On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 98-08-1175.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 28, 2008
Before Judges A. A. Rodríguez and Kestin.
Defendant Richard Bailey appeals from the denial, without an evidentiary hearing, of his first petition for post- conviction relief (PCR). We reverse and remand for an evidentiary hearing.
Following a jury trial, defendant was convicted of first-degree armed robbery, N.J.S.A. 2C:15-1. Defendant moved unsuccessfully for a new trial. The trial judge sentenced defendant as a persistent offender pursuant to N.J.S.A. 2C:44-3a and imposed a thirty-year term with a ten-year parole disqualifier and payment of $1,400 in restitution. We affirmed the conviction, but vacated and remanded for re-sentencing. State v. Bailey, A-5116-00T4 (App. Div. Nov. 21, 2002), certif. denied, 176 N.J. 279 (2003). Upon remand, a different judge imposed an extended term of thirty years with a ten-year period of parole ineligibility. We affirmed. State v. Bailey A-6385-02T4 (App. Div. Mar. 31, 2004), certif. denied, 180 N.J. 458 (2004).
The State's proofs can be summarized as follows. On June 16, 1998, at approximately 4:00 p.m., a grocery store in New Brunswick was robbed. One of the two employees on duty at the time had been distracted by pursuing a shoplifter who fled the store. Defendant's friend, Maria Riley, then entered the store and ordered some cold cuts. When the second employee, Emiliano Rodriguez, began filling the order, two men wearing ski masks entered the store. One of them, whom Rodriguez recognized as a previous store patron, pointed a gun at Rodriguez and threatened to kill him if he moved. The other man went behind the counter and took approximately $1,200 from the register. The two men and Riley then fled the scene together.
The owner of the store testified that "one of [his] customers brought [him] a picture of [defendant] and told [him] his name." The customer was Bernard Williams, who testified at the hearing on a motion for a new trial. He had called New Brunswick Detective Sam Hillyer and gave him the photograph. Hillyer showed Rodriguez the photograph and he recognized defendant.
At trial, Rodriguez testified and identified defendant as the former patron who had pointed a gun at him. Hillyer also testified, referring to defendant by his street name, "Mookie." He also testified that a confidential informant identified defendant as one of the robbers.
Defendant did not testify, but presented the testimony of three witnesses. Riley testified that she was at the store at the time of the robbery by two armed, masked men, whom she did not know. Defendant, her friend, came in shortly after she did. They were talking casually when the robbery occurred. During the testimony, Riley told the jury that defendant was on parole for a different crime at the time of the robbery and that defendant was in custody at the time of trial.
Arthur Lee Satterwhite testified that he was about to walk into the grocery store when defendant met him at the door and said "I don't think that you want to go in there, Pop." He had no further knowledge of the incident.
Juan Tenreiro, an investigator for defense counsel's firm, testified that he interviewed Rodriguez, who described the man who pointed the gun at him. Rodriguez could not describe the second suspect to Tenreiro. According to Tenreiro, Rodriguez said defendant had "come into the store several times" in the past.
Defendant filed pro se a first PCR petition, alleging ineffective assistance of trial counsel for "failure to present and pursue expert witnesses in relation to identification, as related to transference and gun-focus." Specifically, defendant alleged that trial counsel had failed to call Arnie Glover, his parole officer, as a defense witness. He alleged that Glover had questioned a person working at the grocery store and showed that person defendant's photograph. The person did not identify the person depicted in the photograph as the robber.
Designated counsel submitted a brief incorporating defendant's arguments. The PCR judge denied the petition and found that an ...