STATE OF NEW JERSEY v. MARIO CHIPI, a/k/a CARLOS BATACAIL

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4198-09T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MARIO CHIPI, a/k/a CARLOS

BATACAIL,

Defendant-Appellant.

___________________________________________________

April 1, 2011

Submitted March 23, 2011 - Decided

Before Judges Cuff and Fisher.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 05-09-1210.

Yvonne Smith Segars, Public Defender, attorney for appellant (Mark Zavotsky, Designated Counsel, on the brief).

Edward J. De Fazio, Hudson County Prosecutor, attorney for respondent (Katrina T. De Los Reyes, Assistant Prosecutor, on the brief).

PER CURIAM

In an earlier appeal, defendant argued that the failure of his trial attorney to seek a pretrial Wade1 hearing -- concerning an identification made at a show-up -- deprived him of the effective assistance of counsel. State v. Chipi, No. A-6156-05 (App. Div. Sept. 22, 2008) (slip op. at 6). We remanded for an evidentiary hearing to examine both the reasons for counsel's decision in that regard and for a Wade hearing. Ibid. In accordance with our mandate, an evidentiary hearing was conducted, and Judge Melvin S. Kracov found the show-up was unduly suggestive but the identification nevertheless reliable. The judge also assumed counsel's decision not to seek a Wade hearing was deficient but concluded that his failure did not prejudice defendant. Because Judge Kracov's thorough findings were based on credible evidence deserving our deference, we affirm.

The record reveals that during the evening of April 28, 2005, Fernando Montalvan was walking on Bergenline Avenue near 45th or 46th Street in Union City. He was holding five dollars in his hand with which he intended to buy a telephone calling card in a nearby store. Defendant approached and, according to Montalvan, pulled a knife or boxcutter and took the five dollars. Montalvan immediately entered a nearby liquor store where he telephoned the police.

Officer Gonzalez responded and was told by Montalvan that the robber was a Hispanic male, possibly of Cuban descent, with a black ponytail, who was wearing a black coat, white tee shirt and blue jeans. This description was forwarded to other officers and, as Officer Gonzalez drove Montalvan around the area, another officer advised that someone fitting the given description had been detained at Bergenline Avenue and 52nd Street. Officer Gonzalez told Montalvan that "[w]e captured the guy," and drove to the location. When they arrived, defendant was handcuffed and standing between two police officers. While remaining in the police vehicle, Montalvan identified defendant as the robber; he said he could see clearly because of the illumination provided by street lights.

Defendant was charged with: first-degree armed robbery, N.J.S.A. 2C:15-1; third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d; third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5d; and third-degree aggravated assault, N.J.S.A. 2C:12-1b(2). At the conclusion of a jury trial, defendant was acquitted of armed robbery but convicted of the lesser-included offense of second-degree robbery; he was also acquitted of the other charged offenses. Defendant was sentenced to a thirteen-year discretionary extended term pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2.

Defendant appealed, arguing that: the show-up was impermissibly suggestive and his attorney ineffective in failing to request a Wade hearing; the evidence in support of the conviction for second-degree robbery was insufficient and his motion for a judgment of acquittal, therefore, erroneously denied; and the judge's imposition of an extended term constituted an abuse of discretion and the sentence otherwise excessive. As noted above, we remanded for an evidentiary hearing regarding the intertwined Wade and ineffectiveness issues. We also found no merit in defendant's second argument but remanded for resentencing in accordance with the principles set forth in State v. Pierce, 188 N.J. 155 (2006).

Judge Kracov, who had not presided over the prior proceedings, conducted an evidentiary hearing during which he heard the testimony of defendant's trial attorney, Montalvan, and one of the police officers present at the show-up and, on July 23, 2009, rendered an oral decision in which he thoroughly canvassed the evidence. The judge made credibility findings and concluded that the show-up was suggestive but nevertheless produced a reliable identification; the judge also found that trial counsel's performance was deficient but caused no prejudice because, if sought prior to trial, the Wade hearing would have had no impact on the result of the trial.

On July 27, 2009, defendant was also resentenced in accordance with our mandate. Defendant conceded he was eligible for a discretionary extended term but sought the exercise of the judge's discretion in his favor. Judge Kracov fully explained why, in light of defendant's considerable criminal record, he exercised his discretion to impose an extended term, and he thereafter sentenced defendant to a ten-year prison term subject to an 85% period of parole ineligibility.

Defendant has again appealed, raising the following arguments for our consideration:

I. THE TRIAL COURT ERRED ON REMAND WHEN IT FOUND THAT THE OUT-OF-COURT "SHOW UP" IDENTIFICATION OF DEFENDANT OVERCAME THE BURDEN OF ITS SUGGESTIVENESS AND PROVED RELIABLE HAD A WADE HEARING BEEN CONDUCTED PRIOR TO TRIAL.

II. THE TRIAL COURT ERRED ON REMAND WHEN IT FOUND THE DEFENDANT WAS NOT A DANGER TO THE PUBLIC BUT NONETHELESS RESENTENCED HIM TO A DISCRETIONARY EXTENDED TERM.

We find insufficient merit in these arguments to warrant discussion in a written opinion. R. 2:11-3(e)(2). We add only the following brief comments regarding Point I.

In addressing the questions posed by our mandate, Judge Kracov first determined that some of the confusion about the details of the show-up was caused by Montalvan's failure to "directly respon[d]" to questions put to him, which, in part, was generated by his limited knowledge of English and the difficulties in translating his statements:

I believe any inconsistencies in his trial and hearing testimony or internally at the trial -- at the hearing, are based on either translation issues, the passage of time, and Mr. [Montalvan's] less than perfect ability to express himself precisely, via English translation, and I suspect in Spanish, his native language.

The judge found that Montalvan's inability to clearly recount what occurred did not negatively impact his credibility. Indeed, the judge found Montalvan to be "a credible, honest, truthful witness who did his best to explain what happened to him and why he identified the defendant as the robber."

Based on his view of the evidence adduced at the hearing, as well as his consideration of the trial transcripts, the judge first found the show-up was suggestive, relying on the fact that defendant was led to understand prior to the show-up that the officers had apprehended the robber and because defendant "was handcuffed behind his back and between two officers when he was [identified] by [Montalvan]." As the judge correctly recognized, a finding of undue suggestiveness does not end the inquiry; evidence of the out-of-court identification, or its fruit, may be used at trial if the identification was nevertheless reliable because, in the final analysis, "reliability is the linchpin." Manson v. Brathwaite, 432 U.S. 98, 114, 97 S. Ct. 2243, 2253, 53 L. Ed. 2d 140, 154 (1977). As a result, in weighing the suggestiveness of the procedure, the court must consider "the opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation." Ibid. In applying this standard, which our Supreme Court has followed, State v. Madison, 109 N.J. 223, 233 (1988),2 Judge Kracov provided thorough findings as to each factor, all of which supported his conclusion that the identification was reliable. The judge applied correct legal principles and his findings -- all of which find support in the record -- are entitled to our deference. State v. Locurto, 157 N.J. 463, 470-71 (1999).

In accordance with our mandate, the judge also considered whether defendant demonstrated he was denied the effective assistance of counsel. Judge Kracov determined -- or at least assumed -- that counsel's reasons for not seeking a Wade hearing were insufficient3 and that the first prong of the Strickland/Fritz4 test had been met; he also concluded that the Wade hearing would not have provided defendant with any benefit and its occurrence prior to trial would not have had any impact on the trial itself. As a result, the judge found the second prong of the Strickland/Fritz test was not met. These determinations were fully supported the evidence and we, thus, defer to them. Locurto, supra, 157 N.J. at 470-71.

In summary, we affirm substantially for the reasons set forth in Judge Kracov's comprehensive and thoughtful oral decision.

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

2We are mindful that the Court has granted certification to consider whether to depart from the Manson v. Brathwaite test. See State v. Henderson, 397 N.J. Super. 398 (App. Div.), certif. granted, 195 N.J. 521 (2008). Until further direction from the Court, however, our obligation is to apply existing principles.

3Counsel testified that he did not seek a hearing regarding the out-of-court identification because he thought such a motion would prompt the State to locate Montalvan well in advance of trial thereby ensuring his appearance at trial. That is, counsel's experience in defending criminal matters in Hudson County suggested to him that the prosecutor would not likely prepare for trial until soon before trial and, if the prosecutor adhered to that approach, there was a chance Montalvan would not have been located in time for trial and the indictment dismissed as a result. The judge found, in light of his own considerable experience, that this was a legitimate and reasonable strategy. The judge, however, also found that it was learned prior to trial that Montalvan would in fact testify and, at that point, counsel should have sought a Wade hearing, which -- despite its apparent untimeliness -- would likely have been granted. Consequently, the judge assumed "for the sake of this motion" that defendant proved counsel's performance "was deficient."

4Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); State v. Fritz, 105 N.J. 42 (1987).