSED [SIC]
POINT THREE
BECAUSE PETITIONER HAS MADE A PRIMA FACIE SHOWING AN EVIDENTIARY HEARING IN THIS MATTER SHOULD BE GRANTED

The trial judge denied the PCRs and defendants appealed. On appeal, Dawshon raised the following issues:²¹

21 Dawshon, Dawud and Dawmeen each filed pro se supplemental briefs on their behalf, each with an identical issue statement:

BECAUSE THE PCR COURT ERRED BY FAILING TO ADDRESS THE CLAIMS RAISED IN THE PRO-SE SUPPLEMENTAL BRIEF FILED ON PCR, THIS COURT SHOULD ASSUME JURISDICTION OVER THE CLAIMS AND GRANT THE WARRANTED RELIEF OR REMAND THE MATTER FOR A FULL EVIDENTIARY HEARING ON THE SAID CLAIMS BECAUSE THE DEFENDANT HAS MADE A PRIMA FACIE SHOWING WARRANTING A HEARING CONVICTIONS SHOULD BE REVERSED [SIC]

These briefs raise the same issues as those made by counsel. To the extent that they raise different issues, those issues are vague and conclusory. We do not address these briefs separately.

I. THE COURT ERRED IN DENYING POST-CONVICTION RELIEF BECAUSE THE BASE SENTENCE OF 70 YEARS WITH 25 YEARS OF PAROLE INELIGIBILITY IMPOSED ON THE DEFENDANT'S CONVICTION ON COUNT SIX FOR POSSESSION OF HEROIN WITH THE INTENT TO DISTRIBUTE WAS ILLEGAL (NOT RAISED BELOW)
II. THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED BECAUSE THE INADEQUATE FINDINGS BY THE PCR COURT DEPRIVED DEFENDANT OF HIS RIGHT UNDER STATE V. RUE AND UNDER R. 3:22 TO A FAIRLY CONDUCTED ADJUDICATIVE PROCEEDING
III. THE COURT ERRED IN DENYING POST-CONVICTION RELIEF WITHOUT CONDUCTING A FULL EVIDENTIARY HEARING BECAUSE TRIAL COUNSEL'S FAILURE TO MOVE TO
SUPPRESS EVIDENCE ON THE BASIS THAT STATEMENTS BY THE UNTESTED CONFIDENTIAL INFORMANT CONTAINED IN DETECTIVE SHERIDAN'S AFFIDAVIT DID NOT SATISFY THE PROBABLE CAUSE STANDARD AND TRIAL COUNSEL'S DEFICIENT PERFORMANCE AT RESENTENCING CONSTITUTED PRIMA FACIE INEFFECTIVE ASSISTANCE OF COUNSEL UNDER THE FIRST PRONG OF THE STRICKLAND/FRITZ TEST, AND THE RESULTING PREJUDICE TO THE DEFENDANT SATISFIED THE SECOND PRONG
IV. THE COURT'S RULING DENYING POST-CONVICTION RELIEF VIOLATED THE DEFENDANT'S RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION, AND THE DEFENDANT'S RIGHT TO FAIR SENTENCING AND POST-CONVICTION RELIEF PROCEEDINGS AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION
V. DEFENDANT REASSERTS ALL OTHER ISSUES RAISED IN DEFENDANT'S PRO SE PETITION FOR POST-CONVICTION RELIEF AND IN PCR COUNSEL'S BRIEF IN SUPPORT OF POST-CONVICTION RELIEF

A. TRIAL COUNSEL WAS INEFFECTIVE IN FAILING TO OBJECT TO THE STATE'S ADMISSION OF NUMEROUS HEARSAY WIRETAP TAPES BECAUSE THEY WERE NOT PROPERLY SEALED
B. TRIAL COUNSEL WAS INEFFECTIVE IN FAILING TO OBJECT TO THE STATE'S ADMISSION OF NUMEROUS HEARSAY WIRETAP TAPES THAT THE DEFENDANT WAS NOT A PARTY TO
C. TRIAL COUNSEL WAS INEFFECTIVE IN FAILING TO CHALLENGE THE LEGALITY OF THE "NO-KNOCK" SEARCH WARRANTS
D. TRIAL COUNSEL WAS INEFFECTIVE IN FAILING TO OBJECT TO PROSECUTORIAL MISCONDUCT
E. TRIAL COUNSEL WAS INEFFECTIVE IN FAILING TO OBJECT TO ERRONEOUS JURY INSTRUCTIONS
F. APPELLATE COUNSEL WAS INEFFECTIVE

On appeal, Dawud raises the following issues:

I. DAWUD FITZGERALD IS ENTITLED TO A HEARING ON HIS CLAIM THAT HIS ATTORNEY RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL
II. DAWUD FITZGERALD IS ENTITLED TO A REMAND BECAUSE THE PCR COURT DID NOT PROPERLY ADDRESS ALL OF HIS CLAIMS ON THE MERITS
III. THE CLAIMS IN DAWUD'S PETITIONS AND BRIEFS ARE INCORPORATED IN THIS APPEAL.

On appeal, Dawmeen raises the following issues:

I. THE LOWER COURT ORDER MUST BE REVERSED SINCE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL

A. Trial Counsel was ineffective in failing to zealously challenge the application for the wiretaps
B. Trial Counsel was ineffective in failing to zealously challenge the applications for the "no knock" search warrants
C. Trial Counsel was ineffective in failing to file a motion to suppress

II. THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL
III. THE LOWER COURT ORDER MUST BE REVERSED IN LIGHT OF ADDITIONAL ERRORS
IV. THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE CUMULATIVE ERRORS RENDERED THE TRIAL UNFAIR AND COUNSEL INEFFECTIVE
V. THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE DEFENDANT'S CLAIMS ARE NOT PROCEDURALLY BARRED UNDER R. 3:22-4
VI. THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE DEFENDANT'S CLAIMS ARE NOT PROCEDURALLY BARRED UNDER R. 3:22-5
VII. THE LOWER COURT ERRED IN NOT GRANTING DEFENDANT'S REQUEST FOR AN EVIDENTIARY HEARING AND THE LOWER COURT ORDER MUST THEREFORE BE REVERSED

II.

We address the issues, seriatim, but before doing so, we set forth a number of legal principles that inform our consideration and review of these PCRs.

A.

Our standard of review of the denial of a PCR is whether the judge's findings of fact were supported by sufficient credible evidence. State v. Nunez-Valdez, 200 N.J. 129, 141 (2009); State v. Echols, 199 N.J. 344, 357 (2009); State v. Arthur, 184 N.J. 307, 320 (2005).

In specifically reviewing ineffective assistance of counsel cases, "judicial scrutiny . . . must be highly deferential, and must avoid viewing the performance under the distorting effects of hindsight." Arthur, supra, 184 N.J. at 318-19 (internal quotations and citations omitted). See also State v. Hess, 207 N.J. 123, 147 (2011).

However, pure questions of law warrant de novo review. State v. W.B., 205 N.J. 588, 603 n.4 (2011). See also State v. Harris, 181 N.J. 391, 420 (2004), cert. denied, 545 U.S. 1145, 125 S. Ct. 2973, 162 L. Ed. 2d 898 (2005). The same scope of review applies to mixed questions of law and fact. Harris, supra, 181 N.J. at 420. We review a PCR judge's fact-findings for clear error and accord great deference to a PCR judge's credibility determinations. Ibid.

Where an appellant did not raise an issue at trial, the plain error standard applies. R. 2:10-2. A plain error is one "clearly capable of producing an unjust result." State v. Walker, 203 N.J. 73, 89 (2010) (citing R. 2:10-2). The injustice must be "sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached." State v. Taffaro, 195 N.J. 442, 454 (2008) (quoting State v. Macon, 57 N.J. 325, 336 (1971)). Where a plain error is of constitutional magnitude, a new trial is required unless the error was harmless beyond a reasonable doubt. See State v. Basil, 202 N.J. 570, 615 n.5 (2010).

A defendant convicted of a crime may file a PCR. R. 3:22-1. However, post-conviction relief is not a substitute for direct appeal. R. 3:22-3. A PCR may not be filed when direct review is pending. Pressler & Verniero, Current N.J. Court Rules, comment on R. 3:22-3 (2011). Grounds for a PCR include the "[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." R. 3:22-2(a).

Under Rule 3:22-4(a), a petitioner may be barred from asserting any claims he could have raised at trial or on direct appeal, unless the judge concludes:

(1) that the ground for relief not previously asserted could not reasonably have been raised in any prior proceeding; or
(2) that enforcement of the bar to preclude claims, including one for ineffective assistance of counsel, would result in fundamental injustice; or
(3) that denial of relief would be contrary to a new rule of constitutional law under either the Constitution of the United States or the State of New Jersey.

This rule is intended "to promote finality in judicial proceedings[.]" Echols, supra, 199 N.J. at 357 (quoting State v. McQuaid, 147 N.J. 464, 483 (1997)). However, as the Court has recognized, "[i]neffective-assistance-of-counsel claims are particularly suited for post-conviction review because they often cannot reasonably be raised in a prior proceeding." Echols, supra, 199 N.J. at 357 (quoting State v. Preciose, 129 N.J. 451, 460 (1992)). See also McQuaid, supra, 147 N.J. at 484.

Under Rule 3:22-5, a petitioner may be barred from asserting any claims already expressly adjudicated. Post-conviction relief will be precluded under this rule "only if the issue is identical or substantially equivalent to the issue already adjudicated on the merits." State v. Afanador, 151 N.J. 41, 51 (1997) (quoting McQuaid, supra, 147 N.J. at 484) (internal quotation marks omitted).

A judge is not required to hold evidentiary hearings in PCR proceedings. Preciose, supra, 129 N.J. at 462 (citing R. 3:22-1). Whether to hold an evidentiary hearing is a matter of judicial discretion. Ibid. Rule 3:22-10(b) provides that:

[a] defendant shall be entitled to an evidentiary hearing only upon the establishment of a prima facie case in support of post-conviction relief, a determination by the court that there are material issues of disputed fact that cannot be resolved by reference to the existing record, and a determination that an evidentiary hearing is necessary to resolve the claims for relief. To establish a prima facie case, defendant must demonstrate 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.
[(Emphasis added).]

An evidentiary hearing on an ineffective assistance of counsel claim is required where defendant has established a prima facie case and the facts on which defendant relies are not already of record. See State v. Murray, 162 N.J. 240, 250-51 (2000). Absent a prima facie showing, an evidentiary hearing is not required. See State v. Cummings, 321 N.J. Super. 154, 169-71 (App. Div.), certif. denied, 162 N.J. 199 (1999).

Where the PCR judge has not held an evidentiary hearing, we "may exercise de novo review over the factual inferences drawn from the documentary record" by the PCR judge. State v. Reevey, 417 N.J. Super. 134, 146-47 (App. Div. 2010), certif. denied, 206 N.J. 64 (2011) (quoting Harris, supra, 181 N.J. at 421).

Where, as here, defendant claims ineffective assistance of counsel, the test to be applied is well settled. Our Supreme Court has adopted the two-part test for ineffective assistance of counsel established by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). The Strickland test is as follows:

First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable.
[State v. Fritz, 105 N.J. 42, 52 (1987) (citing Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693).]

In adopting Strickland, the New Jersey Supreme Court labeled the first prong as "the performance prong" and restated the observation from Strickland that "client loyalty, adequate consultation, and legal proficiency are relevant in determining whether assistance was effective." Ibid. Strickland sets forth no specific test for the "performance prong." Ibid. "No particular set of detailed rules for counsel's conduct can satisfactorily take account of the variety of circumstances faced by defense counsel or the range of legitimate decisions regarding how best to represent a criminal defendant." Ibid. (quoting Strickland, supra, 466 U.S. at 688-89, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694). "To meet prong one, a defendant must overcome a 'strong presumption' that counsel exercised 'reasonable professional judgment' and 'sound trial strategy' in fulfilling his responsibilities." Hess, supra, 207 N.J. at 147 (quoting Strickland, supra, 466 U.S. at 689-90, 104 S. Ct. at 2065-66, 80 L. Ed. 2d at 694-95). A reviewing court "must judge the reasonableness of counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct." Echols, supra, 199 N.J. at 358 (citing Strickland, supra, 466 U.S. at 690, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695).

The second prong of the Strickland test states that "prejudice must be proved; it is not presumed." Fritz, supra, 105 N.J. at 52. Defendant must demonstrate a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Ibid. (quoting Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698). See also State v. Taccetta, 200 N.J. 183, 193 (2009).

The critical inquiry under the Strickland/Fritz test is "whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." State v. Perry, 124 N.J. 128, 147 (1991) (quoting Strickland, supra, 466 U.S. at 686, 104 S. Ct. at 2064, 80 L. Ed. 2d at 692-93).

When a petitioner claims ineffective assistance of counsel, petitioner must do more than make bald assertions; petitioner must "assert the facts" relevant to his claim, "supported by affidavits or certifications based upon the personal knowledge of the affiant or the person making the certification." Cummings, supra, 321 N.J. Super. at 170.

The failure of defense counsel to conduct adequate pretrial preparation renders him ineffective, regardless of the quality of his performance at trial. Fritz, supra, 105 N.J. at 63-64. Where the ineffective assistance of counsel claim is based on a failure to file a constitutionally-based suppression motion, "a defendant must establish that his [constitutional] claim is meritorious." State v. O'Neal, 190 N.J. 601, 618-19 (2007) (quoting State v. Fisher, 156 N.J. 494, 501 (1998)) (internal quotation marks omitted). Defendant must also prove actual prejudice, in other words, that the verdict would have been different absent the excludable evidence. Kimmelman v. Morrison, 477 U.S. 365, 375, 106 S. Ct. 2574, 2583, 91 L. Ed. 2d 305, 319 (1986).

Applying these principles here, we now address the specific claims asserted by the various defendants.

B.

Dawshon asserts that the trial court imposed an illegal sentence at his resentencing because it imposed an extended-term sentence on count six, despite the fact that the State failed to properly request an extended-term sentence for that count. The State asserts that it properly made such a request. We agree with the State's position.

Post-conviction relief is warranted based upon the imposition of an illegal sentence if raised together with other cognizable grounds. R. 3:22-2(c). A motion to correct an illegal sentence may be made at any time. Pressler & Verniero, supra, comment 1 on R. 3:21-10. See also Murray, supra, 162 N.J. at 247 (noting that an illegal sentence "may be corrected at any time before it is completed"). Here, Dawshon properly raised a claim challenging his sentence as illegal in conjunction with other cognizable grounds for post-conviction relief.

An illegal sentence is one "in excess of or otherwise not in accordance with the sentence authorized by law." R. 3:22-2(c). The New Jersey Supreme Court has held that a sentence is illegal if it "exceeds the maximum penalty provided" in the New Jersey Code of Criminal Justice, N.J.S.A. 2C:1-1 to 2C:104-9 (Code), or, "although not in excess of the statutory maximum penalty, may not be a disposition authorized by the Code." Murray, supra, 162 N.J. at 247. "[A] sentence may not be in accordance with law because it fails to satisfy required presentencing conditions." Ibid.

One such condition is that "a discretionary extended term may be imposed only upon application of the prosecutor." State v. Thomas, 195 N.J. 431, 436 (2008) (citing N.J.S.A. 2C:44-3). Dawshon asserts that this condition was violated because the State failed to file the required written application for an extended-term sentence as to count six, the count for which the court imposed an extended-term sentence at resentencing.

We disagree. The record demonstrates the following: prior to Dawshon's initial April 22, 2005 sentencing, the State moved for extended-term sentences on all counts; at that sentencing, the trial court imposed an extended-term sentence on Dawshon's conviction on count one; after Dawshon's sentence was vacated on direct appeal and the matter was remanded for resentencing, the State renewed its request for an extended-term sentence on count six; at resentencing, the trial court imposed an extended-term sentence for Dawshon's conviction on count six. The State properly requested an extended-term sentence on all counts, including count six, prior to sentencing, and renewed that request prior to resentencing, permitting the trial court to impose an extended-term sentence as to that count.

Dawshon relies on State v. Murray, 338 N.J. Super. 80 (App. Div. 2001), certif. denied, 169 N.J. 608 (2001), in support of his claim that his sentence is illegal because the sentencing transcript fails to reflect the State's request. Murray states, "[o]rdinarily, we consider the sentencing transcript, rather than the judgment of conviction, to be the true source of the sentence." Id. at 91 (citing State v. Walker, 322 N.J. Super. 535, 556 (App. Div.), certif. denied, 162 N.J. 487 (1999); State v. Pohlabel, 40 N.J. Super. 416, 423 (App. Div. 1956)).

While Dawshon's sentencing transcripts do not reflect the State's request for extended-term sentences for Dawshon's convictions, the trial court's addendum to the initial judgment of conviction notes that "[t]he State has moved for extended term sentences . . . . The least severe extended term will be imposed on Count 1." (emphasis added). Also, in its letter in lieu of a sentencing memorandum, submitted prior to Dawshon's resentencing, the State "respectfully request[ed] that on remand, the Court apply the extended term to [Count 6] of the indictment, rather than Count 1." The State went on to note that "[t]he State filed for an extended term on all applicable counts of the indictment, including Count 6, so the defendants are properly noticed with regard to the extended term exposure on this count."

Clearly, the State satisfied all necessary presentencing conditions for an extended term. We conclude that the sentence was not illegal.

Dawshon next maintains that the PCR court made inadequate findings in support of its decision to deny Dawshon's PCR. Specifically, he complains that the PCR court did not specifically address all of Dawshon's claims and instead "incorporate[d] by reference the State's briefs[.]" The State argues that the trial court acted within its discretion.

Pursuant to Rule 1:7-4(a), "[t]he court shall, by an opinion or memorandum decision, either written or oral, find the facts and state its conclusions of law thereon in all actions tried without a jury, on every motion decided by a written order that is appealable as of right, and also as required by R. 3:29." How the court does so is within the trial judge's sound discretion. In re Trust Created by Agreement Dated December 20, 1961, 399 N.J. Super. 237, 253 (App. Div. 2006), aff'd, 194 N.J. 276 (2008).

A judge may rule "for the reasons posited by the parties" rather than issue a statement of its grounds as long as the judge makes such reliance explicit. Id. at 253-54 (citing Vartenissian v. Food Haulers, Inc., 193 N.J. Super. 603, 612 (App. Div. 1984) and Pressler, Current N.J. Court Rules, comment 1 on R. 1:7-4 (2006)). "The purpose of the rule is to make sure that the court makes its own determination of the matter." Id. at 254 (citation omitted). The rule also ensures that our appellate function is not hampered. Ibid.

Here, after specifically addressing some of the Fitzgerald brothers' issues, the PCR trial judge said:

In the interest of brevity and because of the review of this Court of the State's briefs in opposition to these applications, the [c]ourt incorporates by reference the State's briefs as they respond to each argument of the [petitioners] and denies each petitioner an application for post-conviction relief in totality.

While "the clearly better practice is for the court to make its own statement[,]" Pressler & Verniero, supra, comment 1 on R. 1:7-4, under the circumstances, the PCR court did not abuse its discretion. The judge's decision explicitly adopts the substance of the State's opposition brief. Considering the judge's statements during his oral commentary and decision, the judge did not abdicate his responsibility but rather considered the issues, agreeing with the State's presentation of them. We note that the State's opposition responded to Dawshon's PCR petition in detail, and the PCR court's actions do not hamper our ability to perform our appellate function.

Dawshon cites a number of cases in support of his position; however, all are inapposite. State v. Rue, 175 N.J. 1 (2002), and State v. Webster, 187 N.J. 254 (2006), address standards for PCR counsel, not the PCR court. In State v. Mayron, 344 N.J. Super. 382 (App. Div. 2001), we reversed a decision by the PCR court not to permit oral argument.

State v. Thompson, 405 N.J. Super. 163 (App. Div. 2009), is arguably on point, in that one of the issues was the inadequacy of the PCR court's record on appeal. However, the facts in Thompson differ significantly from those in this case. In Thompson, when the defendant appealed the denial of his PCR petition, trial transcripts could not be made. Id. at 167. We remanded the matter to the PCR court for reconstruction of the record. Ibid. In creating the reconstruction, the trial court proceeded ex parte and relied upon notes made by both attorneys. Id. at 168. There is no indication that the Thompson court incorporated either of the parties' briefs by reference. See ibid. We found the PCR court's reconstruction inadequate:

Counsel for defendant did not prepare a "statement of the evidence and proceedings." . . . The judge relied exclusively on counsels' notes, which were wholly insufficient because, generally, attorneys do not take notes of the statements they make in open court. Furthermore, the judge failed to comply with [State v. Casimono, 298 N.J. Super. 22 (App. Div. 1997),] when he proceeded ex parte. Lastly, the judge's reconstruction of his own ruling is wholly inadequate when his decision is compared to the various issues raised by defendant and his counsel on the applications for PCR and for reconsideration.
[Id. at 169-70 (citations omitted).]

Our holding in Thompson does not apply here. While we reiterate that the better practice is for a full explanation of findings by the motion judge, under the facts presented here, we conclude that the PCR judge did not abuse his discretion.

Next, Dawshon argues that the trial court erred in denying post-conviction relief without conducting a full evidentiary hearing because Dawshon established a prima facie case of ineffective assistance of counsel. In support of his ineffective assistance claim, Dawshon asserts that (1) trial counsel failed to fulfill its required function at his resentencing hearing, and (2) trial counsel failed to move to suppress evidence obtained as the fruit of a search pursuant to a warrant that was invalid because it was based on statements made by an untested confidential informant. Although he does not acknowledge this, Dawshon's arguments with regard to deficiencies at resentencing are raised for the first time on appeal.

Dawshon asserts, for the first time on appeal, that trial counsel's performance at resentencing was deficient because counsel failed to: ensure that appropriate mergers occurred, oppose imposition of consecutive sentences that were unwarranted, argue for the imposition of a lesser custodial term and period of parole ineligibility than were authorized by statute, assert all mitigating factors supported by the record and object to inapplicable aggravating factors. However, Dawshon fails to advance any facts establishing that trial counsel failed to effectively perform his duties. See Cummings, supra, 321 N.J. Super. at 170. Dawshon has not established, or even asserted, that appropriate mergers did not occur, the consecutive sentences imposed against him were unwarranted, mitigating factors were supported by the record or the aggravating factors noted by the trial court were inapplicable. Dawshon does note that, at resentencing, the trial court imposed different sentences for some of his convictions as compared to his initial sentencing. However, as the State aptly notes, Dawshon's aggregate sentence was essentially the same upon resentencing, the only difference being that his aggregate period of parole ineligibility was reduced by five years. See State v. Young, 379 N.J. Super. 498, 508-09 (App. Div. 2005) ("although the sentence on the assault conviction was increased, there was no double jeopardy or due process violation since the overall sentence remained the same"), certif. granted, in part, remanded for resentencing, 188 N.J. 349 (2006).

Also, the record reflects that trial counsel zealously argued for the imposition of a lesser sentence than that imposed. First, trial counsel requested that the court impose no consecutive sentences that were not statutorily mandated. Furthermore, trial counsel requested for multiple reasons that Dawshon be given a forty-five-year parole disqualifier rather than a sixty-five-year parole disqualifier.

Dawshon asserts that "trial counsel has the responsibility to insure that all presentencing conditions for imposition of an extended term sentence are satisfied," which, he alleges, trial counsel failed to do here. However, as we previously noted, those conditions were satisfied.

We conclude that counsel's performance at resentencing was not deficient and defendant is not entitled to a hearing.

Dawshon also maintains that counsel was ineffective when he failed to file a pretrial motion to suppress evidence obtained on the basis of statements made by an untested confidential informant, who was cited in the affidavit submitted by Detective Sheridan in support of the wiretap warrant. Dawshon claims that, had trial counsel filed a motion to suppress, the motion would have been granted because the untested informant "did not serve as a valid basis for a finding of probable cause." Dawshon further asserts that the PCR court erroneously denied post-conviction relief and failed to grant an evidentiary hearing regarding this matter, despite the fact that he made a prima facie showing of ineffective assistance. The State maintains that Dawshon's argument fails because the informant's reliability was sufficiently established. ²²

22 The State also asserts that Dawshon is procedurally barred from raising this claim under Rule 3:22-4 because he could have raised this issue on direct appeal but failed to do so. We need not explore that issue in any depth because we conclude that defendant's claim fails on the merits.

New Jersey has adopted the United States Supreme Court's "totality of the circumstances" test for determining whether a warrant is based upon probable cause. State v. Keyes, 184 N.J. 541, 554 (2005) (citing Illinois v. Gates, 462 U.S. 213, 230-32, 103 S. Ct. 2317, 2328-29, 76 L. Ed. 2d 527, 543-44 (1983) and State v. Novembrino, 105 N.J. 95, 122 (1987)). Courts may rely upon information provided to police by confidential informants in order to find probable cause. Keyes, supra, 184 N.J. at 555 (citation omitted). When examining such a tip, "the issuing court must consider the 'veracity and basis of knowledge' of the informant as part of its 'totality' analysis." State v. Jones, 179 N.J. 377, 389 (2004) (quoting Novembrino, supra, 105 N.J. at 123). "A deficiency in one of those factors 'may be compensated for, in determining the overall reliability of a tip, by a strong showing as to the other, or by some other indicia of reliability.'" State v. Zutic, 155 N.J. 103, 110-11 (1998) (citing Gates, supra, 462 U.S. at 233, 103 S. Ct. at 2329, 76 L. Ed. 2d at 545).

Here, Detective Sheridan, who signed the affidavit of probable cause in support of the wiretap warrant, based his request on, among other things, what Dawshon characterizes as "[i]nformation received from an untested informant, hereinafter referred to as Informant B, whose reliability has been established in that information provided by Informant B has been corroborated by [Detective Sheridan]." The information provided by Informant B was corroborated by the plethora of other evidence cited in Detective Sheridan's affidavit, including multiple controlled drug purchases, witnessed narcotics activity and the defendants' extensive criminal records. This evidence was obtained from numerous sources, including Detective Sheridan, other Elizabeth police officers, a reliable confidential informant (Informant A), police department records, and telephone records.

Dawshon has failed to show that, viewed within the totality of the circumstances, a challenge to the wiretap search warrant would have been meritorious. See O'Neal, supra, 190 N.J. at 618-19.

Dawshon next asserts that trial counsel was ineffective for failing to object to erroneous jury instructions. In determining the propriety of a jury charge, we will "examine the charge as a whole and will attempt to determine whether the challenged language was prejudicial." State v. Martini, 187 N.J. 469, 477 (2006) (quoting State v. Loftin, 146 N.J. 295, 374 (1996)). "Erroneous instructions on matters or issues that are material to the jury's deliberation are presumed to be reversible error in criminal prosecutions." State v. Jordan, 147 N.J. 409, 422 (1997) (citing State v. Warren, 104 N.J. 571, 579 (1986)).

First, Dawshon claims that the instruction on accomplice liability "erroneously omitted an entire page or crucial section from the Model Charge" and "failed to explain to the jury its obligation to consider the accomplice status separately for each defendant." Dawshon fails to cite exactly which portion of the Model Charge he claims should have been included and does not explain why the omitted portion was "crucial." A comparison of the jury charge here with the Model Charge indicates that, while a portion of the Model Charge was omitted, that portion generally repeated the charge the jury received. Also, although the court does not appear to have specifically charged the jury that it had to consider accomplice liability separately for each defendant, the charge given implies that such consideration should have occurred. For example, the court said, "[i]n order for you to find a defendant guilty the State must prove beyond a reasonable doubt that the defendant committed the crime you are considering . . . ." (emphasis added).

Second, Dawshon maintains that the court "erroneously interjected a section of the vicarious liability instruction" into the instruction on conspiracy, "which undermined the entire conspiracy instruction." Dawshon fails to explain, however, in what way the conspiracy instruction was undermined. The State asserts that the trial court's instructions properly tracked the Model Charges on conspiracy and conspiracy based on vicarious liability. Given the facts of the case, that Dawshon was alleged to have operated a drug trafficking network with multiple "employees," charging the jury on both conspiracy and conspiracy based on vicarious liability was appropriate.

Dawshon alleges that the court "never instructed the jury that the vicarious liability instruction related to [Dawshon's] criminal culpability and should be considered in conjunction with the accomplice liability, and not the conspiracy offense." As addressed above, the vicarious liability instruction properly related to the conspiracy offense. Furthermore, assuming, arguendo, that the trial court should have instructed the jury that the vicarious liability instruction related to the accomplice liability instruction but failed, it is unclear in what way the judge's failure to do so prejudiced Dawshon. If anything, such an omission would benefit Dawshon, since it would mean that the jury could find Dawshon guilty of accomplice liability based only on direct, not vicarious, liability.

Dawshon maintains that he received ineffective assistance of appellate counsel during his direct appeal because appellate counsel failed to raise the substantive claims upon which his PCR is based.

A defendant is entitled to effective assistance of appellate counsel. State v. Morrison, 215 N.J. Super. 540, 545-46 (App. Div.), certif. denied, 107 N.J. 642 (1987). However, an appellate attorney is not required to advance every argument the defendant urges, even if the argument is not frivolous. Jones v. Barnes, 463 U.S. 745, 751, 103 S. Ct. 3308, 3313, 77 L. Ed. 2d 987, 994 (1983). "Experienced advocates since time beyond memory have emphasized the importance of winnowing out weaker arguments on appeal and focusing on one central issue if possible, or at most on a few key issues." Id. at 751-52, 103 S. Ct. at 3313, 77 L. Ed. 2d at 994. As shown above, the claims Dawshon raised in his PCR are without merit. Accordingly, Dawshon has failed to demonstrate that appellate counsel's choice not to raise these claims on direct appeal was anything other than the exercise of reasonable professional judgment and sound trial strategy, see Hess, supra, 207 N.J. at 147, or that, had appellate counsel raised the issues, a reasonable probability would have existed that the outcome of his direct appeal would have been different, see Fritz, supra, 105 N.J. at 52.

C.

As in the case of Dawshon, Dawud asserts that he is entitled to a hearing because he presented a prima facie case of ineffective assistance and because his claim was dependent for its resolution on evidence outside the trial record. Dawud claims that his counsel committed many errors that prejudiced the outcome of the trial. We conclude that his PCR petition and request for an evidentiary hearing were properly denied.

Dawud asserts that the wiretaps violated N.J.S.A. 2A:156A-12f, the minimization provision of the New Jersey Wiretapping and Electronic Surveillance Control Act, N.J.S.A. 2A:156A-1 to - 34 (the Wiretap Act), which requires that government officials monitoring wiretaps "make reasonable efforts to 'minimize or eliminate the interception' of conversations other than those they have been authorized to hear." State v. Catania, 85 N.J. 418, 422 (1981). The Court held in Catania that police must make reasonable efforts to "minimize" by limiting their hours of interception and attempting to terminate the interception of non-relevant calls. Id. at 423. Because "[e]lectronic surveillance represents a greater threat to individual privacy than do traditional searches and seizures," the Court called for "heightened safeguards." Id. at 440, 443. Dawud claims that the detectives in this case intentionally listened to non-pertinent calls, in violation of Catania. The State asserts that Dawud cannot demonstrate that his claim would ultimately succeed on the merits.²³

23 That State also argues that Dawud seeks to use an evidentiary hearing to investigate possible grounds for relief, which he cannot do, see State v. Marshall, 148 N.J. 89, 158 (1997), and that Dawud's claim is time-barred and procedurally barred under Rule 3:22-4 because N.J.S.A. 2A:156A-21 requires that all suppression motions for failure to minimize non-pertinent intercepted calls be made at least ten days prior to trial "unless there was no opportunity to make the motion or the moving party was not aware of the grounds for the motion." Again, while we disagree that the asserted claims are procedurally barred, we conclude that Dawud cannot succeed on the merits of the claim as the record reveals that the police did not violate the minimization requirement.

The law requires that the police make reasonable efforts to minimize or eliminate their interception of non-pertinent calls. Catania, supra, 85 N.J. at 422. When the police investigate a large-scale conspiracy such as the one involved here, more extensive surveillance is justified to determine the full scope of the enterprise. See ibid. The police involved in the wiretap investigation at issue here maintained that they listened to all of the calls in order to determine whether they were pertinent or not and then listened to pertinent calls in their entirety. The record demonstrates that the police complied with the statutory mitigation requirements. Dawud cannot establish that a motion to suppress would have been likely to succeed, or that he was prejudiced as a result of counsel's failure to raise the issue. See Cummings, supra, 321 N.J. Super. at 169-71.

Dawud argues that his trial counsel rendered ineffective assistance because counsel "failed to cross-examine twenty-seven key witnesses against Dawud even though these witnesses offered incriminating evidence."²⁴

24 In his argument, Dawud cites his right of confrontation, guaranteed by the Sixth Amendment of the United States Constitution and Article I, paragraph 10 of the New Jersey Constitution. However, Dawud was afforded that right. His trial counsel had the opportunity to cross-examine but, in some cases, chose not to exercise that opportunity.
--------

As an initial matter, Dawud has failed to do more than make bald assertions that trial counsel's failure to cross-examine these twenty-seven witnesses constituted deficient performance by his trial counsel. See Cummings, supra, 321 N.J. Super. at 170. Dawud has failed to articulate what questions, if any, his trial counsel should have asked but failed to do so.

Furthermore, Dawud has failed to overcome the strong presumption that his trial counsel's decision not to cross-examine particular witnesses represented the exercise of reasonable professional judgment and sound trial strategy. See Hess, supra, 207 N.J. at 147. In many of the instances, Dawud cited where his counsel failed to cross-examine a witness, counsel for Dawud's co-defendants cross-examined that witness. For example, Dawud notes that his trial counsel failed to cross-examine Detective Kevin McDonough, thereby "[doing] nothing to challenge the state's implication that [Dawud's] innocent behavior [testified to by McDonough] was actually criminal[.]" However, counsel for Dawshon cross-examined Detective McDonough at some length and propounded questions suggesting the innocent nature of the conduct.

While in some instances, trial counsel for all defendants chose not to cross-examine particular witnesses, Dawud has failed to assert facts sufficient to show that trial counsel's choices were deficient. See Cummings, supra, 321 N.J. Super. at 170. In this case, the trial was long — spanning twelve days — and involved a number of witnesses, many of whom testified very briefly on non-controversial subjects, such as forensic testing of evidence and the chain of custody. Under these circumstances, trial counsel's choice not to cross-examine certain witnesses was reasonable.

Finally, even assuming that trial counsel's conduct was deficient, the evidence against Dawud was overwhelming, such that Dawud has failed to show that a reasonable probability exists that, but for his trial counsel's conduct, the results of the trial would have been different. See State v. Guzman, 313 N.J. Super. 363, 384 (App. Div. 1998) (citing Fritz, supra, 105 N.J. at 52) (holding that defendant failed to satisfy the second Strickland/Fritz prong where "the other evidence of defendant's guilt was so overwhelming").

Dawud alleges that the PCR court failed to provide meaningful review of his PCR petition. Specifically, Dawud takes issue with the fact that the PCR judge addressed only two of Dawud's many PCR claims specifically grouped Dawud's claims with those of his co-defendants and incorporated by reference the State's opposition to his PCR petition. We have essentially rejected this argument as it applies to Dawshon, and that rejection applies with equal force here.

Dawud next asserts that he received ineffective assistance of trial counsel because counsel failed to follow through on a request to prohibit the admission of late discovery. As part of pre-trial motion proceedings, Dawud's trial counsel addressed a letter the prosecutor had sent to defense counsel on February 8, 2005, advising that Detective Sheridan and the prosecutor had spoken to a witness, Tyshon Jones. Dawud's defense counsel requested that information provided by the prosecutor on February 11, 2005, five days before the trial began, be prohibited from use at the time of trial. Dawud claims that when the court denied this application, defense counsel took no further action. In fact, Dawud's counsel asked the judge "for a few days to check out the matter[.]" In response, the judge noted, "we are not starting this case for at least five days or so. You have all the time you need between now and . . . Tuesday[.]" Dawud asserts that counsel failed to follow through in investigating the letter. In fact, counsel represented to the court that he was investigating the matter, and Dawud offers nothing to refute that representation. Accordingly, Dawud's argument is without merit.

Dawud claims that he received ineffective assistance when trial counsel failed to object to a ten-minute summation limit imposed by the trial court. However, as the State notes, Dawud fails to aver any facts showing that he suffered any prejudice, such as that counsel was unable to comment on particular evidence or testimony during the time allotted. See Cummings, supra, 321 N.J. Super. at 170.

D.

Dawmeen contends that trial counsel was ineffective for failing to zealously challenge the application for wiretaps. Dawmeen would challenge the qualifications of the police officers who sought the wiretap as well as the finding of probable cause for the issuance of the wiretap warrant.

The record reveals that defense counsel did challenge the wiretap application. Before trial, Dawshon, joined by Dawud, Dawmeen and John, filed a motion to suppress on the grounds that the applications for the wiretap warrants neither satisfied statutory requirements nor met constitutional standards. Specifically, defendants argued that the State did not comply with N.J.S.A. 2A:156A-9, which sets forth the requisite information that must be contained in an application for an order authorizing the interception of a wire communication. Defendants asserted that the two detectives who completed these applications did not specifically set forth their qualifications — i.e., that they had the requisite knowledge, experience or training to interpret the words, terms or phrases used by individuals engaged in drug trafficking in general and by members of the Fitzgerald organization in particular — as required by N.J.S.A. 2A:156A-9.

The trial judge found that the qualification requirements in N.J.S.A. 2A:156A-9 apply only to a law enforcement officer's ability to properly operate the electronic equipment used to intercept the wire communications, not to an officer's ability to decipher the codes or meanings of certain words. The court noted that the detectives had clearly set forth their qualifications in their respective applications to the issuing judge. The court also concluded that the warrants were based on probable cause, as established through surveillance, Informant B's representation about the structure of the organization and the controlled buys from John and Dawshon's previous arrest. The record supports the judge's denial of defendants' motion to suppress. Dawmeen cannot establish ineffective assistance of counsel on the issue of the wiretap because Dawmeen's attorney joined the motion to suppress, and the motion was meritless.

Dawmeen references Franks v. Delaware, 438 U.S. 154, 98 S. Ct. 2674, 57 L. Ed. 2d 667 (1978), in which the Supreme Court held

where a defendant makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause, the Fourth Amendment requires that a hearing be held at the defendant's request.
[Id. at 155-56, 98 S. Ct. at 2676, 57 L. Ed. 2d at 672.]

The purpose of a Franks hearing is to afford a criminal defendant an opportunity to overcome the presumption of validity with respect to the warrant affidavit by impeaching the credibility of the affiant. Dawmeen and his co-defendants failed to make a substantial preliminary showing of intentionally, knowingly, or recklessly false statements in the affidavits supporting the wiretap warrant applications. See Cummings, supra, 321 N.J. Super. at 170. The statements in the affidavits were supported by sufficient factual underpinnings to justify issuance of the wiretap orders. The absence of a Franks hearing was not prejudicial, and Dawmeen cannot establish that counsel was ineffective.

Dawmeen also asserts that the disclosure of the identities of the confidential informants would have been relevant and helpful to his defense. He alleges that, following disclosure, he would have been in a position to challenge the veracity of the contents of the wiretap application. N.J.R.E. 516 permits the State to refuse to disclose as privileged the identity of a confidential informant. State v. Williams, 364 N.J. Super. 23, 38 (App. Div. 2003). Evidence of the informant's identity is inadmissible unless the trial judge determines that the identity of the informant is essential to a fair determination of the issues. Ibid. Courts have required disclosure when the informant was directly involved or played an integral role in the crime for which the defendant has been indicted. State v. Milligan, 71 N.J. 373, 386-87 (1976). On the other hand, absent a strong showing of need, courts generally deny disclosure where the informant plays only a marginal role, such as providing information or "tips" to the police or participating in the preliminary stage of a criminal investigation. Id. at 387.

Dawmeen has made no showing of how disclosure of the informant's identity would be helpful to his defense. Dawmeen does not argue that the informants were integrally involved in the Fitzgerald organization, and there is little evidence in the record to support such a contention. The detectives' affidavits and testimony indicate that the informants assisted the police in identifying the leaders of the Fitzgerald organization, but the police had many other sources of information to corroborate the informants' accounts. Dawmeen's claim of error is without merit.

Dawmeen challenges counsel's conduct regarding the "no-knock" warrant. The requirement that law enforcement officers knock and announce their presence before entering a dwelling predates our federal and state constitutions. State v. Johnson, 168 N.J. 608, 615 (2001). To justify a no-knock entry, the police must establish a reasonable, particularized suspicion that such an entry is required to prevent the destruction of evidence, to protect officer safety or to effectuate an arrest or seizure of evidence. Id. at 619. The officer must articulate those reasons based on the totality of the circumstances with which the officer is faced, including a minimum level of objective justification. Ibid.

To satisfy the destructibility-of-evidence exception to the knock-and-announce rule, the police must articulate some reason specific to the crime, the person under investigation or some other factor that leads the police to reasonably believe that the destruction of evidence is more than a hypothetical possibility. Id. at 620.

A no-knock entry may also be justified to protect officer safety. See id. at 619. The threshold showing for this element is not high. Id. at 624; Jones, supra, 179 N.J. at 399. As noted in Jones, several factors, alone or in combination, may provide sufficient justification. Factors include a suspect who has a known history of violence, an informant's tip that weapons are present at the scene or the layout of the premises. See Id. at 400. Moreover, issuing courts may consider the "unfortunate marriage" between drugs and weapons, as well as ongoing drug sales and the involvement of multiple offenders participating in the drug activity. See id. at 407-08. It is also well established that the use of lookouts not only poses a potential threat to the police officers' safety, but also presents a substantial risk that evidence will be destroyed. See Keyes, supra, 184 N.J. at 560; State v. Walker, 385 N.J. Super. 388, 400-01 (App. Div.), certif. denied, 187 N.J. 83 (2006); State v. Carlino, 373 N.J. Super. 377, 389-92 (App. Div. 2004), certif. denied, 182 N.J. 430 (2005).

Counsel did not raise this issue before trial. However, Dawmeen raised the issue on appeal. The court adjudicated the claim on the merits and affirmed. This claim is procedurally barred under Rule 3:22-5.

Assuming, arguendo, that Dawmeen's claim may proceed, the no-knock warrants were valid and executed properly. Detective Sheridan articulated the basis for the no-knock warrant in his affidavit: it was "reasonable to conclude that the conspirators in this narcotics distribution conspiracy are armed and dangerous" and that there "exists a reasonable, articulable and particularized suspicion that a no-knock entry was required to protect police officers' safety and to effectuate the arrests and seizures of evidence when the warrants are executed." The affidavit identified those members of the Fitzgerald organization who had custody and control of each of the premises listed in the search warrant affidavit; had convictions or pending charges involving unlawful possession of a handgun, aggravated assault, resisting arrest, escape or witness tampering; or were known to be in possession of firearms. The search warrant affidavit contained repeated references to intercepted conversations in which Fitzgerald organization members discussed their use of lookouts and warnings to each other when the police were in the area, as a result of which they would temporarily suspend their drug operations. Also in these intercepted conversations were references to weapons, including firearms. The police corroborated the facts that lookouts were used and that several Fitzgerald organization members possessed firearms while conducting their drug operations. Based on the totality of the circumstances, the police had a reasonable, particularized suspicion to justify a no-knock entry in order to prevent the destruction of evidence, to protect officer safety and to effectuate arrests or seizures of evidence. See Johnson, supra, 168 N.J. at 619. Dawmeen cannot demonstrate that he would have prevailed on a motion to suppress the evidence seized pursuant to the no-knock warrant.

Dawmeen next claims that appellate counsel was ineffective for failing to argue that the State did not prove all of the elements of a Leader of a Narcotics Trafficking Network, or "Kingpin." N.J.S.A. 2C:35-3. In particular, Dawmeen maintains that the State failed to establish that he had authority or control over a drug organization, as required by the statute.

When evaluating motions to acquit based on insufficient evidence, this court must view the totality of evidence, be it direct or circumstantial, in the light most favorable to the State. State v. Perez, 177 N.J. 540, 549 (2003). The State is entitled to "the benefit of all its favorable testimony as well as of the favorable inferences [that] reasonably could be drawn therefrom[.]" Ibid. (quoting State v. Reyes, 50 N.J. 454, 459 (1967)). Such evidence is sufficient if it would enable a reasonable jury to find that the accused is guilty of the crime or crimes charged beyond a reasonable doubt. Ibid.

The statutory definition of "Kingpin," N.J.S.A. 2C:35-3, is as follows:

A person is a leader of a narcotics trafficking network if he conspires with two or more other persons in a scheme or course of conduct to unlawfully manufacture, distribute, dispense, bring into or transport in this State [a controlled dangerous substance] as a financier, or as an organizer, supervisor or manager of at least one other person.

"[T]he role of a defendant as a leader or drug kingpin turns more on the nature of that person's authority, the magnitude or extent of control, and the number of persons over whom that power is exercised." State v. Wright, 143 N.J. 580, 583 (1996) (internal quotation and citations omitted).

The evidence that Dawmeen was a leader of a narcotics trafficking network was overwhelming. Dawmeen was responsible for the cocaine trafficking in the Fitzgerald organization. He continuously communicated with Aviles about resupplying the Elizabeth apartment with cocaine.

Dawmeen was also responsible in part for keeping track of the money from the drug sales. He coordinated with Aviles about picking up the money. Dawmeen either went to the Elizabeth apartment to collect the money himself or had it picked up for him. In four intercepted phone calls, Dawmeen and Dawshon were angry that money from the sales was short and questioned Aviles about this.

Dawmeen often contacted Aviles to advise him that the police were in the area of the Elizabeth apartment.

Dawmeen and his brothers did not tolerate employees selling their own drugs at the Elizabeth apartment. On November 17, 2002, Dawmeen realized that bottles of cocaine were not his because they were too small. He threatened that because of this, Aviles and Patterson would be "bleeding today." On November 30, 2002, Dawmeen, Dawshon and three employees went to Muse's apartment and threatened Muse because he had been selling his own drugs at the Elizabeth apartment. All of this evidence overwhelmingly supported the Kingpin conviction, and Dawmeen's appellate counsel was not deficient for failing to argue otherwise. See Jones, supra, 463 U.S. at 751, 103 S. Ct. at 3313, 77 L. Ed. 2d at 994.

E.

Defendants raise duplicate arguments, and our resolution of these issues as to one defendant applies with equal force as to the others. In addition, defendants raise a number of issues that are based solely on conjecture or assertions of fact that lack any substantive basis other than defendants' statements. When a defendant claims his attorney provided ineffective assistance of counsel, he must do more than make bald assertions; he must "assert the facts" relevant to his claim, "supported by affidavits or certifications based upon the personal knowledge of the affiant or the person making the certification." Cummings, supra, 321 N.J. Super. at 170. This basic principle applies with particular force here. Finally, we have considered all of the issues and arguments raised by defendants in their PCRs and conclude as to those issues not specifically addressed that they are without merit and do not require further discussion. R. 2:11-3(e)(2).

Affirmed.

I hereby certify that the foregoing is a true copy of the original on file in my office.

CLERK OF THE APPELLATE DIVISION