STATE OF NEW JERSEY v. RODNEY ARMOUR

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0672-08T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

RODNEY ARMOUR,

Defendant-Appellant.

_______________________________________________________

December 16, 2010

Submitted November 30, 2010 - Decided

Before Judges Skillman and Yannotti.

On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 02-12-2454.

Kelly Anderson Smith, attorney for appellant.

Luis A. Valentin, Monmouth County Prosecutor, attorney for respondent (Mary R. Juliano, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

A jury found defendant guilty of second degree robbery, in violation of N.J.S.A. 2C:15-1. The trial court granted the State's motion to sentence defendant to an extended term as a persistent offender and imposed a twenty-year sentence, subject to parole ineligibility for 85% of that term, as required by the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. This sentence was to be served concurrently with a sentence defendant was already serving for another offense.

On defendant's direct appeal, in an unpublished opinion, we affirmed his conviction and the grant of the State's motion to sentence him to an extended term as a persistent offender, but vacated his sentence and remanded the case to the trial court for resentencing in conformity with State v. Natale, 184 N.J. 458, 495-06 (2005). State v. Armour, No. A-5690-03T4 (Oct. 4, 2005).

On the remand, the trial court reimposed the same sentence it had imposed at defendant's original sentencing.

Thereafter, the Supreme Court granted defendant's petition for certification of our October 4, 2005 decision limited to the issue of sentence and summarily remanded to the trial court for resentencing in light of State v. Pierce, 188 N.J. 155 (2006). State v. Armour, 188 N.J. 259 (2006).

Following this remand, the trial court again resentenced defendant to a twenty-year term of imprisonment with the 85% period of parole ineligibility mandated by NERA.

Defendant then filed a petition for post-conviction relief based on the alleged ineffective assistance of trial counsel. After hearing oral argument, Judge Chaiet denied defendant's petition by a lengthy oral opinion delivered on August 15, 2008.

On appeal from the order memorializing that denial, defendant presents the following arguments:

POINT I:

THE TRIAL COURT IMPROPERLY DENIED POST-CONVICTION RELIEF AS TRIAL COUNSEL AND PCR COUNSEL DENIED THE DEFENDANT A FAIR TRIAL AND EFFECTIVE MOTION RESULTING IN AN UNJUST RESULT.

POINT II:

TRIAL COUNSEL WAS INEFFECTIVE FOR NOT MOVING FOR A WADE HEARING.

[A]. PCR COUNSEL WAS INEFFECTIVE

FOR FAILING TO RAISE THE PROPER

ARGUMENTS IN SUPPORT OF A

WADE HEARING.

POINT III:

TRIAL COUNSEL FAILED TO OBJECT TO THE TRIAL COURT'S INADEQUATE IDENTIFICATION JURY CHARGE, RESULTING IN PREJUDICE TO THE DEFENDANT.

[A]. PCR COUNSEL WAS EQUALLY IN-

EFFECTIVE BY FAILING TO ADDRESS

TRIAL COUNSEL'S OMISSION

REGARDING THE IDENTIFICATION

CHARGE.

POINT IV:

TRIAL COUNSEL WAS INEFFECTIVE IN FAILING TO CONSULT AND RETAIN THE SERVICES OF EXPERTS.

[A]. PCR COUNSEL ACKNOWLEDGED

DEFENDANT'S CONCERNS REGARDING

THE NECESSITY OF EXPERT

TESTIMONY, AND THEN FAILED

TO RETAIN SAME; RESULTING

IN INEFFECTIVE ASSISTANCE OF

COUNSEL, PURSUANT TO RUE.

POINT V:

DEFENDANT SHOULD BE GRANTED A NEW PCR HEARING AS THE PCR COURT FAILED TO REVIEW A COMPLETE RECORD.

We reject these arguments substantially for the reasons set forth in Judge Chaiet's oral opinion. Defendant's arguments that the counsel who represented him on his petition for post-conviction relief was ineffective are clearly without merit. R. 2:11-3(e)(2). We make the following brief supplemental comments regarding defendant's arguments.

Regarding defendant's argument that his trial counsel was ineffective in failing to object to certain leading questions, the decision whether to object to such questions is a matter of trial strategy regarding which a court should be hesitant to second-guess counsel. See Burnett v. Collins, 982 F.2d 922, 930 (5th Cir. 1993); State v. Gary, 229 N.J. Super. 102, 116 (App. Div. 1988). There is no basis for concluding that trial counsel was deficient in failing to object to any of the prosecutor's questions to which this argument is directed or that there is any likelihood the outcome of the trial would have been different if trial counsel had objected to those questions.

Regarding defendant's argument that his trial counsel was ineffective in failing to move for a Wade1 hearing, no identification procedure, such as a photo array or show-up, was utilized by the police. Therefore, there was no basis for requesting a Wade hearing. We also note the absence of any evidence that Sobolewski and Wilson meaningfully interacted with each other or that any interaction they may have had affected their testimony.

Regarding defendant's argument that his trial counsel was ineffective in failing to call what defendant describes as an identification expert, defendant has not offered any evidence that such an expert would have been available or would have been prepared to give testimony that would have been likely to result in a different outcome of the trial.

Regarding defendant's argument that his post-conviction relief counsel was ineffective in failing to submit all the trial transcripts to the court, defendant has not identified any part of the trial record that was not submitted to the court that could have resulted in the grant of his petition.

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