December 14, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
REGINALD LEACH, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 01-04-0403.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 3, 2011
Before Judges Grall and Alvarez.
Defendant Reginald Leach appeals from the May 18, 2009 denial of his petition for post-conviction relief (PCR). For the reasons that follow, we affirm.
Defendant was convicted after a trial by jury of first-degree robbery, N.J.S.A. 2C:15-1(a)(2), and third-degree criminal restraint, N.J.S.A. 2C:13-2(a). The crimes occurred on September 20, 2000, at a Fashion Bug located in Totowa. He was sentenced on February 20, 2004, to an extended term as a persistent offender, N.J.S.A. 2C:44-3(a), to forty years imprisonment with twenty years of parole ineligibility. On direct appeal, we affirmed the conviction but remanded the matter for resentencing in accord with State v. Pierce, 188 N.J. 155 (2006), certif. denied, 205 N.J. 520 (2011).*fn1 State v. Leach, No. A-4766-03 (App. Div. Dec. 28, 2006). Defendant's direct appeal of his conviction on certain severed counts of this indictment, relating to the robbery of a Fashion Bug located in Parsippany, was calendared for review simultaneously with the appeal of this matter, the robbery of the Fashion Bug in Totowa. Defendant's applications for certification were both denied on April 26, 2007. State v. Leach, 190 N.J. 396 (2007). In this petition, defendant sought relief from his conviction of the Totowa store robbery.
Shortly after the September 20, 2000 robbery of the Totowa store, Detective Sergeant Dennis Blakely of the Totowa Borough Police Department attempted to develop a composite sketch of the robbers with the assistance of one of the Fashion Bug store clerks, Fredes Velez. Because the police computer malfunctioned and no sketch was generated, resulting in no progress in the investigation, Blakely did not keep notes of the meeting nor mention it in his investigative report.
On September 25, 2000, Blakely was given the phone number of an anonymous caller to the station who claimed to have information regarding the robbery. The number was written on a post-it which Blakely later discarded. When Blakely spoke to the anonymous caller, he learned she had worked at a Marshall's department store next door to the Totowa Fashion Bug. The caller supplied defendant's name and co-defendant Gloria Walton's name, but refused to disclose her identity. After being given the suspects' names, Blakely obtained their criminal histories. He testified about these circumstances in full at a pretrial hearing conducted at defense counsel's behest with regard to the anonymous caller.
On September 26 and 27, 2000, Blakely contacted several police departments in an effort to locate a photograph of defendant. He acquired one "outdated" photograph. On October 12, 2000, once defendant was taken into custody, Blakely photographed him. That picture, not the outdated one, was included in the photo arrays shown to eyewitnesses. Velez, who was shown the array only once, and the other eyewitnesses, all selected defendant's photo.
Defendant argued before the judge who decided the PCR application, as he does on appeal, that he received ineffective assistance of counsel. The points raised in his brief are:
THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED AND THE DEFENDANT'S CONVICTIONS VACATED BECAUSE THE DEFENDANT MADE A PRIMA FACIE SHOWING THAT HIS FOURTEENTH AMENDMENT DUE PROCESS RIGHT TO BE PROTECTED AGAINST THE INTRODUCTION OF UNRELIABLE IDENTIFICATION EVIDENCE WAS VIOLATED
SINCE THE DEFENDANT MADE A PRIMA FACIE SHOWING OF INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL, THE PCR COURT MISAPPLIED ITS DISCRETION IN DENYING POST-CONVICTION RELIEF WITHOUT CONDUCTING A FULL EVIDENTIARY HEARING
THE COURT'S RULING DENYING POST-CONVICTION RELIEF VIOLATED THE DEFENDANT'S RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION
THE DEFENDANT REASSERTS ALL OTHER ISSUES RAISED IN DEFENDANT'S PRO SE PETITION FOR POST-CONVICTION RELIEF AND IN PCR COUNSEL'S BRIEF IN SUPPORT OF POST-CONVICTION RELIEF
(A) APPELLATE COUNSEL'S FAILURE TO FILE A MOTION REQUESTING THE APPELLATE COURT TO OVERTURN THE APPELLATE DIVISION CLERK'S ORDER LISTING PETITIONER'S SEPARATE TRIAL MATTERS AS BACK-TO-BACK APPEALS PREJUDICED PETITIONER AND DEPRIVED HIM OF A FAIR APPELLATE REVIEW
In order to obtain relief from a conviction based upon ineffective assistance of counsel, a defendant must "identify specific acts or omissions that are outside the 'wide range of reasonable professional assistance' and . . . show prejudice by demonstrating 'a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" State v. Jack, 144 N.J. 240, 249 (1996) (quoting Strickland v. Washington, 466 U.S. 668, 689, 104 S. Ct. 2052, 2065, 80 L. Ed. 2d 674, 694 (1984)) (internal quotation marks omitted) (emphasis added).
There is a "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance . . . ." Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694. To rebut this presumption, a defendant must prove counsel's actions did not amount to "sound trial strategy." Id. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694-95 (quoting Michel v. Louisiana, 350 U.S. 91, 101, 76 S. Ct. 158, 164, 100 L. Ed. 83, 93 (1955)). "[A] petitioner must do more than make bald assertions that he was denied the effective assistance of counsel." State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999).
Defendant contends that his trial attorney was ineffective because he did not attack Blakely's failure to record his discussion with Velez regarding the aborted effort at generating a composite sketch. This was well within the range of reasonable professional assistance, however, as it was a minor omission lacking significance. There is no basis to conclude that such a challenge would have in any way affected the outcome.
Defendant also asserts that trial counsel's failure to obtain the outdated photo was ineffective assistance of counsel. But that photo was not shown to the eyewitnesses involved in the Totowa case. The Totowa eyewitnesses were shown a photo array only including a very recent picture of defendant. Accordingly, defense counsel did not fall short of his professional responsibilities by not obtaining the photo, as it played no role in the eyewitness identification or any other part of the case. His failure to do so obviously did not prejudice the outcome.
In our view, trial counsel sufficiently developed the record regarding the anonymous caller. It would have been a massive undertaking to attempt to obtain that individual's name, with no possible discernable benefit to the defense. Even if the identity of the caller was known, it would not have affected the outcome.
To summarize, defendant has not shown that trial counsel's representation fell below an objective standard of reasonableness. State v. Marshall, 148 N.J. 89, 156-57, cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997) (quoting Strickland, supra, 466 U.S. at 688, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693). Even if counsel had taken the additional steps defendant enumerates, these added measures would not have had an impact on the outcome of the proceedings. Defendant has therefore failed to establish the representation prejudiced the result.
Lastly, defendant contends that appellate counsel was ineffective by permitting his cases to be scheduled back-to-back for appellate review. There are many instances in which appeals of multiple convictions result in reversals and new trials. To suggest that the panel would have been prejudiced by reviewing defendant's two cases at once is a bald assertion that does not merit further discussion in a written opinion. See R. 2:11-3(e)(2); Cummings, supra, 321 N.J. Super. at 170.
We concur with the motion judge that defendant has simply failed to establish a prima facie case of ineffective assistance of counsel on any point, and is therefore not entitled to an evidentiary hearing. See State v. Preciose, 129 N.J. 451, 463 (1992).