December 19, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
QAWI L. CRAWLEY, A/K/A SALEEM T. CRAWLEY, JAMES THOMPSON AND JASON WATSON, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 01-06-2809.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 17, 2012 -
Before Judges Grall and Koblitz.
Defendant Qawi L. Crawley appeals from his August 23, 2006 judgment of conviction after being tried in absentia*fn1 in 2002 and convicted of two counts of armed robbery and other related charges. On appeal, defendant argues that his attorney at trial was ineffective because he did not request a Wade*fn2 hearing. He also appeals his sentence. After reviewing his contentions in light of the facts and the law, we affirm.
He was charged under Indictment No. 01-06-2809 with: three counts of fourth-degree aggravated assault with a firearm, N.J.S.A. 2C:12-1(b)(4) (counts one, four and seven); three counts of first-degree robbery, N.J.S.A. 2C:15-1 (counts two, five and eight); three counts of second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d) (counts three, six and nine); third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(5) (count ten); third-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b) (count eleven); and third-degree resisting arrest, N.J.S.A. 2C:29-2 (count twelve). He was also charged under Indictment No. 01-06-2810 with second-degree certain persons not to have weapons, N.J.S.A. 2C:39-7(b).
Defendant was convicted of two counts of fourth-degree aggravated assault with a firearm, two counts of first-degree robbery, third-degree unlawful possession of a handgun, a lesser included disorderly persons offense of resisting arrest, and second-degree certain persons not to have weapons. He was acquitted of one count of fourth-degree aggravated assault with a firearm, one count of first-degree robbery, and one count of second-degree possession of a weapon for an unlawful purpose. His charge of third-degree aggravated assault was dismissed by the State and two counts of second-degree possession of a weapon for an unlawful purpose were merged into the other convictions by the judge at sentencing. He was sentenced in 2006 to an aggregate prison term of thirty years with an eighty-five percent parole disqualifier pursuant to the No Early Release Act (NERA). N.J.S.A. 2C:43-7.2.
The trial testimony reveals the following facts. Hasan Finney and Donzell Smalls drove to the Redwood Lounge in Orange in Smalls' red Ford Expedition in the early morning hours of March 10, 2001. Kevin Davis and Jasmine Ordenze left the Redwood Lounge to call a taxi from a payphone. A masked man approached and pointed a gun at Davis and Ordenze, ordering the two to walk over to the front of Smalls' parked Ford Expedition. The robber took a cell phone, pager, neck chain and a five- dollar bill from Davis. The robber ordered Ordenze to empty her purse onto the hood of the Expedition. As she did, Finney and Smalls left the lounge and walked towards the car.
Smalls set off the car alarm briefly, which startled the robber, causing him to turn his attention to the two approaching men. Ordenze and Davis then ran back to the lounge.
The robber then placed the gun against Finney's back and took his wallet and sixty dollars in cash. Upon seeing Davis and Ordenze re-enter the lounge, the robber fled towards the "Orange Projects" housing development. Finney and Smalls jumped into the Expedition and followed him. The robber turned with his mask off and aimed the gun at the Expedition. Finney called 911 from his cell phone, exited the Expedition and chased the robber on foot. He flagged down Orange Police Sergeant Vincent Vitiello, who drove after the robber and then joined the foot chase carrying his shotgun. Other police units arrived on the scene.
Defendant was cornered by the police officers in a courtyard, holding a gun, which he repeatedly moved between his hands. He then dropped the gun and went down on the ground. He struggled with a police officer and attempted to bite the officer. The police "maced" defendant to subdue him and he was then arrested.
A fully-loaded semi-automatic handgun was found on the ground, and a black ski mask and the stolen objects were found on defendant's person.
Ordenze and Davis were brought to police headquarters where they identified defendant through a one-way mirror. In court, Davis identified a photograph of defendant.
Defendant raises the following issues on appeal:
POINT I: DEFENSE COUNSEL'S FAILURE TO REQUEST A WADE HEARING ON THE ISSUE OF THE SUGGESTIVENESS AND RELIABILITY OF THE OUTOF-COURT IDENTIFICATION CONSTITUTED INEFFECTIVE ASSISTANCE OF COUNSEL BECAUSE THE "SHOW-UP" PROCEDURE USED BY THE POLICE WAS IMPERMISSIBLY SUGGESTIVE AND CREATED A VERY SUBSTANTIAL LIKELIHOOD OF IRREPARABLE MISIDENTIFICATION. U.S. CONST. AMENDS. VI, XIV; N.J. Const. ART. I ¶¶ 1, 10. (Not Raised Below).
POINT II: THE THIRTY-YEAR MANDATORY EXTENDED TERM THAT THE TRIAL COURT IMPOSED ON THE DEFENDANT IS EXCESSIVE AND SHOULD BE REDUCED.
The legal principles that govern our analysis of defendant's claim that he was deprived of the effective assistance of counsel are settled. State v. Parker, 212 N.J. 269, 279 (2012) (citing State v. Fritz, 105 N.J. 42, 58 (1987)). To prevail on such a claim, not only must a defendant overcome a "presumption that [defense] counsel's conduct falls within the wide range of reasonable professional assistance[,]" Strickland v. Washington, 466 U.S. 668, 689, 104 S. Ct. 2052, 2065, 80 L. Ed. 2d 674, 694 (1984), but defendant must also prove that counsel's performance was "deficient" and "that the deficient performance prejudiced the defense." Id. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. See also United States v. Cronic, 466 U.S. 648, 653-57, 104 S. Ct. 2039, 2043-46, 80 L. Ed. 2d 657, 664-67 (1984) (discussing the requirements of effective counsel).
A defendant claiming that his attorney was ineffective in his representation "must demonstrate first that counsel's performance was deficient, i.e., that 'counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment.'" Parker, supra, 212 N.J. at 279 (quoting Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693). A showing that the error complained of might conceivably have had some effect on the outcome of the trial is not sufficient. "'The defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" Id. at 279-80 (quoting Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698; State v. Hess, 207 N.J. 123, 146 (2011); State v. Winder, 200 N.J. 231, 254-55 (2009)). This two-pronged standard has been expressly adopted in New Jersey. Fritz, supra, 105 N.J. at 58.
Although "[o]ur courts have expressed a general policy against entertaining ineffective-assistance-of-counsel claims on direct appeal[,]" State v. Preciose, 129 N.J. 451, 460 (1992), here the allegation does not involve evidence that lies outside the trial record. See State v. Allah, 170 N.J. 269, 285 (2002). Defendant alleges that the show-ups conducted by the police the day of the robberies were unduly suggestive and thus the admissibility of these identifications should have been tested at a pre-trial Wade hearing, which defense counsel did not request.
Defendant argues persuasively that the evidence provides some indicia of impermissibly suggestive police identification procedures, such that a Wade hearing would have been granted if requested. See State v. Cherry, 289 N.J. Super. 503, 517 (App. Div. 1995); State v. Rodriguez, 264 N.J. Super. 261, 269 (App. Div. 1993), aff'd o.b., 135 N.J. 3 (1994); State v. Ortiz, 203 N.J. Super. 518, 522 (App. Div.), certif. denied, 102 N.J. 335 (1985). Davis testified that the police told him that they "got the guy" and he should come down to the police headquarters to identify defendant. Davis and Ordenze identified defendant together, looking through a one-way mirror at defendant struggling with the police who were holding him in a room. Davis indicated that he could see two parallel scars above defendant's eye during the robbery because defendant's mask was loose-fitting. Finney also identified defendant at a show-up at the police station. Such procedures are suggestive. See State v. Henderson, 208 N.J. 208, 289-290, 302 (2011) (modifying the standard for assessing eyewitness identification evidence, thereby creating a new rule of law to be applied only in future cases); Pressler & Verniero, Current N.J. Court Rules, comments 2 and 3.1 on R. 3:11 (2013).
Finney and Smalls also saw defendant as he was arrested, however. He was chased from the parking lot outside the lounge, the location of the robberies, to the courtyard where he was arrested. Defendant was found with the ski mask and specific proceeds from the robberies on his person. He had the loaded gun in his hand, which he dropped during the stand-off with the police. The State overwhelmingly demonstrated that defendant was the individual who committed the robberies. Even if the show-up identifications were deemed overly suggestive and were excluded after a Wade hearing, defendant can not demonstrate that the trial's result would have been different.
Defendant also argues that his sentence was excessive. He concedes that he was subject to a mandatory extended term, but argues he should have received no more than twenty years in prison. He was sentenced to concurrent mandatory extended terms of thirty years, subject to NERA, on two counts of first-degree armed robbery. The extended term and parole ineligibility were mandatory because defendant was previously convicted of committing an offense with a firearm. N.J.S.A. 2C:44-3(d). The judge ordered that the lesser terms should be served concurrent to these extended terms.
We are satisfied that the sentence is not manifestly excessive or unduly punitive and does not constitute an abuse of discretion. State v. Bieniek, 200 N.J. 601, 608 (2010). The judge did not abuse his discretion, as defendant argues, by failing to find mitigating factor eleven, "[t]he imprisonment of the defendant would entail excessive hardship to himself or his dependents[,]" merely because defendant had a three-year-old child.*fn3 N.J.S.A. 2C:44-1(b)(11); see State v. Dalziel, 182 N.J. 494, 505 (2005).