STATE OF NEW JERSEY v. MARIO CHIPI

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6156-05T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MARIO CHIPI a/k/a CARLOS

BATCAIL,

Defendant-Appellant.

________________________________________________________________

 

Submitted November 26, 2007 - Decided

Before Judges Stern, Collester and Fisher.

On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 05-09-1210.

Yvonne Smith Segars, Public Defender, attorney for appellant (Sylvia Orenstein, Assistant Deputy Public Defender, of counsel and on the brief).

Anne Milgram, Attorney General, attorney for respondent (Lora Glick, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

In this appeal, we consider whether defendant was deprived of the effective assistance of counsel when his trial attorney failed to seek a Wade hearing regarding the victim's identification of him at a showup. We remand for further proceedings.

I

The record reveals that on April 28, 2005, Fernando Montalvan was walking on Bergenline Avenue near 45th or 46th Street in Union City. Montalvan later testified that he was holding $5 in one hand, with the intention to buy a telephone calling card, and $200 in the other. A man approached, saying "[g]ive me all the money that you have there with you." Montalvan testified that he gave the man the $5 and put the money in his other hand in his pocket.

In response to the prosecutor's questions at trial, Montalvan testified that he pushed the man away and ran across the street. When asked whether he saw a knife, Montalvan testified that he and the man struggled for some two or three minutes before he was able to free himself and cross the street. In further probing by the prosecutor, during which objections to the leading nature of the examination were initially sustained, Montalvan provided this explanation of the physical encounter:

Q. When you say like this, you're moving your arms. Would you -- how did he -- did you put his arms around your body?

A. Yes. Like this as I was going like this.

Q. Were you injured during this?

A. No. He was just pinching me with something. He scratched me with something.

Q. Did you see what he scratched you with?

A. Whatever he was holding, a knife.

Q. Were you able to see what he was holding?

A. I felt that it was a knife. I didn't see it.

Montalvan acknowledged he was not injured and refused medical attention. He also testified that, as he and the perpetrator separated, the latter requested that Montalvan "[c]ome here[,] I'm going to give you the money back." Montalvan told him to "[k]eep it," and entered a nearby liquor store where he telephoned the police.

Officer Carlos Gonzalez of the Union City Police Department responded. Over the course of the next fifteen minutes, Montalvan spoke of what had occurred and described the perpetrator as a Hispanic male, possibly of Cuban descent, with a black ponytail, who was wearing a black coat, white tee-shirt and blue jeans. This description was forwarded to other officers as Officer Gonzalez drove Montalvan around the area looking for the culprit.

About the same time, Officer John Puente of the Union City Police Department responded to a call to go to Bergenline Avenue and 52nd Street. There he observed a man fitting Montalvan's description of the culprit; the man was being detained by an undercover detective of the West New York Police Department. Officer Puente testified that he took the detained man -- the defendant -- in custody and handcuffed him prior to obtaining Montalvan's later identification of defendant as the culprit. According to Officer Puente, this process took approximately five to ten minutes.

In response to a call, Officer Gonzalez took Montalvan to the intersection of Bergenline Avenue and 52nd Street. Montalvan testified that he was told by the police, presumably Officer Gonzalez, that "[w]e have captured the guy." When they arrived at 52nd Street, Officer Puente already had the handcuffed defendant in custody. Montalvan remained seated in Officer Gonzalez's vehicle; defendant remained outside, approximately fifteen feet away. Viewing defendant in an area lit only by street lights, Montalvan positively identified defendant as the man who robbed him.

II

As a result, defendant was charged with first-degree armed robbery, N.J.S.A. 2C:15-1; third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d); third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(d); and third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(2).

During the trial, the jury heard testimony from Montalvan, Officers Gonzalez and Puente, and a third police officer. At the trial's conclusion, defendant was acquitted of armed robbery, but found guilty of second-degree robbery. He was also acquitted of the other charges.

Defendant was sentenced to a thirteen-year discretionary extended term pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2. In this appeal, defendant raises the following arguments for our consideration:

I. THE "SHOW-UP" PROCEDURE USED BY THE POLICE IN THIS CASE WAS IMPERMISSIBLY SUGGESTIVE AND DEFENSE COUNSEL'S FAILURE TO REQUEST A WADE HEARING ON THE ISSUE OF THE SUGGESTIVENESS AND RELIABILITY OF THE OUT-OF-COURT IDENTIFICATION CONSTITUTED INEFFEC-TIVE ASSISTANCE OF COUNSEL. U.S. CONST. AMEND. VI, XIV; N.J. CONST. ART. I 1, 10 (Not Raised Below).

A. The Identification Should Have Been Excluded.

B. Trial Counsel Was Ineffective in Failing To Request a Wade Hearing.

II. BECAUSE NO FORCE WAS USED AND NO BODILY INJURY RESULTED FROM THE TAKING OF A $5 BILL FROM THE VICTIM'S HAND, THE VERDICT OF GUILTY OF SECOND-DEGREE ROBBERY [CANNOT STAND AND] DEFENDANT'S MOTION FOR A JUDGMENT OF ACQUITTAL AS TO THAT COUNT SHOULD HAVE BEEN GRANTED. MOREOVER, THE VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE (Partially Raised Below).

III. THE IMPOSITION OF A DISCRETIONARY EXTENDED TERM WAS UNJUSTIFIED IN THIS CASE; MOREOVER, THE MATTER MUST BE REMANDED FOR RESENTENCING PURSUANT TO STATE V. MAURICE PIERCE.

A. The Imposition Of An Extended Term Was Improper.

B. The Case Should Be Remanded Pursuant To State v. Pierce.

We conclude that the issues raised in Point I cannot adequately be resolved absent the conducting of an evidentiary hearing into defense counsel's reasons for failing to request a Wade hearing. Regardless of the determination on the effectiveness-of-counsel issue, the trial court shall hold a Wade hearing to complete the record. In State v. Quezada, ___ N.J. Super. ___ (App. Div. 2008), we recently held that a claim of ineffective assistance of trial counsel, based on the failure to raise a legal claim, could be remedied by the raising of the issue on direct appeal. See also State v. Adams, 194 N.J. 186, 201 (2008) (need to develop and "present a proper record" to consider the issues before us). The judge shall make appropriate fact findings and conclusions.

We find insufficient merit in Point II to warrant discussion in a written opinion. R. 2:11-3(e)(2). We also conclude, with regard to Point III, as the State concedes, that defendant's sentence was rendered in a manner inconsistent with State v. Pierce, 188 N.J. 155 (2006). Accordingly, we vacate the sentence imposed and remand for resentencing based on the principles set forth in Pierce. In light of this disposition, we do not deem it either necessary or appropriate to reach any of defendant's other arguments regarding the sentence imposed.

The matter is remanded for further proceedings in conformity with this opinion. We do not retain jurisdiction.

 

_______________________________________________

FISHER, J.A.D., concurring.

In this appeal we have considered whether defendant was deprived of the effective assistance of counsel when his trial attorney failed to seek a Wade hearing regarding the victim's identification of him at a showup. As concluded in the per curiam opinion, the trial judge must hereafter conduct both a Wade hearing and a hearing to examine defense counsel's decision not to seek a Wade hearing. Because our decision promotes a sense of fairness to the parties, who will now have an opportunity to expand upon the points raised, and fosters the interests of judicial economy, by providing a more rapid resolution of the ineffective-assistance-of-counsel argument than would occur if reversed for a future post-conviction relief petition, I join in the court's decision to remand for that hearing, although, for the reasons hereafter expressed, I harbor doubts about whether there could be a principled reason for defense counsel's failure to request a Wade hearing in this case. It goes without saying that I do not join in my colleague's concurring opinion.

I

My view of defendant's claim that he was deprived of the effective assistance of counsel, is informed by the way in which we should look at the out-of-court identification that was used to convict defendant.

The due process guarantees of our federal and state constitutions, at their very core, require a criminal justice system designed to generate reliable determinations. As a result, it has long been understood that due process concepts prohibit the use of identification evidence produced by events that are "so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification," Simmons v. United States, 390 U.S. 377, 384, 88 S. Ct. 967, 971, 19 L. Ed. 2d 1247, 1253 (1968), because, in the final analysis, a conviction that "rests on a mistaken identification" constitutes "a gross miscarriage of justice," Stovall v. Denno, 388 U.S. 293, 297, 87 S. Ct. 1967, 1970, 18 L. Ed. 2d 1199, 1204 (1967).

The "vagaries of eyewitness identification," as explained by Justice Brennan in his opinion for the Court in Wade, are "well-known," and "the annals of criminal law are rife with instances of mistaken identification." 388 U.S. at 228, 87 S. Ct. at 1933, 18 L. Ed. 2d at 1158. "A major factor" contributing to mistaken identification has been "the degree of suggestion inherent in the manner in which the prosecution presents the suspect to witnesses for pretrial identification." Ibid.

Since eyewitness testimony plays an influential role in many criminal prosecutions, the law insists upon a heightened concern about the reliability of such evidence. This deepening concern is warranted particularly because, as our Supreme Court has recognized, empirical studies now suggest that juries "tend to place great weight on eyewitness identifications, often ignoring other exculpatory evidence," State v. Cromedy, 158 N.J. 112, 120-21 (1999), and because the degree to which a witness expresses confidence in an identification tends also to be unduly valued by juries, see Jessica Lee, No Exigency, No Consent: Protecting Innocence Suspects From the Consequences of Non-Exigent Show-Ups, 36 Colum. Hum. Rts. L. Rev. 755, 772-74 (2005). As recently summarized by our Supreme Court, "[e]yewitness identification can be the most powerful evidence presented at trial, but it can be the most dangerous too." State v. Delgado, 188 N.J. 48, 60 (2006). This understanding has caused the Court to conclude that misidentification is now "the single greatest cause of wrongful convictions in this country." Ibid. See also Timothy P. O'Toole & Giovanna Shay, Manson v. Brathwaite Revisited: Towards a New Rule of Decision for Due Process Challenges to Eyewitness Identification Procedures, 41 Val. U. L. Rev. 109 (2006); Samuel R. Gross et al., Exonerations in the United States 1 989 Through 2003, 95 J. Crim. L. & Criminology 523 (2005); Daniel S. Medwed, Anatomy of a Wrongful Conviction: Theoretical Implications and Practical Solutions, 51 Vill. L. Rev. 337 (2006); Ruth Yacona, Comment, Manson v. Brathwaite: The Supreme Court's Misunderstanding of Eyewitness Identification, 39 J. Marshall L. Rev. 539 (2006). As a result, "our courts are obliged to utilize great care in the application of the governing principles in order to prevent an accused from being convicted on the basis of unreliable eyewitness evidence." State v. Henderson, 397 N.J. Super. 398, 416 (App. Div.), certif. granted, 195 N.J. 521 (2008).

The showup has proven to be one of the most troubling types of identification techniques used by police. In a series of cases, starting with the 1967 decisions in United States v. Wade and Stovall v. Denno, the Supreme Court developed what is known as the "totality of the circumstances" test as the means for guarding against this potentially misleading type of evidence.

In Stovall v. Denno, supra, 388 U.S. 293, 87 S. Ct. 1967, 18 L. Ed. 2d 1199, decided the same day as Wade, the Court considered the suggestiveness of a handcuffed defendant being brought to a hospital room to be viewed by a gravely-injured victim. The Court held that this process was not "so unnecessarily suggestive and conducive to irreparable mistaken identification" as to deny the defendant due process of law, but was necessary because the only person who could exonerate the defendant was in the hospital, the hospital was not far from the jail, and no one knew how long the victim would live. Id. at 302, 87 S. Ct. at 1972, 18 L. Ed. 2d at 1206.

In 1972, the Court considered whether a showup different from that considered in Stovall v. Denno was unnecessarily suggestive and whether that fact alone warranted exclusion of identification evidence. In Neil v. Biggers, 409 U.S. 188, 198-99, 93 S. Ct. 375, 382-83, 34 L. Ed. 2d 401, 411-12 (1972), a station house showup occurred seven months after the crime and was thus quite distinguishable from the exigent circumstances presented in Stovall, where the showup immediately followed the crime and the victim was gravely injured. The Court held that this lapse of time "would be a seriously negative factor in most cases," id. at 201, 93 S. Ct. at 383, 34 L. Ed. 2d at 412, but that the test remained "whether under the 'totality of the circumstances' the identification was reliable even though the confrontation procedure was suggestive," id. at 199, 93 S. Ct. at 382, 34 L. Ed. 2d at 411.

And, in seeking to resolve the nagging uncertainty in the lower federal courts about the application of the "totality of the circumstances" test in the five-year interval since Neil v. Biggers, the Court emphasized in Manson v. Brathwaite, 432 U.S. 98, 114, 97 S. Ct. 2243, 2253, 53 L. Ed. 2d 140, 154 (1977), that "reliability is the linchpin." The Court held that the factors to be considered in ascertaining the reliability of an identification -- "the opportunity of the witness to view the criminal at the time of the crime, the witness' 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" -- had to be weighed against "the corrupting effect of the suggestive identification itself." Ibid. This remains the test required by the federal constitution.

In State v. Herrera, 187 N.J. 493, 500 (2006), our Supreme Court was asked to depart from the thirty-year old Manson rule and invited to hold that the state constitution imposed more stringent limits on the use of identification evidence derived from showups. The defendant in Herrera urged the Court to "confine the use of showups to circumstances where they are absolutely necessary and are conducted in a fair manner." Ibid. There, the victim was seated in his car waiting for traffic to pass when approached by a man on a bicycle who asked for money and then assaulted him. When the victim regained consciousness, his car was gone. The defendant was apprehended, and the police brought the victim to a hospital emergency room where the defendant was present; he entered the emergency room, looked around and identified the defendant, who was seated on a hospital bed six feet away. Id. at 497. The only other persons in the room were police officers and nurses. Ibid.

The defendant argued in Herrera that "the fallibility of eyewitness identifications cannot be ignored and that current studies of post-conviction DNA exonerations show that a large majority of those wrongful convictions involved eyewitness error." Id. at 499. In considering whether to adopt a standard that would bar the use of evidence of identifications resulting from showups, the Court recognized that other states have deviated from the Supreme Court's federal jurisprudence regarding showups. Id. at 500. The Court, however, observed that the defendant failed to present this "scientific evidence" until the matter was on appeal, id. at 499, and concluded that "[u]ntil . . . convinced that a different approach is required after a proper record has been made in the trial court," it would continue to adhere to the Manson approach, id. at 504. More recently, the Court again found it inappropriate to revisit the application of the Manson test for purposes of determining whether an out-of-court identification procedure passes state constitutional muster when the issue was not raised until the filing of supplemental briefs in the Supreme Court. State v. Comer, 194 N.J. 186, 200-02 (2008). Two members of the Court again urged, as they had in Herrera, supra, 187 N.J. at 528 (Albin, J., dissenting), that the time had arrived to adopt a rule that precludes "highly suggestive identification procedures . . . except when necessary due to an exigency." 194 N.J. at 211 (Albin, J., concurring).

Although, like Herrera, Comer may be a harbinger of future change, I recognize that we remain bound to consider the sufficiency of the showup identification that occurred here through the application of the Manson "totality-of-the-circumstances" test. This test requires that a court first "ascertain whether the identification procedure was impermissibly suggestive, and, if so, whether the impermissibly suggestive procedure was nevertheless reliable." Herrera, supra, 187 N.J. at 503-04. In determining reliability, a court must consider

the opportunity of the witness to view the criminal at the time of the crime, the witness' 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. Against these factors is to be weighed the corrupting effect of the suggestive identification itself.

[Manson, supra, 432 U.S. at 114, 97 S. Ct. at 2253, 53 L. Ed. 2d at 154.]

The existing record demonstrates that defendant could have presented a persuasive argument in favor of suppression of the out-of-court identification. A showup, of course, is inherently suggestive. Additional factors demonstrate beyond doubt that the showup here was impermissibly suggestive. For example, the record before us reveals that defendant was handcuffed and in police custody when Montalvan made the identification. See State v. Herrera, supra, 187 N.J. at 504 (holding that showups are "by definition . . . suggestive because the victim can only choose from one person, and, generally, that person is in police custody"). And of particular significance is the additional highly suggestive fact that Montalvan was told by police before the showup that "[w]e have captured the guy," a comment that had a great potential to impact upon the reliability of the witness's identification. See Foster v. California, 394 U.S. 440, 443, 89 S. Ct. 1127, 1129, 22 L. Ed. 2d 402, 407 (finding suggestive the repeated statements of the police to the witness that "[t]his is the man"); State v. Delgado, supra, 188 N.J. at 60 (holding that "the dialogue between a law enforcement officer and a witness may be critical to understanding the level of confidence or uncertainty expressed in the making of an identification and whether any suggestiveness, even unconsciously, seeped into the identification process"). The first prong of the Manson test was undoubtedly present here.

In determining the reliability of Montalvan's identification of defendant as the person who robbed him, the trial judge must also consider Montalvan's credibility, as to which the existing record presents significant questions. For example, Montalvan's testimony as to the location of the showup differs from the officers' accounts in that Montalvan testified that the showup occurred at the police station, whereas the officers testified that it took place on Bergenline Avenue at 52nd Street. It should also be of interest to the judge at the Wade hearing, which will follow today's judgment, that the State was unable to meet its burden regarding the armed feature of the offenses charged through the testimony of Montalvan. The jury's rejection of Montalvan's credibility when he claimed that the thief was armed is a circumstance that could persuade the judge

that Montalvan was also not credible when he identified defendant at the showup.

II

Since defense counsel never requested a Wade hearing to test the sufficiency of the out-of-court identification, we must consider whether defendant was deprived of the effective assistance of counsel as guaranteed by the federal and state constitutions.

When a defendant claims a deprivation of the effective assistance of counsel, courts generally apply the following test:

First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable.

[Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984).]

This same test is applied when considering whether an accused has been deprived of the state constitutional promise of the effective assistance of counsel. State v. Fritz, 105 N.J. 42, 51 (1987).

Here, the existing record reveals substantial evidence of a deprivation of the effective assistance of counsel in this regard. Despite the impermissible suggestiveness of the showup that occurred here, defense counsel simply failed to seek a Wade hearing. Left to consider this question from what the present record suggests, I would be inclined to hold that this omission fell below "the range of competence demanded of attorneys in criminal cases." McMann v. Richardson, 397 U.S. 759, 771, 90 S. Ct. 1441, 1449, 25 L. Ed. 2d 763, 773 (1970). Just as one would expect a doctor, during a routine physical, to listen to the patient's heart with a stethoscope or to take a reading of the patient's blood pressure, so too should the demands of our profession require that, in the circumstances presented here, an attorney seek the suppression of an identification that occurred at what must be conceded was an impermissibly suggestive showup.

The record reveals without contradiction that, when apprehended, defendant was not in possession of a knife, which Montalvan suggested was utilized by the robber, or any other similar object, and was not in possession of any other evidence linking him to the crime. Since the only evidence linking defendant to this crime was Montalvan's identification, counsel failed to strike at the heart of the State's case when he failed to seek suppression of that evidence. This failure was, in my view, inexplicable and, if we were limited to a consideration of the existing record, I would be inclined to conclude that the first prong of the Strickland/Fritz test has been met. However, like my colleagues, I believe that fundamental fairness to the parties requires that we permit the matter to be examined further at an evidentiary hearing.

The second prong of the Strickland/Fritz test requires a showing by defendant that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698. Here, absent further evidence that may be forthcoming in the remand proceedings, I am satisfied that, if defense counsel had sought a Wade hearing, defendant would have had a reasonable chance of having the evidence excluded. The fact that the showup was impermissibly suggestive, which cannot be disputed, would have left the trial judge with the opportunity to determine, by way of the Manson test, whether the procedure nevertheless resulted in a reliable identification. I do not presume to know how the trial judge would have ruled on this question since no hearing was ever conducted. But, when viewing the existing record, I would be inclined to conclude that counsel's omission deprived defendant of a reasonable opportunity to obtain suppression of evidence relating to this impermissibly suggestive out-of-court identification. Notwithstanding those views, I agree with my colleagues that a final determination on this issue must await the results of the evidentiary hearing that we have now mandated.

In short, our solution to the issues presented, which is consistent with our approach in other cases, see State v. Johnson, 365 N.J. Super. 27, 37 (App. Div. 2003), certif. denied, 179 N.J. 372 (2004), has the salutary effect of avoiding appellate speculation at what would have been the results of a Wade hearing in this case had it been requested by defense counsel, as I believe it should have, while also providing a far more expeditious resolution of the unexplored issues without the delay normally caused by postponing the issue to a future PCR application. In this way, should there be any future appeal, our remand will provide us with the factfinder's view of the credibility of the witnesses and his view of the reliability of Montalvan's identification of defendant when weighed against the "corrupting effect of the suggestive identification itself." Manson v. Brathwaite, supra, 432 U.S. at 114, 97 S. Ct. at 2253, 53 L. Ed. 2d at 154. See State v. Henderson, supra, 397 N.J. Super. at 415.

For these reasons, I join in the judgment of the court.

 

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COLLESTER, J.A.D., concurring.

In joining the per curiam opinion, it goes without saying that I do not join in my colleague's concurring opinion. Since we both agree that the matter should be remanded for further hearing, it is not necessary to express my different view as to what is or should be the law regarding exigent showups or field identifications. However, I must state my disagreement with my colleague's finding that the trial record "reveals substantial evidence of a deprivation of the effective assistance of counsel" for not requesting a Wade hearing. The reason or strategy by trial counsel for foregoing Wade lies outside the record and will be considered on remand. What the record does show is that what the defense presented was not that the wrong person was identified but rather that the criminal event never occurred. Obviously, the issue whether defendant received ineffective assistance of counsel is to be determined by the remand judge under the Strickland/Fritz standard independent of any expressed or implicit opinion by us. Finally, I also distance myself from the suggestion that the jury did not find the victim credible. The unassailable fact is that the jury the factfinder convicted defendant of robbery based on his testimony.

 

United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967).

United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967).

The Court cited People v. Adams, 423 N.E.2d 379, 382 (N.Y. 1981), Commonwealth v. Johnson, 650 N.E.2d 1257, 1261 (Mass. 1995), and State v. Dubose, 699 N.W.2d 582, 597 (Wis. 2005), as examples of state court decisions that have departed from Manson in considering the admissibility of showup evidence based upon their state constitutions. In State v. Ramirez, 817 P.2d 774 (Utah 1991), the court adopted different reliability factors in construing its state constitution in this setting. Utah's approach has been followed by one other state. State v. Hunt, 69 P.3d 571 (Kan. 2003).

The Comer majority also "encourage[d]" parties in the future "to present a proper record in an effort to improve our standards for gauging the admissibility of out-of-court identification procedures." 194 N.J. at 201. Justice Albin predicted in his concurring opinion that "[b]ecause the majority has left the door open, the day will soon come, with the proper record, for our Court to articulate a standard in identification cases that minimizes, rather than exponentially increases, the likelihood of misidentifications and wrongful convictions." Id. at 211.

It is arguable that, at times during his testimony, Montalvan may have intended to convey that the showup occurred on Bergenline Avenue. However, Montalvan also gave the following testimony:

Q. You said the police took you to another location?

A. They took me to look for him. And then they took me to the police station to identify. The -- after I was helped by one officer, I went to speak with another detective to give him all the information. Then after I was finished with all, the police took me home.

. . . .

Q. How long was it after the robbery occurred that you told the police officers that was the person that robbed you?

A. Right away. When he took me to the station, the guy came to the station himself in another patrol car.

[Emphasis added.]

My intention in this opinion is to observe that this testimony poses questions about Montalvan's ability to recollect or convey what occurred and not to suggest that Montalvan gave a description of the showup that was inconsistent with the police version. It is for the factfinder to ultimately determine the meaning and persuasiveness of Montalvan's testimony in considering those factors to be weighed in the second prong of the Manson test.

The State's only direct proof that defendant was armed came from Montalvan. No matter how thin you slice the acquittal on the armed robbery charge, the jury's verdict reveals a rejection of Montalvan's credibility when he claimed that the robber was armed with "a knife," or what "felt" like "a knife." Just as I must concede that the jury undoubtedly found Montalvan credible in some respects I think any fair review of the evidence must conclude in a concession that the jury did not find Montalvan credible with regard to his claim that the robber was armed. Any other interpretation of the jury's verdict simply "feigns remoteness" from the facts. Vladimir Nabokov, Pale Fire (1962), line 132. See also note 8, infra.

The same day the Court decided Strickland it also decided United States v. Cronic, 466 U.S. 648, 659, 104 S. Ct. 2039, 2047, 80 L. Ed. 2d 657, 668 (1984), holding that there is a presumption of unreliability in the results of a trial if counsel "fails to subject the prosecution's case to meaningful adversarial testing." In that circumstance, a defendant need make "[n]o specific showing of prejudice." Ibid. In my view, the Court's decision in Cronic strongly suggests that an attorney's failure to seek a Wade hearing when the police procedure was impermissibly suggestive is the type of attorney error that does not require proof of the second prong of the Strickland test. Later decisions from lower courts in Cronic's wake, however, have adopted a rather limited view of what constitutes a per se deprivation. One federal court of appeals candidly stated what many other courts have demonstrated a "reluctan[ce] to extend a rule of per se prejudice in any new direction," and, when finding a new ground for such a conclusion -- such as when defense counsel was not even a member of the bar -- one court admittedly extended the per se rule "[w]ithout enthusiasm." Tippins v. Walker, 77 F.3d 682, 686 (2d Cir. 1996). Moreover, I realize that there is no evidence that our Supreme Court would view Cronic more expansively than have the lower federal courts. Indeed, it appears that our Supreme Court has embraced the same limited application of Cronic espoused by the federal courts on this point. See, e.g., State v. Allegro, 193 N.J. 352, 368-69 (2008); State v. Fisher, 156 N.J. 494, 500-01 (1998); State v. Savage, 120 N.J. 594, 616-17 (1990). Satisfied that our Supreme Court would not extend the rule in Cronic to an attorney's failure to request a Wade hearing, even in a circumstance where there could be no doubt about the impermissibly suggestive nature of the identification procedure, I recognize that the second prong of the Strickland test has application here.

I also wholeheartedly agree with what is implicit in the majority opinion -- that we should not leave the ineffective-assistance-of-counsel argument for a post-conviction relief application. It may be true that the predominant number of ineffective-assistance-of-counsel claims are left for consideration by way of a later PCR petition, I agree with the upshot of the per curiam opinion that we should not lightly postpone such a claim to a future PCR proceeding where it may languish for years, see, e.g., State v. Echols, 398 N.J. Super. 192, 199-200 (App. Div.) (observing that defendant's PCR petition in that case was not adjudicated until approximately four years after it was filed), certif. granted, 195 N.J. 522 (2008); see also the similar slow pace in adjudicating PCR applications in the cases cited in McKnight v. Office of Public Defender, 397 N.J. Super. 265, 288 (App. Div. 2007), certif. granted, 195 N.J. 419 (2008), when the issue has been defined on direct appeal and may be rapidly considered and resolved in the trial court by remanding for factfinding on that which, although visible, has yet to be fully illuminated.

It bears noting, however, that the trial judge appeared to harbor questions about the State's version of the facts and that concerns about Montalvan's credibility are not mine alone. The trial judge said the following when he sentenced defendant:

And it was -- and I no way -- no way am I second guessing the jury at all in this matter. But it was, in fact, a strange kind of factual pattern in that . . . the victim indicated he had something like -- I don't remember the exact number but something like $200 that he was holding in his hands and somehow only $5 was taken from him.

So, it's a little strange factual pattern there, although unquestionably it still qualifies as a second degree robbery.

[Emphasis added.]

Although I agree with the majority's decision to permit a hearing on the question, I do not believe the present record reveals a sound tactical reason for counsel's failure to seek a Wade hearing. I suppose it could be argued that an attorney may not wish to preview cross-examination at a pretrial hearing or to give the witness the opportunity to experience cross-examination before testifying in front of the jury. But, assuming that was what defense counsel was contemplating at the time, that rationale would, at best, suggest only a possibly sound tactic for not cross-examining the witness at the Wade hearing; it is not arguable that that would be a sound tactical reason for not seeking a Wade hearing. Even if defense counsel felt that the Wade application would likely prove unsuccessful, there remained an advantage in seeking the hearing if for no other reason than to observe the witness as he testified in advance of trial -- in other words, preview for the defense the witness's direct examination.

United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967).

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A-6156-05T4

September 22, 2008