On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment Nos. 01-02-0198 and 01-02-0199.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 8, 2010 - Decided Before Judges Kestin and Newman.
Defendant Maurice Pierce appeals from an order denying his petition for post-conviction relief (PCR). Defendant raised an issue on his direct appeal concerning the ineffectiveness of his trial counsel where, among other contentions, there was a failure to request a Wade hearing.*fn1 In an opinion of this court affirming defendant's conviction, this issue was reserved for post-conviction proceedings, and is now before us. State v. Pierce, No. A-6172-02 (App. Div. May 11, 2005) (slip op. at 19-20), rev'd and remanded on other grounds, 188 N.J. 155 (2006).
The relevant facts surrounding this first-degree robbery conviction, along with other charges, were summarized by this court as follows.
The events leading to these charges occurred on November 11, 2000, when Arthur Vaz drove to a club in Hillside at about 12:45 a.m. When he got there, he parked on Yale Street in a residential neighborhood. As he was getting out of the car, a beige Oldsmobile pulled up beside him, a man got out, began talking to him, pulled a gun, pointed it at Vaz's chest and told Vaz to give him everything he had. Vaz gave him $50 to $60 and a cell phone. The man got back into the Oldsmobile and drove away.
Vaz gave a full description of the man to police and described the gun. Several days after the robbery, Vaz picked defendant out of a photo lineup and identified him as the man who robbed him. The weapon described by Vaz was found with defendant when he was arrested. [Id. at 2.]
Following defendant's conviction, he was sentenced to a discretionary extended term of forty years imprisonment with sixteen years of parole ineligibility. This sentence was reimposed following a resentencing. The other charges for which defendant was sentenced were all made to run concurrent with this lead charge and need not be further enumerated.
In presenting the argument involving defendant's trial counsel's failure to request a Wade hearing, defendant argued to the PCR judge, who had also been the trial judge, that there was "suggestiveness in the photo identification" and that identification would have been suppressed, leading to a different trial outcome.
Defendant asserted that the second prong of the Strickland
v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), and State v. Fritz, 105 N.J. 42 (1987), test would have thereby been satisfied. In support of his argument, defendant pointed out there was an initial different description of the make of the automobile defendant was traveling in; that the description of defendant was inaccurate as to color of his complexion; and that there was an age and height difference. He also contended that the procedure was suggestive because the police had indicated they "arrested someone with a silver handgun," but nothing was said about which of those depicted in the six-person photo array was the arrestee. Reportedly, the victim was told after the immediate identification that he had selected the person who had been arrested. Defendant then argued that this comment "tainted the in-court identification."
Defendant also urged the court to follow the Attorney General Guidelines regarding photo identifications, which were, however, not in effect at the time of this photo identification procedure. Defendant urged the court that "an evidentiary hearing to explore the issue of ineffective assistance [of] counsel" should be held and that as part of that proceeding, a Wade hearing should be conducted.
In rejecting defendant's petition, the PCR judge was satisfied that the second prong of the Strickland test, that "prejudice must be actually proven by showing that there is a reasonable probability that, but for the professional errors made by the defendant's lawyers, the result of the proceeding would have been different," was not satisfied.
According to the PCR judge, with regard to the examination itself, the detectives had testified that they "conducted a photo identification and neither of them discussed the [identification] with the victim prior to" the photo array being displayed. The judge stated that "[t]he victim immediately identified the defendant from the photo array." The judge suggested that there was no gross dissimilarity in the photo array. During the robbery, the judge noted that defendant was wearing a do-rag "so that his hairstyle was unknown." Although defendant was the only individual with a corn row hair style, that was not visible at the time of the robbery so that the hair style was of no consequence. The PCR judge further pointed out that "the victim was three to four feet from the defendant when the robbery occurred," which lasted approximately four or five minutes. He had a clear view of defendant with a heightened sense of awareness ...