STATE OF NEW JERSEY v. MELVIN ROLANDO-PADILLA

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4717-13T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MELVIN ROLANDO-PADILLA,

Defendant-Appellant.

_________________________________________

August 29, 2016

Submitted February 1, 2016 Decided

Before Judges Sabatino and O'Connor.

On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 05-09-1280.

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

Andrew C. Carey, Middlesex County Prosecutor, attorney for respondent (David M. Liston, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant appeals from the denial of his petition for post-conviction relief (PCR) without an evidentiary hearing. For the reasons that follow, we affirm.

I

On May 18, 2006, a jury convicted defendant of first-degree armed robbery, N.J.S.A. 2C:15-1; second-degree conspiracy to commit armed robbery, N.J.S.A. 2C:5-2; second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a); third-degree criminal restraint, N.J.S.A. 2C:13-2; third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b); and third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(4).

On September 29, 2006, the court sentenced defendant to an aggregate term of imprisonment of fourteen years. The sentence imposed on two of the counts included parole ineligibility under the No Early Release Act, N.J.S.A. 2C:43-7.2, for eleven years, ten months, and twenty-five days.

Defendant appealed and, in an unpublished opinion, we affirmed his convictions and sentence, with the exception of remanding the matter for the entry of an amended judgment of conviction to reflect that the conviction for conspiracy merged with the conviction for robbery. State v. Rolando-Padilla, No. A-5000-06 (App. Div. Feb. 5, 2010). The Supreme Court denied defendant's petition for certification. State v. Rolando-Padilla, 202 N.J. 44 (2010).

Defendant filed a PCR petition on December 7, 2010. Subsequently, defense counsel filed a brief on defendant's behalf, in which counsel raised a number of issues about the effectiveness of both trial and appellate counsel. The PCR court denied defendant's petition by order dated December 21, 2011.

II

Defendant presents the following issues for our consideration in his appeal.

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 Arise Out of Evidentiary Hearings And Petitions For Post-Conviction Relief.

1. Trial Counsel's Failure to Request A Wade Hearing Constituted Ineffective Assistance of Counsel.

2. Trial Counsel's Failure to Object to The Admissibility of Officer Chang's Testimony Due to His Destruction of His Investigative Notes Constituted Ineffective Assistance of Counsel.

3. Trial Counsel's Failure to Consult With Defendant to Review The Evidence and Prepare Potential Trial Defenses and Strategies Constituted Ineffective Assistance of Counsel.

We incorporate by reference and set forth below the factual history recited in the opinion we rendered on the direct appeal.

Around 6:00 or 6:30 p.m., on July 8, 2005, [A.O.1] went to New Brunswick, cashed a payroll check, and around 8:00 p.m. arrived at a house of prostitution. . . [Co-defendant] Jose Alvarenga let [A.O.] in and brought him to a room upstairs. There, defendant pointed a gun at [A.O.], tied his hands, and took his money. Defendant and Alvarenga then took [A.O.] to another room, which held two men whose hands were also tied. During the next two hours, two more bound victims were placed in the room.

Defendant and Alvarenga left, and shortly thereafter [A.O.] freed himself and one of the other victims. About five or ten minutes later, [A.O.] saw New Brunswick police officers detaining Alvarenga, who had been stopped for behaving suspiciously. [A.O.] told the police what Alvarenga and defendant had been doing. The police arrested Alvarenga and went into the building, and then went to the police station with [A.O.] and two other victims. After giving a brief statement, [A.O.] went at about midnight to a nearby train station to go home, and saw defendant on the platform apparently waiting for a train. [A.O.] returned to the ground level and, at his request, a taxi dispatcher called for the police.

While waiting for the police, [A.O.] noticed that a train was arriving. He ran back to the platform and confronted defendant, detaining him until the train left. Shortly thereafter, the police arrived, but apparently they were not New Brunswick police officers. The police told [A.O.] to leave, and he walked back to the police station. At about 1:00 a.m., [A.O.] gave one of the officers a second statement and a full description of defendant. New Brunswick police officers then went to the train station, saw defendant, who matched the description given by [A.O.], and brought defendant back to the police station. [A.O.] looked at defendant from behind a one-way mirror and identified him as the robber with the gun . . . [A.O.] identified Alvarenga and defendant in court at trial.

[State v. Rolando-Padilla, No. A-5000-06 (App. Div. Feb. 5, 2010) (slip op. at 2-3).]

Defendant contends that, on direct appeal, he argued that the identification procedure employed by the police was "unduly suggestive." The precise nature of the argument presented on direct appeal is not made clear in defendant's brief before us in his present appeal. Be that as it may, because he had not asserted before the trial court that the identification procedure had been unduly suggestive, on direct appeal defendant urged the plain error rule, see R. 2:10-2, compelled our consideration of this issue. Applying the principles of identification law set forth in State v. Romero, 191 N.J. 59, 78-79 (2007), we summarily determined defendant's argument was devoid of merit.

In Romero, defendant was convicted of first-degree robbery and related offenses for stabbing and robbing the victim of $1,200. While being mugged, the victim was able to see his attacker, later identified as defendant, before his assailant fled. About a week later, the victim saw a person on the street who he believed was the person who had attacked him, and contacted the police.

Together the victim and the police searched the area in a patrol car, but to no avail; the police then dropped off the victim at his home. About an hour later, the police spotted and apprehended a person who fit the victim's description of his attacker, and put the suspect in the back of a patrol car. The police contacted and transported the victim to the patrol car in which the hand-cuffed defendant was seated.

Before he viewed the suspect, the police told the victim "we have somebody that fits the description you described," and requested that the victim "see if this is the person." The victim then viewed the suspect through the window of the patrol car and identified the suspect defendant Romero as his attacker.

The defendant challenged as unduly suggestive the show-up identification procedure employed, as well as the comments made by the police to the victim just before the show-up. After a Wade2 hearing, the trial court rejected defendant's contention under extant law,3 finding the victim's identification of defendant reliable. The Court ultimately affirmed defendant's convictions.

The Romero Court determined the show-up identification procedure was not impermissibly suggestive because "the identification of defendant originated from the victim's own observation of someone he believed was his assailant." Id. at 78. That is, days after the assault, the victim was able to identify his attacker without any prompting or intervention by the police. Further, the fact the police finally discovered defendant based upon the victim's description did not taint or invalidate the identification procedure.

Here, defendant argues his counsel was ineffective because he failed to request a Wade hearing and challenge A.O.'s identification of defendant following the allegedly suggestive show-up procedure at the police station. Defendant contends that, on direct appeal, his attorney

challenged the State's failure to record and document the out-of-court identification procedure and argued the procedure was unduly suggestive. The issue argued in the PCR petition was that trial counsel failed to request a Wade hearing to attack the very suggestive show-up identification when many undisputed facts from the record evinced the identification in this matter was questionable and suggestive. These are very distinct legal claims.

We need not determine if the legal claims asserted on direct appeal are in fact distinct from those now before us. Whether defendant's contentions in his PCR petition are the same as, different from, or overlap those that were asserted on direct appeal makes no difference because the result is the same. Defendant's claim the identification procedure was unduly suggestive is without merit and his counsel's failure to request a Wade hearing would not have been likely to alter the outcome.

Here, during the robbery, A.O. saw defendant's face and noticed certain aspects of his clothing. After A.O. escaped from the room in which he had been held captive, he spotted defendant out of a crowd of about fifty people on a train station platform later that day. The victim gave the police a description of defendant's appearance, who then went to the train station and arrested the individual who fit that description. After the show-up, A.O. confirmed defendant was the person who had robbed him.

The facts here are analogous to those in Romero and, in our view, that case controls the disposition of this issue. Under these specific circumstances, the identification procedure employed here was not unduly suggestive, as the victim independently identified defendant as the person who had robbed him well before the police even had an opportunity to influence A.O.'s perceptions of who the perpetrator was. Counsel was not ineffective under the principles set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984) (requiring proof of counsel's deficient performance and actual prejudice to the defendant) and State v. Fritz, 105 N.J. 42, 58 (1987) (adopting the Strickland two-part test in New Jersey).

Defendant next contends trial counsel failed to object to the admissibility of a police officer's testimony because, after he wrote his report, he destroyed the notes of his interview with the victim. While the practice of destroying a law enforcement officer's notes of witness interviews after the preparation of formal reports was disapproved of at the time of this trial, see State v. Cook, 179 N.J. 533, 542 n.3 (2004), and State v. Branch, 182 N.J. 338, 367 n.10 (2005), the Court had not found such practice to constitute a discovery violation or suggest that a consequence of such destruction was to bar the testimony of the officer.

In 2011, the Court in State v. W.B., 205 N.J. 588, 608-09 (2011), did hold that the pre-indictment destruction of police interview notes may entitle a defendant to an adverse inference charge. But the application of this new rule began thirty days from the date of the W.B. opinion. Ibid. Given the law at the time of this trial in 2006, defense counsel cannot be faulted for failing to object to the officer's testimony on the ground he had not preserved his notes after he drafted his report.

Finally, defendant contends trial counsel failed to consult with him for the purpose of reviewing the evidence and preparing potential defenses and strategies. Defendant does not specify how this alleged failure affected the outcome of the trial.

As referenced above, in order for a defendant to obtain relief based on ineffective assistance grounds, he is obliged to show not only the particular manner in which counsel's performance was deficient, but also that the deficiency prejudiced his right to a fair trial. Strickland, supra, 466 U.S. at 687, l04 S. Ct. at 2064, 80 L. Ed. 2d at 693; State v. Fritz, 105 N.J. 42, 58 (1987). Because defendant did not identify how counsel's alleged failure to meet with defendant led to his convictions, we are constrained to reject this latter argument.

In the final analysis, 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. Accordingly, the PCR court correctly concluded that an evidentiary hearing was not warranted. See State v. Preciose, 129 N.J. 452, 462-63 (1992).

Affirmed.

1 We use initials to protect the privacy of the victim.

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

3 At the time Romero was decided, New Jersey courts were required to adhere to the two-step analysis set forth in Manson v. Brathwaite, 432 U.S. 98, 110, 97 S. Ct. 2243, 2251, 53 L. Ed. 2d 140, 151 (1977), to determine the admissibility of out-of-court identifications. See State v. Madison, 109 N.J. 223, 233 (1988). First, a reviewing court had to "ascertain whether the identification procedure was impermissibly suggestive." State v. Herrera, 187 N.J. 493, 503 (2006). If so, a court was required to determine "whether the impermissibly suggestive procedure was nevertheless reliable" by considering the "totality of the circumstances" and "weighing the suggestive nature of the identification against the reliability of the identification." Id. at 503-04.

In State v. Henderson, 208 N.J. 208 (2011), our Court revised the Manson/Madison two-prong test, setting forth specific variables that a court must consider in making determinations of suggestiveness. Id. at 288-94. The Court expressly stated that the new rule of law would apply only to future cases, "thirty days from the date this Court approves new model jury charges on eyewitness identification." Id. at 302. The revised jury charges became effective September 4, 2012, about six years after defendant's trial in the present case. See Model Jury Charge (Criminal), Identification: In-Court and Out-of-Court Identifications (Revised 7/19/12, Effective 9/4/12).