March 22, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
CARLOS FELICIANO, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 01-02-00158.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 15, 2012
Before Judges Carchman and Fisher.
Following a jury trial in 2002, defendant Carlos Feliciano was convicted of first-degree robbery, N.J.S.A. 2C:15-1; and third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d. A second trial resulted in a conviction for fourth-degree certain persons not to have a weapon. N.J.S.A. 2C:39-7a. Defendant was sentenced on September 27, 2002, to an aggregate term of seventeen years of imprisonment with an eighty-five percent period of parole ineligibility, pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. We affirmed defendant's appeal of his conviction, and the Supreme Court denied certification. State v. Feliciano, 185 N.J. 38 (2005).
In November 2008, six years after his conviction, defendant filed a petition for post-conviction relief (PCR). In an extensive written opinion, Judge Mega, in the Law Division, denied the PCR. Defendant appeals, and we affirm.
The facts adduced at trial are not complex. On October 14, 2000, at approximately 3:40 a.m., Juan Negron was standing on Third Street in Elizabeth, New Jersey, talking to his girlfriend on a payphone near the area where he had parked his car. Three men approached him and asked if he knew "where they were selling marijuana." When he told them he did not know, they asked him if he had any money, and then they jumped on him and grabbed his left arm. Negron felt a knife on his neck. He told the men that he only had seven dollars and that he would give them his money. The men pulled him around the corner and went through all of his pockets. They tried to take his boots off, but Negron pushed the knife away from him and ran. One of the men then grabbed Negron's wallet, which was on a chain. The three men then ran to a small truck. There was a driver in the truck. As the truck drove off, Negron observed and memorized the license plate number and wrote it down on his hand.
Ten minutes later, Negron started to drive home. As he drove home, he saw the same truck, with the same license plate, with four people inside. He yelled to the men in the truck that he had written down their license plate number. The truck sped off and turned the wrong way onto a one-way street.
Officer John Cockinos of the Elizabeth Police Department was on duty that night and saw the truck drive down the one-way street the wrong way. When he and his partner stopped the truck, Negron ran up to the officers and informed them that the men had robbed him. Negron told the police officers that he had been attacked with a knife and provided a description of the weapon. The officers asked Negron what was in his wallet, and he told them that he had a driver's license, a B.J.'s shopping card and a Social Security card. The officers searched inside the truck and found a knife, Negron's driver's license and his B.J.'s shopping card. The officers removed the men from the truck and asked Negron if he could identify them. At trial, Negron testified that he identified the knife, the identification cards and three of the men, including defendant as the man holding the knife. According to Cockinos, Negron was only able to positively identify defendant, but not the co-defendants. After defendant was taken out of the truck, one of the officers observed that his fist was clenched. The officer ordered defendant to open his hand, which contained one five-dollar bill and two one-dollar bills.
When Negron left the officers, he searched for his wallet by guessing where the truck had traveled between the site of the robbery and the one-way street. He recovered the wallet in the street about five blocks away from the location of the robbery.
At trial, neither Negron nor Cockinos could identify the co-defendants. However, Cockinos again confirmed that Negron had identified defendant at the scene.
In his direct appeal, defendant raised the following issues:
THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION FOR A JUDGMENT OF ACQUITTAL. MOREOVER, THE VERDICTS WERE AGAINST THE WEIGHT OF THE EVIDENCE. (PARTIALLY RAISED BELOW).
THE TRIAL COURT MISINFORMED THE JURORS THAT THEIR ROLE WAS TO DETERMINE THE "GUILT OR INNOCENCE" OF DEFENDANT, THEREBY REDUCING THE STATE'S BURDEN IN PROVING DEFENDANT'S GUILT BEYOND A REASONABLE DOUBT. (PARTIALLY RAISED BELOW).
THE SENTENCE IMPOSED ON [DEFENDANT] IS MANIFESTLY EXCESSIVE AND UNDULY PUNITIVE. In his PCR, defendant claimed:
[DEFENDANT'S] CLAIMS ARE NOT BARRED PROCEDURALLY FROM BEING RAISED IN THIS [PCR].
TRIAL COUNSEL WAS INEFFECTIVE BY FAILING TO INTERVIEW THE VICTIM AND BY FAILING TO REQUEST A PRE-TRIAL WADE[*fn1 ] HEARING TO DETERMINE IF THE IDENTIFICATION PROCEDURE, UTILIZED BY LAW ENFORCEMENT AFTER [DEFENDANT] HAD BEEN PLACED INTO CUSTODY, WAS IMPERMISSIBLY SUGGESTIVE.
TRIAL COUNSEL WAS INEFFECTIVE IN FAILING TO ARGUE AT THE TIME OF SENTENCING THAT MITIGATING FACTOR NUMBER ELEVEN (HARDSHIP) EXISTED UNDER N.J.S.A. 2C:44-1[b](11).
On appeal, he now asserts:
DEFENSE COUNSEL'S FAILURE TO REQUEST A WADE HEARING TO CHALLENGE THE STATE'S IDENTIFICATION EVIDENCE DENIED [DEFENDANT] THE EFFECTIVE ASSISTANCE OF COUNSEL.
[DEFENDANT] IS ENTITLED TO RELIEF OR A HEARNG ON HIS CLAIM THAT HIS TRIAL ATTORNEY RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL FOR FAILING TO PRESENT MITIGATING FACTOR N.J.S.A. 2C:44-1b(11) AT SENTENCING.
DEFENDANT'S [PCR] IS NOT TIME-BARRED BECAUSE HIS FAILURE TO FILE HIS PETITION WITHIN FIVE YEARS OF HIS CONVICTION WAS DUE TO EXCUSABLE NEGLECT, THERE WAS NO PREJUDICE TO THE STATE, AND BECAUSE THE INTERESTS OF JUSTICE WARRANT RELAXATION OF THE TIME BAR.
A. THE TIME BAR SHOULD BE RELAXED BECAUSE DEFENDANT'S DELAY IN FILING HIS PCR  WAS DUE TO EXCUSABLE NEGLECT.
B. THE TIME BAR SHOULD BE RELAXED IN THE INTERESTS OF JUSTICE.
Defendant first asserts that counsel's failure to request a Wade hearing to challenge the State's identification evidence was ineffective assistance of counsel.
Before addressing the merits, we first set forth basic principles that inform our consideration of a PCR.
To establish a prima facie claim of ineffective assistance of counsel, a defendant must demonstrate the reasonable likelihood of success under the test set forth in Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 2068, 80 L. Ed. 2d 674, 698 (1984), and United States v. Cronic, 466 U.S. 648, 104 S. Ct. 2039, 80 L. Ed. 2d 657 (1984), which the New Jersey Supreme Court adopted in State v. Fritz, 105 N.J. 42, 58 (1987). State v. Preciose, 129 N.J. 451, 463 (1992).
Under the Strickland-Cronic-Fritz standard, the first issue is whether counsel's performance was deficient. The second prong of the Strickland-Cronic-Fritz test is whether there exists "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed.2d at 698. To succeed under this prong, a defendant must do more than make bald assertions that he was denied effective assistance of counsel; he must allege specific facts sufficient to demonstrate counsel's alleged substandard performance. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). As in a summary judgment motion, the PCR judge must view the facts in the light most favorable to the defendant to determine whether the defendant has established a prima facie claim. Ibid.
Because it is inherently difficult to evaluate defense counsel's tactical decisions from his or her perspective during trial, a court must "indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." State v. Harris, 181 N.J. 391, 431 (2004) (quoting Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694). In other words, the "defendant must overcome the presumption that, under the circumstances, the challenged action 'might be considered sound trial strategy.'" Harris, supra, 181 N.J. at 431 (quoting Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694-95).
When challenging counsel's alleged failure to file a suppression motion, "the defendant not only must satisfy both parts of the Srickland test but also must prove that his [or her] motion is meritorious." State v. Fisher, 156 N.J. 494, 501 (1998) (citing Kimmelman v. Morrison, 477 U.S. 365, 375, 106 S. Ct. 2574, 2583, 91 L. Ed. 2d 305, 319 (1986)). In other words, defendant would have had to have been successful both in his motion for a Wade hearing and at the Wade hearing itself in order to succeed on his ineffective assistance claim.
Focusing on the Wade hearing, we note that a trial court may hold a hearing pursuant to N.J.R.E. 104(a) to determine whether a pretrial identification of a criminal defendant was properly conducted and therefore admissible under N.J.R.E. 803(a)(3). A hearing to determine the admissibility of a pretrial identification of a criminal defendant should be held when an identification is at issue. Wade, supra, 388 U.S. at 242, 87 S. Ct. at 1940, 18 L. Ed. 2d at 1166. The identification's reliability and ultimate admissibility must be strictly tested through a pretrial hearing. State v. Michaels, 136 N.J. 299, 319 (1994).
The right to a Wade hearing is not absolute and is not granted in every case involving an out-of-court identification. State v. Ruffin, 371 N.J. Super. 371, 391 (App. Div. 2004). The threshold issue is whether the identification procedure was impermissibly suggestive. State v. Herrera, 187 N.J. 493, 503 (2006). A Wade hearing will be held when a defendant presents some evidence of impermissible suggestiveness in the identification process. See State v. Cherry, 289 N.J. Super. 503, 517 (App. Div. 1995) (citations and internal quotation marks omitted). Impermissible suggestibility is described as follows:
[T]he determination [of impermissive suggestibility] can only be reached so as to require the exclusion of the evidence where all of the circumstances lead forcefully to the conclusion that the identification was not actually that of the eyewitness, but was imposed upon him so that a substantial likelihood of irreparable misidentification can be said to exist. [State v. Madison, 109 N.J. 223, 234 (1998) (citation omitted).]
If the court finds that the identification procedure was impermissibly suggestive, it must determine whether the procedure was nevertheless reliable. Herrera, supra, 187 N.J. at 503. "The totality of the circumstances must be considered in weighing the suggestive nature of the identification against the reliability of the identification." Id. at 504. In State
v. Adams, 194 N.J. 186, 204 (2008), the Court reiterated the factors to be considered by the trial court in determining reliability to include: (1) the opportunity of the eyewitness to view the criminal at the time of the crime; (2) the eyewitness' degree of attention; (3) the accuracy of the eyewitness' prior description of the criminal; (4) the level of certainty demonstrated by the eyewitness at the confrontation; and (5) the length of time between the time of the crime and the confrontation. Ibid. (citing Manson v. Braithwaite, 432 U.S. 98, 114, 97 S. Ct. 2243, 2253, 53 L. Ed. 2d 140, 154 (1977)). If after the evaluation of those factors the court is convinced that, notwithstanding the suggestive nature of the procedure, the witness' identification is reliable, the identification may be admitted into evidence. Adams, supra, 194 N.J. at 204 (citation omitted).*fn2
The critical factor here is the length of time between the commission of the crime and the identification. Within ten minutes after the offense occurred, Negron came upon defendant and others and made a "show-up" identification. The Court has stated, regarding show-up identifications, that "our case law recognizes . . . that standing alone a show[-]up [identification] is not so impermissibly suggestive to warrant proceeding to the second step." Herrera, supra, 187 N.J. at 504. See also State v. Wilkerson, 60 N.J. 452, 461 (1972) (upholding one-on-one identification by witness occurring ninety minutes after observation). We have permitted on- or near-the-scene identifications because "[t]hey are likely to be accurate, taking place, as they do, before memory has faded[,] . . . [t]hey facilitate and enhance fast and effective police action and they tend to avoid or minimize inconvenience and embarrassment to the innocent." Ibid.
The Herrera Court referred to several out-of-state cases in determining if a show-up procedure was impermissibly suggestive. For example, in State v. Williams, 545 P.2d 938 (Ariz. 1976), the defendant was apprehended while driving the victim's car shortly after he assaulted her. In concluding that the identification was impermissibly suggestive, the Arizona Supreme Court noted that the victim was told that she was to observe a man who had been apprehended driving her car. Id. at 941. In State v. Davis, 767 A.2d 137 (Conn. App. Ct. 2001), the suspect was taken to the hospital where the victim was being treated. A police officer interviewing the victim told her, "We got him, we got him . . . . We had two boys. You got to tell which one, who it is." Id. at 143. The court found that the showup was unduly suggestive because of the conclusory comments the officer made. Ibid.
In arguing that he was denied the effective assistance of counsel because trial counsel never requested a Wade hearing, defendant claims, "[T]here are facts on the record that suggest defendant had an impermissibly suggestive show-up identification of the defendant immediately after his arrest. Specifically, defendant was shown to Negron right after the event happened."
Defendant maintains that the identification procedure the law enforcement officers used was a one-on-one showup. "[O]neon-one showups are inherently suggestive," and "only a little more is required in a showup to tip the scale toward impermissibly suggestive." Herrera, supra, 187 N.J. at 504.
Defendant's assertion that there was a one-on-one show-up identification is not supported by the facts of the case. At the time of identification, defendant was with three other men who had all been stopped by the police.
We recognize that a show-up identification can be suggestive, even if it is not a one-on-one show-up identification. Defendant argues that "[i]t is hard to imagine a more suggestive method of identification than a victim identifying a man while he is being stopped by police officers." The identification procedure here was not unduly suggestive. Indeed, the facts of this case are distinguishable from those of Williams and Davis. Negron approached the police and identified defendant and his co-defendants while the police were stopping the men for a different offense. Although the police showed Negron the knife before asking him who had held it, the police did not suggest anything to Negron to prompt his identification of the perpetrator. Rather, Negron was the first person to identify the three men as the robbers before the police discovered any inculpatory evidence, such as the knife and the identification cards. The fact that Negron saw the police find seven dollars in defendant's hand was not impermissibly suggestive because the money that the police found in defendant's hand was not the trigger for Negron's memory of defendant. Negron testified that he recognized defendant on the basis of remembering his height. Defendant has failed to show impermissible suggestiveness on the part of the police in Negron's show-up identification.
We further conclude that under the totality of the circumstances, the identification was reliable. The record demonstrates that Negron had an opportunity to view defendant during the robbery, such that he would be able to accurately identify defendant during the subsequent showup that occurred approximately ten minutes afterwards. Whereas defendant insinuates that Negron mistakenly singled out defendant because of the generic characteristic that he was taller than the other three suspects, the same facts support the conclusion that Negron's identification of defendant was due to his previous observation of a distinguishing characteristic that defendant possessed, his height. In his opinion, Judge Mega noted: [w]ithin ten minutes of the robbery, [the victim] flagged down a police cruiser that had stopped the truck. He made an unsolicited identification of [defendant] which occurred close in time to the criminal event. There were additional factors that enhanced the reliability of [the victim's] out-of-court identification. [The victim] confirmed the license plate number of the truck. The identification from his wallet and the knife which [the victim] described [as being] used in the robbery was [sic] found in the truck. The five (5) dollar bill and two (2) single dollar bills, the precise amount the victim said was taken from him, was recovered from [defendant's] clenched hand.
We conclude that defendant has failed to demonstrate that failure to request a Wade hearing was not ineffective assistance of counsel.
We have reviewed defendant's remaining arguments and conclude that they are without merit. We find no need for further discussion. R. 2:11-3(e)(2). We do note that, as to the claims' being time-barred, it is particularly relevant here as the claim for the necessity of a Wade hearing, if successful, would result in a Wade hearing more than a decade after the offense was committed.