STATE OF NEW JERSEY v. CALVIN GARNETT

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

CALVIN GARNETT,

Defendant-Appellant.

_________________________________

December 10, 2015

Submitted October 20, 2015 Decided

Before Judges Reisner and Whipple.

On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 08-12-3570.

Joseph E. Krakora, Public Defender, attorney for appellant (Richard Sparaco, Designated Counsel, on the brief).

Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Barbara A. Rosenkrans,Special DeputyAttorney General/Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant appeals from a January 24, 2014 order denying his application for post-conviction relief (PCR) without an evidentiary hearing. For the reasons that follow, we affirm.

At 1:45 a.m. on July 27, 2008, Mr. Williams, Mr. Johnson and Ms. Timothy were robbed while sitting in Mr. Johnson's car in Irvington. The robber pointed a gun at Williams and took money, cell phones and a silver-colored chain with a cross. As the three victims were driving away, they saw the perpetrator walking along the street with two other persons. Williams saw that the perpetrator was wearing his chain and called the police. The dispatcher directed the victims to a nearby fast-food restaurant because a police officer was at that location.

When they arrived there, the victims reported the incident to the officer and described the perpetrator. Patrolman Barry Zepeda was on patrol and proceeded to the place where the suspects had been seen.

Zepeda observed three African-American males walking away from him. One of the individuals matched the description of the perpetrator. Zepeda drove up and ordered the three men to stop. Two of the men stopped but a third, who matched the description of the armed robber, began running away. Another patrol unit arrived. One officer remained at the scene, while Zepeda and another officer chased the suspect into the basement of a building. In a basement apartment, the officers saw the suspect bent down near a bookcase. Zepeda apprehended the suspect and the other officer recovered a nine millimeter, black, semi-automatic handgun, which contained eight hollow-point bullets.

Johnson went with the police for a show-up identification where Zepeda had apprehended the three men. The three men were standing by a fence and Johnson positively identified defendant as the man with the gun who robbed them. Later, Johnson went to Irvington police headquarters and identified photographs of the chain, a handgun, and a bandana. Johnson also identified defendant as the perpetrator from a photograph. Several days later, Williams gave a statement to the police. He also identified the gun used by the perpetrator, as well as the bandana defendant had been wearing and selected defendant's photo from an array as the perpetrator. While at headquarters his necklace was returned to him.

Defendant was charged with three counts of first-degree robbery, three counts of fourth-degree aggravated assault, second-degree unlawful possession of a weapon, second-degree possession of a weapon for an unlawful purpose, fourth-degree unlawful possession of a defaced firearm, fourth-degree unlawful possession of hollow-point bullets, and fourth-degree resisting arrest.

At trial, Johnson testified that when the police brought him to identify the suspect, defendant was among a group of individuals who had been stopped. Defense counsel objected explaining that he was previously unaware that there had been a show-up identification and had he known the details of the in-person identification, he would have requested a Wade1 hearing. He moved for a N.J.R.E. 104 hearing in order to ascertain what happened at the show-up. During the N.J.R.E. 104 hearing, Zepeda testified that he saw defendant and two other black males, wearing black tee-shirts and blue jeans in front of a house on Norwood Avenue and detained them. Two other officers brought Johnson to the scene to conduct a show-up identification. After hearing Zepeda's testimony, defense counsel did not move for a Wade hearing and the trial continued.

When Williams testified, he was shown a photograph of a chain and a cross which he identified as the chain stolen from him on the morning of July 27, 2008. This photograph was admitted into evidence without objection. Williams had brought what he said was the stolen chain to the trial and was cross-examined about how he had altered it since the night of the robbery by removing the cross and adding links to the chain. It was also admitted into evidence.

Defendant was found guilty on three counts of first-degree robbery and other offenses. He was sentencedon June 4, 2010. After merging count eight (charging possession of weapon for an unlawful purpose) with counts one, three and five (charging armed robbery), the court sentenced defendant to an aggregate term of twelve years of incarceration, with a period of parole ineligibility as prescribed by the No Early Release Act, N.J.S.A. 2C:43-7.2.

Defendant's conviction was affirmed on appeal, State v. Garnett, No. A-2933-10 (App. Div. May 30, 2012), and his petition for certification was denied on November 16, 2012. State v. Garnett, 212 N.J. 456 (2012). On March 20, 2013, defendant filed a petition for PCR alleging that he was denied effective assistance of counsel which the trial court denied on January 24, 2014. This appeal followed.2

On appeal, defendant argues

I. POST CONVICTION RELIEF SHOULD HAVE BEEN GRANTED WHERE DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL DUE TO COUNSEL'S FAILURE TO FILE A WADE MOTION IN LIGHT OF CLEAR EVIDENCE OF UNDUE SUGGESTIVENESS, AND, BUT FOR COUNSEL'S ERRORS, THE RESULT WOULD HAVE BEEN DIFFERENT.

II. DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL DUE TO COUNSEL'S FAILURE TO AGGRESSIVELY ATTACK THE EVIDENCE OF THE PROCEEDS OF THE ROBBERY.

We reject defendant's claim that he should have been granted PCR based on ineffective assistance of counsel. To prevail on a claim of ineffective assistance of counsel, defendant must meet the two-prong test of establishing both that: (l) counsel's performance was deficient and he or she made errors that were so egregious that counsel was not functioning effectively as guaranteed by the Sixth Amendment to the United States Constitution; and (2) the defect in performance prejudiced defendant's rights to a fair trial such that there exists a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington, 466 U.S. 668, 687, 694, 104 S. Ct. 2052, 2064, 2068, 80 L. Ed. 2d 674, 693, 698 (1984); State v. Fritz, 105 N.J. 42, 52, (l987).

Defendant failed to show that trial counsel's decision not to move for a Wade hearing fell below a level of "reasonable competence." Indeed, at trial, defense counsel noted potential issues with the out-of-court identification and asked for a Rule 104 hearing where he was able to ascertain more details about the facts surrounding the show-up. With the information he gathered from the hearing, trial counsel did not further pursue a Wade hearing. Defendant fails to offer an argument that overcomes the presumption that counsel's performance was competent. Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984) ("the defendant must overcome the presumption that, under the circumstances, the challenged action 'might be considered sound trial strategy.'" (quoting Michel v. Louisiana, 350 U.S. 91, 101, 76 S. Ct. 158, 164, 100 L. Ed. 83, 93 (1955))). Furthermore, defendant has not demonstrated that the outcome of the trial would have been different had defendant requested a Wade hearing.

We also reject defendant's contention that trial counsel failed to adequately attack the admissibility of the chain and that he should have been more aggressive in his questioning as to whether the chain in Williams' possession was the same chain taken from him on July 27, 2008. Defendant offers no argument to suggest that more aggressive cross-examination of Williams about this particular chain would have led to a different result because it would not have undermined the testimony that defendant stole a chain, money and cell phones.

Because defendant failed to make out a prima facie case of ineffective assistance of counsel, the trial court properly denied him an evidentiary hearing for PCR, and properly denied defendant's application for post-conviction relief.

Affirmed.

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

2 The State argues that defendant is barred from raising these arguments under Rule 3:22-4. However, ineffective assistance of counsel claims are rarely barred from PCR review. State v. Preciose, 129 N.J. 451, 460 (1992).