NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 23, 2013
On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 05-06-0850.
Joseph E. Krakora, Public Defender, attorney for appellant (Michele Adubato, Designated Counsel, on the brief).
Camelia M. Valdes, Passaic County Prosecutor, attorney for respondent (Marc A. Festa, Senior Assistant Prosecutor, of counsel and on the brief).
Before Judges Alvarez and Leone.
Defendant Ernest Housey appeals from the denial of his petition for post-conviction relief (PCR). He claims trial counsel was ineffective for not requesting a Wade hearing regarding McArthur Pough, an eyewitness to the crime. Defendant also claims the PCR court erred in denying an evidentiary hearing. We affirm.
Our opinion on direct appeal outlined the facts:
On December 23, 2004, defendant, known as "Chocolate, " played cards for several hours with a group which included [McArthur] Pough, Lonnie Lee, and Louis Gilchrist. The location of the game was a neighborhood garage that operated as a clubhouse.
The following afternoon, December 24, Gilchrist and Lee were at the garage in the company of a fourth man, named Joseph Nichols, when defendant entered, displayed a gun, and said, "this is a stick-up." Everyone assumed it was a prank and told defendant to "stop playing around." Defendant laughed and said, "I was just joking." He pocketed the gun, sat down with the others, and left shortly thereafter.
At around 7:00 p.m. that same day, December 24, approximately twenty people were playing cards in the garage, including Pough, Lee, Gilchrist, and Nichols. While Pough was outside talking to, among others, a person known only as "Brenton, " he looked up and saw two men approaching, whose faces were covered by ski masks. One pointed a gun at Brenton, and instructed him to say his name at the door so that the robbers could gain entry into the garage.
At that moment, Gilchrist walked out of the garage and saw the two masked men. The gun was turned to him, and he was told to back up. When he failed to respond quickly, he was hit in the face with the butt of the gun. The robbers went inside.
Pough immediately called 9-1-1 on his cell phone. As he waited for police across the street, he saw the men exit the garage, remove their masks and walk away. He followed, recognizing defendant as the person with whom he had played cards the night before for several hours. When police drove down the street, Pough saw defendant throw the gun into a field where it was later recovered. Pough gave a statement on December 28 and selected defendant's picture ...