STATE OF NEW JERSEY v. MICHAEL HAYES

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3.

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MICHAEL HAYES,

Defendant-Appellant.

November 28, 2016

Argued September 22, 2016 Decided

Before Judges Hoffman, O'Connor and Whipple.

On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 07-07-1563.

Janet A. Allegro, Designated Counsel, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Ms. Allegro, on the briefs).

John J. Lafferty, IV, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent (Diane Ruberton, Acting Atlantic County Prosecutor, attorney; Mr. Lafferty, of counsel and on the brief).

PER CURIAM

Defendant Michael Hayes appeals from the June 1, 2015 Law Division order denying his petition for post-conviction relief (PCR) without an evidentiary hearing. He seeks a reversal of that order, arguing he received ineffective assistance of counsel at several stages of his proceedings. We reject defendant's arguments and affirm.

I.

We discern the following facts from the record. On April 30, 2007, at approximately 2:20 p.m., defendant Michael Hayes followed the victim, P.H., into the bathroom at the Bally s casino in Atlantic City and robbed him of his recent gambling winnings. In two written statements to Bally's and the Atlantic City Police Department shortly after the incident, P.H. reported defendant grabbed him from behind while he was using the restroom and threatened to "blow up [his] head." In a taped statement to police, given at the station at 4:03 p.m., P.H. reported defendant had stated something like, "[G]ive me the money or I'll blow your fucking brains out," while placing an object into his back. P.H. was unsure whether this object was a gun or defendant's finger. At a later unspecified time, P.H. identified defendant as the perpetrator from a photo lineup.1

In an unrelated incident on July 18, 2007, defendant fled police while operating a motor vehicle in Egg Harbor Township, after police attempted to stop his car. Police ultimately apprehended defendant during his attempt to flee.2

On March 7, 2008, defendant entered into a plea agreement for both indictments at a hearing before Judge Michael R. Connor. Attorney Harold Kokes (Mr. Kokes) represented defendant on Indictment No. 07-07-1563, and Public Defender Ingrid Sorensen (PD Sorensen) represented defendant on Indictment No. 07-10-2473. The plea agreement provided for a term of incarceration not greater than thirteen years, subject to the No Early Release Act (NERA), in exchange for defendant's guilty plea to the first-degree robbery charge, and a concurrent five-year term in exchange for a guilty plea to the third-degree eluding charge. The plea agreement further provided for the dismissal of all remaining charges on both indictments.

Defendant was out on bail at the time of his plea. At the beginning of the plea hearing, Deputy Attorney General Michael Paulis (DAG Paulis) told the court he felt defendant's bail was too low. Shortly after this statement, the judge and counsel conducted a brief sidebar regarding defendant's plea and his bail status in the event he accepted the State's plea offer. According to defendant, immediately after this sidebar discussion, Mr. Kokes told him his bail would be revoked if he did not accept the State's plea offer. Defendant then pled guilty to the first-degree robbery and eluding charges, pursuant to the plea agreement. Mr. Kokes later certified he informed defendant of his opinion the judge would have revoked his bail if he rejected the State's plea offer.

After defendant entered his plea, Judge Connor allowed defendant to continue his bail, but ordered him to remain arrest free. After the plea hearing, but before sentencing, police arrested defendant on unrelated charges and the court revoked his bail.

Judge Connor conducted defendant's sentencing hearing on May 2, 2008. During this hearing, Mr. Kokes informed the court defendant's family had contacted him and asked him to motion the court to withdraw defendant's guilty plea. Mr. Kokes then requested an adjournment so defendant could obtain new counsel, explaining he could not ethically represent defendant on a withdrawal motion because he would become a witness.

Defendant then personally addressed the court, stating he wanted to withdraw his guilty plea and go to trial. Defendant further stated Mr. Kokes was ineffective, having wrongly advised that his bail would have been revoked unless he accepted the plea, and he only "took the deal" in order to remain free to care for his wife and newborn daughter. He claimed he was "forced to take a plea," and was not in the "right state of mind." Judge Connor denied this request, finding defendant's plea valid and defendant competent to enter the plea. Judge Connor then sentenced defendant to a thirteen-year prison term subject to NERA.

Defendant appealed, and we affirmed. State v. Hayes, A-0845-08T4 (App. Div. Jan. 7, 2010). Our Supreme Court granted defendant's petition for certification, and then reversed and remanded the matter to the trial court to conduct a "properly counseled" hearing pursuant to the principles of State v. Slater, 198 N.J. 145 (2009). State v. Hayes, 205 N.J. 522, 526-27 (2011). The Court found Mr. Kokes' attempted withdrawal denied defendant the benefit of counsel during the plea withdrawal argument at sentencing. Id. at 526, 537.

On remand, Judge Mark H. Sandson conducted the Slater hearing on May 3, 2012, in order to fully consider defendant's motion to withdraw his guilty plea. Assigned counsel represented defendant during this hearing. In preparation for the hearing, counsel prepared Mr. Kokes' certification as well as a certification from defendant's grandfather, Colonel James E. McLaughlin, regarding the events at the plea hearing. Counsel did not enter these certifications into evidence, but Mr. Kokes and Colonel McLaughlin attended the Slater hearing in person, and counsel requested Judge Sandson hear their testimony. Judge Sandson denied this request, and subsequently denied defendant's motion in an order dated May 15, 2012. Defendant appealed, and on May 29, 2013, this court affirmed. State v. Hayes, A-5599-11 (App. Div. May 29, 2013). Defendant petitioned for certification, which the Court denied on December 6, 2013.3 State v. Hayes, 216 N.J. 367 (2013).

Thereafter, defendant filed a pro se PCR petition with a supporting legal memorandum. Designated counsel for defendant also filed a separate brief in support of the petition. In relevant part, defendant argued his trial and Slater counsel were ineffective for failing to take certain necessary pre-trial action, erroneously advising defendant of his bail status at his plea hearing, and failing to introduce appropriate evidence at his Slater hearing.

Judge Sandson held a short hearing on defendant's petition on May 21, 2015, during which defendant briefly addressed the court and requested an evidentiary hearing. On June 1, 2015, Judge Sandson entered an order denying defendant's petition, accompanied by a twelve-page opinion setting forth his reasons for denying PCR without an evidentiary hearing.

This appeal followed, with defendant raising the following arguments

POINT I

THE COURT ERRED IN DENYING DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF WITHOUT AFFORDING HIM AN EVIDENTIARY HEARING TO FULLY ADDRESS HIS CONTENTION THAT HE FAILED TO RECEIVE EFFECTIVE LEGAL REPRESENTATION AT SENTENCING.

(A)

THE PREVAILING LEGAL PRINCIPLES REGARDING CLAIMS OF INEFFECTIVE ASSISTANCE OF COUNSEL ARISING OUT OF THE ENTRY OF GUILTY PLEAS, EVIDENTIARY HEARING AND PETITIONS FOR POST- CONVICTION RELIEF.

POINT II

TRIAL COUNSEL'S MISREPRESENTATION REGARDING BAIL REVOCATION WHICH RESULTED IN DEFENDANT'S INVOLUNTARY GUILTY PLEAS CONSTITUTED INEFFECTIVE ASSISTANCE OF COUNSEL.

POINT III

TRIAL COUNSEL'S FAILURE TO SHARE THE VICTIM'S STATEMENTS WITH DEFENDANT AND ARGUE THAT DISCOVERY DID NOT SUPPORT A CONVICTION FOR FIRST DEGREE ROBBERY DEPRIVED DEFENDANT OF A FAIR TRIAL, AND THEREFORE, CONSTITUTED INEFFECTIVE ASSISTANCE OF COUNSEL.

POINT IV

SLATER COUNSEL'S FAILURE TO PROVIDE TO THE COURT CERTIFICATIONS OF DEFENDANT'S TRIAL COUNSEL AND GRANDFATHER IN SUPPORT OF HIS MOTION TO WITHDRAW HIS GUILTY PLEAS CONSTITUTES INEFFECTIVE ASSISTANCE OF COUNSEL.

POINT V

TRIAL COUNSEL'S FAILURE TO FILE A WADE AND BRADY PRE-TRIAL MOTION PREVENTED DEFENDANT FROM ENTERING WILLING, KNOWING GUILTY PLEAS, RESULTING IN INEFFECTIVE ASSISTANCE OF COUNSEL.

Defendant also filed a reply letter brief raising the following argument

TRIAL COUNSEL'S MISREPRESENTATION REGARDING BAIL REVOCATION WHICH RESULTED IN DEFENDANT'S INVOLUNTARY GUILTY PLEAS CONSTITUTED INEFFECTIVE ASSISTANCE OF COUNSEL

II.

Because the PCR court did not hold an evidentiary hearing on defendant's claims, our review is de novo. State v. Harris, 181 N.J. 391, 421 (2004), cert. denied, 545 U.S. 1145, 125 S. Ct. 2973, 162 L. Ed. 2d 898 (2005).

Defendant argues ineffective assistance of counsel based on a variety of alleged pre-trial errors. To show ineffective assistance of counsel, a defendant must satisfy the two-pronged test of Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), adopted in State v. Fritz, 105 N.J. 42 (1987). "The defendant must demonstrate first that counsel's performance was deficient, i.e., that 'counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment.'" State v. Parker, 212 N.J. 269, 279 (2012) (quoting Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693). In so doing, "a defendant must overcome a strong presumption that counsel rendered reasonable professional assistance." Ibid. (citation omitted). Second, "a defendant must also establish that the ineffectiveness of his attorney prejudiced his defense. 'The 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.'" Id. at 279-80 (quoting Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698).

Trial courts should grant evidentiary hearings if the defendant has presented a prima facie case of ineffective assistance of counsel. State v. Preciose, 129 N.J. 451, 462 (1992). "A defendant shall be entitled to an evidentiary hearing only upon the establishment of a prima facie case in support of post-conviction relief . . . ." R. 3:22-10(b). In order to establish a prima facie case, "the defendant must demonstrate a reasonable likelihood that his or her claim will ultimately succeed on the merits." State v. Marshall, 148 N.J. 89, 158 (citation omitted), cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997). The court should view the facts "in the light most favorable to a defendant." Preciose, supra, 129 N.J. at 462-63. We consider defendant's claim in light of these standards.

III.

We first address defendant's argument his trial counsel, Mr. Kokes, misadvised him on his bail status during his plea hearing, leading to an involuntary guilty plea. Where the defendant requests to vacate a guilty plea, the defendant must show "(i) counsel's assistance was not within the range of competence demanded of attorneys in criminal cases; and (ii) that there is a reasonable probability that, but for counsel's errors, [the defendant] would not have pled guilty and would have insisted on going to trial." State v. Nu ez-Vald z, 200 N.J. 129, 139 (2009) (alteration in original) (quoting State v. DiFrisco, 137 N.J. 434, 457 (1994)).

An attorney's conduct can constitute ineffective assistance of counsel if the attorney misinforms the client during the plea process. State v. Garcia, 320 N.J. Super. 332, 339 (App. Div. 1999). However, an attorney is not deficient under the first prong of Strickland where there is "no actual misrepresentation." State v. Chung, 210 N.J. Super. 427, 434-35 (App. Div. 1986). Moreover, a prediction by defense counsel based on "experience and instinct," even if wrong, "does not render a plea involuntary." DiFrisco, supra, 137 N.J. at 455 (quoting Wellnitz v. Page, 420 F.2d 935, 936 (10th Cir. 1970)).

Defendant's specific contention is that Mr. Kokes misrepresented the statements made by the trial judge during a sidebar conference at his plea hearing, and therefore erroneously misinformed defendant of the trial court's intention to revoke his bail. In order to determine the merits of defendant's claim, we quote the following excerpts from the hearing, beginning with DAG Paulis commenting on defendant's bail

Defendant is out, I believe, on a $20,000.00 no ten posting. I would note my review of his record indicates that he is discretionary extended term eligible. He has numerous prior indictable convictions. We have a [first-degree] charge in the first indictment which, should he be found guilty at trial, would expose him to a life term and then while on bail, we have the second indictment, which includes a certain person not to have a firearm charge, and an eluding at 100 miles an hour without lights on[,] on the Black Horse Pike that resulted in a terrific car accident where he fled the scene. It's the State's concern that with putting this matter off continually, not even yet having a trial date, that not only does he pose a serious threat to the community, but looking at the charges in these indictments and the potential sentences that he would absolutely, in the State's view, be a flight risk and I think that the bail as presently set is much too low in my estimation, Your Honor, respectfully.

Following these comments, PD Sorenson immediately requested a sidebar conference with the court, where she announced, "He's taking the deal of [thirteen] years. Do it right now." After further discussion among counsel and the court, the following additional sidebar exchange occurred

THE COURT: Just so that nobody is blindsided,

the Prosecutor just indicated in the event of the plea he still retains his right to be heard on the bail issue.

PD SORENSEN: (Indiscernible.)

MR. KOKES: (Indiscernible.) That's not part of the deal here. I have no idea what the sentencing date is. (Indiscernible.)

THE COURT: April 18th or April 25th. I mean,

that's the reality.

MR. KOKES: The deal would work if we can keep

him out until the sentencing. Is the Court inclined --

PD SORENSEN: Would you be inclined to --

MR. KOKES: -- to do something with the bail?

THE COURT: Regrettably, he's shown up as far

as I'm concerned.

MR. KOKES: If it's going to be a deal breaker,

Judge, I'll stay away from it.

THE COURT: Okay. Thank you.

Mr. Kokes' written certification set forth his recollection of the sidebar conversation, stating in relevant part

3. During a sidebar conference with Judge Connor and the Prosecutor, I gained the impression that, if Mr. Hayes decided not to enter a plea, the Prosecutor was prepared to move for revocation of Mr. Hayes' bail pending trial. Based upon my experience in the Atlantic County courts, it was my judgment that Judge Connor would likely grant the State's motion to revoke bail.

4. I shared my judgment about the likelihood of the revocation of his bail with Mr. Hayes. Mr. Hayes entered his guilty pleas thereafter. I believe that his decision to plead guilty may have been influenced by the prospect that his bail might be revoked should he decline to enter a plea.

Defendant points to the trial court's statement during sidebar, "[r]egrettably, he's shown up as far as I'm concerned" as the source of the alleged misrepresentation, arguing it indicates the trial judge was not going to revoke defendant's bail. We disagree. Our reading of the sidebar conversation indicates the trial judge was referring to bail in the event defendant pled guilty. We see no indication of the trial judge's intentions in the event defendant rejected the State's plea offer.

Moreover, the comments of DAG Paulis clearly show the State was prepared to move to increase or revoke defendant's bail. Reasonably interpreting DAG Paulis' statements, Mr. Kokes appropriately informed defendant, based on his professional judgment and experience in the Atlantic County courts, that defendant would likely see his bail revoked should he plead not guilty. This was not a baseless prediction, nor was it an "actual misrepresentation" of the judge's statement. DiFrisco, supra, 137 N.J. at 455; Chung, supra, 210 N.J. Super. at 435. Mr. Kokes' conduct was not deficient, and defendant therefore fails to satisfy the first prong of the Strickland/Nu ez-Vald z test. Even if defendant would not have pled guilty without this information, because he failed to prove prong one, our inquiry is finished. See State v. Echols, 199 N.J.344, 358 (2009) ("Unless both parts of the test are established, defendant's claim must fail.") (citation omitted).

IV.

Defendant also argues his Slatercounsel was ineffective for failing to move the certifications from Mr. Kokes and defendant's grandfather4into evidence during his Slaterhearing before Judge Sandson. We disagree. As noted, although counsel never formally moved the certifications into evidence, both individuals appeared at the hearing prepared to testify. Judge Sandson denied counsel's request to hear this testimony, but indicated he was aware of the contents of the certifications, noting, "Mr. Hayes believed that he was -- that there was some bail issues involved and that Mr. Kokes told him that if he did not plead guilty, his bail was going to be revoked." Judge Sandson also allowed defendant to testify regarding his understanding of his bail situation.

Defendant fails to demonstrate why entering the certifications into evidence would have been necessary, or how their absence prejudiced his presentation. In fact, presenting the actual witness testimony was the more effective option. Therefore, counsel was not ineffective under prong one of Strickland. Moreover, defendant has failed to demonstrate prejudice under Strickland'ssecond prong. Judge Sandson clearly was aware of the contents of the certifications, and permitted defendant to testify to his understanding of his bail situation. The judge then clarified he considered defendant's understanding of Mr. Kokes' advice to be irrelevant to his Slaterdetermination. We therefore see no evidence of prejudice to meet the Stricklandtest.

V.

Defendant also argues his trial counsel was ineffective because he failed to take certain steps prior to defendant entering his guilty pleas. We briefly address these arguments in turn.

Defendant first contends trial counsel was ineffective for failing to argue the discovery did not support a conviction for first-degree robbery. Robbery is a second-degree crime, but increases to a first-degree crime "if in the course of committing the theft the actor . . . is armed with, or uses or threatens the immediate use of a deadly weapon." N.J.S.A.2C:15-1(b). The definition of a "deadly weapon" includes simulation of a deadly weapon, "enabling a defendant's conviction of first-degree armed robbery to be based on . . . simulation of the possession of such a weapon." State v. Chapland, 187 N.J.275, 283 (2006). Indeed,

"[d]eadly weapon" means any firearm or other weapon, device, instrument, material or substance, whether animate or inanimate, which in the manner it is used or is intended to be used, is known to be capable of producing death or serious bodily injury or which in the manner it is fashioned would lead the victim reasonably to believe it to be capable of producing death or serious bodily injury[.]

[N.J.S.A. 2C:11-1(c).]

In the context of simulation, the definition of "[d]eadly weapon" in N.J.S.A. 2C:11-1(c) has been read to require there be either an "unambiguous simulation of a weapon" or a combination of words and gestures that "complete the impression of a concealed weapon." Chapland, supra, 187 N.J. at 292. However, "[a] threat or reference to a deadly weapon alone is not enough." State v. Hutson, 107 N.J. 222, 227 (1987). In order to sustain a conviction for armed robbery, the defendant must use an object in a manner such that the victim "reasonably believes it to be capable of causing serious bodily harm or death." Id. at 228 (emphasis in original). This requires a "link between the threat and the object viewed by the victim." Ibid. A finger fashioned to look like a gun may suffice to constitute a simulated deadly weapon so long as a reasonable person could believe it is actually a weapon. State v. Williams, 218 N.J. 576, 588 (2014) (citations omitted).

Relying on Hutson, defendant argues the facts do not demonstrate the victim, P.H., could have reasonably believed defendant was pointing a gun in his back. Defendant's argument stems from the police summary of P.H.'s taped statement, which indicates in relevant part

-- The suspect pointed [an] object into [P.H.'s] back, and stated something like, "give me the money or I'll blow your fucking brains out,"

-- He [P.H.] felt an object in his back and he didn't know if it was a real gun or [defendant's] finger,

-- He is a Virginia State [correctional] [o]fficer, so he decided to fight back,

-- He backed into the suspect, who immediately grabbed him around his chest in a bear hug style grip[.]

Defendant contends P.H.'s uncertainty as to whether defendant used a gun or his finger shows he could not have "reasonably believed" defendant had a dangerous weapon, and that the "bear hug" from behind ruled out the possibility of a deadly weapon on P.H.'s back. We disagree. The PCR judge correctly found the evidence was sufficient to sustain a first-degree conviction, relying on Chapland, supra, 187 N.J. at 292, for the proposition that "an ambiguous or equivocal gesture coupled with threatening words that complete the impression of a concealed weapon, can provide a sufficient factual basis for conviction of first-degree robbery." Here, defendant's gesture was ambiguous, but it was clearly accompanied by the threatening words "blow your . . . brains out," which sufficiently conveyed the impression of a weapon.

Also applicable is State v. LaFrance, 224 N.J. Super. 364 (App. Div. 1988), aff'd in part, rev'd in part, 117 N.J. 583 (1990), where we found the defendant created a "reasonable sensory impression" of a weapon sufficient to meet the definition of armed robbery where he stated he had a gun, placed his hand in his jacket in order to create a bulge, and threatened to "blow the victims' brains out." Id. at 372. Although defendant here did not clearly state he had a gun, the Court in Chapland noted, "[T]he absence of [an] unequivocal statement identifying the type of weapon does not entitle defendant to acquittal." Chapland, supra, 187 N.J. at 292. We conclude defendant's words and actions were sufficient to constitute first-degree robbery, and counsel was not deficient under Strickland for acknowledging this reality.

Defendant also argues P.H.'s handwritten statements to Bally's and Atlantic City Police contradict the taped statement provided to the police, and therefore raise a reasonable doubt as to whether defendant simulated a weapon during the robbery. Defendant correctly notes the two written statements do not specifically reference defendant's use of a gun/finger, and that P.H. first mentions a gun/finger in his later taped statement at the police station. Indeed, P.H.'s first handwritten statement to Bally's indicates, in relevant part, "the black/African male weight 198 Lbs and late 40 follow me to the restroom grabbed me behind while I used restroom. And he used strongly physically and threaten to blow up my head." In his second statement, given to the Atlantic City Police Department approximately an hour after the crime, P.H. wrote, "[T]he man grabbed me behind and pushed me against the wall and demanded for all money otherwise he's going to blow my head."

Despite these differences, we agree with the PCR judge that these statements are not contradictory. P.H.'s repetition of defendant's threat to "blow my head" in each version shows they are generally consistent. It appears P.H. mentioned the gun/finger when he was fully able to explain the story in the taped interview, rather than in the small spaces provided for his written statements. As such, trial counsel was not deficient under Strickland in failing to challenge the first-degree robbery charge on this basis.

Defendant also argues trial counsel's failure to provide him with the victim's taped and written statements constituted ineffective assistance of counsel. Specifically, defendant argues this failure prevented him from making a thorough, educated decision regarding his guilty plea, since he could have disputed at trial whether he used a deadly weapon during the robbery. However, defendant does not demonstrate how this constituted ineffective assistance on the part of trial counsel, since the statements demonstrate a charge of first-degree robbery was appropriate based on a simulation theory. Defendant's argument lacks merit.

Defendant next argues counsel's failure to file a Wade5 motion challenging P.H.'s photo lineup identification constituted ineffective assistance. "A Wade hearing is required to determine if the identification procedure was impermissibly suggestive and, if so, whether the identification is reliable. The trial court conducts a Wade hearing to determine the admissibility of the out-of-court identifications." State v. Micelli, 215 N.J. 284, 288 (2013) (citation omitted). In deciding whether to admit identification evidence, New Jersey courts apply a "two-step analysis [which] requires the court first to ascertain whether the identification procedure was impermissibly suggestive, and, if so, whether the impermissibly suggestive procedure was nevertheless reliable." State v. Herrera, 187 N.J. 493, 503-04 (2006).

Defendant argues it was an "undisputed fact" the photo array displayed to P.H. was impermissibly suggestive because, except for defendant who is a dark-skinned African American man, it only consisted of light-skinned African American men. Defendant contends the photo array unfairly isolated him from the other men, leading to a suggestive identification.

Defendant's argument lacks merit. As the PCR judge correctly noted, defendant's conviction came by way of guilty plea and was not the result of a jury trial. As such, it was not a key factor in the determination of guilt. Furthermore, defendant provides no evidence of suggestiveness besides an opinion statement that the lineup unfairly singled out defendant by skin color. Our review of the lineup photos reveals it is not an "undisputed fact" the lineup consisted of all light-skinned men besides defendant; instead, the lineup consisted of individuals with varying skin tones. A defendant is not entitled to a Wade hearing absent evidence of impermissible suggestiveness. State v. Ortiz, 203 N.J. Super. 518, 522 (App. Div.), certif. denied, 102 N.J. 335 (1985). Because defendant has not provided evidence of suggestiveness to meet the first part of the standard in Herrera, supra, 187 N.J. at 503-04, trial counsel was not ineffective in failing to raise this issue.

Defendant also argues the "bear hug" grip from behind described by P.H. meant he could not get a good look at defendant so as to properly identify him. However, P.H. was able to provide defendant's approximate weight and age in his written statement to Bally's, indicating he had a sufficient opportunity to observe defendant in order to later identify him.

Last, defendant argues the State violated Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), by failing to provide the actual tape recorded statements of P.H., and therefore trial counsel was ineffective for failing to raise the issue. We disagree.

The State has a "constitutional obligation to provide criminal defendants with exculpatory evidence in the State's possession." Marshall, supra, 148 N.J. at 154 (citation omitted). "[T]he suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." State v. Knight, 145 N.J. 233, 245 (1996) (quoting Brady, supra, 373 U.S. at 87, 83 S. Ct. at 1196-97, 10 L. Ed. 2d at 218). In order to make a Brady claim, a defendant must show three criteria: "(1) the prosecution suppressed evidence; (2) the evidence is favorable to the defense; and (3) the evidence is material." State v. Martini, 160 N.J. 248, 268 (1999) (citation omitted). Evidence is material "if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." State v. Parsons, 341 N.J. Super. 448, 455 (App. Div. 2001) (quoting United States v. Bagley, 473 U.S. 667, 682, 105 S. Ct. 3375, 3383, 87 L. Ed. 2d 481, 494 (1985)).

Here, defendant acknowledges the State provided him with a summary of P.H.'s taped statement, but argues the full statement was material evidence because it contradicted P.H.'s written statements regarding the gun/finger in his back. We agree with the PCR court that defendant failed to demonstrate materiality. As noted, the summary of the taped statement did not contradict P.H.'s written statements. Furthermore, defendant has not shown how the full taped statement would lead to a different result than the summary. Parsons, supra, 341 N.J. Super. at 455. This would only be possible if the police had altered P.H.'s words when composing the summary so as to add the statement regarding the gun/finger. Such a suggestion of tampering must be supported by more than a mere allegation, of which there is none here. State v. Morton, 155 N.J. 383, 413-14 (1998), cert. denied, 532 U.S. 931, 121 S. Ct. 1380, 149 L. Ed. 2d 306 (2001). Therefore, trial counsel was not ineffective for failing to file a Brady motion.

Finally, we reject defendant's claim that the PCR court erred in denying his petition without an evidentiary hearing. An evidentiary hearing was not required in this matter because defendant failed to present a prima facie case of ineffective assistance of counsel. Preciose, supra, 129 N.J. at 642.

Affirmed.

1 Regarding this incident, an Atlantic County grand jury returned Indictment No. 07-07-1563, charging defendant with first-degree robbery, N.J.S.A. 2C:15-1 (count one), and fourth-degree resisting arrest, N.J.S.A. 2C:29-2(a)(3) (count two).

2 Regarding the July 18, 2007 incident, an Atlantic Country grand jury returned Indictment No. 07-10-2473, charging defendant with third-degree eluding police, N.J.S.A. 2C:29-2(b) (count one), third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b) (count two), and second-degree possession of a weapon by a convicted person, N.J.S.A. 2C:39-7 (count three).

3 Defendant also petitioned to the United States Supreme Court, which denied certiorari. Hayes v. New Jersey, ___ U.S. ___, 134 S. Ct. 1955, 188 L. Ed. 2d 973 (2014).

4 Colonel McLaughlin's certification states, in relevant part

I was present with Michael Hayes when his attorney told him that the judge would probably revoke his bail if he did not take the plea. I believe Michael took the plea under duress. At the time he had a new born daughter and wanted to spend time with her. . . . It appeared to me that he realized he had done something he did not want to do. . . . I am requesting that you grant Michael Hayes the opportunity to retract his plea.

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