June 29, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
REGINALD F. JAMES A/K/A OMARI SHABAZZ, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 95-02-0179.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 12, 2010
Before Judges Alvarez and Coburn.
Defendant Reginald James appeals from the July 28, 2006 denial of his request for post-conviction relief (PCR) without evidentiary hearing. We affirm.
On August 4, 1994, Vipin Patel, the owner and manager of a liquor store in Union County, was robbed at gunpoint. The robber took approximately $150 from the cash register and fled in a black Taurus station wagon bearing the designation "H7B" on the license plate. Approximately eight hours later, a police officer in an adjoining municipality, Joseph Inneo, stopped a black Taurus station wagon matching the description of the vehicle used by the assailant. The driver, a black male, subsequently identified as defendant, was alone. He was wearing gold pants and had a beard and mustache. The following day, August 3, 1994, an investigating officer, Robert P. Miller, showed Patel a photo array of six persons. Patel selected defendant from the array without hesitation. He also identified defendant in the courtroom during trial.
Another investigating officer, Edward Koster, was called by defendant as a witness. He testified that Patel described the perpetrator as a black male with a beard and mustache, who was five feet four inches tall, weighed 200 pounds, and was wearing a white t-shirt and brown pants. Defendant's driver's license indicated that he was five feet eight inches tall and weighed 165 pounds. Patel told him that there were two people in the vehicle.
Defendant's attorney extensively cross-examined Miller about the description and the photo array. Additionally, when questioning Inneo, trial counsel elicited that the description received by that officer only detailed "information about the motor vehicle." Defense counsel argued to the jury that defendant was misidentified, and he highlighted the discrepancies between the various descriptions given by Patel.
Defendant was convicted by a jury of first-degree robbery, N.J.S.A. 2C:15-1 (count one); third-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5b (count two); and second-degree possession of a firearm for an unlawful purpose, N.J.S.A. 2C:39-4a (count three). On May 16, 1997, he was sentenced to life without parole on count one, pursuant to N.J.S.A. 2C:43-7.1. On count two, defendant was sentenced to five years in state prison concurrent with his term of imprisonment for count one. Count three was merged into count one.
We affirmed defendant's conviction on July 16, 1998, but remanded for resentencing because N.J.S.A. 2C:43-7.1 did not apply to defendant. On September 18, 1998, defendant was resentenced to life with twenty-five years of parole ineligibility on count one. The balance of the sentence remained the same. That sentence was affirmed October 4, 1999, except that we remanded to have the trial judge explain the reasons for the imposition of the sentence consecutive to the completion of defendant's Essex County sentence. The judge explained his reasons, and the matter was affirmed on April 8, 2003, on the excessive sentence oral argument calendar. Defendant subsequently filed a petition for certification, which was denied on January 22, 2004. State v. James, 178 N.J. 454 (2004). Defendant filed a pro se petition for PCR on August 26, 1998, while his direct appeal was pending. That PCR was "withdrawn" without prejudice on December 15, 2000, by the trial judge sua sponte because defendant's direct appeal was still pending.
Upon issuance of the denial of certification by the Supreme Court, defendant filed a second pro se petition for PCR on April 29, 2004. Defendant filed two pro se supplemental briefs; his assigned attorney filed a brief as well. The matter was heard July 28, 2006. This appeal followed.
Defendant raises the following legal issues:
DEFENSE COUNSEL'S FAILURE TO REQUEST A WADE*fn1 HEARING TO CHALLENGE THE STATE'S IDENTIFICATION EVIDENCE DENIED MR. JAMES THE EFFECTIVE ASSISTANCE OF COUNSEL.
THE CLAIMS IN MR. JAMES' PETITIONS AND BRIEFS ARE INCORPORATED IN THIS APPEAL UNDER STATE V. WEBSTER, 187 N.J. 254 (2006).
MR. JAMES' PETITION FOR POST-CONVICTION RELIEF IS NOT TIME-BARRED BECAUSE HIS FAILURE TO FILE HIS PETITION WITHIN FIVE YEARS OF HIS CONVICTION WAS DUE TO EXCUSABLE NEGLECT, THERE WAS NO PREJUDICE TO THE STATE, AND BECAUSE THE INTERESTS OF JUSTICE WARRANT RELAXATION OF THE TIME BAR.
A. The Time Bar Should be Relaxed Because Defendant's Delay in Filing His PCR Petition Was Due to Excusable Neglect.
B. The Time Bar Should be Relaxed in the Interests of Justice.
Counsel on appeal by reference incorporates all of defendant's pro se arguments into his brief.
We affirm essentially for the reasons set forth in the motion judge's thoughtful and cogent opinion. We make only the following brief comments.
Initially, we agree with the motion judge that the five-year time bar contained in Rule 3:22-12 should be relaxed in this instance because of defendant's multiple appeals and the sua sponte dismissal of his PCR petition while one of his appeals was pending. Rule 3:22-3 does not bar a petition for PCR when a defendant is merely appealing his sentence; however, in this case we deem it fair to address the issues on the merits because defendant's first filing occurred within a year of his first sentence date.
Although defendant's principal point on appeal is that he was ineffectively assisted by counsel because no Wade hearing was conducted, he advances no rationale explaining the reason a Wade hearing was necessary in support of his claim. Absent any fact or circumstance proffered in support of a claim on PCR, the argument is nothing more than an unsubstantiated bare allegation. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999).
No Wade hearing was necessary from our review of the record. Such a hearing would only be required where the defendant can point to some factual circumstance that might have made the pretrial identification procedure impermissibly suggestive. See State v. Romero, 191 N.J. 59, 76-79 (2007). Even then, further analysis is required to determine whether the suggestive procedures are fatal, and whether the identification is nonetheless supported by sufficient indicia of reliability. State v. Herrera, 187 N.J. 493, 503-04 (2006).
The main problems that defendant highlights with respect to the victim's identification are the differences in the description of the assailant's clothing and the physical build of the perpetrator. The victim described the suspect as a five- foot four-inch tall, 200-pound man wearing brown pants to one police officer, but told another police officer that the suspect was five foot seven inches tall and wore gold pants. These discrepancies no doubt were considered by the jury in its assessment of the identification evidence, as defense counsel specifically mentioned them during summation. In any event, these discrepancies are entirely irrelevant to any claim of impropriety in the identification process or the conduct of law enforcement.
Defendant also asserts that phone calls between police and the victim, and the fact the selection from the photo array took place more than thirty hours after the crime, made the identification procedure impermissibly suggestive. We do not agree. And just because counsel was unable to convince the jury that the discrepancies in the victim's description warranted acquittal does not mean that counsel was ineffective. See State v. Sheika, 337 N.J. Super. 228, 243 (App. Div.), certif. denied, 169 N.J. 609 (2001).
Every criminal defendant is guaranteed the right to counsel pursuant to the Sixth Amendment. Strickland v. Washington, 466 U.S. 668, 684, 104 S.Ct. 2052, 2063, 80 L.Ed. 2d 674, 691 (1984). The right to counsel means "'the right to the effective assistance of counsel.'" Id. at 686, 104 S.Ct. at 2063, 80 L.Ed. 2d at 692 (quoting McMann v. Richardson, 397 U.S. 759, 771 n.14, 90 S.Ct. 1441, 1449 n.14, 25 L.Ed. 2d, 763, 773 n.14 (1970)). The New Jersey Constitution accords its citizens the same privilege. N.J. Const. art. I, ¶ 10.
To establish a prima facie claim of ineffective assistance of counsel, defendant must demonstrate a reasonable likelihood of success under the two-pronged test enunciated in Strickland. First, "defendant must show that counsel's performance was [truly] deficient." Strickland, supra, 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed. 2d at 693. Second, defendant must establish "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. The Strickland analysis was adopted by New Jersey in State v. Fritz, 105 N.J. 42, 58 (1987). The "benchmark" for assessing ineffective assistance of counsel is whether counsel's professional errors "'materially contributed'" to the conviction of defendant. State v. Velez, 329 N.J. Super. 128, 134 (App. Div. 2000) (quoting Fritz, supra, 105 N.J. at 58).
Defense counsel's failure to request a Wade hearing was not ineffective assistance. The problems identified by defendant were flaws inherent in the identification, not in the process.
Thus, the claim of error falls far short of meeting the Strickland standard.
Defendant's pro se PCR petition raises numerous arguments included by counsel on the appeal by reference only. We note that more is required in order to bring an issue to our attention for review. See State v. Hild, 148 N.J. Super. 294, 296 (App. Div. 1977). That being said, having reviewed defendant's petition and considered the arguments, all of which are bare allegations of ineffective assistance of counsel, we do not find they warrant further discussion in a written decision. R. 2:11-3(e)(2).