On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 02-02-0240.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 7, 2011
Before Judges Reisner and Sabatino.
Defendant Christopher Romero appeals the dismissal of his petition for post-conviction relief ("PCR"). The petition is based upon two arguments: (1) inappropriate legal principles were applied in the trial court proceedings and on direct appeal in allowing the victim's identification to be admitted against defendant at his trial; and (2) defendant's former counsel was constitutionally ineffective in failing to make adequate arguments to exclude the identification. We join the Law Division in rejecting those contentions and consequently affirm the denial of PCR relief.
We incorporate by reference the factual and procedural history recited by the Supreme Court in its opinion upholding defendant's convictions on direct appeal. See State v. Romero, 191 N.J. 59 (2007). By way of a brief summary, defendant's indictment arose out of the attack and stabbing of the victim on the streets of Trenton one evening in October 2001. About $1200 was taken from the victim by his attacker. The victim got a face-to-face view of the attacker as they struggled. About a week later, the victim saw someone on the street who resembled his attacker and he called the police. The victim gave the police a description, and about an hour later, they caught defendant. The police brought the victim over to the police car, in which defendant was seated. The victim took a long look at defendant and concluded he was looking at his attacker.
Defendant was charged with first-degree armed robbery with the use of a knife, N.J.S.A. 2C:15-1 and 2C:2-6; third-degree attempted theft by unlawful taking as a principal or accessory, N.J.S.A. 2C:20-3a, 2C:2-1 and 2C:2-6; third-degree aggravated assault as a principal or accessory, N.J.S.A. 2C:12-1(b)(7) and 2C:2-6; third-degree possession of a weapon for an unlawful purpose, N.J.S.A 2C:39-4(d) and 2C:2-6; and fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(d) and 2C:2-6. After a pretrial Wade*fn1 hearing, the trial judge found that, under existing law, the "show up" identification procedure used by the police was not unduly suggestive and that the victim's identification was reliable.
The victim's identification of defendant was admitted as part of the State's proofs at the ensuing four-day jury trial in December 2002. The jury found defendant guilty of all counts of the indictment. After appropriate mergers, the trial judge sentenced defendant to fifteen years imprisonment with an 85% parole ineligibility period for the robbery conviction, a concurrent five years imprisonment with a two-and-a-half-year parole disqualifier for the aggravated assault conviction, and another concurrent five years imprisonment with a two-and-a-half-year parole disqualifier on the conviction for possession of a weapon for an unlawful purpose.
We affirmed defendant's convictions and sentence on direct appeal in an unpublished opinion in February 2005. State v. Romero, No. A-0825-03 (App. Div. Feb. 1, 2005). Among other things, we sustained the admissibility of the victim's identification. After granting certification, the Supreme upheld defendant's convictions in a May 21, 2007 opinion, although it ordered a prospective change in the model jury charge on eyewitness identifications. State v. Romero, supra, 191 N.J. at 75-76.
Defendant then sought PCR relief from the trial court. Because the judge who had tried the case had by that point completed his term of office, the petition was referred to Judge Mitchel Ostrer. After hearing oral argument, Judge Ostrer filed an order and a written opinion denying the PCR application. This appeal ensued.
Defendant's points on appeal consist of the following:
THE FEDERAL "IMPERMISSIBLY SUGGESTIVE" STANDARD FOR ADMISSION OF ONE-ON-ONE IDENTIFICATION TESTIMONY DID NOT ADEQUATELY PROTECT DEFENDANT'S STATE CONSTITUTIONAL RIGHT TO DUE PROCESS AND FUNDAMENTAL FAIRNESS. OUR COURTS SHOULD ADOPT A PER SE, EXIGENCY ...