On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 04-02-0383.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Cuff and Fisher.
A jury found defendant guilty of murder, possession of a weapon for an unlawful purpose, and unlawful possession of a weapon. Following merger of the possession for an unlawful purpose with the murder charge, defendant was sentenced to a thirty-year term of imprisonment with a thirty-year parole disqualifier for the murder charge and a concurrent four-year term for the unlawful possession charge. We affirmed his conviction, State v. Harris, No. A-5007-04 (App. Div. May 4, 2007); and the Supreme Court denied certification, 192 N.J. 480 (2007). Defendant filed a petition for post-conviction relief (PCR) arguing among other things, that his trial counsel did not advise him that he could testify at the Miranda*fn1 hearing. We reverse and remand for an evidentiary hearing.
The facts of this case are set forth in our earlier opinion. Harris, supra, No. A-5007-04 (slip op. at 2-12). Briefly, defendant, who had been selling drugs on a street corner in Newark for some time, shot and killed Mallory Corpening, who had previously sold drugs on that corner and had stated his intention to reclaim the corner. Defendant was seventeen at the time of his arrest.
Following his arrest, believing defendant was eighteen,*fn2 police read the prescribed Miranda rights to defendant, and defendant orally waived his rights. Defendant gave a statement and confessed to the crime.
Following waiver of Family Part jurisdiction, a grand jury indicted defendant and eventually defendant moved to suppress his statement. The hearing focused on whether police proceeded to interview defendant knowing he was seventeen. Defendant did not testify at the Miranda hearing.
In his pro se petition for PCR, defendant alleged he had not received effective assistance of counsel because trial counsel failed to investigate and locate alibi witnesses. Counsel was assigned and in his supplemental petition, defendant alleged that he informed his trial attorney he wanted to testify at trial, and that trial counsel never informed him of his right to testify at the suppression hearing. Defendant also alleged that following his arrest, he repeatedly asked to see his mother, that he never made the statement attributed to him, and that police altered the statement of a witness and produced it as his statement. Assigned counsel also argued that trial counsel should have requested a Wade*fn3 hearing to challenge Arleathea Edwards' identification of defendant, and trial counsel should have sought a stronger limiting instruction concerning defendant's prior bad acts.
In his January 27, 2009 opinion denying all relief and dismissing defendant's petition, the judge held that failure to inform defendant of his right to testify at the Miranda hearing was, if true, harmless error. He reasoned that trial counsel followed the same tactic at the Miranda hearing as at trial believing that defendant was an unreliable witness and that the judge, as the jury, would have believed a "veteran homicide detective" over defendant. At oral argument, the judge revealed his faith in the ability of defendant's trial attorney in the following exchange:
THE COURT: And frankly, [defense counsel has] been around a long time, she tried an excellent case, she's an excellent lawyer, she's been in front of me many times. I would almost guarantee it, that your client's not accurate. [PCR COUNSEL]: You'd almost guarantee what?
THE COURT: Your client's recollection is not accurate.
On appeal, defendant raises the ...