Opinion
DOCKET NO. A-1631-11T2
04-29-2013
STATE OF NEW JERSEY, Plaintiff-Respondent v. CLARENCE YORK, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Jacqueline E. Turner, Assistant Deputy Public Defender, of counsel and on the brief). Theodore J. Ramankow, Union County Prosecutor, attorney for respondent (Travis H. Carter, Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Fisher and Leone.
On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 05-12-1379.
Joseph E. Krakora, Public Defender, attorney for appellant (Jacqueline E. Turner, Assistant Deputy Public Defender, of counsel and on the brief).
Theodore J. Ramankow, Union County Prosecutor, attorney for respondent (Travis H. Carter, Assistant Prosecutor, of counsel and on the brief). PER CURIAM
In appealing the denial of his post-conviction relief (PCR) petition, defendant argues he was denied the effective assistance of counsel because his trial attorney failed to seek a Wade hearing prior to trial. Because defendant has not alluded to suggestive conduct and claims only that certain out-of-court identifications were unreliable, we find no merit in his argument. That is, had defendant's trial attorney sought the exclusion of these identifications prior to trial, the trial judge would have been required to deny the request because there was no allegation and no evidence of suggestive conduct. We, therefore, affirm.
United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967).
Defendant was charged with: first-degree murder, N.J.S.A. 2C:11-3; third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d); and fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(d). The evidence adduced at trial was thoroughly discussed in our opinion on defendant's direct appeal, State v. York, No. A-4680-05 (App. Div. July 29, 2009), and need not be repeated in great detail here.
Briefly, on July 19, 2003, defendant and others were picked up in Newark by Rahway relatives who were having disputes with neighbors. The jury received evidence in the form of testimony and prior out-of-court statements that defendant said, during the car ride to Rahway, that: "[s]omebody's gonna get it"; he was "tired of this s**t"; and he had "his shank and he's ready to shank somebody." One of the occupants saw that defendant was in possession of "what looked like a pocketknife." Defendant also said to his fellow passengers:
No one better f**k with my nieces and nephews, and if someone does I'm going to f**k them up. If I got to shank someone I will. I don't give a f**k.
After they arrived in Rahway, a melee started, apparently only among the young women and girls present. When an adult male, Jameel Swint, entered the battle to help a young female combatant, defendant joined the fray. During the melee, Swint was fatally stabbed.
The jury also received evidence that, in the aftermath, defendant was heard to say that he "shanked the mother f**ker" and when later informed that Swint died, defendant said, "I didn't mean to do that, but they came at us." The participants then present discussed what they would tell the police, and they gave statements to the police that defendant and others were not in Rahway that night. Later, when presented with additional information, those stories changed, and two of those involved with defendant gave additional statements in which they acknowledged their earlier statements that defendant was not in Rahway were not truthful and then revealed the discussion during the car ride with defendant from Newark to Rahway prior to the murder and other information about the Rahway melee.
Manual Johnson, who was in the area at the time but not a participant, identified defendant in court as the man he saw stab Swint.
K.W., a thirteen-year old girl, testified that during the fight defendant told Swint to mind his business. Swint replied, in reference to K.W., that "this is my business . . . [t]hat's my little sister." K.W. said defendant then "pull[ed] his hands from behind" and she saw "a glare, like that, a metal piece, and [it] went right into [Swint's] stomach."
Another eyewitness, Monique Williams, made an identification of defendant from a photographic array conducted by the police.
The jury convicted defendant on all counts. On March 17, 2006, Judge Joseph P. Donohue, who also presided over the trial, imposed an aggregate sixty-year prison term subject to the No Early Release Act, N.J.S.A. 2C:43-7.2. Defendant appealed, arguing that the judge made errors: during jury selection, in denying his motion for a competency hearing concerning one of the State's witnesses, in admitting evidence of the prior written statements of certain witnesses, and in instructing the jury. Defendant also argued that the verdict was against the weight of the evidence, that the judge erred in refusing to merge the third-degree weapons conviction with the murder conviction, and that the sentence was both illegal and excessive. We rejected all defendant's arguments and affirmed. The Supreme Court denied defendant's petition for certification. 200 N.J. 547 (2009).
Defendant filed a timely PCR petition, arguing, among other things, that his trial attorney was ineffective in failing to seek the exclusion of what he claimed were unreliable out-of-court identifications. Judge Donohue denied the PCR petition without conducting an evidentiary hearing because defendant failed to assert that the allegedly unreliable out-of-court identifications were the product of suggestive words or conduct.
Defendant appeals and argues that the trial judge erred in denying post-conviction relief in the following single point:
SINCE THE DEFENDANT MADE OUT A PRIMA FACIE CASE OF INEFFECTIVE ASSISTANCE OF COUNSEL FOR THE FAILURE TO CHALLENGE THE IDENTIFICATION PROCEDURES, AN EVIDENTIARY HEARING WAS REQUIRED IN HIS CASE.We find insufficient merit in this argument to warrant discussion in a written opinion. R. 2:11-3(e)(2). We add only the following additional comments.
Even with the Supreme Court's recent and purely prospective alteration of the methodology for determining the reliability and potential exclusion of out-of-court identifications in State v. Henderson, 208 N.J. 208, 220 (2011), a criminal defendant must still demonstrate -- as required when defendant was tried -- a challenged identification was the product of suggestive words or conduct. Id. at 288 (holding that "to obtain a pretrial hearing, a defendant has the initial burden of showing some evidence of suggestiveness that could lead to a mistaken identification"); see also State v. Rodriguez, 264 N.J. Super. 261, 269 (App. Div. 1993), aff'd o.b., 135 N.J. 3 (1994); State v. Ortiz, 203 N.J. Super. 518, 522 (App. Div.), certif. denied, 102 N.J. 335 (1985). The same day Henderson was decided, the Court also held this element may arise from "a private actor's suggestive words or conduct." State v. Chen, 208 N.J. 307, 322 (2011).
In ruling on the PCR petition, Judge Donohue correctly recognized that defendant failed to present evidence of suggestive conduct by either police officers or private actors in the generation of the out-of-court identifications in question. Indeed, in this appeal, defendant does not argue otherwise, asserting only that eyewitnesses Johnson, Williams and K.W. were not reliable, eyewitness testimony was of critical importance in this case, and there was no other reliable incriminating evidence. Those circumstances alone do not warrant the conducting of a Wade hearing. Without evidence of suggestiveness, reliability becomes a matter for the jury, as it is in most cases. See Henderson, supra, 208 N.J. at 303 (recognizing that "in the vast majority of cases, identification evidence will likely be presented to the jury"). Accordingly, Judge Donohue correctly concluded that even if a Wade hearing had been sought prior to trial, the request would have been denied for that reason. As a result, there is no doubt that defendant could not satisfy the prejudice prong of the Strickland/Fritz ineffectiveness test.
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); State v. Fritz, 105 N.J. 42 (1987).
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Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION