STATE OF NEW JERSEY v. MICHAEL T. SANCHEZ

NOT FOR PUBLICATION WITHOUT THE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.

MICHAEL T. SANCHEZ,

Defendant-Appellant.

__________________________________

December 15, 2015

Submitted October 5, 2015 - Decided

Before Judges Messano and Maven.

On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 06-10-3498.

Joseph E. Krakora, Public Defender, attorney for appellant (Alison Perrone, Designated Counsel, on the brief).

Mary Eva Colalillo, Camden County Prosecutor, attorney for respondent (Nancy P. Scharff, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Michael T. Sanchez appeals from the denial of his petition for post-conviction relief (PCR), without an evidentiary hearing. We affirm.

On October 18, 2006, a Camden County grand jury returned Indictment No. 06-10-3498 charging defendant with first-degree murder, N.J.S.A. 2C:11-3(a)(1) and (2) (count one); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a (count two); third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b (count three); and second-degree certain persons not to have weapons, N.J.S.A. 2C:39-7 (count four).

In October 2007, Judge Samuel D. Natal conducted a Wade1 hearing. Investigator James Bruno of the Camden County Prosecutor's Office testified that the victim was shot and killed near the intersection of Lewis and Chase Streets. An eyewitness reported that the suspect in the homicide was nicknamed "Tito." The eyewitness knew "Tito" from "hanging out" with him on several occasions. "Tito" was described as a "tall, light-skinned black" or Hispanic male, with "corn rows, thin build, about six foot" with a cast on his right arm. The investigation lead Bruno to a Ms. Robinson, who told him that she knew "Tito" because she had purchased marijuana from him on several occasions from the same corner at Lewis and Chase Streets. Though Robinson did not witness the shooting, she confirmed that she could identify "Tito." She was shown a photo array of ninety-four photographs and identified "Tito" in photo number fifty-one. The name of the person printed below the picture of "Tito" was defendant, Michael Sanchez. Defendant's single photograph was then shown to the eyewitness, who confirmed him as the person he knew as "Tito." In another out-of-court identification conducted by Investigator Duane Cherry, the victim's girlfriend selected defendant's photograph from an array of eight photos. She told investigators that she recognized "Tito" as the man her boyfriend beat up three weeks prior to the shooting. At the conclusion of the hearing, Judge Natal held that the three photo identifications were admissible at trial because, in each instance, the witnesses were identifying a person they already knew from the area as "Tito."

A jury trial commenced on June 11, 2008, before Judge Natal. On the fourth day, defendant accepted a negotiated plea agreement and pled guilty to an amended charge of first-degree aggravated manslaughter, N.J.S.A. 2C:11-4(a)(1) (count one), in exchange for a recommended sentence of fifteen years imprisonment with an eighty-five percent period of parole ineligibility under NERA. The court sentenced defendant in accordance with the plea agreement. Defendant filed an appeal seeking a reduced sentence. An Excessive Sentence Oral Argument panel affirmed the judgment of the trial court in an order dated April 14, 2010. In an order filed February 28, 2013, the Supreme Court dismissed defendant's notice of petition for certification for lack of prosecution.

Defendant filed a timely pro se PCR petition, and the court-appointed counsel filed a supplemental brief incorporating defendant's arguments and raising thirteen points. At oral argument, PCR counsel asserted, among other things, that trial counsel was ineffective because he failed to object to "constitutionally impermissible identification evidence." On February 20, 2014, Judge Natal denied defendant's petition in a comprehensive forty-four page written opinion. An order to that effect was filed the same day.

Judge Natal rejected defendant's argument that trial counsel was ineffective in his efforts to exclude the photo identifications, reasoning first that the issue was procedurally barred because the issue should have been raised on direct appeal. R. 3:22-4. Nevertheless, the judge addressed the issue on the merits. He ruled that

Impermissible suggestibility is to be determined by the totality of the circumstances of the identification procedure. [State v. Farrow, 61 N.J. 434, 451 (1972)]. The New Jersey Supreme Court has stressed out-of-court identifications should be excluded only "where all the circumstances lead forcefully to the conclusion that the identification was not actually that of the eyewitness, but was imposed upon him so that a substantial likelihood of irreparable misidentification can be said to exist." [Ibid.]

The judge applied the factors established in State v. Henderson, 208 N.J. 208 (2011), which refined the trial court's analysis for determining the reliability of out-of-court identifications.2 He found that

[T]he procedures utilized were entirely proper and therefore counsel was not ineffective for failure to object to the photo identification and defendant was not prejudiced by the admission of the identification. Though the administration of the photo array in question was conducted by an involved investigator, Investigator Bruno was not aware of which photo was of "Tito." The photo array consisted of [ninety-four] photographs compiled by the intelligence unit and was properly displayed to the witness, [Ms.] Robinson. Although the array included the names and ages of the depicted individuals, there is no indication this inclusion effected the witness'[s] ability to identify [] defendant. Ms. Robinson was not an eyewitness to the shooting but merely identified a photo of "Tito." She advised Investigator Bruno she knew "Tito" because she had purchased marijuana from him on approximately ten occasions at the intersection of Lewis and Chase Streets where the shooting occurred. She was not aware of the defendant's legal name and therefore the inclusion of his name could not have altered her identification.

During the Wade hearing requested by trial counsel, counsel thoroughly cross-examined Investigator Bruno and argued for the exclusion of the identification. Counsel brought to light all of the potentially suggestive characteristics of the identification and the [c]ourt concluded the identification was not so impermissibly suggestive to give rise to a very substantial likelihood of irreparable misidentification. Counsel's performance during the Wade hearing was not deficient to the point where "counsel's conduct fell below an objective standard of reasonableness." [Strickland v. Washington, 466 U.S. 668, 688, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984).] Furthermore, even if counsel's performance was deficient, defendant was not prejudiced by the admission of the photo identification because the court finds the identification was properly admitted.

Judge Natal concluded defendant failed to meet either part of the two-prong test for ineffective assistance of counsel set forth in Strickland, which was adopted by the New Jersey Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987).

In this appeal, defendant raises the following points related solely to the admission of the photo identifications following the Wade hearing

POINT I

DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF IS NOT PROCEDUALLY BARRED BY RULE 3:22-4.

POINT II

DEFENDANT IS ENTITLED TO AN EVIDENTIARY HEARING ON HIS CLAIM THAT HIS ATTORNEY RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL.

"Our standard of review is necessarily deferential to a PCR court's factual findings based on its review of live witness testimony." State v. Nash, 212 N.J. 518, 540 (2013). However, "we need not defer to a PCR court's interpretation of the law; a legal conclusion is reviewed de novo." Id. at 540-41.

Based on our review of the record and the applicable law, we conclude these arguments lacks sufficient merit to warrant extended discussion in a written decision, Rule 2:11-3(e)(2). We add only the following.

Judge Natal, who had presided over every proceeding and was intimately familiar with this case, properly concluded that defendant failed to meet both prongs of the Strickland/Fritz test to establish a prima facie claim of ineffective assistance of counsel. The record fully supports that determination. Accordingly, the order denying defendant's PCR petition is affirmed substantially for the reasons stated by Judge Natal in his cogent and thorough opinion.

Affirmed.

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

2 Defendant argued for application of the Henderson factors, although they were not effective until September 4, 2012, well after his hearing. Judge Natal aptly found that while Henderson was not applicable, the holding in that case provided appropriate guidance because it revised, but did not dismantle, the two-step process for evaluating the suggestiveness of the identification process as articulated by the United States Supreme Court in Manson v. Brathwaite, 432 U.S. 98, 97 S. Ct. 2243, 53 L. Ed. 2d 140 (1977), and adopted in State v. Madison, 109 N.J. 223 (1988).