STATE OF NEW JERSEY v. TERRANCE SINGLETON

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

TERRANCE SINGLETON,

Defendant-Appellant.

________________________________________

September 5, 2014

Submitted October 8, 2013 Decided

Before Judges Espinosa and O'Connor.

On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 02-05-0692.

Joseph E. Krakora, Public Defender, attorney for appellant (Karen A. Lodeserto, Designated Counsel, on the brief).

Joseph L. Bocchini, Jr., Mercer County Prosecutor, attorney for respondent (Dorothy Hersh, Assistant Prosecutor, of counsel and on the brief).

Appellant filed a pro se supplemental brief.

PER CURIAM

Defendant appeals from the denial of his petition for post-conviction relief (PCR) without an evidentiary hearing. In his petition, defendant claimed ineffective assistance of counsel for the failure to request a Wade1 hearing during the course of the trial. For the reasons that follow, we affirm.

Following a jury trial in 2004, defendant was convicted of two counts of second-degree robbery, N.J.S.A. 2C:15-1, and two counts of third-degree theft by unlawful taking, N.J.S.A. 2C:20-3(a). He was sentenced to two consecutive ten-year terms of imprisonment; each term is subject to the No Early Release Act, N.J.S.A. 2C:43-7.2.

The factual basis of the ineffective assistance of counsel claim is as follows. The robbery victims included Ms. Colon and Mr. Collazzo. After reporting the robbery to the police, Collazzo picked out defendant from a photographic line-up. Before trial, the court held a Wade hearing. Collazo testified that he was sixty-five to seventy-five percent certain defendant was the perpetrator. The trial court determined Collazzo's out-of-court identification was admissible. Defendant conceded the State had adhered to the Attorney General's Guidelines concerning photo identification procedures, see State v. Herrera, 187 N.J. 493, 511-20 (2006), and thus there was no issue of suggestiveness with respect to the identification procedure. Defendant appealed, arguing that an identification that is "only 65% reliable is per se suggestive and involves a per se probability of misidentification."

We affirmed the trial court, see State v. Singleton, No. A-5293-03 (App. Div. December 30, 2005) (slip op. at 20-21), certif. denied, 186 N.J. 364 (2006). We further observed that, even if an identification is not one-hundred percent certain, the identification still has probative value and is not excluded by the Wade standard. Ibid.

Before testifying at trial, Collazzo was in the hallway just outside of the courtroom. Defendant claims he observed Colon, who was also in the hallway, point out defendant to Collazzo as defendant was entering the courtroom. Defendant also overheard Paula Pulgar, an employee of the Mercer County Prosecutor's Office, tell Collazzo that defendant was "the perpetrator." Once inside of the courtroom, defendant alerted his trial counsel of what transpired in the hallway, but his counsel did not request a second Wade hearing.

At trial, Collazzo testified that when he picked out defendant from a photographic line-up, his level of certainty that defendant was the perpetrator was sixty-five to seventy-five percent. At trial, however, he claimed he was one-hundred percent certain defendant was the person who robbed him, explaining that, a week before trial, he reviewed photographs in the Prosecutor's Office and saw defendant's photograph. At that time, he became one-hundred percent convinced defendant was the perpetrator. Collazzo further testified he was "clear" defendant was the one who had committed the robbery and claimed he would recognize defendant "between a million people." Collazzo denied Colon pointed out the defendant to him in the hallway or communicated with him while he waited to testify. Collazzo was not questioned at trial about whether he had heard Pulgar say anything while in the hallway.

Defendant raises one point on appeal.

POINT I DEFENDANT SHOULD BE ENTITLED TO AN EVIDENTIARY HEARING BECAUSE TRIAL COUNSEL WAS INEFFECTIVE IN FAILING TO ARGUE THAT THE IN-COURT IDENTIFICATION OF HIM BY OCTAVIO COLLAZO WAS TAINTED.

In his brief, defendant contends Collazzo's testimony that he was one-hundred percent certain defendant was the perpetrator was not the product of Collazzo's own recollection but of Pulgar's and Colon's "impermissible suggestiveness." See State v. Chen, 208 N.J. 307, 322 (2011); State v. Adams, 194 N.J. 186, 203 (2008). Defendant is not alleging that the photographs he viewed a week before the trial improperly tainted Collazzo's memory.

Defendant reasons that had his trial attorney asked for a Wade hearing pertaining to Pulgar's comment and Colon's gesture, his request would have been granted and, ultimately, the court would have barred Collazzo's in-court and out-of-court identifications and the jury would have acquitted him of robbing Collazzo. The PCR court found that defendant failed to make out a prima facie case of ineffective assistance of counsel and dismissed the petition.

To be entitled to an evidentiary hearing on a PCR petition, a defendant must present a prima facie case of ineffective assistance of counsel, State v. Preciose, 129 N.J. 451, 462 (1992), which demonstrates "a reasonable likelihood that his or her claim will ultimately" satisfy the two-prong test set forth in Strickland v. Washington, 466 U.S. 668, 694, l 04 S. Ct. 2052, 2068, 80 L. Ed. 2d 674, 698 (1984), and adopted by our Supreme Court in State v. Fritz, l 05 N.J. 42, 58 (l987). That test is as follows:

First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable.

[Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693.]

The defendant bears the burden of establishing his right to relief "by a preponderance of the credible evidence." State v. Nash, 212 N.J. 518, 541 (2013).

As the court must view the facts in the light most favorable to the defendant when determining if he has made out a prima facie case of ineffective assistance of counsel, see Preciose, supra, 129 N.J. at 462-63, we assume defendant advised his trial attorney of Pulgar's and Colon's actions before Collazzo testified. It is undisputed his attorney did not ask for a Wade hearing during the trial. Notwithstanding, we are satisfied from our review of the record that defendant failed to make a prima facie showing of ineffectiveness of trial counsel within the Strickland-Fritz test.

Specifically, Collazzo testified that, one-week before trial, he became one-hundred percent certain that defendant was the person who robbed him, well before the time Colon and Pulgar allegedly pointed defendant out as the perpetrator. Therefore, Collazzo's in-court identification of defendant was not the product of any suggestion made by Colon or Pulgar. Further, his testimony regarding the circumstances in which he became more certain was subject to cross-examination. A Wade hearing would not have changed the outcome of the trial. Accordingly, the PCR court correctly concluded that an evidentiary hearing was not warranted. See Preciose, supra, 129 N.J. at 462-63.

Affirmed.

1 United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967). It is not disputed that the holding in State v. Henderson, 208 N.J. 208 (2011), has no bearing on the outcome here.