On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 05-04-0558.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 19, 2012
Before Judges Lihotz and St. John.
Defendant Kenneth G. LeFurge, Jr. appeals from the denial of his petition for post-conviction relief (PCR), without the benefit of an evidentiary hearing, arguing:
THE COURT ERRED IN DENYING DEFENDANT'S REQUEST FOR POST CONVICTION RELIEF AND AN EVIDENTIARY HEARING TO DEVELOP THE RECORD FOR HIS INEFFECTIVE ASSISTANCE OF COUNSEL CLAIMS.
Defendant was convicted of armed robbery, N.J.S.A. 2C:15-1.*fn1
Defendant, his co-defendant, and a juvenile set up a meeting to buy marijuana, telling the seller, Timothy Schaad, to bring change for a $100 bill. At the meeting, Schaad had not obtained the marijuana and defendant agreed to wait for him to make a call. Defendant then pointed a gun at Schaad's face and demanded he turn over his money. Schaad surrendered $50.
Schaad had never met defendant, but knew the co-defendant. When shown a photo array, Schaad was unable to identify defendant, whom he had never met prior to that evening. He later identified defendant when shown photographs of only defendant and his co-defendant. At trial Schaad was also unable to identify defendant, but he identified the gun as the one that was pointed at his face.
At trial, the juvenile and the co-defendant testified as State's witnesses pursuant to the terms of their respective plea agreements. They identified defendant and testified as to his role in the robbery.
After a two-day trial, the jury convicted defendant. He was sentenced to a fifteen-year prison term, subject to the 85% period of parole ineligibility required by the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, with a five-year period of parole supervision upon release.
On appeal, we affirmed defendant's conviction and sentence in an unpublished opinion and the Supreme Court denied certification. State v. LeFurge, A-4743-05 (App. Div. August 7, 2007) (slip op. at 20), certif. denied, 195 N.J. 521 (2008).
Defendant filed his petition for PCR. Counsel was appointed and filed an amended brief, arguing defendant's trial counsel was ineffective because he failed to: 1) move to suppress the false testimony of the juvenile and his co-defendant; 2) request a Wade*fn2 hearing; and 3) call an alibi witness.*fn3 In his thorough review of these issues, Judge Den Uyl determined the juvenile and co-defendant admitted during cross-examination that they omitted certain facts to protect co-defendant's wife, Crystal, who also was defendant's and the juvenile's cousin. Defendant's complicity in the robbery was established through the testimony of his co-defendant and the juvenile. Next, because Schaad could not indentify defendant at trial, his out-of-court statements, choosing defendant's picture when shown alongside co-defendant's photograph, were not presented to the jury, obviating the need for a Wade hearing. Finally, the judge noted defendant did not disclose ...