On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 02-05-0695.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 8, 2010
Before Judges A. A. Rodriguez and LeWinn.
Defendant Edward J. Davis appeals from the denial of his first petition for post-conviction relief (PCR). We affirm.
In February 2003, following a jury trial, defendant was convicted of first-degree 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; and fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5d. After appropriate merger of offenses, Judge Wendell E. Daniels imposed an extended fifty-year term with a NERA*fn1 disqualifier. We affirmed. State v. Davis, No. A-6123-02 (App. Div. July 7, 2004), certif. denied, 182 N.J. 148 (2004).
Shortly after 6:30 p.m. on December 27, 2001, Diego Reyes was working at a donut shop in South Toms River. *fn2 Defendant entered the store armed with a knife and demanded "the money." Defendant fled after Reyes turned over about twenty-five dollars from the register. After Reyes called police, South Toms River Police Officer William Kosh responded and obtained a description of the robber. Kosh also spoke with a salesclerk at a bookstore in the same strip mall, who reported that he had seen an individual matching defendant's description in his store at approximately 6:30 p.m.
Kosh responded to the scene again at 8:25 p.m. because the salesclerk reported that he had seen the same man enter his store. When Kosh arrived, he witnessed defendant attempting to enter the passenger-side door of a vehicle parked in front of the strip mall. A little over an hour after police arrested defendant, Reyes was driven past defendant, who was standing between the two police officers. Reyes said "him, him," indicating a positive identification of defendant as the person who robbed him.
Prior to trial, the judge conducted a Wade*fn3 hearing and denied defendant's motion to suppress Reyes' show-up identification. Defendant did not testify at trial.
Represented by counsel, defendant filed a PCR petition, arguing that: (1) trial counsel's "failure to challenge the veracity of the victim's testimony through cross-examination was ineffective assistance of counsel"; (2) ineffective assistance of appellate counsel; (3) Reyes should have testified at the Wade hearing; (4) the trial judge erred in failing to charge the jury on third-degree theft as a lesser-included offense; and (5) defendant should have been sentenced according to State v. Natale, 184 N.J. 458 (2005).
Judge James Den Uyl denied the petition. The judge noted that defendant made only bald assertions without evidence of prejudice. The judge found no basis to conclude that Reyes' testimony at the Wade hearing was necessary because Kosh, who witnessed the show-up identification, testified. The judge also rejected the claim of ineffective assistance by appellate counsel, finding no showing of prejudice. Lastly, the judge found that the argument regarding Judge Daniels' failure to charge a lesser-included offense was barred by operation of Rule 3:22-4.
On appeal, defendant contends that:
THE PCR COURT ERRED IN DENYING [DEFENDANT] AN EVIDENTIARY HEARING.
1. The PCR Court Should Have Held A Hearing on Compliance With Natale On ...