On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment Nos. 06-05-1364, 06-05-1365 and 07-03-0792.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: January 5, 2011
Before Judges Axelrad and R. B. Coleman.
Defendant Maurice Green, who was convicted of armed robbery of a convenience store and weapons offenses, raises as his sole issue on appeal ineffective assistance of trial counsel in failing to request a Wade*fn1 hearing. According to defendant, since his entire defense was premised on a challenge to the reliability of the State's eyewitness identification evidence, such failure materially affected the outcome of the case. We disagree and affirm.
The Essex County Grand Jury returned a May 2006 indictment charging defendant with first-degree armed robbery, N.J.S.A. 2C:15-1 (count one); third-degree unlawful possession of weapons, N.J.S.A. 2C:39-5(b) (count two); and second-degree possession of weapons for unlawful purposes, N.J.S.A. 2C:39-4(a) (count three). In a separate indictment, defendant was charged with second-degree certain persons not to have weapons, N.J.S.A. 2C:39-7(b), arising out of the same incident.
On March 29, 2007, defendant was found guilty by a jury on all three counts. Defendant waived his right to a jury trial for the certain persons not to have weapons charge and was found guilty by Judge McCormack on April 4, 2007.
About six months later, the court merged count three with count one and sentenced defendant to a sixteen-year custodial term with an 85% parole disqualifier pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2, on count one, and to a concurrent five-year custodial term on count two. Defendant also received a concurrent eight-year custodial term with five years of parole ineligibility for the certain persons not to have weapons conviction.*fn2
Defendant's conviction arose out of an October 28, 2005 armed robbery of Flor Mini Mart, a small convenience store in Newark. The State presented the eyewitness testimony of the store employees Oscuary Masquea and Jose Garcia and responding police officer Darnell Brown Graham and firearms expert Detective Pablo Maldonado of the Newark Police Department. Defendant presented the testimony of David Barmore, an intake employee at the Essex County Department of Corrections, and Derrick Moultrie, an alibi witness who was found with defendant near the store following the robbery.
Masquea, who was working the register on that day, testified that two men in ski masks entered the store around noon. One stood near the back of the store while the other approached Masquea with a handgun. The man who approached him was wearing an army jacket and a black ski mask that covered everything except the wearer's eyes and nose. Pointing the gun at Masquea's chest, the man demanded "the money from the register, the bag you have down there, and the money that you have in your pockets." The bag the gunman referred to was a black bag with a FedEx logo containing cell phones, batteries and chargers, which was Masquea's personal property and not on display, that Masquea bought and traded with people in the neighborhood. Masquea immediately turned over all the requested items to defendant. Garcia was stocking a refrigerator in the back of the store and did not see the robbery take place.
Masquea testified that although the gunman was wearing a black ski mask, it was "a little bit clear" and "very tight on the face," and he immediately recognized him as defendant because he knew defendant from the neighborhood. According to Masquea, he saw defendant several times a week hanging out in front of a building about two blocks from the store, presumably his residence, as Masquea walked to work. Occasionally they would exchange greetings. Defendant also came to the store at least twice a week. As the final indicator, Masquea knew defendant was aware of the contents of the FedEx bag because once prior to the robbery defendant had asked him if he was selling phones.
Defendant and his accomplice then fled the store. Masquea told Garcia they had just been robbed and asked for assistance because he could "imagine where [defendant] was going to go," presumably to defendant's residence. Masquea saw the gunman crossing Springfield Avenue and heading towards Nineteenth Street. Masquea phoned the police while Garcia pursued the gunman in his car. The police returned to the store with Garcia, Masquea explained about the robbery, gave a clothing description of the gunman, and pointed the officers in the direction the gunman ran.
The police returned to the store with two suspects in two different patrol cars and asked Masquea whether he could make a positive identification of either one. While Masquea only identified the man in the first car as another customer, he identified the suspect in the second car, defendant, as the gunman. At trial, Masquea was shown a handgun found on ...