On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 98-06-0686.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 23, 2009
Before Judges Reisner and Sapp-Peterson.
Defendant was convicted of first-degree armed robbery, N.J.S.A. 2C:15-1(a)(1), and second-degree conspiracy to commit armed robbery, N.J.S.A. 2C:5-2. At sentencing, the court merged the conspiracy conviction into the armed robbery, denied the State's motion for an extended term, and imposed a twenty-year term of incarceration with an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. On direct appeal, we affirmed his conviction and sentence. State v. Anthony, No. A-402-01T4 (App. Div. October 17, 2003). The Supreme Court denied defendant's petition for certification. State v. Anthony, 179 N.J. 370 (2004). He subsequently filed a motion for post-conviction relief (PCR), alleging ineffective assistance of counsel based upon his trial counsel's failure to investigate exculpatory witnesses, failure to object to faulty jury instructions, and failure to move to suppress statements. A supplemental brief was filed by his assigned counsel raising the sole legal issue that his trial counsel failed to request an identification charge, despite the fact that identity was the central issue in the trial, and that the court erred by sua sponte failing to instruct the jury on identification. In an oral opinion placed on the record on May 2, 2007, the trial court rejected all of defendant's arguments without the benefit of an evidentiary hearing. The court entered a formal order denying defendant's petition on May 9, 2007.
On appeal defendant raises the following arguments for our consideration:
THE TRIAL COURT COMMITTED PLAIN ERROR, CAPABLE OF PRODUCING AN UNJUST RESULT, IN FAILING TO SUPPRESS DEFENDANT'S CONFESSION THAT WAS OBTAINED IN CLEAR VIOLATION OF HIS CONSTITUTIONAL RIGHTS AGAINST SELF-INCRIMINATION (NOT RAISED BELOW).
THE COURT COMMITTED REVERSIBLE ERROR IN FAILING TO ARTICULATE THE PROPER STANDARD FOR INEFFECTIVE ASSISTANCE OF COUNSEL AND BY FAILING TO APPLY THE STRICKLAND/FRITZ TEST TO DEFENDANT'S CLAIM.
We have carefully reviewed defendant's contentions in light of the record and applicable legal principles and affirm substantially for the reasons expressed by the trial court in its cogent and comprehensive May 2, 2007 oral opinion. We add the following comments.
Defendant's contention that he was interrogated without first being informed that two criminal complaints and an arrest warrant had already been issued against him, implicating State v. A.G.D., 178 N.J. 56 (2003), was not raised before the PCR judge. Hence, we decline to consider this issue in the present appeal, without prejudice to it being raised in a subsequent petition for PCR.
Turning to his claim that the court applied the wrong legal standard in addressing his claim that his attorney was ineffective because counsel failed to request an identification charge to the jury, we disagree. It is true the court analyzed the identification issue under the plain error standard presumably because defense counsel did not request an identification instruction. Under the plain error standard, the inquiry is whether the failure to request an identification charge or the court's failure, sua sponte, to give such an instruction was "clearly capable of producing an unjust result." Rule 2:10-2. On the other hand, where the contention is one of ineffective assistance of counsel, the claim is evaluated pursuant to the two-prong test under Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed. 2d 674, 693 (1984), and State v. Fritz, 105 N.J. 42, 58 (1987), where the focus is upon two issues, characterized as prongs: (1) counsel's performance; and (2) whether the outcome would have been different, but for trial counsel's performance.
More specifically, under the first prong of the Strickland/Fritz test, the defendant must show that trial counsel's representation was deficient. Fritz, supra, 105 N.J. at 52. This showing must overcome the "'strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.'" Ibid. (quoting Strickland, supra, 466 U.S. at 688-89, 104 S.Ct. at 2065, 80 L.Ed. 2d at 694). To establish that counsel's representation was deficient, a defendant must show that "counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Strickland, supra, 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed. 2d at 693. Under the second prong, defendant must "show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S.Ct. at 2068, 80 L.Ed. 2d at 698. Generally, prejudice is not presumed. Fritz, supra, ...