Opinion
DOCKET NO. A-3509-11T3
03-04-2014
STATE OF NEW JERSEY IN THE INTEREST OF C.G.
Joseph E. Krakora, Public Defender, attorney for appellant C.G. (Ernest Anemone, Designated Counsel, on the brief). Grace H. Park, Acting Union County Prosecutor, attorney for respondent State of New Jersey (Stacey E. Zyriek, Special Deputy Attorney General/ Acting Assistant Prosecutor, of counsel and on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Maven and Hoffman.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Union County, Docket No. FJ-20-0224-12.
Joseph E. Krakora, Public Defender, attorney for appellant C.G. (Ernest Anemone, Designated Counsel, on the brief).
Grace H. Park, Acting Union County Prosecutor, attorney for respondent State of New Jersey (Stacey E. Zyriek, Special Deputy Attorney General/ Acting Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Appellant C.G. appeals from the Family Part's adjudication of juvenile delinquency for engaging in conduct which, if committed by an adult, would have constituted second-degree robbery, N.J.S.A. 2C:15-1. The court imposed an eighteen-month term at the Training School for Boys, but suspended the sentence conditioned upon C.G. satisfactorily completing the Juvenile Intensive Supervision Program. For reasons that follow, we affirm.
I.
We discern the following facts from the record on appeal. On the evening of August 8, 2011, at approximately 11 p.m., Marvin Enriquez was talking on his cell phone while walking home from work along New Street in Plainfield. Two juveniles approached Enriquez from the rear and struck him in the back, causing him to fall to the ground; the two then hit Enriquez twice on the back. While he was on the ground, Enriquez asked what they wanted in Spanish, as he speaks little English. They indicated, in English, that they wanted money and one juvenile touched the pocket holding Enriquez's wallet. Enriquez then got up, threatened to call the police, and the two assailants ran away. They did not get any money from Enriquez, although they did take food he was carrying.
Next, Enriquez called the police, and an officer quickly arrived. When asked to describe his assailants, Enriquez could only state what his attackers were wearing. The officer then received a report that two suspects, matching Enriquez's description, had been stopped at a nearby intersection. The officer transported Enriquez to the location, where Enriquez identified the suspects as his attackers because of their clothing. The suspects were later identified as C.G. and his co-defendant A.H., both juveniles.
Both C.G. and A.H. were charged with offenses which, if committed by an adult, would have constituted aggravated assault, N.J.S.A. 2C:12-1(b), and second-degree robbery, N.J.S.A. 2C:15-1. Before trial, neither juvenile moved to challenge the admissibility of Enriquez's identification. Just prior to the start of the trial, both juveniles stipulated to committing acts of simple assault, but maintained their not guilty pleas to the robbery charge. The only witness at trial was Enriquez. At the conclusion of the trial, the judge found Enriquez credible and concluded both juveniles committed second-degree robbery and adjudicated them delinquent.
Because of this stipulation, the State did not present the testimony of the two police officers involved. The assistant prosecutor identified the officers as the "one [who] conducted the show-up and the other one [who] brought the victim to the show-up."
II.
On appeal, C.G. does not challenge the sufficiency of the evidence against him; nor does he allege any error by the trial judge. Instead, C.G. argues ineffective assistance of counsel warrants reversal of his adjudication because "trial counsel did not challenge the identification testimony[.]" Specifically, C.G.'s claim centers on his counsel's stipulation to identification and failure to challenge its admissibility. C.G. cites State v. Herrera, 187 N.J. 493, 504 (2006), where the Supreme Court stated that because "one-on-one showups are inherently suggestive . . . only a little more is required . . . to tip the scale toward impermissibly suggestive." The juvenile's brief notes that evidence demonstrating the impermissibly suggestive nature of the show-up identification lies outside the trial record because there was no Wade hearing.
Even if an identification is impermissibly suggestive, it may be admitted into evidence if it was nevertheless reliable. See State v. Herrera, 187 N.J. 493, 503-04 (2006) ("The totality of the circumstances must be considered in weighing the suggestive nature of the identification against the reliability of the identification."). "The essential question is whether there was sufficient reliability in the identification[] to overcome the suggestive nature and establish that there was not a substantial likelihood of irreparable misidentification." State v. Adams, 194 N.J. 186, 204 (2008).
United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967).
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The State correctly points out that ineffective assistance of counsel claims are generally not addressed on direct appeal "because such claims involve allegations and evidence that lie outside the trial record." State v. Preciose, 129 N.J. 451, 460 (1992). The State further argues that the juvenile's claim lacks substantive merit because the stipulation to juvenile's identity represented a tactical decision that failed, not ineffective assistance of counsel.
To determine whether a defendant has established a prima facie claim of ineffective assistance, New Jersey follows the standard established in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), under which
[a] reviewing court first must determine whether counsel's performance "fell below an objective standard of reasonableness," Strickland, supra, 466 U.S. at 688, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693, and second, whether there exists a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different," id. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698."The test is not whether defense counsel could have done better, but whether he [or she] met the constitutional threshold for effectiveness." State v. Nash, 212 N.J. 518, 543 (2013).
[State v. Chew, 179 N.J. 186, 203 (2004).]
Generally, an ineffective assistance of counsel claim "'cannot be raised on direct appeal[,]'" because a hearing must be held to develop a record whereby trial counsel may "'explain the reasons for his conduct and inaction[,]'" and a trial judge is afforded the opportunity to rule on the claims and assess the likely prejudice. State v. Preciose, 129 N.J. 451, 462 (1992) (quoting State v. Sparano, 249 N.J. Super. 411, 419 (App. Div. 1991)). See also State v. McDonald, 211 N.J. 4, 30 (2012) (holding that a PCR "proceeding would be the appropriate forum to evaluate the strategy of defendant's trial counsel . . . and other issues requiring information that is not in the record before the Court.").
Here, the juvenile's arguments regarding his attorney's failure to challenge the identification involves facts outside the trial record, thus precluding our meaningful review of this claim. Because of the stipulation, the record before us does not contain the testimony of the officer involved in the showup or other details regarding the facts and circumstances of the showup identification, such as the exact clothing descriptions the victim provided, the precise time interval between the attack and the identification and the lighting at the location where the identification occurred. Furthermore, the record does not contain an affidavit or testimony explaining trial counsel's strategy. We therefore decline to consider defendant's ineffective assistance of counsel arguments on direct appeal, but note the issues are preserved and may be raised in a subsequent application through post-conviction relief.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION