STATE OF NEW JERSEY v. SHAKA S. ZULU

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5135-09T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

SHAKA S. ZULU, a/k/a JULIUS

ROGERS, a/k/a JAMES H.

ROGERS, a/k/a CAMERON ROGERS,

a/k/a DARRYL THOMAS,

a/k/a S. SANKOTA,

Defendant-Appellant.

_______________________________________

November 3, 2011

Submitted October 4, 2011 Decided

Before Judges Yannotti and Espinosa.

On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 00-02-0172.

Joseph E. Krakora, Public Defender, attorney forappellant (PhilipLago, Designated Counsel, on the brief).

TheodoreJ. Romankow,Union County Prosecutor, attorney for respondent (Meredith L. Balo, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Shaka Zulu appeals from an order entered by the Law Division on October 2, 2009, denying his petition for post-conviction relief (PCR). We affirm.

Defendant was charged with first-degree robbery, N.J.S.A. 2C:15-1 (count one); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count two); and third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b) (count three). He was tried before a jury.

At the trial, evidence was presented which established that on December 13, 1999, at around 11:00 p.m., Nyreek Lewis (Lewis) was walking to his home in Hillside, New Jersey, when a black Pontiac Trans-Am vehicle pulled up alongside him. The passenger got out of the car, pointed a gun at Lewis and ordered him to hand over his jacket, sweater and boots. Lewis complied. The passenger then ordered Lewis to turn over his money. Lewis handed the passenger a twenty-dollar bill and three one-dollar bills.

The driver got out of the Trans-Am and picked up Lewis's boots and coat. The driver then grabbed at Lewis's neck to see if he was wearing any jewelry. The passenger and driver got back into the car and drove off in the direction of Newark. A neighbor who witnessed the incident called the Hillside police. Two police officers responded to Lewis's home and he reported what had happened. Lewis provided the officers with a description of the Trans-Am as well descriptions of the car's passenger and driver.

The officers returned to police headquarters. Two hours later, they received a dispatch indicating that police officers in Newark had pulled over a vehicle that fit the description of the car used in the robbery. The Newark police had the two occupants of the car in custody. They were being held in the back seat of a marked police vehicle.

At around 1:00 a.m., the Hillside police officers picked up Lewis at his home and drove him to Newark. As they approached the location where the suspects were being detained, Lewis spotted the Trans-Am and identified it as the vehicle used during the robbery.

After Lewis and the police officers arrived on the scene, defendant was taken out of the vehicle. Lewis immediately identified defendant as "the one that robbed me." The other suspect was taken out of the vehicle and defendant identified him as the driver of the car. Lewis's jacket was removed from the Trans-Am and Lewis identified it as his own.

Defendant was found in possession of one twenty-dollar bill, one five-dollar bill, and eleven one-dollar bills. A Hillside police officer informed defendant of his Miranda rights.1 Defendant gave a statement to the police. He denied that he was involved in a robbery. He admitted, however, that he had been in possession of the Trans Am the entire day. The gun used in the robbery was never recovered.

The jury found defendant guilty of first-degree robbery, but not guilty of the other charges. The trial court granted the State's motion to sentence defendant to an extended term as a persistent offender pursuant to N.J.S.A. 2C:44-3(a), and imposed a fifty-year term of incarceration, with a nineteen-year period of parole ineligibility.

Defendant appealed. In an unpublished opinion, we affirmed the conviction and the sentence imposed. State v. Zulu, No. A-0920-02 (App. Div. June 3, 2005). The Supreme Court granted defendant's petition for certification on the issue of the sentence, and summarily remanded the matter to the trial court for re-sentencing pursuant to State v. Pierce, 188 N.J. 155 (2006). See State v. Zulu, 188 N.J. 263 (2006).

On remand, the trial court imposed a forty-two year sentence, with a sixteen-year period of parole ineligibility. Defendant appealed and we affirmed the sentence. State v. Zulu, No. A-6347-06 (App. Div. May 1, 2008). The Supreme Court denied defendant's petition for certification. State v. Zulu, 196 N.J. 461 (2008).

Thereafter, defendant filed a PCR petition in which he alleged that he was denied the effective assistance of counsel. Defendant claimed that his trial attorney was not effective because he failed to seek a hearing pursuant to United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967), to challenge Lewis's out-of-court identification. Defendant further alleged that he was denied the effective assistance of counsel at sentencing because his attorney failed to "correct" what defendant says was the court's misunderstanding of the sentencing law and certain relevant facts.

The PCR court considered the petition on October 2, 2009, and on that date, placed its decision denying PCR on the record. The court concluded that defendant had not been denied the effective assistance of counsel. This appeal followed.

Defendant raises the following arguments for our consideration:

POINT I

THE LOWER COURT ORDER MUST BE REVERSED SINCE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL.

A. Trial counsel failed to request a Wade hearing.

B. Trial counsel failed to provide effective assistance during sentencing and re-sentencing.

POINT II

THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE DEFENDANT'S CLAIMS ARE NOT PROCEDURALLY BARRED UNDER Rule 3:22-5.

POINT III

THE LOWER COURT ERRED IN NOT GRANTING DEFENDANT'S REQUEST FOR AN EVIDENTIARY HEARING AND THE LOWER COURT ORDER MUST THEREFORE BE REVERSED.

Defendant argues that the PCR court erred by rejecting his claim that he was denied the effective assistance of trial counsel.

A defendant's claim of ineffective assistance of counsel is considered under the standards enunciated in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), which have been adopted by our Supreme Court in interpreting the New Jersey Constitution. State v. Fritz, 105 N.J. 42, 58 (1987). A defendant must show that his attorney's performance was deficient and counsel's deficient performance prejudiced the defense. Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693.

To establish that the defense attorney's performance was deficient, a defendant must show that counsel's actions "were outside the wide range of professionally competent assistance." Strickland, supra, 466 U.S. at 690, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695. Furthermore, to establish that counsel's deficient performance prejudiced the defense, a "defendant must show that there is 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 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698.

Defendant argues that his trial attorney erred by failing to seek a Wade hearing to challenge Lewis's out-of-court identification.2 We disagree.

Defendant asserts that trial counsel should have challenged the identification because Lewis described the perpetrator as a man who was five feet, ten inches tall, whereas he is about five feet, four inches in height. Defendant also asserts that the identification was not reliable because the robbery took place at night in a place with poor lighting, and it was raining at the time.

Even if we assume that defendant's trial counsel erred by failing to request the Wade hearing, we are convinced that defendant was not prejudiced by that error. As we stated previously, Lewis positively identified defendant in a show-up that took place shortly after the robbery occurred. The PCR court observed that there were minor discrepancies in the victim's description of defendant, but those discrepancies had been "vigorously attacked" during the trial. We are satisfied that, had defendant's counsel requested a Wade hearing, it would not have resulted in the exclusion of Lewis's identification or led to a different result at trial.

Defendant also contends that he was denied the effective assistance of counsel at sentencing and re-sentencing. Again, we disagree.

Defendant asserts that his trial attorney erred by failing to correct the trial court's mistaken belief that he had a prior conviction for armed robbery. However, at the re-sentencing hearing, counsel informed the court that defendant's prior offenses were not for armed robbery. Although counsel later remarked that defendant "had been to prison one time for an armed robbery[,]" the court made clear when it reviewed defendant's prior convictions, that defendant had been found guilty of robbery, not armed robbery.

Defendant further contends that his trial attorney erred by failing to correct the court's erroneous assumption that it was required to impose a period of parole ineligibility on the extended-term sentence. However, at the original sentencing, the trial court stated that it had the discretion to impose or not to impose a parole disqualifier. Furthermore, when defendant was re-sentenced, defense counsel stated that the trial court had the discretion to determine whether or not to impose a period of parole disqualification. Thus, the record indicates that on sentencing and re-sentencing the court was well aware that the imposition of a parole disqualifier was a matter committed to its discretion.

In addition, defendant contends that his attorney was ineffective because he failed to correct the court's erroneous assumption that a real gun had been used in the robbery. When defendant was re-sentenced, the court stated that it did not have to address the question of whether the weapon was real or an imitation firearm. The court noted, however, that defendant had been convicted of first-degree armed robbery. Such a conviction may be based on evidence that the perpetrator used a device or instrument that the victim reasonably believed to be a deadly weapon. State v. Orlando, 269 N.J. Super. 116, 126-27 (App. Div.), certif. denied, 136 N.J. 30 (1994). The court stated that, in this case, jury and the victim "firmly believed" that device or instrument used in the robbery was real.

A

1Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

2 Defendant maintains that the PCR court erred by stating that this claim was barred by Rule 3:22-5. We agree that the claim was not barred because it had not been decided in the prior proceeding. However, this is a moot point because the PCR court decided the issue on the merits.