Opinion
DOCKET NO. A-5793-13T3
04-11-2016
STATE OF NEW JERSEY, Plaintiff-Appellant, v. BARRY PINCKNEY, a/k/a BARRY PICKNEY, Defendant-Respondent.
Joseph E. Krakora, Public Defender, attorney for appellant (Adam W. Toraya, Designated Counsel, on the brief). Grace H. Park, Acting Union County Prosecutor, attorney for respondent (Meredith L. Balo, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the statement in lieu of brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Sabatino and Accurso. On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 06-03-0266. Joseph E. Krakora, Public Defender, attorney for appellant (Adam W. Toraya, Designated Counsel, on the brief). Grace H. Park, Acting Union County Prosecutor, attorney for respondent (Meredith L. Balo, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the statement in lieu of brief). PER CURIAM
Tried by a jury in 2007, defendant Barry Pinckney was convicted of first-degree robbery, N.J.S.A. 2C:15-1, and third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d). After merging the weapons count into the robbery count, the court sentenced defendant to an eleven-year custodial term, subject to periods of parole ineligibility required by the No Early Release Act, N.J.S.A. 2C:43-7.2. In an unpublished opinion, we upheld the convictions and sentence on direct appeal. State v. Pinckney, No. A-3400-08 (App. Div. June 30, 2010). The Supreme Court denied certification. 205 N.J. 98 (2010).
Defendant then filed a petition for post-conviction relief ("PCR"), alleging that his trial counsel had been ineffective in various respects. After considering the PCR application and the State's opposition, Judge William A. Daniel, J.S.C., rejected the application without an evidentiary hearing. The judge detailed his reasons in a comprehensive twenty-six-page written opinion dated May 8, 2014.
Defendant now appeals the PCR denial. In his brief, he presents the following arguments for our consideration:
THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST CONVICTION RELIEF WITHOUT AFFORDING HIM AN EVIDENTIARY HEARING TO FULLY ADDRESS HIS CONTENTION THAT HE FAILED TO RECEIVE ADEQUATE LEGAL REPRESENTATION AT THE TRIAL LEVEL.
A. DEFENDANT PRESENTED A PRIMA FACIE CASE OF INEFFECTIVE ASSISTANCE OF COUNSEL WHEN HIS TRIAL ATTORNEY FAILED TO FILE A WADE MOTION TO SUPPRESS THE EVIDENCE OF AN IMPERMISSIBLY SUGGESTIVE SHOW UP.
B. DEFENDANT PRESENTED A PRIMA FACIE CASE OF INEFFECTIVE ASSISTANCE OF COUNSEL WHEN HIS TRIAL ATTORNEY FAILED TO INTRODUCE EVIDENCE THAT WOULD HAVE EXPLAINED THE DEFENDANT'S POSSESSION OF MONEY.Having considered these arguments in light of the applicable law, we affirm the rejection of defendant's petition, essentially for the cogent substantive reasons set forth in Judge Daniel's opinion. We do so without needing to reach the procedural bars initially asserted by the State in the trial court.
C. DEFENDANT PRESENTED A PRIMA FACIE CASE OF INEFFECTIVE ASSISTANCE OF COUNSEL WHEN HIS TRIAL ATTORNEY FAILED TO UTILIZE A STATEMENT FROM HIS CODEFENDANT ROGERS THAT PROVIDED HIM WITH AN ALIBI.
The underlying facts are detailed in our 2010 opinion and need not be reiterated here. In summary, at about 1:30 a.m. on December 20, 2005, the victim was approached and pushed against his car in a parking lot by a man later identified as defendant. The victim gave him money, specifically two $100 bills, six $20 bills, five $50 bills, one $10 bill, and one $5 bill. Defendant then brandished a knife and dragged the victim to the side of the building. The victim had the opportunity to see the defendant's face and dreadlocks.
The victim was able to break free and saw defendant jump into the back seat of a Ford Explorer, with two other men in the front seats. The victim got into his own car, followed the robber's vehicle and called 9-1-1. He pursued the Explorer for some time and then the chase was taken over by local police officers. The Explorer crashed into a telephone pole, was driven a further distance, and eventually was halted by the police near the entrance ramp to Interstate 78.
The victim was brought to the Explorer's location where he identified defendant as the person who had attacked him. Although there were some discrepancies in the victim's account, several characteristics of his description of the man who attacked him matched defendant. Defendant was found with five $50 bills, six $20 bills, one $10 bill, and one $5 bill in his possession.
In his PCR petition, defendant claimed his trial attorney was ineffective in these respects: (1) failing to seek a Wade hearing on identification; (2) failing to produce evidence from his college employer that would explain why he had approximately $400 in cash on him; and (3) failing to offer into evidence a statement from his co-defendant David Rogers claiming that defendant had nothing to do with the robbery.
United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967).
Defendant presented other arguments that the trial court rejected and which he does not renew on this appeal. --------
We are not persuaded by any of these arguments. In evaluating them we are guided by the well-settled criteria for proving ineffective assistance of counsel, i.e., (1) deficient performance; and (2) actual prejudice to the defendant caused by that substandard representation. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984); see also State v. Fritz, 105 N.J. 42, 58 (1987) (adopting the Strickland two-part test in New Jersey).
We first address the identification issue. Defense counsel originally requested a Wade hearing then withdrew the request. Defendant claims this withdrawal was deficient representation. On direct appeal, we deferred this particular issue to a future PCR application. Pinckney, supra, slip op. at 7. Judge Daniel thoroughly considered and rejected this claim, and we concur with his analysis.
Although the show-up procedure following the police chase had suggestive elements, we are unconvinced that defendant would have been successful in nullifying the victim's identification of him if a Wade hearing had been pursued. A particularly telling point in the State's favor is that the victim was originally taken to a different detained person before he was brought to the scene of defendant's apprehension. The victim said that person was not his assailant, even though the man likewise wore his hair in dreadlocks. In addition, we note that the identification of defendant was very fresh after the incident, in which he had observed his assailant at very close range.
It is speculation to assume that the Wade hearing would have resulted in exclusion of the victim's identification. For the reasons outlined by Judge Daniel, defendant cannot meet his burden of showing that, even if the show-up was impermissibly suggestive, his identification was unreliable. State v. Herrera, 187 N.J. 493, 503-04 (2006).
As his second point, defendant alleges his counsel should have presented allegedly exculpatory proof from the football coach at West Virginia State University, for whom he worked as a work study student. In support of this argument, defendant presents an uncertified letter from the coach, to which is attached a copy of a paystub showing that defendant received $440.26 in net pay on December 16, 2005, a few weeks before this robbery. We are unpersuaded that this unsworn document establishes anything of significance that would have exonerated defendant at trial.
It was highly incriminating that the exact denomination of bills that the victim remembers he had taken from him were matched by what was found in defendant's possession, minus a few bills that defendant may have handed to one of the other men in the getaway car. The mere fact that defendant received about $400 in pay earlier that month at his college was not likely to have tipped the evidential balance. This remotely relevant proof does not raise a "reasonable probability" that the outcome at trial would have been different if counsel had presented it. Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698.
Third and finally, the alleged exculpatory statement from Rogers, who elected not to testify at trial, likewise does not tip the balance. The statement was not provided until over six years after the incident after both defendant and Rogers had been convicted. The delay and the context make the statement inherently suspect. A "mere exculpatory statement of a co-defendant cannot by itself give rise to a new trial if that statement is clearly false or merely designed to give an accomplice a second chance for acquittal." State v. Robinson, 253 N.J. Super. 346, 366-67 (App. Div.), certif. denied, 130 N.J. 6 (1992).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION