NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 1, 2013
On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 08-10-1987.
Joseph E. Krakora, Public Defender, attorney for appellant (Lauren S. Michaels, Assistant Deputy Public Defender, of counsel and on the brief).
Gaetano T. Gregory, Acting Hudson County Prosecutor, attorney for respondent (Linda M. Claude-Oben, Special Deputy Attorney General/Acting Assistant Prosecutor, on the brief).
Before Judges Simonelli, Koblitz and Accurso.
Defendant Travis Davis was convicted by a jury of two counts of first-degree carjacking, N.J.S.A. 2C:15-2, two counts of second-degree kidnapping, N.J.S.A. 2C:13-1b, two counts of first-degree robbery, N.J.S.A. 2C:15-1, second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b, second-degree possession of a firearm for an unlawful purpose, N.J.S.A. 2C:39-4a, and second-degree certain persons not to have weapons, N.J.S.A. 2C:39-7b. After merging defendant's convictions for robbery and the possession of a firearm for an unlawful purpose with his convictions for carjacking, Judge Lourdes I. Santiago sentenced him to concurrent thirty-year terms of imprisonment on each of the two carjacking counts, and to concurrent ten-year terms on each of the two kidnapping counts, all subject to periods of parole ineligibility and supervision as required by the No Early Release Act, N.J.S.A. 2C:43-7.2. The judge sentenced defendant to a concurrent five-year term with a three-year period of parole disqualification pursuant to the Graves Act, N.J.S.A. 2C:43-6, for unlawful possession of a firearm, and to a consecutive ten-year term with a five-year period of parole disqualification for the certain persons offense, N.J.S.A. 2C:39-7b. The judge also imposed the appropriate monetary penalties.
Defendant presents the following arguments on appeal:
EYEWITNESS JONES'S OUT-OF-COURT
IDENTIFICATION WAS IRRETRIEVABLY CORRUPTED BY AN IMPERMISSIBLY SUGGESTIVE OUT-OF-COURT IDENTIFICATION PROCEDURE, AND BOTH JONES'S AND ROGERS'S IN-COURT IDENTIFICATIONS LACKED FOUNDATION; THESE UNRELIABLY INADMISSIBLE IDENTIFICATIONS INFECTED THE ENTIRE TRIAL, REQUIRING REVERSAL. (Partially Raised Below).
A. Due To Defense Counsel's Ineffectiveness and Prosecutorial Misconduct, there was no pre-trial Wade Hearing (Not Raised Below).
1. As a Result of Defense Counsel's Failure to Cite Available Evidence, Defendant Was Denied a Wade Hearing.
2. The Prosecutor Made A Material Misrepresentation To The Court When She Said That It Was "Pure Speculation" That Police Told Jones About the Possible DNA Match.
3. Had the Court been informed about the Grand Jury testimony and discovery, it would have ...