State v. McDuffie, DOCKET NO. A-3766-19
| Decision Date | 30 March 2021 |
| Docket Number | DOCKET NO. A-3766-19 |
| Parties | STATE OF NEW JERSEY, Plaintiff-Respondent, v. DAMMEN D. MCDUFFIE, Defendant-Appellant. |
| Court | New Jersey Superior Court — Appellate Division |
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
Before Judges Yannotti and Mawla.
On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 12-12-1785.
Joseph E. Krakora, Public Defender, attorney for appellant (Steven M. Gilson, Designated Counsel, on the brief).
Mark Musella, Bergen County Prosecutor, attorney for respondent (William P. Miller, Assistant Prosecutor, of counsel and on the brief; Catherine A. Foddai, Legal Assistant, on the brief).
Defendant appeals from an order entered by the Law Division on March 6, 2020, which denied his petition for post-conviction relief (PCR). We affirm.
Defendant was charged under Indictment No. 12-12-1785 with third-degree unlawful entry of a structure at 137 Spatz Avenue in Nutley, with the purpose to commit an offense therein, N.J.S.A. 2C:18-2 (count one); third-degree unlawful entry of a structure at 138 Spatz Avenue in Nutley, with the purpose to commit an offense therein, N.J.S.A. 2C:18-2 (count two); fourth-degree concealment or destruction of evidence with the purpose of hindering his apprehension, prosecution, conviction or punishment for conduct that would constitute a crime of the third-degree, N.J.S.A. 2C:29-3(b)(1) (count fourteen); and third-degree purposeful prevention or attempt to prevent a law enforcement officer from effecting an arrest by using or threatening to use physical force or violence against the officer or another, N.J.S.A. 2C:29-2a(3)(a) (count twenty). Co-defendant Hakeem Chance was charged with counts one and two as well as eleven other offenses.1
Defendant and Chance were tried before a jury. The evidence presented at trial established the following. After he obtained a warrant, Detective James Eckert of the Bergen County Prosecutor's Office (BCPO) placed a tracking device on a BMW X6, which was registered to Chance's mother. The device records location data and transmits its position via cell phone towers, which allow the police to track the device location in real time using a laptop.
Detective Elliott Cookson of the BCPO drove the first trailing vehicle. Detective Edward Young of the Fort Lee Police Department drove the second trailing vehicle, which was also occupied by undercover officers from Hackensack and Teaneck. The officers in the three vehicles communicated with each other using portable radios. Detective Eckert tracked the BMW using the GPS data transmitted to his laptop. Days before the officers tracked the BMW, Detective Eckert checked the GPS device and confirmed its accuracy.
On the evening of July 12, 2012, the GPS device indicated that the BMW was located in the parking lot of the Hilton Hotel in Hasbrouck Heights. At around 7:00 p.m., Detective Young observed Chance leave the Hilton, remove a piece of black clothing from the trunk, and enter the car. Using the GPS and their observations, the officers followed the BMW to Englewood, where it stopped on William Street, across from Dubois Court.
At around 7:49 p.m., the BMW left Englewood and returned to the Hilton. At 8:42 p.m., the BMW was tracked back to the vicinity of Dubois Court in Englewood, where it stopped for two minutes. None of the officers observed defendant enter the BMW. At 8:44 p.m., the BMW departed and headed toward Route 4 West. Five minutes later, it stopped at a gas station. Detective Cookson saw that Chance was the driver and another male was the passenger in the car.
The police continued to track the BMW, which traveled south on the Garden State Parkway (GSP). At around 9:14 p.m., the BMW exited the GSP in the Newark/East Orange area. The BMW drove into Newark and then re-entered the GSP, heading northbound. At 9:31 p.m., the BMW exited the GSP in Nutley. The BMW drove around Nutley and at 9:40 p.m. drove down Spatz Avenue and stopped on Margaret Avenue.
At 9:51 p.m., the BMW left Margaret Avenue and drove north on East Passaic Avenue. A few minutes after 10:00 p.m., one of the officers received a call from the Nutley Police Department, reporting that an alarm had been triggered at a home on Spatz Avenue. The officers in the surveillance team were directed to stop the BMW.
The BMW stopped at the intersection of Centre Street and East Passaic Avenue. Detective Arochas activated the lights and sirens on his vehicle andpulled behind the BMW on the passenger side. Detective Cookson also activated the lights and sirens on his vehicle and pulled up to the front left side of the BMW, while Detective Young positioned his vehicle behind the BMW.
The BMW accelerated and collided with Detective Cookson's vehicle. The BMW swerved again, hit Detective Arochas's vehicle, and sped away. When the BMW collided with his car, Detective Arochas saw the profile of the person in the passenger seat of the BMW. He said the passenger was a black male with a large head, who had no hair or short hair. When Detective Young attempted to drive his vehicle in front of the BMW, the BMW struck its front bumper. Detective Young saw Chance in the driver's seat and a bald black man in the passenger seat.
The BMW sped away heading north, traveling erratically and at a high rate of speed. The police vehicles followed. Eventually, while making a sharp left turn, the BMW struck a center concrete barrier. The impact punctured the BMW's front left tire, but the vehicle continued to travel on the rim, with sparks visible. The BMW could not negotiate a curve on a road in Little Falls and crashed into a stone wall.
Detective Arochas pulled alongside the stopped BMW and the passenger turned briefly and faced him. Detective Arochas was able to get a full view ofthe passenger's face, which was illuminated by headlights, before the passenger turned away and fled the BMW. Defendant escaped. Chance fled the vehicle, but he was apprehended about fifty feet from the crash site. On the driver's side of the BMW, the officers recovered two iPhones traced to Chance, a mini flashlight, a black bandana, ski mask, and a sneaker. On the passenger side, the officers recovered a pair of sneakers and a cell phone.
Later, the police learned that two homes had been vandalized. The home of one owner, where the alarm had been triggered, was ransacked but nothing was stolen. The owner of the second home reported that someone had broken into the home while he was at work. He said a laptop, iPod, $400 in cash, and $14,500 in jewelry were missing. None of the reported stolen property was recovered or found along the chase route.
In an unrelated investigation, another officer provided a tip to Detective Arochas, which he had received from a credible confidential informant, that defendant was involved in the burglaries. Detective Arochas determined that defendant lived on DuBois Court in Englewood, the same area where the BMW stopped before proceeding to Spatz Avenue in Nutley. Detective Arochas searched the motor vehicle records and found defendant's photo. He recognizeddefendant as the passenger he saw in the BMW. The police obtained a warrant and arrested defendant.
The jury found defendant guilty on the burglary charges in counts one and two. The jury also found defendant not guilty of hindering apprehension and resisting arrest as charged in counts fourteen and twenty, but guilty of the lesser-included offense of resisting arrest, a disorderly persons offense under N.J.S.A. 2C:29-2.
Chance was convicted on the burglary charges in counts one and two, three counts of second-degree eluding/failure to stop, N.J.S.A. 2C:29-2(b), and eight counts of fourth-degree aggravated assault on a police officer, N.J.S.A. 2C:12-1(b)(5)(a). Defendant filed a motion for a new trial, which the trial judge denied.
On count one, the judge sentenced defendant to a five-year prison term, with two and one-half years of parole ineligibility. On count two, the judge sentenced defendant to an extended term of ten years of incarceration, with a five-year period of parole ineligibility, to be served consecutive to the sentence imposed on count one. On the disorderly persons offense, the judge imposed a term of six months to be served consecutive to the sentences imposed undercounts one and two. In addition, defendant was ordered to pay restitution in the amount of $17,253.
Defendant and Chance appealed from the judgment of conviction (JOC) dated July 29, 2014. We affirmed defendants' convictions but reversed the sentences imposed and remanded the matter to the trial court to set forth reasons for the application of aggravating and mitigating factors, the basis for rejecting argued mitigating factors, and for the imposition of consecutive sentences. State v. McDuffie, 450 N.J. Super. 554 (App. Div. 2017). The Supreme Court thereafter denied defendant's petition for certification. State v. McDuffie, 232 N.J. 72 (2018). On remand, Judge Margaret M. Foti imposed the same sentence and filed an amended JOC dated January 26, 2018.
On February 23, 2018, defendant filed a pro se petition for PCR. The court assigned counsel to represent defendant, and counsel filed an amended verified petition for PCR in which he alleged he was denied the effective assistance of trial and appellate counsel.
Defendant claimed his trial attorney failed to accurately advise him concerning his sentencing exposure. He claimed his attorney told him he faced a maximum term of ten years of imprisonment, and he was later sentenced to anaggregate term of fifteen years. Defendant alleged that if he been advised accurately of his sentencing exposure, he would have accepted the State's plea offer. Defendant...
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