On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 98-04-0596.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: January 28, 2009
Before Judges Cuff and Baxter.
Defendant Clifford Jenkins appeals from the denial of his petition for post-conviction relief (PCR). He is serving an aggregate term of eighty years with a parole ineligibility term of forty-seven and one-half years following his conviction of two counts of first degree robbery, one count of first degree carjacking, two counts of second degree aggravated assault, and one count of second degree robbery.
This court affirmed his conviction in all respects except the manner in which the No Early Release Act*fn1 parole ineligibility term was calculated on the extended term imposed on the carjacking conviction. State v. Jenkins, Docket No. A-5711-00 (App. Div. Sept. 23, 2002). The Supreme Court denied defendant's petition for certification. 176 N.J. 74 (2003). Soon thereafter, defendant filed a pro se PCR petition. Assigned counsel filed a brief in support of the petition.
In his petition, defendant argued that trial counsel provided ineffective assistance of counsel and violated his Sixth Amendment right to counsel because counsel failed to investigate potential witnesses that could have provided exculpatory evidence in defense of the carjacking charge. In his brief in support of the PCR petition, assigned counsel argued that trial counsel was ineffective for failing to investigate and present an alibi defense, failed to request a Wade*fn2 hearing, and cumulative error. The cumulative error consisted of a failure to cross-examine victim Howard Henry and "unnecessarily prejudicial" comments made by defense counsel during summation.
At oral argument, defendant withdrew the alibi contention and focused his argument on the failure of trial counsel to request a Wade hearing. Counsel argued that Henry's out-of-court identification was unreliable. In his written opinion, Judge Moynihan properly rejected the contentions advanced by defendant. Defendant has never identified any factor that rendered the victim's out-of-court identification suggestive, and the judge noted that the threshold inquiry is suggestibility. State v. Madison, 109 N.J. 223, 236-37 (1988). The judge also observed that the prosecutor clearly established during direct examination that Henry, the first victim, was not certain about his identification. Cross-examination of this witness was not likely to improve the situation. Finally, Judge Moynihan held that defense counsel's remarks in summation simply anticipated juror reaction to the evidence and caused no prejudice. He, therefore, denied the PCR petition.
On appeal, defendant raises the following arguments:
The Defendant is Entitled to Post Conviction Relief. (partially raised below)
The Defendant Received Ineffective Assistance of Counsel on Appeal. ...