On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 05-09-1210.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Cuff and Fisher.
In an earlier appeal, defendant argued that the failure of his trial attorney to seek a pretrial Wade*fn1 hearing -- concerning an identification made at a show-up -- deprived him of the effective assistance of counsel. State v. Chipi, No. A-6156-05 (App. Div. Sept. 22, 2008) (slip op. at 6). We remanded for an evidentiary hearing to examine both the reasons for counsel's decision in that regard and for a Wade hearing. Ibid. In accordance with our mandate, an evidentiary hearing was conducted, and Judge Melvin S. Kracov found the show-up was unduly suggestive but the identification nevertheless reliable. The judge also assumed counsel's decision not to seek a Wade hearing was deficient but concluded that his failure did not prejudice defendant. Because Judge Kracov's thorough findings were based on credible evidence deserving our deference, we affirm.
The record reveals that during the evening of April 28, 2005, Fernando Montalvan was walking on Bergenline Avenue near 45th or 46th Street in Union City. He was holding five dollars in his hand with which he intended to buy a telephone calling card in a nearby store. Defendant approached and, according to Montalvan, pulled a knife or boxcutter and took the five dollars. Montalvan immediately entered a nearby liquor store where he telephoned the police.
Officer Gonzalez responded and was told by Montalvan that the robber was a Hispanic male, possibly of Cuban descent, with a black ponytail, who was wearing a black coat, white tee shirt and blue jeans. This description was forwarded to other officers and, as Officer Gonzalez drove Montalvan around the area, another officer advised that someone fitting the given description had been detained at Bergenline Avenue and 52nd Street. Officer Gonzalez told Montalvan that "[w]e captured the guy," and drove to the location. When they arrived, defendant was handcuffed and standing between two police officers. While remaining in the police vehicle, Montalvan identified defendant as the robber; he said he could see clearly because of the illumination provided by street lights.
Defendant was charged with: first-degree armed robbery, N.J.S.A. 2C:15-1; third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d; third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5d; and third-degree aggravated assault, N.J.S.A. 2C:12-1b(2). At the conclusion of a jury trial, defendant was acquitted of armed robbery but convicted of the lesser-included offense of second-degree robbery; he was also acquitted of the other charged offenses. Defendant was sentenced to a thirteen-year discretionary extended term pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2.
Defendant appealed, arguing that: the show-up was impermissibly suggestive and his attorney ineffective in failing to request a Wade hearing; the evidence in support of the conviction for second-degree robbery was insufficient and his motion for a judgment of acquittal, therefore, erroneously denied; and the judge's imposition of an extended term constituted an abuse of discretion and the sentence otherwise excessive. As noted above, we remanded for an evidentiary hearing regarding the intertwined Wade and ineffectiveness issues. We also found no merit in defendant's second argument but remanded for resentencing in accordance with the principles set forth in State v. Pierce, 188 N.J. 155 (2006).
Judge Kracov, who had not presided over the prior proceedings, conducted an evidentiary hearing during which he heard the testimony of defendant's trial attorney, Montalvan, and one of the police officers present at the show-up and, on July 23, 2009, rendered an oral decision in which he thoroughly canvassed the evidence. The judge made credibility findings and concluded that the show-up was suggestive but nevertheless produced a reliable identification; the judge also found that trial counsel's performance was deficient but caused no prejudice because, if sought prior to trial, the Wade hearing would have had no impact on the result of the trial.
On July 27, 2009, defendant was also resentenced in accordance with our mandate. Defendant conceded he was eligible for a discretionary extended term but sought the exercise of the judge's discretion in his favor. Judge Kracov fully explained why, in light of defendant's considerable criminal record, he exercised his discretion to impose an extended term, and he thereafter sentenced defendant to a ten-year prison term subject to an 85% period of parole ineligibility.
Defendant has again appealed, raising the following arguments for our consideration:
I. THE TRIAL COURT ERRED ON REMAND WHEN IT FOUND THAT THE OUT-OF-COURT "SHOW UP" IDENTIFICATION OF DEFENDANT OVERCAME THE BURDEN OF ITS SUGGESTIVENESS AND PROVED RELIABLE HAD A WADE HEARING BEEN CONDUCTED PRIOR TO TRIAL.
II. THE TRIAL COURT ERRED ON REMAND WHEN IT FOUND THE DEFENDANT WAS NOT A DANGER TO THE PUBLIC BUT NONETHELESS RESENTENCED HIM ...