Opinion
DOCKET NO. A-0819-12T3
06-19-2014
STATE OF NEW JERSEY, Plaintiff-Respondent, v. DESMOND SMITH, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Steven M. Gilson, Designated Counsel, on the brief). Gaetano T. Gregory, Acting Hudson County Prosecutor, attorney for respondent (Monalisa Tawfik, Special Deputy Attorney General/Acting Assistant Prosecutor, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Kennedy and Guadagno.
On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 07-03-0524.
Joseph E. Krakora, Public Defender, attorney for appellant (Steven M. Gilson, Designated Counsel, on the brief).
Gaetano T. Gregory, Acting Hudson County Prosecutor, attorney for respondent (Monalisa Tawfik, Special Deputy Attorney General/Acting Assistant Prosecutor, on the brief). PER CURIAM
Defendant appeals from the denial of his petition for post-conviction relief (PCR) without an evidentiary hearing. Defendant was convicted after a jury trial of second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1) and the disorderly persons offense of false imprisonment, N.J.S.A. 2C:13-3. He was sentenced to fifteen years in prison on an extended term, subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, on the aggravated assault charge and six months concurrent on the false imprisonment charge. We affirmed defendant's convictions and sentence. State v. Smith, A-3612-07, (App. Div. July 22, 2010). The Supreme Court denied defendant's petition for certification. State v. Smith, 205 N.J. 273 (2011).
Thereafter, defendant filed a timely PCR petition alleging he was denied a fair trial and that his counsel was ineffective. The latter argument was based, in part, on the claim that his trial counsel failed to ask for a Wade hearing on the victim's out-of-court identification and failed to "adequately cross-examine" the victim and Jersey City Police Detective Deborah Lee on the out-of-court identification procedure that was undertaken. The Law Division denied defendant's petition and issued a nine-page written opinion in support of its decision.
United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967).
Defendant presents the following arguments on appeal:
POINT I - THIS MATTER MUST BE REMANDED FOR AN EVIDENTIARY HEARING BECAUSE DEFENDANT ESTABLISHED A PRIMAHaving considered these arguments in light of the record and the applicable law, we affirm.
FACIE CASE OF TRIAL COUNSEL'S INEFFECTIVENESS.
A. Trial Counsel Failed To Request A Wade Hearing.POINT II - THIS MATTER MUST BE REMANDED FOR FINDINGS OF FACT AND CONCLUSIONS OF LAW REGARDING DEFENDANT'S CLAIM THAT TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO ADEQUATELY CROSS-EXAMINE WITNESSES REGARDING THE PUTATIVE IMPERMISSIBLY SUGGESTIVE IDENTIFICATION.
B. Trial Counsel Failed To Adequately Cross-Examine The Victim And Detective Regarding The Putative Impermissibly Suggestive Identification.
(Not Raised Below).
I.
We briefly set forth the facts presented at trial as set forth in our earlier opinion:
In September 2006, Dennis Marando (Dennis) lived with his wife Lakeema in Jersey City, New Jersey. Zyanaitha Denard, Lakeema's friend, and Johnny Robertson, Lakeema's cousin, also lived with the Marandos at that time. On September 4, 2006, Dennis was visiting friends in Pennsylvania until approximately 9:00 p.m., at which time he left the Poconos area and drove home to
Jersey City, arriving at approximately 10:30 p.m. He intended to pick up some personal items because he was having problems with Denard and Robertson, and he had decided to separate from his wife and vacate the apartment.
Upon arriving at the apartment, Dennis testified that he attempted to call his friends in the Poconos to inform them he arrived home. When he picked up the phone, Denard grabbed it, unplugged it, and threw it at a window. He testified that while Denard was asking him why he was leaving Lakeema, Robertson and Desmond Smith entered the room. Robertson then allegedly said to Dennis, "'You thought you could get away with this. But I think now we got you.'" Dennis testified that the threats continued, culminating with Denard telling Lakeema via a cell phone call that "'We got Dennis here.'" Lakeema allegedly responded, "'Don't let Dennis leave. Don't let him leave until I get there.'" Denard then took Dennis into the bathroom and began questioning him about his separation from Lakeema. Robertson and Smith remained outside the bathroom, where, according to Dennis, they said they "'can't let him out until Keema gets here.'"
Lakeema arrived after Dennis had been in the bathroom for about ten minutes. Dennis said she was "mad" and "angry" and would not let him say anything. Dennis testified that Lakeema first accused him of unspecified conduct, uttering profanities, and then began "punching [him] in [his] face, all over." Denard was still in the bathroom at this time, and Robertson and Smith were attempting to enter. During the struggle, Lakeema demanded $ 1500 from Dennis; he told her that "it was impossible to do that at that time."
Robertson and Smith then entered the bathroom, and the light was turned off. Dennis testified that "everyone was trying to hit me. I couldn't tell who was hitting me, but I could feel the blows coming from all sides." He was punched in his right eye, which started bleeding. Lakeema said she did not care what happened to Dennis, and Robertson allegedly said, "Why can't we just smoke this nigger and forget about the whole thing?" Dennis could not estimate the number of blows he received and never indicated to police that four individuals assaulted him. He remembered his wife saying to hit him in his bad eye, on which a cornea transplant had previously been performed. He eventually pushed his way out of the bathroom and went outside.
Once outside, Dennis got into the passenger side of his car, and Lakeema, because she had the car keys, got into the driver's seat. Dennis asked Lakeema to take him to the hospital; she responded by saying, "I don't care. That's your problem now." An ambulance then arrived; however, when asked if anyone called for an ambulance, Lakeema responded, "No," and the ambulance left. Dennis did not try to get the ambulance driver's attention.
Dennis then offered to give his assailants the money, and they drove to a local automatic teller machine (ATM). Once they arrived, everyone began looking for his ATM card, which Dennis said was in his jacket in the car trunk. Dennis then ran away from the car toward a Walgreen's, where he informed a security guard that he had been assaulted. After that, he saw a police car pull into a gas station across the street; he informed the police officer about what had transpired and told him that his assailants were in his car. The police officer called an ambulance, and Dennis received medical attention at Jersey City
Medical Center (JCMC). He had surgery the next morning to treat the injuries to his right eye, which included a ruptured globe through the cornea and evisceration of the contents of his eye. He underwent a second surgery on the eye on December 13, 2006. Dennis remained blind in his right eye at the time of trial.
In the early morning hours of September 5, 2006, Officer Charles Taveras of the Jersey City Police Department effected a traffic stop of a car matching the description Dennis gave to the police. The car contained Lakeema, Denard, Smith, and Robertson. The four individuals were taken into custody and transported to JCMC to be identified by Dennis. Dennis positively identified them one at a time, and they were then taken to the police station. Lakeema, Smith, Robertson, and Denard were subsequently indicted on charges stemming from this incident.
[Slip op. at 2-6.]
In a prior opinion, we identified the victim as "Dennis." We use the term "victim" in this opinion for clarity because that is the term used by both parties in their briefs on appeal.
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In addition, the victim testified that he had seen Smith in his apartment on a previous occasion, and, as noted, that Jersey City police had shown him defendant and the others "one at a time" within a few hours of the incident, while he was in the hospital for treatment. Detective Lee testified the same way, and further indicated that the victim identified defendant with certainty and without hesitation.
II.
In support of his PCR petition, defendant submitted his own certification in which he said that he and the others "were presented to [the victim] at the same time, through glass, and he identified all of us by saying 'that's them.'" Defendant argues that such a "collective show-up left the irrefutable and irreparable imprimatur of guilt-by-association" which required an evidentiary hearing on his claim that counsel was ineffective for failing to request a Wade hearing and for failing to "adequately" cross-examine the victim and Detective Lee on the identification process.
We review the PCR judge's legal conclusions de novo. State v. Harris, 181 N.J. 391, 420-21 (2004), cert. denied, 545 U.S. 1145, 125 S. Ct. 2973, 162 L. Ed. 2d 898 (2005). Where the court does not hold an evidentiary hearing, we may exercise de novo review over the factual inferences the trial court has drawn from the documentary record. Id. at 421.
We apply the well-settled two-prong test for establishing ineffective assistance set forth in Strickland v. Washington, 466 U.S. 668, 687, 694, 104 S. Ct. 2052, 2064, 2068, 80 L. Ed. 2d 674, 693, 698 (1984) (stating that a petitioner must establish (1) his or her counsel's performance was deficient and he or she made errors so serious that counsel was not functioning as guaranteed by the Sixth Amendment, and (2) he or she was prejudiced such that there existed a reasonable probability that, but for counsel's unprofessional errors, the result would have been different). See also State v. Fritz, 105 N.J. 42, 58 (1987) (adopting Strickland standard). A "reasonable probability" must be "sufficient to undermine confidence in the outcome." Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698.
A petitioner is obliged to establish the right to relief by a preponderance of the credible evidence. State v. Preciose, 129 N.J. 451, 459 (1992). The court must consider the petitioner's "contentions indulgently and view the facts asserted by him [or her] in the light most favorable to him [or her]." State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999).
However, "a petitioner must do more than make bald assertions that he [or she] was denied the effective assistance of counsel." Ibid.; see also R. 3:22-10(e)(2) (stating court shall not hold evidentiary hearing if "defendant's allegations are too vague, conclusory or speculative"). A hearing should be held if the PCR petition involves material issues of disputed fact that cannot be resolved by reference to the existing record. State v. Pyatt, 316 N.J. Super. 46, 51 (App. Div. 1998), certif. denied, 158 N.J. 72 (1999). A court need not hold a hearing if it "will not aid the court's analysis of whether the defendant is entitled to post-conviction relief or that the defendant's allegations are too vague, conclusory, or speculative to warrant an evidentiary hearing[.]" State v. Marshall, 148 N.J. 89, 158 (citations omitted), cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997).
Where a defendant asserts his or her attorney was ineffective by failing to file a motion, he or she must establish that the motion would have been successful. "It is not ineffective assistance of counsel for defense counsel not to file a meritless motion[.]" State v. O'Neal, 190 N.J. 601, 619 (2007). For example, where a petitioner complains his or her counsel should have filed a suppression motion, "the defendant not only must satisfy both parts of the Strickland test but also must prove that his [or her] Fourth Amendment claim is meritorious." State v. Fisher, 156 N.J. 494, 501 (1998). The same rule applies to a petition grounded on an alleged failure to file a Wade motion.
We consequently must review the legal principles governing a Wade motion. Although the Supreme Court revised the applicable standard in State v. Henderson, 208 N.J. 208, 288-94, 300-02 (2011), that revision was made prospective. The standard in effect at the time of defendant's trial was restated in State v. Herrera, 187 N.J. 493, 503-04 (2006). To determine whether an identification should be excluded, a court was required "first . . . [to] ascertain whether the identification procedure was impermissibly suggestive, and, if so, whether the impermissibly suggestive procedure was nevertheless reliable." Ibid. (citing Manson v. Brathwaite, 432 U.S. 98, 114, 97 S. Ct. 2243, 2253, 53 L. Ed. 2d 140, 154 (1977), and State v. Madison, 109 N.J. 223, 233 (1988)). In considering the second step, the court must consider whether the procedure created a "very substantial likelihood of irreparable misidentification." Madison, supra, 109 N.J. at 232.
The test also requires a court to consider the "totality of the circumstances" and to weigh against the suggestive procedure five factors: "'the opportunity of the witness to view the criminal at the time of the crime, the witness's degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation.'" Herrera, supra, 187 N.J. at 506-07 (quoting Manson, supra, 432 U.S. at 114, 97 S. Ct. at 2253, 53 L. Ed. 2d at 154).
Applying these principles, we conclude defense counsel was not ineffective by failing to file a Wade motion, because we are unconvinced the motion would have been successful.
We note that the victim not only had seen defendant in his apartment on a prior occasion, and therefore was familiar with him, but also had an extended opportunity to view him during the prolonged attack upon him at his apartment and the subsequent ride to the ATM machine. His attention to defendant was drawn by the attack upon him and by the statements defendant directed to him during that attack. Defendant was promptly identified by the victim at the hospital with certainty and without hesitation. The identification procedure at the hospital was undertaken within hours of the attack upon the victim.
Accordingly, even accepting that at an evidentiary hearing defendant would testify he and the others were shown to the victim at the same time, considering the totality of the circumstances, we conclude that the procedure employed did not create a substantial likelihood of irreparable misidentification, and that the identification itself was reliable.
Turning to defendant's argument that counsel's cross-examination of the victim and Detective Lee was inadequate, defendant offers no specific criticism, other than to reiterate his assertion that the identification procedure was suggestive — an issue which we have already addressed. Further, the breadth of cross-examination of a witness is among the broad range of strategic decisions faced by trial counsel to which we must accord a "heavy measure of deference." Strickland, supra, 466 U.S. at 691, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695. We perceive no error in the rejection of this argument.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION