NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 13, 2012
On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 05-10-2294.
Joseph E. Krakora, Public Defender, attorney for appellant (Frank M. Gennaro, Designated Counsel, on the brief).
James P. McClain, Acting Atlantic County Prosecutor, attorney for respondent (Jack J. Lipari, Special Deputy Attorney General/ Acting Assistant Prosecutor, of counsel and on the brief).
Before Judges Graves and Guadagno.
Defendant Jermaine Harris appeals from a December 3, 2010 Law Division order denying his petition for post-conviction relief (PCR). We affirm.
On June 20, 2007, a jury found defendant guilty of second-degree conspiracy to commit robbery, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:15-1 (count one); first-degree robbery, N.J.S.A. 2C:15-1 (count two); second-degree possession of a handgun for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count three); third-degree unlawful possession of a handgun without a permit, N.J.S.A. 2C:39-5(b) (count four); and fourth-degree aggravated assault, N.J.S.A. 2C:12-1(b)(4) (count six). In a second trial before the same jury,  defendant was convicted of second-degree possession of a handgun by a convicted person, N.J.S.A. 2C:39-7(b)(1) (count seven).
At sentencing on August 24, 2007, the court denied the State's motion for an extended term. The court merged counts one, three, four, and six into count two and sentenced defendant to a twenty-year period of incarceration subject to the No Early Release Act, N.J.S.A. 2C:43-7.2, for armed robbery. The court imposed a consecutive ten-year prison term with five years of parole ineligibility for possession of a weapon by a convicted person (count seven). Thus, defendant was sentenced to an aggregate term of thirty years in prison with a twenty-two year period of parole ineligibility.
Among other things, defendant alleged on his direct appeal that he did not receive a fair trial because the "repeated references to the presence of a non-testifying eyewitness" at the show-up identification procedure violated State v. Bankston, 63 N.J. 263 (1973); the show-up procedure used by the police "was impermissibly suggestive and created a very substantial likelihood of irreparable misidentification"; defense counsel was ineffective for failing "to request a Wade hearing"; his motion for a mistrial should have been granted because "the prosecutor impliedly labeled [him] a career criminal"; and his "sentence is excessive." In an unpublished opinion, State v. Harris No. A-1652-07 (App. Div. Mar. 23, 2009), we affirmed defendant's convictions and sentence, and the Supreme Court denied his petition for certification, 199 N.J. 516 (2009).
Defendant's pro se petition for PCR was filed on or about March 24, 2010. In a letter brief in support of his petition, defendant alleged his attorney was ineffective for failing to object to comments by the prosecutor in his opening statement, which "implied that [the State] had received information from Blair Williams, a non-testifying co-defendant." Additionally, defendant claimed his attorney was ineffective for failing to request that second-degree robbery be included on the verdict sheet as a lesser-included offense. Assigned counsel also filed a letter brief in support of defendant's application.
Following oral argument on December 3, 2010, the PCR judge, who was also the trial judge at defendant's trial, summarized the facts of the case as follows:
On August 5th, 2005, the victim was working alone at a Citgo Gas Station at about 10:30 p.m. He was robbed by two black males, both approximately six feet tall. The gunman was wearing a white shirt, blue jeans, boots and a black hat with the letter P on it. The gunman had a thick beard and neck length braids. The gunman took cash from the victim. The second man [took] rolled change from the drawers and put them inside a shopping bag that was from DSW. Victim estimated that about $115 to $130 in cash was ...