August 15, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
ROBERT SMITH, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 02-12-4452.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted June 6, 2011
Before Judges C.L. Miniman and LeWinn.
Defendant appeals from the January 13, 2010 order denying his petition for post-conviction relief (PCR) based on numerous claims of ineffective assistance of trial and appellate counsel.
Defendant also asserts a claim that PCR counsel rendered ineffective assistance. We affirm.
Tried to a jury in 2004, defendant was convicted of first- degree robbery, N.J.S.A. 2C:15-1; third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39- 4(a); and fourth-degree resisting arrest, N.J.S.A. 2C:29-2(a).
He was sentenced to an aggregate term of fifteen years subject to the No Early Release Act, N.J.S.A. 2C:43-7.2 (NERA); the judge also imposed a five-year period of parole supervision following release pursuant to N.J.S.A. 2C:43-7.2(c).
Defendant appealed, claiming (1) the verdict was against the weight of the evidence, (2) error in failing to grant a mistrial for prosecutorial misconduct, (3) error in denying his motion for judgment of acquittal, and (4) his sentence was "unjust, inappropriate and manifestly excessive." We affirmed. State v. Smith, No. A-2800-04 (App. Div. March 3, 2006). The Supreme Court denied certification. State v. Smith, 187 N.J. 80 (2006).
In order to place defendant's PCR claims in context we summarize the pertinent trial evidence from our earlier decision.
On August 1, 2002, the victim, Joseph Shenouda, a man of Arabic nationality and only a six month resident of the United States, with a very poor command of the English language, was working at the Steakhouse II Restaurant in Irvington. Just after 10:00 p.m., he stepped outside of the restaurant and while making a telephone call on his cell phone was robbed. He testified that defendant and another man approached him. The other man took his cell phone from him. Defendant put a gun to Shenouda's stomach, placed his hand on his shoulder, told Shenouda to give him his money, and not to move. Fearing for his life, when defendant stuck the gun to his stomach, Shenouda threw his money, which he believed to be approximately $80, on the ground. The man who took the phone alerted defendant that someone was coming toward them. Defendant picked up the money and the two men got into an automobile with two other individuals and left the scene. The man who was approaching was Said Androus, a restaurant delivery man. Although Androus did not observe the handgun pointed at Shenouda's stomach, he did see the men standing near him. After being told by Shenouda what happed to him, Androus summoned a police car that was passing by.
The police then pursued the vehicle, a burgundy Toyota Camry, which the robbers had entered. A police pursuit, with lights and sirens activated, ensued through three municipalities until the vehicle crashed into a fence in front of 13 Halsted Street in East Orange. Shenouda and his cousin, who also worked at the restaurant, followed the police car in Shenouda's cousin's car. During the pursuit one of the occupants of the Camry was leaning out of the vehicle waving a silver handgun in the direction of the police car.
After the suspects' vehicle crashed, four men exited the vehicle and ran toward the fence. Two suspects jumped over the fence and the other two went around it. Irvington Police Officers Young and Wilson searched the backyard of a residence, where they found defendant crouched down under some bushes near the steps of a home. When they apprehended defendant under the bushes, a silver handgun, later described as a starter pistol, was found about a foot from defendant. The gun was later determined by ballistics to be operable. Officer Young identified defendant and the handgun in court.
Shenouda's cell phone was found in the rear seat of the vehicle that defendant and the other suspects fled from. The cell phone contained a pre-recorded list of numbers that Shenouda had programmed into the cell phone and Shenouda identified the cell phone as the cell phone that had been stolen from him. Additionally, defendant had sixty-five dollars in his possession at the time of his arrest.
Shenouda described the defendant as a short man with a light beard, wearing a black shirt. After defendant was arrested, Shenouda, at the scene, made a positive identification of defendant as the person who pointed a gun at him. Shenouda later identified defendant as the gunman in the photograph shown to him by the police. Shenouda also described the co-defendant who he was never able to identify, as taller than himself, wearing a long white tee shirt and having long hair.
[Smith, supra, slip op. at 16-18.]
On November 6, 2006, defendant filed his PCR petition, claiming ineffective assistance of counsel for "failing to move to suppress [the victim's] photographic identification as being impermissibly suggestive and irreparably mistaken." Defendant also filed a brief in which he contended that the five-year parole supervision period impermissibly extended his sentence from fifteen to twenty years.
In his appellate brief, defendant refers to a PCR petition that raises additional claims that his conviction should be reversed (1) because there was no fingerprint evidence for the vehicle and gun found when he was arrested; (2) due to discrepancies in the police reports and witness "testimonies" at trial, which should have been stricken from the record; and (3) based on a "prejudicial accomplice liability charge." Defendant's appendix, however, does not contain any petition or brief addressing these issues.
At oral argument on January 13, 2010, PCR counsel raised the following issues: (1) trial counsel was ineffective for failing to request a Wade*fn1 hearing as to the victim's in-person and photographic identification; (2) the lack of fingerprint evidence on the vehicle; and (3) defendant's sentence was illegally extended by the imposition of a post-release parole supervision period. Counsel also incorporated by reference the contentions regarding discrepancies in the police reports and the prejudicial charge on accomplice liability.
At the conclusion of oral argument, the judge*fn2 placed his decision on the record. The judge rejected defendant's illegal sentence argument, noting that no legal precedent supported his position. The judge stated that "[d]efendant cites to no cases, his attorney can cite no cases, and I can find no case that stands for that proposition." Furthermore, the judge noted that defendant had raised a claim of excessive sentence on appeal, and this court had found his sentence "'just, appropriate and fair[,]'" quoting Smith, supra, slip op. at 21.
The judge next rejected defendant's claim of ineffective assistance of counsel for failure to request a Wade hearing, finding:
Here, [defendant's] reliance on . . . Wade is misplaced.
There, the identification of the [d]efendant by the witness occurred post-indictment, in an effort to build the [p]rosecution's case.
The [d]efendant was placed in a very . . . suggestive lineup, leading the Court to the conclusion that it could not be determined whether the victim identified the [d]efendant because of the impermissibly suggestive lineup or from his own recollection.
The victim identification of . . . [d]efendant in this case is in stark contrast. Here the identification by the victim was pre-indictment, and not for the purpose of building a case. There was no significant time between the robbery and the identification of . . . [d]efendant following this car chase.
In fact, from the time of the robbery to the time of apprehension, . . . [d]efendant was only out of sight of the police and/or the victim for a very short period of time.
As the [a]ppellate [c]court noted, . . . "The identification of . . . [d]efendant was at all times positive, consistent and based on the victim having a good view of [d]efendant's face". . . .
So, there was obviously an independent basis for the victim's identification, and that identification was not based on [the] police showing him photographs.
Therefore, [t]rial [c]counsel was certainly not [c]onstitutionally deficient in failing to seek a Wade hearing, and . . . [d]efendant offers no evidence that a Wade hearing would have resulted in the victim's identification being ruled inadmissible . . . .
The judge rejected defendant's contention regarding the lack of fingerprint evidence, finding that "that argument simply restates the argument that [his] conviction was against the weight of the evidence, that was rejected by the [a]ppellate [c]court and is thus implicated by [Rule] 3:22-5." The judge added that defendant "does not claim that had fingerprint evidence been taken, it would have been exculpatory."
Finally, the judge noted that defendant "offers no argument" for his claims regarding discrepancies between the police reports and witnesses' testimony, or the accomplice liability charge. The judge further held those claims barred by Rule 3:22-4 because they could have been raised on direct appeal. Defendant now raises the following contentions for our consideration:.
IT WAS ERROR NOT TO ALLOW THE DEFENDANT AN EVIDENTIARY HEARING OR GRANT HIS APPLICATION FOR POST-CONVICTION RELIEF
PETITIONER WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL
A THERE ARE NO PROCEDURAL BARS
B TRIAL COUNSEL FAILED TO ADVISE THE PETITIONER OF THE CONSEQUENCES OF GOING TO TRIAL RELATIVE TO PAROLE SUPERVISION
C TRIAL COUNSEL DID NOT MOVE FOR A WADE HEARING BASED UPON THE SUGGESTIVENESS OF THE SHOW-UP PROCEDURE
D TRIAL COUNSEL FAILED TO INVESTIGATE THE CASE ADEQUATELY TO THE PETITIONER'S DISADVANTAGE
E IT WAS INEFFECTIVE ASSISTANCE OF COUNSEL ON THE PART OF THE POST-CONVICTION RELIEF ATTORNEY TO FAIL TO OBTAIN AFFIDAVITS OR CERTIFICATIONS FROM WITNESS[E]S SUCH AS PRIOR DEFENSE COUNSEL SO THAT THE PCR COURT WOULD BE AWARE THAT THERE WAS A PRIMA FACIE CLAIM AND MAY HAVE THEN ALLOWED AN EVIDENTIARY HEARING
F APPELLATE COUNSEL WAS INEFFECTIVE FOR NOT RAISING CERTAIN POINTS IN THE DIRECT APPEAL
THE COURT ERRED BY TELLING THE JURY THAT IT SHOULD BEAR IN MIND THAT FINGERPRINT EVIDENCE WAS NEVER ADDUCED AT TRIAL (NOT RAISED BELOW)
THE RECORD IS REPLETE WITH ERROR
Having considered these contentions in light of the record and the controlling legal principles, we conclude they are without merit. We affirm substantially for the reasons stated by Judge F. Michael Giles in his decision rendered from the bench, adding only the following comments.
A defendant's claim of ineffective assistance of counsel is considered under the standards established in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), and adopted by our Supreme Court in interpreting our State Constitution. State v. Fritz, 105 N.J. 42, 58 (1987). In order to prevail on such a claim, a defendant first must show that his attorney's performance was deficient. Id. at 52 (citing Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693). Second, the defendant must show that counsel's deficient performance prejudiced his defense. Ibid. Here defendant did not present sufficient evidence to raise a prima facie case of ineffective assistance of counsel.
Having reviewed the trial record, we find no merit to defendant's claim that the PCR judge should have held an evidentiary hearing on trial counsel's failure to request a Wade hearing. The victim followed the police in their pursuit of the getaway vehicle immediately after the robbery. He identified defendant as the person who "put [a] gun in [his] stomach" and demanded money. He also identified defendant's photograph later at police headquarters. The victim's identification of defendant was immediate and consistent. We concur with the PCR judge that defendant failed to allege, let alone document, how he was prejudiced by the lack of a Wade hearing.
We addressed the issue of discrepancies between police reports and witnesses' testimony in our earlier opinion. We noted that trial counsel "pointed out some inconsistencies between the statement [the victim] gave to the police and his statements made during testimony." Smith, supra, slip op. at 5. Although we noted inconsistencies in a police report and the victim's testimony, we nonetheless concluded that the "jury apparently found [the victim's] explanation of the discrepancies satisfactory and found defendant guilty." Id. at 10. This issue, having been directly addressed on appeal, was procedurally barred from review on PCR. R. 3:22-4.
Regarding defendant's illegal sentence claim, we note first that we affirmed his sentence as "just, appropriate and fair" on direct appeal. Id. at 21. Moreover, defendant's claim that he did not make a knowing decision about going to trial because he was not advised of the full consequences of his possible sentence has no merit. Defendant does not assert that he was offered a plea bargain recommending a sentence that would not have included a period of parole supervision. Therefore, he has failed to demonstrate how he was prejudiced in this regard.
Defendant's contention that PCR counsel was ineffective for failing to obtain affidavits from witnesses, such as prior counsel, is also without merit. Other than trial counsel, defendant has identified no individuals whose affidavits should have been sought. As for trial counsel, defendant failed to demonstrate how an affidavit from his prior attorney would have assisted him in obtaining relief.
Having failed to establish a prima facie case of ineffective assistance of trial counsel on the various grounds asserted, defendant has likewise failed to present a prima facie case on ineffective appellate counsel.
The remainder of defendant's arguments do not warrant discussion in this opinion. R. 2:11-3(e)(2). Having failed to make a prima facie showing of ineffective assistance of counsel, defendant was not entitled to an evidentiary hearing. State v. Preciose, 129 N.J. 451, 462 (1992).