STATE OF NEW JERSEY v. JERMAINE A. HARRIS

(NOTE: The status of this decision is published.)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1652-07T41652-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JERMAINE A. HARRIS,

Defendant-Appellant.

________________________________________________________________

 

Submitted January 12, 2009 - Decided

Before Judges Carchman and R. B.

Coleman.

On appeal from the Superior Court of

New Jersey, Law Division, Atlantic

County, Indictment No. 05-10-2294.

Yvonne Smith Segars, Public Defender,

attorney for appellant (Raquel Y.

Bristol, Assistant Deputy Public

Defender, of counsel and on the brief).

Theodore F. L. Housel, Atlantic County

Prosecutor, attorney for respondent

(Jack J. Lipari, Assistant County

Prosecutor, of counsel and on the

brief).

PER CURIAM

Following a jury trial, defendant Jermaine Harris was convicted of second-degree conspiracy to commit robbery, N.J.S.A. 2C:5-2; first-degree robbery, N.J.S.A. 2C:15-1; second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4A; third-degree unlawful possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-5B; fourth-degree aggravated assault, N.J.S.A. 2C:12-1b(4); and second-degree certain persons not to have weapons, N.J.S.A. 2C:39-7. After denial of the State's motion for an extended term and after appropriate mergers, defendant was sentenced to a maximum prison term of twenty years on the armed robbery charge with an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act (N.E.R.A.), N.J.S.A. 2C:43-7.2, and on the last weapons offense, to a consecutive term of ten years with five years parole ineligibility together with mandated fines and penalties. Defendant appeals, and we affirm.

These are the relevant facts adduced at trial. On the evening of August 5, 2005, Tair Jumaniyaazoe was working alone at a Citgo Gas Station in Pleasantville, New Jersey at 10:30 p.m. As he was pumping gas, two men approached him and asked to buy cigarettes. Tair stepped inside the booth while the two men waited outside. As Tair was retrieving the cigarettes, the men stepped inside the booth. When Tair turned around, he observed one of the men pointing a gun at his lower back while the other man emptied the drawers looking for money. Tair indicated that both men were black males and both were approximately six feet tall. The gunman was wearing a white shirt, blue jeans, boots and a black hat with the letter "P" on it. The gunman had a thick beard and neck-length braids. The other man was wearing a white t-shirt and stone-washed blue jeans. He had a "fresh haircut" with a "thin" beard. Tair described the gun as "brown stock," old fashioned with a "long barrel" and a "classic."

The gunman took the cash from Tair while the second man took rolled change from the drawers and put them inside a Designer Shoe Warehouse (DSW) bag that had previously contained Tair's dinner. Tair estimated that about $116 to $130 in cash was taken. The men then cut the fax line and walked away from the gas station. The whole incident lasted approximately three minutes. After the two men left, Tair used his cellular phone to call the police. Immediately thereafter, at about 10:30 p.m., Pleasantville police officers arrived at the scene. Tair told the officers that he had been robbed, described the robbers and told them how the robbery had occurred.

Approximately twenty-minutes later, at about 10:50 p.m., Atlantic City K-9 Patrolman Salvatore Rando observed a red vehicle traveling in the opposite direction from the gas station. Patrolman Rando radioed for back-up and followed the car. The car eventually pulled over to the side of the road, and two passengers exited the vehicle. Defendant exited out of the driver's side, and an individual named Blair Williams exited out of the passenger side. Patrolman Rando approached defendant and Williams and spoke to them while awaiting back-up. Within seconds several officers arrived and "secured" defendant and Williams.

Patrolman Rando inspected the vehicle with a flashlight and "immediately" saw "a long barreled handgun" underneath the seat cushion on the passenger's side. Patrolman Rando also found a DSW bag between the two front seats with rolls of coins inside. At a later time, Pleasantville police officer Richard Henderson observed a black hat embossed with a "P" and a scarf in the back seat of the vehicle.

The Pleasantville police received notification that the Atlantic City police had located some suspects. Tair and another witness, Mr. Ernesto Santos, were driven to Atlantic City to view the suspects; they did not speak to each other while traveling. Once the two witnesses arrived in Atlantic City, defendant and Williams were taken out of the police vehicle. They stood in the street in full frontal view with their hands cuffed behind their backs and spotlights used for illumination. While sitting in the back seat of the patrol car, Tair and the witness identified defendant and Williams as the robbers. At the time, neither defendant nor Williams had neck length braids. Defendant and Williams were initially processed in Atlantic City.

The next day the two men were transferred to the Pleasantville Police Department to be processed. Defendant had $125, a "pair of jean shorts, a pair of olive Timberland boots, black doo rag, shoelaces, black belt, black wrist band, [and a] Timberland leather key chain." Williams had $25.

Defendant was tried separately and during the trial, Christopher Hallett, an investigator for the Atlantic County Prosecutor's Office, discussed all of the efforts he made in procuring the second witness, Santos. Investigator Hallett testified that he was assigned to the case and interviewed Santos on January 31, 2007. However, when Investigator Hallet made several attempts to contact Santos in preparation for trial, he was unable to do so.

Defendant testified at trial. Defendant stated that Blair Williams was a childhood friend that he had not seen in a while. He met Williams in Camden; and Williams invited defendant to his apartment to "catch up on old times." Once they were in the apartment, Williams stated that he wanted to go to a liquor store and pick up some cigars so they can "get reacquainted." Defendant had no idea where the liquor store or the Citgo gas station was in relation to Williams' apartment. Five to ten minutes later, Williams returned with nothing in his hands. Williams told defendant that they were going to drive to Atlantic City to pick up his girlfriend at work. Williams stated that he was late picking up his girlfriend "Pinky" and that he wanted defendant to drive so that they could use defendant's unfamiliarity with the area as an excuse for the lateness. Williams directed defendant, telling him exactly where to drive. Once they arrived in Atlantic City, Williams told defendant to make a right turn and to pull over. Defendant then assumed that they had arrived at their destination and exited the vehicle. At this point, they were stopped by K-9 Patrolman Rando. Defendant denied that he was at the gas station at the time of the robbery and claimed that he never saw the gun that was found in the car.

On appeal, defendant asserts:

POINT I

THE POLICE OFFICERS' REPEATED REFERENCES TO THE PRESENCE OF A NON-TESTIFYING EYEWITNESS AT THE SHOW-UP WHERE DEFENDANT WAS IDENTIFIED AS A ROBBER, CONSTITUTED A BANKSTON ERROR. MOREOVER, THE COURT'S FAILURE TO GIVE THE JURY A CLAWANS INSTRUCTION SUA SPONTE, AFTER ALLOWING THE STATE TO ELICIT TESTIMONY FROM AN INVESTIGATOR IN ORDER TO JUSTIFY THE ABSENCE OF SUCH WITNESS, WAS ALSO ERROR. INDIVIDUALLY AND CUMULATIVELY, THESE CONSTITUTE VIOLATIONS OF DEFENDANT'S RIGHTS TO DUE PROCESS, A FAIR TRIAL, AND WITNESS CONFRONTATION, U.S. CONST. AMENDS. VI, XIV; N.J. CONST. (1947) ART. I, 1, 9, 10. (Partially Raised Below).

A. Repeated References To The Presence Of A Non-Testifying Witness At The Show-Up Constitutes Bankston Error.

B. The Introduction Of Hearsay By A Non-Testifying Witness, Albeit By Implication, Violates The Confrontation Clause.

C. The Court Erred In Failing To Sua Sponte Charge The Jury Pursuant To Clawans.

POINT II

THE "SHOW-UP" PROCEDURE USED BY THE POLICE WAS IMPERMISSIBLY SUGGESTIVE AND DEFENSE COUNSEL'S FAILURE TO REQUEST A WADE HEARING CONSTITUTED INEFFECTIVE ASSISTANCE OF COUNSEL, U.S. CONST. AMENDS. VI, XIV; N.J. CONST. ART. I, 1, 10. (Not raised below).

A. The "Show-Up" Procedure Was Impermissibly Suggestive And Created A Very Substantial Likelihood Of Irreparable Misidentification.

B. Defense Counsel's Failure To Request A Wade Hearing On The Issue Of The Suggestiveness And Reliability Of The Out-Of-Court Identification Constituted Ineffective Assistance Of Counsel.

POINT III

DEFENDANT'S MOTION FOR A MISTRIAL SHOULD HAVE BEEN GRANTED AS A RESULT OF PROSECUTORIAL MISCONDUCT.

A. The Prosecutor Impliedly Labeled The Defendant A Career Criminal.

B. The Prosecutor Expressed His Personal Opinion About How The Jury Should Resolve Evidentiary Inconsistencies In The State's Favor.

POINT IV

DEFENDANT'S SENTENCE IS EXCESSIVE.

Defendant asserts in related arguments, that repeated references to Santos, the non-testifying witness who accompanied Tair to the show-up identification, constituted reversible error. He asserts that such comments violate State v. Bankston, 63 N.J. 263 (1973). Additionally, defendant notes that such references violates the Confrontation Clause. His argument is premised on the theory that repeated references to Santos, a second non-testifying eye-witness present at the show-up, served to "bolster the credibility of the testifying witness" and was improper hearsay.

Clearly, there were various references to more than one witness at the show-up. At various times during the trial, Tair and Santos were referred to in the plural, and at least one point, an officer identified Santos as being present. Defense counsel did raise an objection to the references to Santos, the unavailable witness. During side-bar, the following discussion took place:

[DEFENSE COUNSEL]: To avoid a situation that is coming up here, I see they are he is using this phrase: They...they...they...I don't believe the prosecutor has indicated he intends to put Mr. Santos on the stand. I want to make sure that if he's not going to try to elicit from this officer how the identifications went and what words this guy said Santos said this hearsay as well even for Tair that this officer will say that Tair

THE COURT: Is Santos testifying?

[PROSECUTOR]: First of all, I was not going to go there. We can't find Santos. He certainly can testify to a prior identification Tair

THE COURT: If who made it?

[DEFENSE COUNSEL]: Testified that this other person who is not testifying.

[PROSECUTOR]: No, he is going to testify that Tair made the identification, that's it. I am not going to get into Santos.

[DEFENSE COUNSEL] Okay. I heard, they...they; I wanted to make sure.

THE COURT: Okay.

Critically, the record is devoid of any reference to Santos making a positive or negative identification of the defendant. The only testimony referring to Santos, thereafter, addressed the State's inability to locate Santos for trial.

Defendant argues that "[t]he logical reasoning is: If Santos and Tair were seated in the same patrol car, and taken to the same place, for the same purpose, then they must have made the same identification." Consequently, the repeated references to Santos at the show-up "impliedly corroborated" Tair's positive identification of defendant. Defendant claims that this inference is analogous to impermissible hearsay that arises when a testifying witness repeats statements made by a non-testifying witness, which is a violation of Bankston. We reject this as pure conjecture.

In Bankston, defendant was convicted for possession of heroin. Bankston, supra, 63 N.J. at 266. During the opening statement the prosecution stated that the defendant was under "investigation." During trial, a detective testified that they had entered the bar and arrested defendant based on a tip from an informant. The detective stated, "we were looking for a certain individual. We had a description of his clothing. He was inside the tavern . . . . We were looking for an individual that had narcotics in his possession." Ibid. The Supreme Court noted that a police officer can explain "the reason he approached a suspect or went to the scene of the crime by stating that he did so 'upon information received[]'" to "show that the officer was not acting in an arbitrary manner or to explain his subsequent conduct." Id. at 268. However, "when the officer becomes more specific by repeating what some other person told him concerning a crime by the accused[,] the testimony violates the hearsay rule . . . [and his] Sixth Amendment right to be confronted by witnesses against him." Id. at 268-69. The Court noted that "[w]hen the logical implication to be drawn from the testimony leads the jury to believe that a non-testifying witness has given the police evidence of the accused's guilt, the testimony should be disallowed as hearsay." Id. at 271. The Court found that the "inescapable inference from [the detective's] testimony was that the informer had given information that defendant would have narcotics in his possession" and reversed the conviction. Ibid.

The Court further explained Bankston and subsequent cases by stating that "'[t]he common thread that runs through [the Bankston cases] is that a police officer may not imply to the jury that he possesses superior knowledge, outside the record, that incriminates the defendant.'" State v. Kemp, 195 N.J. 136, 155 (2008)(quoting State v. Branch, 182 N.J. 338, 351 (2005)). Therefore, a police officer is allowed to use the phrase "based on information received" to explain his actions "only if necessary to rebut a suggestion that they acted arbitrarily and only if the use of that phrase does not create an inference that the defendant has been implicated in a crime by some unknown person." Branch, supra, 182 N.J. at 352.

Here, defendant argues that the officers' references to Santos created the implication that Santos had positively identified defendant as one of the robbers. In other words, the officers "possesse[d] superior knowledge, outside the record, that incriminate[d] defendant." Kemp, supra, 195 N.J. at 155. This implication was bolstered by the fact that the State offered testimony from Investigator Hallett to explain the reason why Santos was not available as a witness.

We agree with the State that the limited references to Santos leads to "considerable speculation" as to the impact it had on bolstering Tair's testimony. Further, the State correctly notes that its proffer of testimony as to the reason why Santos was unavailable was to counter any negative inferences that could be drawn from his absence.

Defendant's argument is without merit. At trial, the State presented only the victim's own identification of defendant. References to Santos were contextually appropriate and would not lead to the "inescapable" implication that Santos made a positive identification. Tair's positive identification of the suspects minimized any speculation as to whether or not Santos made a positive identification.

We reach a similar result as to the Confrontation Clause. Defendant argues that the references made to Santos implied that he had positively identified the defendant, which constitutes a violation of the Confrontation Clause of the Sixth Amendment, U.S. Const. amend. VI, and our own State Constitution, N.J. Const. art. I, 10.

Both the Sixth Amendment of the Constitution and Article Ten of our State Constitution provide that "'[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him[.]'" State v. Buda, 195 N.J. 278, 299 (2008) (quoting U.S. Const. amend. VI; N.J. Const. art. I, 10). In Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004), the United States Supreme Court adopted a two-pronged test: "Testimonial statements of witnesses absent from trial [may be] admitted only where the declarant is unavailable, and only where the defendant has had a prior opportunity to cross-examine." Id. at 59, 124 S. Ct. at 1369. The Court noted that "[t]he text of the Confrontation Clause . . . applies to 'witnesses' against the accused - in other words, those who 'bear testimony.'" Id. at 51, 124 S. Ct. at 1364, 158 L. Ed. 2d at 197 (citations omitted). It further stated that "'[t]estimony,' in turn, is typically '[a] solemn declaration or affirmation made for the purpose of establishing or proving some fact.'" Ibid. (citation omitted). The Court noted that "[a]n accuser who makes a formal statement to government officers bears testimony in a sense that a person who makes a casual remark to an acquaintance does not." Ibid.

However, the Court declined to provide a bright line definition of what constitutes "testimony." Among other things, it stated that "the admissibility of non-hearsay testimonial statements is not affected or otherwise influenced by Confrontation Clause considerations." Buda, supra., 195 N.J. at 301 (citing Crawford, supra, 541 U.S. at 59 n.9, 124 S. Ct. at 1369 n.9., 158 L. Ed. 2d at 197 n.9).

Defendant argues that the testimony referring to Santos was testimonial in nature because it created the implication that Santos identified Harris. We reach the same result here as we did with the earlier thematic argument - the limited references to Santos were neither hearsay nor do they implicate the Confrontation Clause.

Defendant next argues that because the reference to Santos unduly prejudiced defendant, the trial judge should have sua sponte given a Clawans charge, instructing the jury it could draw a negative inference against the State for its failure to produce Santos as a witness.

Since no request for such a charge was made, we review this claim under the "plain error" rule. Under this rule, we "must disregard any error unless it is 'clearly capable of producing an unjust result.' Reversal of defendant's conviction is required only if there was error 'sufficient to raise a reasonable doubt as to whether [it] led the jury to a result it otherwise might not have reached.'" State v. Atwater, 400 N.J. Super. 319, 336 (App. Div. 2008) (quoting State v. Daniels, 182 N.J. 80, 95, (2004); R. 2:10-2).

In Clawans, supra, 38 N.J. 162, the Court noted that, "[g]enerally, failure of a party to produce before a trial tribunal proof which, it appears, would serve to elucidate the facts in issue, raises a natural inference that the party so failing fears exposure of those facts would be unfavorable to him." Id. at 170. However, the Court indicated that for an adverse inference charge to be made against a party, the witness must be "within the power of the party to produce" and the proffered testimony must be "superior to that already utilized in respect to the fact to be proved." Id. at 171. See also State v. LaBrutto, 114 N.J. 187, 202-203 (1989) (noting that "an adverse inference may be drawn against a party from the failure to produce a witness if (1) that party had the power to produce the witness, and (2) the witness' testimony would have been superior to that of the witnesses who did actually testify."); State v. Velasquez, 391 N.J. Super. 291, 309 (App. Div. 2007) (listing circumstances in which an adverse inference is unwarranted).

We offered further guidance for trial judges when making a determination whether to grant a Clawans charge and said that a trial judge should determine:

(1) that the uncalled witness is peculiarly within the control or power of only the one party, or that there is a special relationship between the party and the witness or the party has superior knowledge of the identity of the witness or of the testimony the witness might be expected to give; (2) that the witness is available to that party both practically and physically; (3) that the testimony of the uncalled witness will elucidate relevant and critical facts in issue[;] and (4) that such testimony appears to be superior to that already utilized in respect to the fact to be proven.

 
[Nisivoccia v. Ademhill Associates, 286 N.J. Super. 419, 428 (App. Div. 1996) (quoting State v. Hickman, 204 N.J. Super. 409, 414 (App. Div. 1985), certif. den., 103 N.J. 495 (1986)).]

Here, Santos was not "peculiarly within the control" of the State, nor was there a special relationship between the State and Santos. Santos was merely a witness that the State had previously interviewed. Furthermore, nothing suggests that Santos' testimony was superior to Tair's testimony. If at best, Santos' testimony corroborated Tair's, it would have been of equal value. Nothing in the record supports the contention that Santos had some other information that would have made his identification superior to Tair's identification. The failure to provide a Clawans charge to the jury was not plain error; moreover, defendant may not have been entitled to such charge even if requested.

Defendant asserts that the show-up procedure was impermissibly suggestive and created a likelihood of misidentification. Defendant argues that the show-up procedure was impermissibly suggestive because the identification was made in custodial circumstances; Tair's description of the robbers lacked "key details regarding the description of the individual's appearances"; and Tair's identification of defendant was "heightened" by the presence of Williams and Santos' positive identification. We disagree.

The New Jersey Supreme Court has adopted the United States Supreme Court's two-step analysis to determine the admissibility of out-of-court identifications. See Manson v. Brathwaite, 432 U.S. 98, 110, 97 S. Ct. 2243, 2251, 53 L. Ed. 2d 140, 151 (1977); Neil v. Biggers, 409 U.S. 188, 198-99, 93 S. Ct. 375, 382, 34 L. Ed. 2d 401, 411 (1972); State v. Madison, 109 N.J. 223, 233 (1988). First, a reviewing court must determine "whether the identification procedure was impermissibly suggestive." State v. Romero, 191 N.J. 59, 76 (2007)(citation omitted). If it determines that the procedure was impermissibly suggestive, a court must determine "whether the impermissibly suggestive procedure was nevertheless reliable" by considering the "totality of the circumstances" and "weighing the suggestive nature of the identification against the reliability of the identification." Ibid. The Supreme Court has held that "reliability is the linchpin in determining the admissibility of identification testimony." Manson, supra, 432 U.S. at 114, 97 S. Ct. at 2253, 53 L. Ed. 2d at 153.

Our Supreme Court has noted that "one-on-one showups are inherently suggestive" and "only a little more is required in a showup to tip the scale toward impermissibly suggestive[.]" State v. Herrera, 187 N.J. 493, 504 (2006). However, "standing alone a showup is not so impermissibly suggestive to warrant proceeding to the second step." Ibid. Show-ups have been permitted because "they are likely to be accurate, taking place, as they do, before memory has faded and because they facilitate and enhance fast and effective police action and they tend to avoid or minimize inconvenience and embarrassment to the innocent." Ibid. (internal quotations and editing marks omitted). Therefore, "[e]ach showup setting must necessarily stand or fall on its own unique facts." Romero, supra, 191 N.J. at 77.

In Herrera, supra, the victim was assaulted, his car was stolen, and he was hospitalized. Police subsequently told the victim "we found your car, we located your car with somebody in it, we want you to come with us to identify the person." Id. at 506. Our Court has noted that these comments made the showup impermissibly suggestive because "they may have influenced the victim to develop a firmer resolve to identify someone he might otherwise have been uncertain was the culprit." Ibid.

In Romero, supra, the victim, who had previously been attacked, chanced upon someone he believed to be his attacker and "recognized" his face immediately. Id. at 77. The victim called the police and described the assailant. After some searching, the police saw the defendant, who matched the description, and arrested him. The police then drove the defendant to the victim's home, told the victim "we have somebody that fits the description [that] you described," and asked "[w]hy don't you take a walk around the corner with us and see if this is the person." Id. at 77-78. The victim viewed the defendant through the side window of the patrol car and identified him as his attacker. Id. at 78. The Court distinguished the facts from Herrera and held that the show-up was not impermissibly suggestive for several reasons: (1) it appeared that the police was motivated by a concern not to detain a potentially innocent person; (2) the police merely told the victim that "they had detained someone who fit the description given by [the victim] minutes earlier"[;] (3) that when presenting a man fitting the victim's "unsolicited description, the police made no representations that he was the man who attacked [the victim], only that he matched [the victim]'s description"[;] and (4) "[t]he fact that defendant was handcuffed in the police car did not convert this showup identification into one that was impermissibly suggestive." Id. at 78-79.

In State v. Wilson, 362 N.J. Super. 319, 327 (App. Div. 2003), which was approvingly cited by Romero, we found that the witnesses' identification of the defendant seated and handcuffed in the back of the police car was suggestive but that "such suggestive circumstances did not render the identification procedure per se improper and unconstitutional." Ibid.

Here, the show-up was not impermissibly suggestive. The show-up was conducted as soon as possible after the suspects were apprehended, thirty to forty minutes after the initial observation, while the witnesses' memories were still fresh. Tair and Santos were instructed not to speak to each other while they were being driven to Atlantic City, and they complied. The fact that the suspects were handcuffed does not make it "per se improper." Ibid. Officer Henderson, while transporting Tair and Santos to Atlantic City, told them, "[t]hese may be possibl[y the culprits], it may not be" and "I want you to view these guys at this point and . . . it's up to you guys to let me know if these are the individuals . . . who came to the gas station." Nothing in the record suggests that the police influenced the witnesses in any way.

When determining whether the impermissibly suggestive show-up procedure was nevertheless sufficiently reliable to warrant the admissibility of the identification by the victim, courts must consider the totality of the circumstances surrounding the identification procedure and weigh the Manson factors against the "corrupting effect of the suggestive procedure." Herrera, supra, 187 N.J. at 506-07 (quoting State v. Madison, 109 N.J. 223, 240 (1988)). The factors listed in Mason are "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." Manson, supra, 432 U.S. at 114, 97 S. Ct. at 2253, 53 L. Ed. 2d at 151.
Our review of the Mason factors supports a reliable identification. Tair indicated that he "took an opportunity to get a good look at [the robbers]" during the robbery and scanned them while they were walking away in order to "report [it] to the police." He paid attention to details such as the face, height, shoes, weight and hair style and was able to provide a detailed description of each robber -- what they were wearing, their haircuts, facial hair -- which matched the descriptions of the suspects. The only detail that did not match was that Tair described the gunman as having neck-length braids, but, at the time, neither defendant nor Williams had neck-length braids. During the show-up procedure, Tair's identification of defendant was immediate and positive; he showed no hesitancy. We conclude that Tair's identification was sufficiently reliable to overcome any claim of an impermissibly suggestive showup procedure.

We, likewise, reject defendant's claim that counsel's failure to request a Wade hearing constituted ineffective assistance of counsel. While we could defer this claim to an application for Post-Conviction Relief, Rule 3:22-1, we are satisfied that the record is sufficient to address this claim with finality.

We restate the basic principles that apply to such a claim. When determining if defendant established a prima facie claim of ineffective assistance of counsel, "courts should view the facts in the light most favorable to a defendant." State v. Preciose, 129 N.J. 451, 462-63 (1992). To establish a prima facie claim of ineffective assistance of counsel, the applicable test is set forth in Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 2068, 80 L. Ed. 2d 674, 693 (1984) and United States v. Cronic, 466 U.S. 648, 104 S. Ct. 2039, 80 L. Ed. 2d 657 (1984), adopted by the Supreme Court of New Jersey in State v. Fritz, 105 N.J. 42, 58 (1987). Under the Strickland-Cronic-Fritz standard, defendant must prove that: "1) counsel's performance was deficient and that 2) there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." State v. Allegro, 193 N.J. 352, 366 (2008) (quoting State v. Loftin, 191 N.J. 172, 197-98, (2007)) (internal quotation marks omitted). To restate, "a defendant must prove an objectively deficient performance by defense counsel, and that such deficient performance so inured to the defendant's prejudice that it is reasonably probable that the result would be altered." Allegro, supra, 193 N.J. at 366.
Here, defendant cannot succeed on the second prong of the Strickland-Cronic-Fritz standard since, as we have determined, the show-up procedure was not impermissibly suggestive, and the identification was reliable.

We also reject defendant's remaining arguments that the prosecutor's comments were inappropriate, and defendant's sentence was excessive. Contrary to defendant's assertions, the prosecutor neither labeled him a "career criminal" nor commented on his economic status, and the prosecutor's comments were within the bounds of propriety; moreover, we do not discern that the prosecutor interjected his personal opinion when presenting his opening.

Finally, we find no abuse of discretion in the sentence imposed by the trial judge. Defendant's claim that his conduct caused "no serious harm" and that this mitigating factor should have been considered by the judge fails to recognize that factor also includes "threatened serious harm." N.J.S.A. 2C:44-1(b)(1). Pointing a handgun at a person's lower back during the course of a robbery precludes consideration of that mitigating factor. So, too, Judge Donio's observed at sentencing:

[T]he Court is aware that since this is a No Early Release case sentence with consecutive period of parole ineligibility on the possession by a convicted felon, that, "The Court must, in fact, consider the totality of the circumstances and also the real time that the defendant will be incarcerated for violating the laws of this state." That's under State v. Marinez, 370 N.J. Super. 49, [(App. Div. 2004).]

We find that the sentence imposed was not an abuse of the judge's sentencing authority or discretion.

Affirmed.

 

For ease of reference, we refer to this witness by his first name.

State v. Clawans, 38 N.J. 162 (1962).

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

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A-1652-07T4

March 23, 2009