On appeal from Superior Court of New Jersey, Law Division, Atlantic County, 00-08-1651-I.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Stern and Collester.
Defendant appeals from the denial of his application for post-conviction relief (PCR) in connection with his conviction of four counts of first-degree carjacking, N.J.S.A. 2C:15- 2(a)(2); second-degree aggravated assault, N.J.S.A. 2C:12- 1(b)(1); third-degree aggravated assault, N.J.S.A. 2C:12- 1(b)(2); two counts of third-degree terroristic threats, N.J.S.A. 2C:12-3(b); four counts of aggravated assault, N.J.S.A. 2C:12-1(b); first-degree conspiracy to commit carjacking, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:15-2; second-degree eluding, N.J.S.A. 2C:29-2(b); two counts of second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a); and third- degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b). On December 18, 2003, we affirmed the conviction but remanded the matter for re-sentencing. Following the imposition of an amended sentence on September 17, 2004, defendant filed a petition for certification that was denied on September 21, 2004. Defendant then filed his PCR petition on April 19, 2005.
The petition was denied by the trial judge on December 15, 2006, the court ruling that the application did not warrant an evidentiary hearing and that defendant had failed to make a showing of ineffective assistance of counsel.
The trial facts giving rise to defendant's conviction were set forth at length in our December 18, 2003 decision on direct appeal, and we need not repeat them. He presents the following arguments on the appeal from the denial of his PCR petition:
POINT I - THE COURT ERRED IN DENYING DEFENDANT AN EVIDENTIARY HEARING.
POINT II - THE TRIAL ATTORNEY PROVIDED INEFFECTIVE ASSISTANCE OF COUNSEL.
A. TRIAL COUNSEL FAILED TO FILE A PRE-TRIAL MOTION TO DISMISS THE INDICTMENT BASED ON THE STATE'S FAILURE TO PRESENT EXCULPATORY EVIDENCE TO THE GRAND JURY.
B. TRIAL COUNSEL FAILED TO RAISE THE ISSUE OF CONFLICTING PROSECUTORIAL THEORIES WHICH RESULTED IN PROSECUTORIAL MISCONDUCT AND BRADY VIOLATIONS.
C. TRIAL COUNSEL FAILED TO ADEQUATELY CHALLENGE THE PRE-TRIAL IDENTIFICATION PROCEDURES.
1. DEFENSE COUNSEL FAILED TO CHALLENGE TROOPER DAWSON'S OUT OF COURT IDENTIFICATION OF DEFENDANT.
2. DEFENSE COUNSEL FAILED TO FILE A FORMAL MOTION FOR A WADE HEARING TO CHALLENGE THE OUT OF COURT ...