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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
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 ...