NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted July 16, 2013
On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 04-12-1451.
Joseph E. Krakora, Public Defender, attorney for appellant (Celeste Dudley-Smith, Designated Counsel, on the brief).
Grace H. Park, Acting Union County Prosecutor, attorney for respondent (Estrella Lopez, Special Deputy Attorney/Acting Assistant Prosecutor, of counsel and on the brief).
Before Judges Ostrer and Hayden.
Defendant appeals from the April 19, 2011 Law Division order denying his petition for post-conviction relief (PCR) without an evidentiary hearing. After reviewing defendant's arguments in light of the record and applicable law, we affirm.
We discern the following facts from the record. On August 25, 2004, a man described as an African-American with a shaved head or short hair, wearing dark clothing, exited a dark green Lexus, approached a woman from behind, hit her over the head with a tire iron, stole her purse, and returned to the vehicle. Shortly thereafter, a police officer attempted to stop a Lexus that matched the description of a recently-stolen car. The car sped away. A chase ensued, which ended in the Lexus crashing into a residence. The police apprehended defendant, who was a passenger in the car.
The police brought two witnesses to the robbery to the crash scene. They both identified defendant as the assailant of the robbery that occurred about two hours earlier. They also later identified photos of defendant and the stolen Lexus at police headquarters a few hours after their initial identification of defendant.
On December 9, 2004, a Union County Grand Jury returned an indictment, charging defendant with first-degree robbery, N.J.S.A. 2C:15-1 (count one); third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d) (count two); fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(d) (count three); third-degree receiving stolen property, N.J.S.A. 2C:20-7 (count five); and third-degree alteration of a motor vehicle identification number, N.J.S.A. 2C:17-6(b) (count six).
On June 15, 2005, a jury found defendant guilty of counts one through three and found defendant guilty of the lesser included charge of fourth-degree unlawful taking, N.J.S.A. 2C:20-10, on count five. The trial judge, after merging counts two and three with count one, sentenced defendant on count one as a persistent offender to twenty-three years with an eighty-five percent parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. The judge gave defendant a one-year concurrent sentence on count five.
Defendant appealed his convictions and asserted the following:
POINT I: DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF TRIAL COUNSEL.
A. Trial Counsel's Failure to Request a Wade Hearing Constituted Ineffectiveness of Counsel.
B. Trial Counsel's Failure to Clarify the Nature and Chronology of the Identification Procedures ...