STATE OF NEW JERSEY v. JOHN FARKAS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0188-10T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JOHN FARKAS,

Defendant-Appellant.

_________________________

December 1, 2011

Submitted October 25, 2011 - Decided

Before Judges Payne and Simonelli.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 06-05-0803.

Joseph E. Krakora, Public Defender, attorney for appellant (Kevin G. Byrnes, Designated Counsel, on the brief).

Edward J. DeFazio, Hudson County Prosecutor, attorney for respondent (Jason M. Cieri, Assistant Prosecutor, on the brief).

PER CURIAM

Defendant John Farkas appeals from the February 4, 2010 order, which denied his petition for post-conviction relief (PCR). We affirm.

The facts of this case are set forth in our unpublished opinion on defendant's direct appeal, and need not be recited here. State v. Farkas, No. A-2194-07 (App. Div. April 30, 2009), certif. denied, 199 N.J 541 (2009).

Defendant filed a PCR petition, arguing that trial counsel was ineffective because he failed to file a motion to suppress evidence, pursue a Wade1 hearing, and argue for a judgment of acquittal. Also, as he did in his direct appeal, defendant challenged his sentence and argued that the jury instructions on attempted aggravated assault with a deadly weapon and identification were flawed.

Judge Venable denied the petition. She found that trial counsel was not ineffective in failing to file a motion to suppress because the police properly entered the apartment where defendant was found hiding in the closet under exigent circumstances, and defendant lacked standing to challenge to search because he did not reside in the apartment.

Judge Venable also found that trial counsel was not ineffective in failing to request a Wade hearing because three witnesses who had chased defendant from the robbery scene to an apartment where he was found and apprehended positively identified him there. She concluded that "[t]rial counsel correctly and expressly acknowledged that this was not a 'show up' and no good-faith basis for requesting a Wade hearing existed." Judge Venable also concluded that defendant's challenge to the jury instructions and sentence were adjudicated on his direct appeal. This appeal followed.

In this appeal, defendant raises the following arguments:

POINT I THE DEFENDANT IS ENTITLED TO AN EVIDENCE HEARING IN ORDER TO LITIGATE HIS CLAIMS OF IN-EFFECTIVE ASSISTANCE OF COUNSEL.

POINT II THE DEFENDANT'S RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL, AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. 1, PAR. 10 OF THE NEW JERSEY CONSTITUTION, WAS VIOLATED.

A. TRIAL COUNSEL WAS INEFFECTIVE DUE TO HIS FAILURE TO MOVE TO SUPPRESS EVIDENCE UNLAWFULLY SEIZED.

1. THE DEFENDANT HAD STANDING TO CONTEST THE UNLAWFUL SEARCH AND SEIZURE.

2. THE POLICE LACKED PROBABLE CAUSE TO ENTER THE DWELLING AND ARREST THE DEFENDANT.

3. THE POLICE LACKED EXIGENT CIRCUMSTANCES JUSTIFYING REPEATED WARRANTLESS SEARCHES OF THE PREMISES.

4. THE CONSENT WAS INVALID.

5. THE EVIDENCE WAS COME AT BY THE EXPLOITATION OF THE ILLEGALITY AND THERE WAS NO INDEPENDENT SOURCE OR INEVITABLE DISCOVERY EXCEPTION THAT APPLIED.

B. TRIAL COUNSEL WAS INEFFECTIVE DUE TO HIS FAILURE TO MOVE TO SUPPRESS THE IDENTIFICATION EVIDENCE.

1. TRIAL COUNSEL SHOULD HAVE MOVED TO SUPPRESS THE IDENTIFICATION EVIDENCE ON THE GROUNDS THAT STATE FAILED TO RECORD AND DOCUMENT THE OUT-OF-COURT IDENTIFICATION EVIDENCE AND PROCEDURE.

2. THE OUT-OF-COURT PROCEDURE WAS EXTRAORDINARILY SUGGESTIVE WITHOUT A SHOWING OF RELIABILITY.

C. COUNSEL WAS INEFFECTIVE IN FAILING TO MAKE A MEANINGFUL ARGUMENT IN SUPPORT OF A MOTION FOR JUDGMENT OF ACQUITTAL.

D. THE AGGREGATE OF TRIAL COUNSEL'S ERRORS DEPRIVED THE DEFENDANT OF A FAIR TRIAL.

POINT III THE JURY INSTRUCTIONS WERE CONFUSING, PREJUDICIAL, AND FATALLY FLAWED AND TRIAL COUNSEL WAS INEFFECTIVE BY FAILING TO OBJECT.

A. THE JURY INSTRUCTIONS WERE DEFICIENT AND PREJUDICIAL.

1. THE INSTRUCTION ON THE LAW OF ATTEMPTED AGGRAVATED ASSAULT WITH A DEADLY WEAPON WAS CONFUSING AND PREJUDICIAL.

2. THE INSTRUCTION ON THE LAW OF IDENTIFICATION WAS CONFUSING AND PREJUDICIAL.

B. TRIAL COUNSEL WAS INEFFECTIVE IN FAILING TO OBJECT TO THESE PREJUDICIAL ERRORS.

POINT IV THE DEFENDANT'S SENTENCE IS EXCESSIVE, ILLEGAL, AND UN-CONSTITUTIONAL.

Rule 3:22-5 bars defendant's challenge to the jury instructions and his sentence because these issues were adjudicated on the merits in defendant's direct appeal. See also State v. McQuaid, 147 N.J. 464, 484 (1997); State v. Cusick, 116 N.J. Super. 482, 485 (App. Div. 1971).

A claim of ineffective assistance of counsel based on the failure to file a motion to suppress requires the defendant to satisfy the two-prong test set forth in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), and show that the Fourth Amendment2 claim was meritorious. State v. O'Neal, 190 N.J. 601, 618 (2007). Further, trial counsel's failure to raise meritless legal arguments does not constitute ineffective assistance of counsel. State v. Worlock, 117 N.J. 596, 625 (1990); see also Strickland, supra, 466 U.S. at 688-89, 104 S. Ct. at 2064-65, 80 L. Ed. 2d at 693-94.

Here, exigent circumstances clearly existed for the police to enter the apartment, and the police obtained the tenant's written consent to search it. Thus, a motion to suppress would have been unsuccessful. Likewise, a motion for judgment of acquittal would have been unsuccessful because, viewing the evidence most favorably to the State, the jury could find defendant guilty on all charges beyond a reasonable doubt. State v. Spivey, 179 N.J. 229, 236 (2004); State v. Reyes, 50 N.J. 454, 458-59 (1967).

Finally, there was no evidence demonstrating that the three independent eyewitness identifications made at the apartment where defendant was apprehended were impermissibly suggestive, or that there was a substantial likelihood of misidentification. Thus, there was no need for a Wade hearing. State v. Ortiz, 203 N.J. Super. 518, 522 (App. Div.), certif. denied, 102 N.J. 335 (1985).

Affirmed.

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

2 U.S. Const. amend. IV.