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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 ...