STATE OF NEW JERSEY v. ALTEREKE NASH

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4145-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ALTEREKE NASH, a/k/a STANLEY

NASH a/k/a TERRY NASH a/k/a

WILLIE NASH,

Defendant-Appellant.

________________________________________

December 28, 2010

Submitted October 6, 2010 - Decided

Before Judges Fuentes and Ashrafi.

On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 03-06-2328.

Yvonne Smith Segars, Public Defender, attorney for appellant (Michael C. Kazer, Designated Counsel, on the brief).

Robert D. Laurino, Acting Essex County Prosecutor, attorney for respondent

(Debra G. Simms, Special Deputy Attorney General, Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Altereke Nash appeals from denial of his petition for post conviction relief (PCR) alleging ineffective assistance of counsel. We affirm.

In June 2003, defendant was indicted by a grand jury on nineteen counts involving four alleged street armed robberies that occurred from November 19 to 23, 2002. Among the charges were purposeful murder and felony murder of one of the victims, who had been shot.

In January 2005, defendant was acquitted by a jury of the murder charges and all charges related to two of the incidents. He was convicted on eight counts of the indictment arising out of the other two robberies. The convictions were for second-degree conspiracy, N.J.S.A. 2C:5-2; two counts of first-degree armed robbery, N.J.S.A. 2C:15-1; one count of second-degree robbery, N.J.S.A. 2C:15-1; two counts of third-degree unlawful possession of a firearm, N.J.S.A. 2C:39-5b; and two counts of second-degree possession of a handgun for an unlawful purpose, N.J.S.A. 2C:39-4a.

After merger of several counts, defendant was sentenced on the first-degree robbery counts to two concurrent terms of fifteen years in prison, with eighty-five percent of the term to be served before parole under the No Early Release Act (NERA), N.J.S.A.2C:43-7.2. He was also sentenced to a consecutive term of seven years in prison subject to NERA for the second-degree robbery conviction, and concurrent four-year terms on each of the two counts charging unlawful possession of a firearm. The aggregate sentence was twenty-two years in prison with no parole eligibility until eighty-five percent of that term has been served. Statutory money penalties were also imposed as part of the sentence.

On direct appeal, we affirmed defendant's conviction and sentence. State v. Nash, No. A-5392-04 (App. Div. June 1, 2007). The Supreme Court denied his petition for certification. State v. Nash, 192 N.J. 598 (2007).

In our earlier opinion on direct appeal, we summarized the facts:

Defendant was convicted for his part in a crime spree that began on November 19, 2002. At approximately 10:30 p.m. that evening, Vitor Baptista, a bartender at a restaurant on Elm Road in Newark, was walking to his car after work when a red two-door car pulled alongside him. The driver of the vehicle signaled him with his headlights, and said something that he could not hear. When he approached the driver's side window, the driver, who Baptista later identified as defendant, pointed a handgun at his chest, and demanded that he give him his money. After he gave defendant approximately $200, the car sped away. Baptista reported seeing two men in the car; although the car windows were tinted, he was able to identify defendant from a photographic display.

At approximately 10:40 p.m. that same evening, Ben Allen, Angel Mota, and Javier Colon were walking in the area of Garside and Second Avenues in Newark. Allen and Colon were walking together, while Mota was walking about thirty feet ahead of them. According to Allen, a man, who he later identified as defendant, approached the men from behind and, with gun in hand, demanded that they give him their coats. As Allen ran, he heard a shot, looked back, and saw Colon on the ground. He ran back to attend to Colon, and saw the man who had approached them enter the passenger-side door of a red, four-door car with a spoiler on the rear. He described the assailant as an African-American male, with a thin, athletic build, between five feet, eight inches and six feet tall. Allen later identified defendant's photograph from a photographic display. Colon died from a gunshot wound to the chest; the shot was fired from a distance of about twelve to eighteen inches.

Mota corroborated much of Allen's testimony. He saw the shooter with a silver handgun, and saw him get into a "darker red" car after the incident. Mota described the shooter as a thin man, slightly taller than five feet, eight inches, with a light-brown complexion. Although Mota conceded that he did not get a very good look at the suspect, he selected defendant's photograph from a display because his physical features most closely resembled those of the person he remembered. Mota admitted, however, that he, Allen, and Colon had been drinking and smoking marijuana before the incident, and that he was "kind of tipsy."

Roughly two hours later, at approximately 12:30 a.m. on November 20, Xavier Chavez was walking on North Sixth Street in Newark, when he observed a two-door, red sedan parked a few houses in front of him. Two heavily-clothed men got out of the car and walked towards him. With guns in their hands, the men began "stripping [Chavez] of [his] clothes." Chavez struggled with them, and ran away. As he ran, the men began shooting at him, but he was not hit. He was able to hide, and the men drove away.

Chavez testified that both men were wearing bandanas on their faces, but he was able to take the bandana off of one man during the struggle. Although he initially told the police that he would not be able to positively identify the man whose face he saw, he later picked defendant's picture from a display.

A few days later, at approximately 2:30 a.m. on November 23, 2002, Ricardo Pacheco, Paul Abreu, and Laura Gonzalez had just parked near Abreu's house on Pulaski Street after having returned from the Guitar Bar in Newark. As they walked to Abreu's house, they were approached from behind by two men who demanded their money. Pacheco testified that the two men took approximately $130 from him, and took Abreu's and Gonzalez's cell phones.

During the incident, an unidentified person in a white Lincoln Town Car pulled up and asked what was happening. When that occurred, the two men ran to their vehicle, which Pacheco described as a red four-door car, and drove away; the Lincoln Town Car followed it. As the cars left, Pacheco recalled hearing four gunshots. The driver of the Lincoln Town Car has not been identified.

At the police station, Pacheco identified defendant's picture. He also described defendant's car.

Gonzalez corroborated much of Pacheco's testimony. She also saw the men leave in a four-door, red car. She was never shown any photographs, and she was unable to identify either of the men.

[Nash, supra, slip op. at 5-8.]

In addition to identifications of defendant by the victims, the police obtained evidence that defendant drove a red Chevrolet Lumina and found his fingerprint on the driver's side window. A spoiler on the back of the Lumina had been pierced by a bullet hole. Also, spent shell casings and projectiles were found in the street at the scenes of three of the robberies. A ballistics expert testified that they were all fired from the same gun. The gun itself was not recovered. Defendant did not testify at trial and did not present any witnesses.

The jury convicted defendant of robbing Baptista on November 19, 2002, and Pacheco and Gonzalez on November 23, 2002. It acquitted defendant of all charges related to the robbery and shooting of Colon on November 19 and the robbery of Chavez shortly after midnight on November 20, 2002.

In April 2008, defendant filed a PCR petition alleging ineffective assistance of counsel in violation of his Sixth Amendment rights. The judge who had presided over defendant's trial denied defendant's PCR petition without holding an evidentiary hearing. On appeal, defendant makes the following arguments:

POINT I

THE COURT ERRED IN FINDING THAT POST-

CONVICTION RELIEF SHOULD BE DENIED ON PROCEDURAL GROUNDS BECAUSE THE DEFENDANT'S FOURTEENTH AMENDMENT DUE PROCESS RIGHTS TO A FAIR TRIAL, EFFECTIVE ASSISTANCE OF COUNSEL, AND A JUST SENTENCE WERE VIOLATED.

POINT II

THE COURT ERRED IN DENYING POST-CONVICTION RELIEF BECAUSE TRIAL COUNSEL'S FAILURE TO RETAIN AN EXPERT IN IDENTIFICATION AND TO OBJECT TO THE TRIAL COURT'S JURY INSTRUCTIONS ON IDENTIFICATION CONSTITUTED INEFFECTIVE ASSISTANCE OF COUNSEL.

A. TRIAL COUNSEL'S DEFICIENT

PERFORMANCE SATISFIED THE FIRST PRONG OF THE STRICKLAND/FRITZ TEST

B. TRIAL COUNSEL'S DEFICIENT PERFORMANCE SATISFIED THE SECOND PRONG OF THE STRICKLAND/FRITZ TEST

POINT III

THE COURT'S RULING DENYING POST-CONVICTION RELIEF VIOLATED THE DEFENDANT'S DUE PROCESS RIGHT TO ANCILLARY SERVICES AS GUARANTEED BY THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ARTICLE I, PARAGRAPH 1, OF THE NEW JERSEY CONSTITUTION.

POINT IV

DEFENDANT REASSERTS ALL OTHER ISSUES RAISED [IN] HIS PRO SE BRIEF IN SUPPORT OF POST-CONVICTION RELIEF AND IN PCR COUNSEL'S MEMORANDUM OF LAW IN SUPPORT OF POST-CONVICTION RELIEF.

In considering a petition for post-conviction relief, the court begins with a presumption that defendant who was represented at trial and on appeal received the assistance of counsel that is mandated by the Sixth Amendment of the United States Constitution and Article I, Paragraph 10 of the New Jersey Constitution. Strickland v. Washington, 466 U.S. 668, 689, 694, 104 S. Ct. 2052, 2065, 2068, 80 L. Ed. 2d 674, 694, 698 (1984); State v. Loftin, 191 N.J. 172, 198 (2007). Defendant bears the burden of proving that his attorney provided ineffective assistance. Ibid.

In Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693, the United States Supreme Court identified a two-part test for evaluating claims of ineffective assistance of counsel.

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.

To satisfy the second part of the Strickland test, "defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698. The Strickland test was adopted by the New Jersey Supreme Court in State v. Fritz, 105 N.J. 42 (1987).

Here, defendant argues his trial attorney was ineffective because he failed to procure the services of an identification expert to support defendant's misidentification defense. In his ruling, the trial judge stated:

[T]he court's review of the transcript and the court's own recollection is that the issue of identification was vigorously pursued by the defendant at the time of trial and was the subject of much of the trial testimony and evidence that was given over the course of those several days, when the defendant was on trial.

. . . Defense counsel . . . in my view missed no trick, left no fact uncovered with regard to the issue of misidentification and pursued it vigorously both in . . . cross-examination and in arguments to the jury at the conclusion of the case.

The court reviewed the identification instruction it had given to the jury, which was in accordance with Model Jury Charge (Criminal), "Identification: In-Court and Out-of-Court Identifications" (2007). Included in that charge were instructions regarding the trustworthiness of cross-racial identifications of strangers, as discussed in State v. Cromedy, 158 N.J. 112, 128-31 (1999). The court concluded that trial counsel had not been ineffective because he did not obtain the services of an expert to challenge the ability of the victims to identify their assailant.

Our standard of review is plenary on questions of law in a PCR appeal, but the factual findings of the trial court are granted deference if they are supported by adequate, substantial, and credible evidence. See State v. Harris, 181 N.J. 391, 415 (2004), cert. denied, 545 U.S. 1145, 125 S. Ct. 2973, 162 L. Ed. 2d 898 (2005).

We agree with the trial court's conclusion that defendant did not satisfy either part of the Strickland test for ineffective assistance of counsel. The split verdict suggests that the jury heard and followed the court's instructions on identification. They acquitted defendant of all charges in two of the incidents despite eyewitness identification of defendant and corroborating evidence that shell casings and projectiles retrieved from the street were fired from the same gun as those found at the scene of one of the robberies that the jury found defendant had committed. Apparently, the jury did not find identification evidence beyond a reasonable doubt in two of the four incidents. Defendant has no evidence, from the record or otherwise, to suggest that the jury placed undue weight on identification testimony of victim-eyewitnesses or misunderstood the court's instructions.

In his PCR petition, defendant has not proffered any expert opinion regarding misidentification that would add to the record established during the trial. Without at least a proffer of the evidence that defense counsel allegedly failed to gather, defendant has not shown a prima facie case of ineffective assistance of his trial counsel. See Cf. State v. Jack, 144 N.J. 240, 254 (1996) (necessity of establishing a prima facie case of ineffective assistance of counsel by presenting expert evidence to support contentions).

Furthermore, in State v. Long, 119 N.J. 439, 495-96 (1990), the Supreme Court held it was not an abuse of discretion to exclude proffered testimony of a defense misidentification expert. As the trial court stated in this case, there was no assurance that an expert witness would have been permitted to testify if defense counsel had procured one.

Defendant also contends, without elaboration in his appellate brief, that he was denied ancillary services related to use of a defense expert, that his attorney failed to request a stronger jury instruction on identification issues, and that his sentence was excessive.

As to ancillary services, there is no record that defendant requested such services and they were denied. Also, since we have concluded that defense counsel's performance was not deficient for failing to obtain expert testimony, we find no merit in the argument that defendant's due process rights were violated by failure to obtain ancillary services to procure such a witness.

The other allegations of trial or sentencing error refer to matters that were or could have been raised in the trial court or on direct appeal. Such claims are barred in a PCR petition by Rules 3:22-4 and -5. See State v. Murray, 315 N.J. Super. 535, 539-40 (App. Div. 1998), modified on other grounds, 162 N.J. 240 (2000).

Finally, an evidentiary hearing may be required where ineffective assistance of counsel is alleged and matters beyond the trial record must be examined, see State v. Preciose, 129 N.J. 451, 462 (1992), but we review the PCR court's determination to decide the matter without holding an evidentiary hearing under the abuse of discretion standard of review. State v. Marshall, 148 N.J. 89, 157-58, cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997). "If the court perceives that holding an evidentiary hearing 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, . . . then an evidentiary hearing need not be granted." Id.at 158 (citing State v. Flores, 228 N.J. Super.586, 590 (App. Div. 1988), certif. denied, 115 N.J.78 (1989); Preciose, supra, 129 N.J.at 464-64; and State v. Odom, 113 N.J. Super.186, 192 (App. Div. 1971)).

Here, we find no abuse of discretion in the trial court's denial of defendant's PCR petition without holding an evidentiary hearing.

A