On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 98-01-0026.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 17, 2011
Before Judges A. A. Rodriguez and Sabatino.
Defendant Wilfrido Moyon appeals from the denial of his petition for post-conviction relief (PCR). We affirm.
Following a jury trial, on December 8, 1998, defendant was convicted of first-degree attempted murder of a taxi cab driver (A.H. or the victim), N.J.S.A. 2C:5-1 and 2C:11-3; first-degree robbery, N.J.S.A. 2C:15-1; second-degree aggravated assault, N.J.S.A. 2C:12-1b(1); third-degree aggravated assault, N.J.S.A. 2C:12-1b(2); third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d; and fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5d. Judge Barbara A. Curran sentenced defendant to a fifteen-year NERA*fn1 term and five years of parole supervision upon release. Defendant's remaining convictions were merged. We affirmed on direct appeal. No. A-7038-98 (App. Div. May 22, 2001), certif. denied, 170 N.J. 206 (2001).
The facts are fully set forth in our previous opinion on direct appeal. This is a summary to give a context to our discussion. On the early morning of September 7, 1997, at 2:30 a.m., defendant entered the victim's taxi and asked A.H. to take him to various places. After about forty minutes, he asked to be taken to an automatic teller machine (ATM). Defendant had unsuccessfully attempted to get money from the ATM. He returned to the taxi, opened a rear passenger door and stabbed A.H. in the back and the forearm. A.H. tried to drive away, but the taxi slammed into a concrete wall. A.H. sustained injuries to his chest and head. Defendant fled with the victim's money.
The police arrived and spoke to A.H. A search of the backseat floor of the taxi revealed a bank card.
On September 16, 1997, a detective went to the victim's home and showed him a photographic array that included a photograph of defendant. A.H identified defendant, saying that "it was him one hundred percent . . . ." The next day, the detectives showed the victim a more recent photograph of defendant and he again indicated that was his assailant.
At trial, A.H. was presented with the photo array card, and again identified defendant's photo as that of his assailant.
A.H. testified that he had told police his attacker's skin was dark, by which he meant tan. Defendant's trial counsel questioned the detectives who had assembled the photo array as to why the pictures were all of Hispanic males. When the assistant prosecutor objected to that line of questioning, trial counsel stated at side bar that she chose not to have a Wade*fn2 hearing so that she could "approach it in this manner," and "felt it was better." Her strategy was to argue misidentification to the jury. Jersey City Police Lieutenant Robert O'Callahan testified for the State that the bank card found in A.H.'s cab had defendant's name on it. Another detective testified that it had expired in August 1997.
The jury convicted defendant on all counts, we rejected his contentions on direct appeal as without merit, and the Supreme Court denied certification.
Defendant filed a PCR petition, and an amended petition was filed by designated counsel. Defendant argued in his brief that he was denied: the effective assistance of trial counsel and appellate counsel; rights pursuant to Article 36 of the Vienna Convention on Consular Relations; his constitutional rights to testify on his own behalf, and to present a defense; the right to trial by an impartial jury and his due process right because of improper charges to the jury. Defendant also argued that his petition for PCR "should not be barred by procedural considerations"; and that "the cumulative effect of the errors complained of rendered the trial unfair." Defendant requested an evidentiary hearing on his PCR petition.
On November 20, 2008, Judge Sheila A. Venable heard oral argument, although there was no evidentiary hearing. She denied the petition in a thorough oral decision on December 4, 2008, and in a December 10, 2008 order.
On appeal, defendant contends:
THE ORDER DENYING [PCR] SHOULD BE REVERSED AND THE MATTER REMANDED FOR A FULL EVIDENTIARY HEARING BECAUSE DEFENDANT MADE A PRIMA FACIE SHOWING OF INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL AND BECAUSE THE PCR COURT MISAPPLIED ITS DISCRETION IN ATTRIBUTING THE COMPLAINED ABOUT DEFICIENCIES OF TRIAL COUNSEL TO LEGITIMATE TRIAL STRATEGY.
DENYING [PCR] VIOLATED DEFENDANT'S RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION.
DEFENDANT REASSERTS ALL OTHER ISSUES RAISED IN [PCR].
A. Trial Counsel's Failure To Investigate The ATM Machine Used By The Actor, Defendant's Bank Records, And The Surveillance Cameras At The Bank ...