On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 05-09-1210.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 26, 2007
Before Judges Stern, Collester and Fisher.
In this appeal, we consider whether defendant was deprived of the effective assistance of counsel when his trial attorney failed to seek a Wade*fn1 hearing regarding the victim's identification of him at a showup. We remand for further proceedings.
The record reveals that on April 28, 2005, Fernando Montalvan was walking on Bergenline Avenue near 45th or 46th Street in Union City. Montalvan later testified that he was holding $5 in one hand, with the intention to buy a telephone calling card, and $200 in the other. A man approached, saying "[g]ive me all the money that you have there with you." Montalvan testified that he gave the man the $5 and put the money in his other hand in his pocket.
In response to the prosecutor's questions at trial, Montalvan testified that he pushed the man away and ran across the street. When asked whether he saw a knife, Montalvan testified that he and the man struggled for some two or three minutes before he was able to free himself and cross the street. In further probing by the prosecutor, during which objections to the leading nature of the examination were initially sustained, Montalvan provided this explanation of the physical encounter:
Q: When you say like this, you're moving your arms. Would you -- how did he -- did you put his arms around your body?
A: Yes. Like this as I was going like this.
Q: Were you injured during this?
A: No. He was just pinching me with something. He scratched me with something.
Q: Did you see what he scratched you with?
A: Whatever he was holding, a knife.
Q: Were you able to see what he was holding?
A: I felt that it was a knife. I didn't see it.
Montalvan acknowledged he was not injured and refused medical attention. He also testified that, as he and the perpetrator separated, the latter requested that Montalvan "[c]ome here[,] I'm going to give you the money back." Montalvan told him to "[k]eep it," and entered a nearby liquor store where he telephoned the police.
Officer Carlos Gonzalez of the Union City Police Department responded. Over the course of the next fifteen minutes, Montalvan spoke of what had occurred and described the perpetrator as a Hispanic male, possibly of Cuban descent, with a black ponytail, who was wearing a black coat, white tee-shirt and blue jeans. This description was forwarded to other officers as Officer Gonzalez drove Montalvan around the area looking for the culprit.
About the same time, Officer John Puente of the Union City Police Department responded to a call to go to Bergenline Avenue and 52nd Street. There he observed a man fitting Montalvan's description of the culprit; the man was being detained by an undercover detective of the West New York Police Department. Officer Puente testified that he took the detained man -- the defendant -- in custody and handcuffed him prior to obtaining Montalvan's later ...