On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 07-07-1228.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 22, 2012 -
Before Judges Fasciale and Maven.
Defendant appeals from a March 2, 2011 order denying both his petition for post-conviction relief (PCR) and motion to vacate his guilty plea. Defendant contends that his plea counsel in 2007 was ineffective by failing to: (1) request a pretrial Wade*fn1 hearing; (2) challenge the veracity of a concerned citizen; (3) assert a diminished capacity defense; and (4) fully inform defendant of the implications and consequences of his plea. We affirm.
On March 17, 2007, defendant entered a Blockbuster video store; approached a store manager, who claimed defendant had a knife in his hand; and demanded money from the cash registers. Surveillance cameras captured the incident.*fn2 The store manager viewed a photo lineup that police detectives prepared and narrowed the field to two possible culprits, one of whom was defendant. In April 2007, a "concerned citizen," who remained anonymous, informed police that on the night of the incident, defendant admitted robbing someone. The concerned citizen identified defendant in a photo lineup. While police officers investigated the robbery, defendant's landlord informed police that defendant had stolen $16,000 from her home. The landlord permitted detectives to enter her garage, where defendant stored some personal items. Detectives found a green coat matching the description of the coat worn by defendant in the surveillance video. Thereafter, Elizabeth Paez, then-defendant's girlfriend, informed police that she witnessed defendant commit the crime.*fn3
In March 2007, defendant pled guilty to two counts of third-degree aggravated assault, N.J.S.A. 2C:12-1b.*fn4 Subsequently, in November 2007, defendant entered a plea of guilty to first-degree robbery, N.J.S.A. 2C:15-1;*fn5 and third- degree theft, N.J.S.A. 2C:20-3.*fn6 Defendant testified that he robbed the store while using a knife and stole in excess of $500 from the landlord.*fn7 In exchange for the guilty plea, the State recommended that the court dismiss the remaining counts of the first indictment. In December 2007, the judge sentenced defendant in accordance with the plea agreement to an aggregate prison term of eighteen years to run concurrently and to pay $8749*fn8 in restitution. Defendant did not file a direct appeal.
In April 2010, defendant filed a pro se PCR petition. The court then appointed counsel who subsequently filed a supplemental PCR petition.*fn9 In general, defendant argued that his plea counsel was ineffective and that his guilty plea should be vacated.
On March 2, 2011, Judge Ronald E. Hoffman, J.S.C., conducted oral argument, denied the petition, and issued a nine- page oral opinion. Judge Hoffman found that defendant failed to establish a prima facie case of ineffective assistance of counsel.*fn10 The PCR judge stated:
[D]efendant has the burden of proving both prongs of the [Strickland/Fritz] test. . . .
Where [defendant has] entered a guilty plea . . . the prejudice requirement is satisfied only if . . . defendant can show that there is a reasonable probability that but for counsel's errors[,] he would not have pleaded guilty and would have insisted on going to trial. . . . [D]efendant has to make more than bald assertions in order to establish a prima facie claim of ineffectiveness. . . .
[Defendant's] first [alleged deficiency] is a failure to request a pretrial Wade hearing. . . . There has to be a demonstration that there was some evidence of impermissible suggestiveness in the identification process. . . . Here[,] we don't really have an identification. We have a situation where the field was narrowed to two, but there was no definitive identification by the store clerk. .
I'm not satisfied that under this set of facts . . . that failure to request a Wade hearing rises to the level of ineffective assistance of counsel. There really isn't any argument or evidence presented by the defense that there was any impermissible suggestiveness in the procedure . . . .
[Defendant's] second allegation is that [his] attorney . . . failed to proceed to ascertain the identity of the concerned citizen . . . . The identity of this concerned citizen is privileged. [T]o pierce the privilege[,] . . . defendant has to make a . . . "strong showing of need" . . . for the disclosure . . . . Here[,] there isn't any strong showing of need that's made by . . . defendant . . . . The evidence against . . . defendant here is somewhat overwhelming. . . . I'm not ...