On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No(s). 01-01-0034 and 01-01-0035.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 14, 2010
Before Judges Parrillo and Espinosa.
Defendant appeals from the denial of his petition for post-conviction relief (PCR) without an evidentiary hearing. For the reasons that follow, we affirm.
After two prior trials resulted in mistrials, defendant was convicted by a jury of first-degree robbery, N.J.S.A. 2C:15-1; third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1); two counts of second-degree unlawful possession of a handgun, N.J.S.A. 2C:39-4(a); two counts of third-degree possession of a handgun without a permit, N.J.S.A. 2C:39-5(b); and unlawful possession of a handgun by a previously convicted felon, N.J.S.A. 2C:39-7(b). The sentencing court ordered appropriate mergers of the convictions and imposed an aggregate sentence of seventeen years subject to the No Early Release Act, N.J.S.A. 2C:43-7.2.
Defendant appealed and we affirmed his convictions and sentence in an unpublished opinion. State v. Nelson, No. A-1932-03 (App. Div. Dec. 9, 2004). The Supreme Court denied his petition for certification. State v. Nelson, 187 N.J. 492 (2006). The facts underlying defendant's convictions are set forth in our opinion on direct appeal and need not be repeated here.
Defendant filed a PCR petition on March 1, 2007, in which he argued he was denied the effective assistance of counsel because: (1) trial counsel failed to request a charge on attempted robbery; (2) trial counsel failed to conduct a meaningful pretrial investigation of the State's witnesses; (3) trial counsel failed to seek leave to file an interlocutory appeal from various trial court rulings; (4) trial counsel committed cumulative errors; (5) trial counsel failed to call a key witness, Ronald Jones; (6) trial counsel failed to request a charge on photo-array evidence; (7) trial counsel failed to make appropriate motions; (8) trial and appellate counsel failed to move for a new trial; (9) trial counsel was ineffective in the pre-trial stage, in opening and closing statements, and at sentencing; (10) trial counsel failed to object to a statement that photos used in the photo array were arrest photos; (11) trial counsel failed to convey to the court that the testimony of a police officer was in direct contradiction of his pre-trial testimony; and (12) trial counsel failed to convey to the court or jury that another person had pled guilty to the first-degree robbery charge. Defendant also argued that the trial court's failure to give a charge on the photo-array evidence sua sponte deprived him of constitutional rights.
A brief and amended petition were submitted on behalf of defendant in November 2007. In this brief, defendant raised additional claims of ineffective assistance of counsel based upon (1) the failure to request a Wade*fn1 hearing to challenge an out-of-court identification of defendant from a photo array and (2) the failure to seek dismissal of the charges on double jeopardy grounds based upon the trial court's declaration of a mistrial during deliberations in the second trial that, defendant argued, was erroneously precipitous.
The PCR court denied defendant's petition by order dated January 16, 2009. Defendant presents the following issues for our consideration in his appeal.
THE DENIAL OF DEFENDANT'S PCR PETITION MUST BE REVERSED AND THIS MATTER MUST BE REMANDED FOR AN EVIDENTIARY HEARING AND A WADE HEARING BECAUSE DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL DUE TO TRIAL COUNSEL'S FAILURE TO REQUEST A WADE HEARING
THE DENIAL OF DEFENDANT'S PCR PETITION MUST BE REVERSED AND DEFENDANT'S CONVICTIONS MUST BE REVERSED BECAUSE DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL DUE TO TRIAL COUNSEL'S FAILURE TO MOVE FOR A ...