On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment Nos. 04-07-2546 and 03-09-3175.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 9, 2009
Before Judges Axelrad, Fisher and Sapp-Peterson.
In this appeal, we consider, among other things, whether defendant's trial attorney was ineffective because he failed to seek a Wade*fn1 hearing regarding an out-of-court identification made during a showup. Although we reject the trial judge's determination that counsel's choice not to seek a Wade hearing in this instance represented "a professionally reasonable strategy," we agree that the judge's reliability findings reveal that defendant cannot demonstrate a deprivation of his constitutional right to the effective assistance of counsel.
At the conclusion of a jury trial, defendant was convicted of first-degree robbery and other related offenses. After all appropriate mergers, defendant was sentenced to a fifteen-year prison term with an 85% period of parole ineligibility and other concurrent prison terms.
In his direct appeal, defendant argued that his trial attorney was ineffective by failing to seek a Wade hearing with regard to an out-of-court identification made at a showup; he also urged that he was deprived of a fair trial because of prosecutorial misconduct. In affirming, we agreed that the prosecutor exceeded the bounds of propriety by suggesting during her cross-examination of defendant that he was tailoring his testimony and by making statements in her summation that were not supported by evidence in the record; we chose not to consider the Wade argument on its merits, leaving it to future consideration by way of a petition for post-conviction relief. State v. Snowden, No. A-0329-05T4 (App. Div. April 17, 2007) (slip op. at 4). The Supreme Court denied defendant's petition for certification. 192 N.J. 72 (2007).
Defendant filed a petition for post-conviction relief (PCR), wherein he reprised his Wade contention and also argued his trial attorney neglected to request fingerprinting of the weapon used during the robbery. The trial judge did not conduct an evidentiary hearing; instead, after hearing oral argument, the judge issued a written decision rejecting both arguments. In this appeal of the denial of PCR, defendant again argues the ineffectiveness of his trial attorney for the reasons raised in the trial court. He also argues that his PCR counsel was ineffective by failing to raise the trial attorney's failure to object to "multiple instances of prosecutorial conduct." We reject these arguments and affirm.
In our earlier opinion, we described the commission of the offenses in question in the following way:
[O]n May 9, 2004, Marcia Jarret was walking on Prospect Street in East Orange when the female driver of a motor vehicle, which had pulled up alongside, summoned her. Defendant was later identified by Jarret as the vehicle's male passenger.
When Jarret bent toward the driver's window, assuming the driver was seeking directions, defendant told her to turn over her jewelry and money. As Jarret started walking away, defendant said: "you think I'm playing with you?" And, when Jarret turned around, she saw that defendant was holding a gun; defendant then said, "come here or else I'll give you one." Defendant acceded to this demand and defendant took from Jarret three gold necklaces, a watch and a bracelet.
As the vehicle drove away, Jarret memorized the license plate numbers, and, as she continued walking toward Bloomfield, Jarret encountered a person from whom she borrowed a pen and paper to write down the license plate number. When she arrived at the Bloomfield Police Station, Jarret spoke about what had occurred. The Bloomfield police then drove her to the East Orange Police Station because the crime had occurred in East Orange. [Slip op. at 1-2.]
Jarret then described for Detective Green of the East Orange Police Department the crime and her assailants. She said the driver was a black female with "twists in her hair and shells at the end of it." The passenger, according to Jarret, was a black male approximately five-feet-nine-inches tall and weighing approximately 170 pounds. She said the passenger was wearing a black leather jacket and had a "thin beard with a goatee [and a] mustache."
While Jarret was providing this and other information to Detective Green, the vehicle she described was stopped by police in East Orange. Learning this, Detective Green directed that the suspects be transported to the police station so that Jarret could make an identification.
When they arrived at the station, defendant and Yolanda Buckhana were handcuffed and seated in the back of separate police vehicles. Detective Green and Jarret were waiting outside the station. Detective Green asked Jarret whether she recognized the suspects. Jarret looked into the window of each vehicle and, according to Detective Green, "immediately" identified Buckhana as the driver and defendant as the passenger. He ...