NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 30, 2013.
On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 09-07-0622.
Joseph E. Krakora, Public Defender, attorney for appellant (Frank M. Gennaro, Designated Counsel, on the brief).
Jennifer Webb-McRae, Cumberland County Prosecutor, attorney for respondent (G. Harrison Walters, Assistant Prosecutor, of counsel and on the brief).
Before Messano and Ostrer, Judges.
Defendant appeals from the trial court's order denying, without an evidentiary hearing, his petition for post-conviction relief (PCR) from his 2010 judgment of conviction of second-degree robbery of a convenience store clerk. Defendant pleaded guilty to the offense. Consistent with his plea agreement, the trial court sentenced defendant to seven years subject to the No Early Release Act. N.J.S.A. 2C:43-7.2. He was required to serve eighty-five percent of his sentence before parole eligibility.
Defendant principally argues that he was denied effective assistance of counsel because his attorney failed to file a Wademotion to exclude the clerk's identification of him. Having reviewed his arguments in light of the facts and applicable law, we affirm.
We discern the following facts from the record, including the report of Millville police officer Carl Heger. At about 5:30 a.m. on June 11, 2009, Heger received a report of a robbery of a 7-11 store. He interviewed the store clerk, Sanoj Acharya, who was on duty during the robbery. Acharya described the robber and said he recognized him as a regular customer.
Acharya told Heger that "the robber had on a white hooded sweatshirt and a black ski mask, but [he] could still see his hair which was long and braided/dreadlocks." Although the robber was masked, "Acharya stated that he still recognized the robber as a regular customer by his voice." Heger reported, "Acharya stated he remembers him well because he is always rude when he comes in the store. Acharya stated he came in the store earlier in the morning and bought a pack of Black and Mild Cigars and was not wearing any mask."
The store manager Ashish Shah had arrived at the store and was able to play back in-store surveillance video for the officer. The video of the robbery showed a "black male wearing black sneakers, dark blue jeans cuffed up at the ankles with a white tag on the right rear pocket, a white hooded sweatshirt with black designs with the hood over his head, and two black strings hanging out of the collar area of his sweatshirt." The robber was also seen holding a black semi-automatic handgun.
Heger also viewed the video of a transaction that occurred at about 4:38 a.m. It showed a black man with long dreadlocks wearing many of the same items of clothing as the robber: black sneakers, dark blue jeans cuffed up at the ankles with a white tag on the right rear pocket. Although the customer wore a black hooded sweatshirt, Heger believed the sweatshirt's black draw strings were the strings visible under the ...