STATE OF NEW JERSEY v. TYRONE DANIELS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is only binding on the parties in the case and its use in other cases is limited. R.1:36-3.

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

TYRONE DANIELS, a/k/a ICE CREAM,

and CREAM,

Defendant-Appellant.

________________________________

October 18, 2016

Submitted October 5, 2016 Decided

Before Judges Haas and Currier.

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 04-10-2032.

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

Diane Ruberton, Acting Atlantic County Prosecutor, attorney for respondent (Mario C. Formica, Special Deputy Attorney General/ Acting Chief Assistant Prosecutor, of counsel and on the brief).

Appellant filed a pro se supplemental brief.

PER CURIAM

Defendant Tyrone Daniels appeals from the denial of his petition for post-conviction relief (PCR). After reviewing the record in light of the applicable legal principles, we affirm.

After an appeal of defendant's first trial resulted in a reversal of his convictions and a remand, he was convicted of robbery in a second trial, and sentenced to a twenty-year term of incarceration with a mandatory parole disqualifier. We affirmed defendant's conviction and sentence in State v. Daniels, No. A-1542-10 (App. Div. June 5), certif. denied, 216 N.J. 431 (2013).

Defendant filed a PCR petition pro se, and thereafter a brief was filed by assigned counsel. Defendant asserted that his trial counsel was constitutionally ineffective in his failure to (1) file a motion challenging the out-of-court identification made by co-defendant; (2) object to the jury charge regarding robbery; (3) request a new motion to suppress hearing prior to the second trial; and (4) challenge the lack of probable cause to arrest defendant. Defendant contended appellate counsel was ineffective in his failure to appeal the denial of the motion to suppress and the jury charge on robbery.

In a comprehensive oral decision delivered on April 2, 2015, Judge Kyran Connor discussed each of defendant's arguments and found defendant had failed to make a prima facie showing of ineffective assistance by either trial or appellate counsel.

On appeal, defendant presents the following argument through counsel

POINT I: THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST CONVICTION RELIEF WITHOUT AFFORDING HIM AN EVIDENTIARY HEARING TO FULLY ADDRESS HIS CONTENTION THAT HE FAILED TO RECEIVE ADEQUATE LEGAL REPRESENTATION FROM TRIAL COUNSEL.

Defendant raises the following issues in a pro se supplemental brief

POINT ONE: TRIAL COUNSEL DID NOT CALL OFFICERS J. DONATUCCI, AND M. LOSASSO AS WITNESSES TO A MOTION TO SUPP[R]ESS EVIDENCE HEARING.

POINT TWO: TRIAL COUNSEL FAILED TO APPEAL THE DENIAL OF MOTION TO SUPPRESS.

POINT THREE: TRIAL COUNSEL FAILED TO CHALLENGE THE PROBABLE CAUSE TO ARREST DEFENDANT INITIALLY, NOR FILE A MEMORANDUM PROBABLE CAUSE HEARING.

POINT FOUR: JUDGE ERRED BY ALLOWING "HEARSAY TESTIMONY" WHICH IS INADMISSIBLE AT A MOTION TO SUPPRESS HEARING.

POINT FIVE: TRIAL JUDGE ERRED IN REFUSING TO ENTER A JUDGMENT OF ACQUIT[T]AL IN FAVOR OF DEFENDANT ON COUNT ONE OF INDICTMENT.

The standard for determining whether counsel's performance was ineffective for purposes of the Sixth Amendment was formulated in Strickland v. Washington, 466 U.S. 668, l 04 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), and adopted by our Supreme Court in State v. Fritz, l 05 N.J. 42 (l987). In order 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, supra, 466 U.S. at 687, 694, l04 S. Ct. at 2064, 2068, 80 L. Ed. 2d at 693, 698.

We are satisfied from our review of the record that defendant failed to meet his burden of proof as to a showing of ineffectiveness of trial and appellate counsel within the Strickland-Fritz test and conclude that defendant's arguments lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We add only a brief comment. In our opinion in the direct appeal, we addressed defendant's argument that counsel failed to request a Wade1 hearing on the identification procedure. As we previously stated, there was no issue of a questionable identification process. Daniels, supra, slip op. at 4-5. Defendant was implicated in the robbery by the co-defendant and a girlfriend. The jury assessed the credibility of those statements in their determination of defendant's guilt.

We, therefore, affirm on all of the presented arguments substantially for the reasons expressed by Judge Connor as reflected in his well-reasoned oral opinion.

Affirmed.

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