STATE OF NEW JERSEY v. PETER N. RUSCH

NOT FOR PUBLICATION WITHOUT THE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-4809-15T3

STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

PETER N. RUSCH,

        Defendant-Appellant.


              Submitted October 31, 2017 – Decided November 21, 2017

              Before Judges Carroll and Mawla.

              On appeal from Superior Court of New Jersey,
              Law Division, Ocean County, Indictment No. 10-
              03-0392.

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

              Joseph D. Coronato, Ocean County Prosecutor,
              attorney for respondent (Samuel Marzarella,
              Chief Appellate Attorney, of counsel; Shiraz
              Imran Deen, Assistant Prosecutor, on the
              brief).

PER CURIAM
     Defendant Peter Rusch appeals from the denial of his petition

for post-conviction relief (PCR) without an evidentiary hearing.

For the reasons that follow, we affirm.

     In   a   four-count   indictment,       defendant    and   co-defendant

Raymond Graziosi were jointly charged with first-degree robbery,


N.J.S.A. 2C:15-1 (count one); third-degree possession of a weapon

for an unlawful purpose, 
N.J.S.A. 2C:39-4d (count two); and fourth-

degree unlawful possession of a weapon, 
N.J.S.A. 2C:39-5d (count

three).       Graziosi   was    separately   charged     with   third-degree

possession of a controlled dangerous substance, 
N.J.S.A. 2C:35-10

(count four).     Following a June 2011 jury trial, defendant was

acquitted of count two, but convicted of the remaining counts.

     At sentencing on September 1, 2011, the court merged count

three with count one.          The court then sentenced defendant to a

seventeen-year prison term on the robbery conviction, with an

eighty-five percent period of parole ineligibility under the No

Early Release Act, 
N.J.S.A. 2C:43-7.2.

     Defendant     appealed     and,   in   an   unpublished    opinion,    we

affirmed his convictions and sentence.           State v. Rusch, No. A-795-

11 (App. Div. Feb. 14, 2014). The Supreme Court denied defendant's

petition for certification.        State v. Rusch, 
219 N.J. 627 (2014).

     The facts underlying defendant's convictions are set forth

in our earlier opinion and need not be repeated in the same level

                                       2                             A-4809-15T3
of detail here.    Briefly summarizing, during the early morning

hours of July 24, 2009, the victim, George Murphy, was attacked

and robbed at knifepoint by two individuals, later identified as

defendant and Graziosi.     The incident took place on the beach in

Seaside Heights.   Murphy advised police that the men involved were

white, and one wore a tan hat, white tee shirt, and jean shorts,

and the other wore a red hat.          The police apprehended Graziosi,

who was wearing a red hat, near the scene, and Murphy immediately

identified Graziosi as one of the perpetrators.            Defendant was not

at the scene, but was arrested within a short time after police

spotted him jumping fences between houses.            When questioned by

police, defendant admitted "hanging out all night" with Graziosi,

but denied any knowledge of the incident with Murphy on the beach.

     Graziosi   pled   guilty    and     testified   for     the   State        at

defendant's   trial.      Graziosi     stated   he   and    defendant        were

approached in a convenience store parking lot by Murphy, who asked

to buy drugs from them.    The three men walked to the beach, where

defendant punched Murphy in the face.           Graziosi then helped pin

Murphy down, while defendant held a knife to Murphy's throat and

removed cash and a wallet from Murphy's pockets.               After police

apprehended   Graziosi,    he   identified      defendant    as    the     other

individual involved in the robbery.



                                     3                                   A-4809-15T3
     Defendant filed a timely petition for PCR in February 2015.

PCR counsel was appointed and submitted a brief contending trial

counsel failed to: (1) object to the court's omission of a portion

of Model Jury Charge (Criminal), "Testimony of a Cooperating Co-

Defendant or Witness" (revised 2/6/06), when it was read to the

jury;   (2)   challenge    Murphy's   out-of-court   identification      of

defendant based on a faulty photo identification procedure; (3)

secure evidence that would have assisted in establishing a defense,

such as the convenience store surveillance video and fingerprint

evidence;     and   (4)   pursue   another   altercation   defendant   was

involved in that evening with a female acquaintance, which could

have assisted in establishing an alibi defense.            Defendant also

faulted counsel's request that defendant prepare a list of proposed

questions and anticipated answers for each witness to be called

at trial.

     Judge James M. Blaney, who was not the trial judge, denied

defendant's petition by order filed on May 6, 2016.          Judge Blaney

issued a comprehensive thirteen-page written opinion on the same

date setting forth his findings and reasons for denying defendant

any relief.     The judge concluded defendant did not establish a

prima facie showing of ineffective assistance of counsel and,

therefore, no evidentiary hearing was required.              This appeal



                                      4                           A-4809-15T3
followed, in which defendant presents the following issues for our

consideration:

          POINT I

          THE   TRIAL  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   ADEQUATE   LEGAL
          REPRESENTATION FROM TRIAL COUNSEL.

          POINT II

          THE   TRIAL  COURT   ERRED IN DENYING   []
          DEFENDANT'S PETITION FOR POST[-]CONVICTION
          RELIEF, IN PART, ON PROCEDURAL GROUNDS
          PURSUANT TO RULE 3:22-4.

     The standard for determining whether counsel's performance

was ineffective for purposes of the Sixth Amendment was formulated

in Strickland v. Washington, 
466 U.S. 668, l
04 S. Ct. 2052, 
80 L. Ed. 2d 674 (1984), and adopted by our Supreme Court in State v.

Fritz, l
05 N.J. 42 (l987).      In order to prevail on a claim of

ineffective   assistance   of   counsel,   defendant   must   meet   the

following two-prong test: (l) counsel's performance was deficient

and he or she made errors so egregious counsel was not functioning

effectively as guaranteed by the Sixth Amendment to the United

States Constitution; and (2) the defect in performance prejudiced

defendant's rights to a fair trial such that there exists a

"reasonable probability that, but for counsel's unprofessional

errors, the result of the proceeding would have been different."

                                   5                            A-4809-15T3
Strickland, supra, 
466 U.S.  at 694, l
04 S. Ct.  at 2068, 
80 L. Ed. 2d    at 698.

     Here, defendant focuses his appeal on the statement Murphy

gave to police in which he indicated that one of the men who robbed

him wore a tan hat and the other a red hat.          Murphy elaborated

that he identified Graziosi at the scene as the man with the red

hat, and it was the man wearing the tan hat who held the knife to

his throat during the robbery.         When asked about the specific

features of the man wearing the tan hat, Murphy replied he had

"identified him in the pictures already."

     Defendant asserts there was no mention in discovery of a

photo array or the photo identification procedure the police

utilized.    He submits this implies "that in fact no photo array

was used at all and that single photos were used."             Defendant

argues trial counsel was ineffective in failing to challenge this

"faulty identification procedure," and he was prejudiced because,

other than Graziosi, no other witness identified him as one of the

robbers. Defendant further contends the PCR court erred in finding

this argument was procedurally barred under Rule 3:22-4(a) because

it could have been raised on direct appeal.       Defendant also argues

appellate    counsel   was   ineffective   in   failing   to   raise   the




                                   6                              A-4809-15T3
identification issue on appeal.1             After reviewing the record, we

do not find these arguments persuasive.

       On direct examination by the prosecutor, Murphy was not asked

to identify defendant in the courtroom as one of the men who robbed

him,    nor    was    he   questioned       about   any   prior      out-of-court

identification        he   made   of   defendant.         However,    on    cross-

examination, Murphy referenced the word "picture," and he was then

asked by defense counsel, "Didn't they show that person to you?"

The State sought a sidebar, during which the identification issue

was discussed.        The following colloquy ensued:

              [PROSECUTOR]:   Judge, we discussed this at
              length in chambers. The State has made every
              confession on the [identification]. [Defense
              counsel] has just opened that door by directly
              asking him, didn't they show you pictures to
              [identify] the guy with the knife. I am going
              to get up there on redirect and have [Murphy]
              [identify] [defendant] in court.

                     . . . .

              [DEFENSE COUNSEL]: I did not ask him about
              any pictures. I was asking him the person who
              was apprehended, was he shown that person.

              [THE COURT]: I think it's been pretty well
              established there's a prior inconsistent

1
  We decline to consider defendant's new claim of ineffective
assistance of appellate counsel because it was not previously
raised in defendant's PCR petition, was not argued before the PCR
court, and does not involve jurisdictional or public interest
concerns.   State v. Robinson, 
200 N.J. 1, 20 (2009); State v.
Arthur, 
184 N.J. 307, 327 (2005); Nieder v. Royal Indem. Ins. Co.,

62 N.J. 229, 234 (1973).

                                        7                                  A-4809-15T3
           statement so you made your point, but now you
           are going a little far afield and I do not
           want anything that is going to lead to opening
           the door and giving an out[-]of[-]court
           identification because the State . . .
           attempted not to do an out[-]of[-]court or
           in[-]court identification and it will remain
           such.

                 . . . .

           I will tell this jury to disregard any
           question about pictures or any answer about
           pictures, okay. We will move on from there.

The judge then instructed the jury:

           You are to totally and completely disregard
           the question and answer that you just heard
           regarding pictures. It is not to enter into
           your discussions or deliberations at any time.
           It is not evidence.

     It is clear from the record the State had conceded the

identification issue and did not introduce an out-of-court or in-

court identification of defendant before the jury.            Defendant's

contention that trial counsel should have somehow challenged an

identification that was not used at trial lacks merit. Had defense

counsel   done   so,   the   trial   judge   would   have   precluded   the

questioning or, alternatively, counsel would have risked opening

the door to allow Murphy's identification testimony.

     Moreover, defendant has failed to demonstrate prejudice.             As

Judge Blaney aptly concluded:

           Defense counsel's attempts to cross-examine
           about the pictures did not fall below the

                                     8                             A-4809-15T3
          standard of what a reasonable attorney should
          do, and his failure to continue to do so after
          the [c]ourt warned him to stop discussing the
          pictures was proper.    If trial counsel had
          more firmly objected and eventually brought
          the issue of the picture being used to
          identify [defendant] at the police station,
          it does not seem likely that this small bit
          of evidence, in comparison with the remainder
          of the evidence against him, would have caused
          a different result.

    The   record     also   supports   Judge   Blaney's   findings    on

defendant's other claims.     Accordingly, we are satisfied from our

review of the record that defendant failed to make a prima facie

showing of ineffectiveness of trial counsel under the Strickland-

Fritz test.   The judge correctly concluded an evidentiary hearing

was not warranted.     See State v. Preciose, 
129 N.J. 452, 462-63

(1992).

    Affirmed.




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