DOCKET NO. A-5163-11T1
Michael Confusione argued the cause for appellant (Hegge & Confusione, L.L.C., attorneys; Frank M. Gennaro, on the brief). Patrick D. Isbill, Assistant Prosecutor, argued the cause for respondent (Warren W. Faulk, Camden County Prosecutor, attorney; Mr. Isbill, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Sapp-Peterson and Lihotz.
On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 05-01-0312.
Michael Confusione argued the cause for appellant (Hegge & Confusione, L.L.C., attorneys; Frank M. Gennaro, on the brief).
Patrick D. Isbill, Assistant Prosecutor, argued the cause for respondent (Warren W. Faulk, Camden County Prosecutor, attorney; Mr. Isbill, of counsel and on the brief). PER CURIAM
Defendant Nathan D. Yates appeals from the denial of his petition for post-conviction relief (PCR), arguing in a single point his PCR petition was wrongfully denied without benefit of an evidentiary hearing. Defendant's brief more specifically asserts the trial judge erroneously denied his request by imposing the procedural bar set forth in Rule 3:22-4. Defendant maintains relief is appropriate because trial counsel was ineffective for not challenging the suggestibility of the out-of-court identification in a Wade hearing; and not adequately investigating his case and presenting alibi witnesses. He also contends appellate counsel was ineffective for not challenging the identification evidence.
We have considered each of these arguments along with the record and applicable law. We affirm.
Defendant was charged with armed robbery (count one), N.J.S.A. 2C:15-1; second-degree unlawful possession of firearms (count two), N.J.S.A. 2C:39-4(a); third-degree unlawful possession of weapon — a handgun (count three), N.J.S.A. 2C:39-5(b); fourth-degree possession of hollow nose bullets (count four), N.J.S.A. 2C:39-3(f); second-degree resisting arrest (count five), N.J.S.A. 2C:29-2(b); and second-degree certain persons not to have weapons (count six), N.J.S.A. 2C:39-7.
The charges resulted from a stick-up of a Sicklerville convenience store at 9:45 p.m. on May 7, 2002. The counter clerk, Navinchal Patel, described the incident. He testified a man wearing a black, hooded sweatshirt, entered his store, stepped toward the counter, pointed a big, silver gun at his face and demanded money, then ran out of the store. Patel's son, Pranesh, was entering the store as the man exited. Pranesh Patel described the assailant as "a six f[oo]t tall, thin, black man wearing a black, hooded sweatshirt." State v. Yates, A-6378-05 (App. Div. April 3, 2008) (slip op. at 3). Pranesh Patel watched the man enter "a white Ford Taurus with Pennsylvania plates that contained the letters 'ED' or 'EK' and make a right turn from the parking lot onto Hickstown Road." Ibid.
At 10 p.m., Gloucester Township Police Officer Michael McDonnell encountered a white Ford Taurus, bearing Pennsylvania license plate EKD-XXXX, with a single occupant traveling northbound on Route 42. Ibid. Officer McDonnell followed the vehicle and saw the driver reach toward the back seat. Ibid. Officer McDonnell activated his overhead lights to signal the vehicle to stop, and the driver pulled to the shoulder. Ibid. However, within seconds, the vehicle accelerated and returned to the highway. Ibid. McDonnell followed in pursuit, "[t]raveling at speeds in excess of ninety miles per hour," when the driver lost control on an exit ramp, flipping the car on its side. Id. at 3-4. Officer McDonnell approached the vehicle, which was empty. Ibid.
For confidentiality purposes, we do not list the exact license plate number.
Pranesh Patel identified the vehicle as the one he saw the robber enter after leaving the family store. Searching the car's trunk, Investigator William Townsend found a silver handgun, four hollow nose bullets, and a black sweatshirt with $180 in its pocket. Ibid. The ring of keys still in the ignition contained a shopper's card and a mailbox key. The shopper's card was registered to defendant's wife, Veronica Yates, and the mailbox key opened the Yates's apartment mailbox. Defendant's driver's license and social security card were found in the glove box along with the vehicle's registration.
The next day, Navinchal Patel was shown an eight-photograph array by Camden County Investigator Brian DeCosmo. He chose defendant's photograph as the assailant. Although stating he did not "exactly" see the assailant's face because he was wearing the hood as he stood approximately five to six feet away, Navinchal Patel saw his nose, eyes and lips and was sure the photo was of the assailant. Investigator DeCosmo "testified that the shopkeeper selected defendant's photo with 'a hundred percent certainty.'" Id. at 6. "At trial, Navinchal Patel was unable to identify defendant as the man who entered his store and robbed him at gunpoint." Ibid.
Defendant's mother testified at trial. She explained defendant called her at around 9 p.m. because he needed a ride home. He and his wife had argued and she left with the car, stranding him at the Baby Depot in Turnersville. Mrs. Yates picked up her son by 9:30 p.m., dropped him off in Philadelphia by 10 p.m., and returned to her Swedesboro home around 10:45 p.m.
Following a jury trial, defendant was convicted on all charges. After merger, defendant was sentenced to an aggregate extended term of twenty-five years in prison, subject to the 85% parole ineligibility period imposed by the No Early Release Act, N.J.S.A. 2C:43-7.2, for counts one through five and a consecutive eight-year term on count six.
On appeal, defendant's convictions were affirmed. Remand was ordered to correct the illegal sentence imposed on count four. State v. Yates, supra, slip op. at 9. Certification was denied. State v. Yates, 196 N.J. 85 (2008).
Defendant filed a pro se petition for PCR. Thereafter, court-appointed counsel filed supplemental pleadings and defendant filed a second supplemental brief. Defendant asserted PCR was warranted because trial counsel failed to present his wife, Veronica Yates, and Tiffany Bush, as additional witnesses who would support his alibi defense. Defendant additionally alleged trial counsel failed to discuss trial strategy, did not thoroughly investigate the case or basis to suppress the out-of court identification by Navinchal Patel. Finally, defendant maintained appellate counsel was ineffective for not raising the suggestiveness of the out-of-court identification on appeal.
The PCR judge considered the application and denied PCR. The challenge to counsel's handling of the identification issues was found barred by Rule 3:22-4, because defendant should have raised the matter on appeal. The other claims were unsupported as defendant offered no additional evidence to suggest counsel's representation was ineffective.
Considering the merits, the judge found no evidence supported defendant's claims the photographic array was suggestive. It is noted the trial judge made a similar finding when denying defendant's motion for a Wade hearing. Also, the assertions directed toward appellate counsel failed because the identification challenge was meritless. This appeal ensued.
It is well-settled that to set aside a conviction based upon a claim of ineffective assistance of counsel, a petitioner must prove, by a preponderance of the evidence, that (1) counsel performed deficiently, and made errors so serious that he or she was not functioning as counsel guaranteed by the Sixth Amendment; and (2) defendant suffered prejudice as a result.
[State v. L.A., 4 33 N.J. Super. 1, 13 (App. Div. 2013) (internal citations omitted).]
New Jersey has adopted the two-prong test handed down by the United States Supreme Court in the companion cases of Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984) and United States v. Cronic, 466 U.S. 648, 104 S. Ct. 2039, 80 L. Ed. 2d 657 (1984). State v. Fritz, 105 N.J. 42, 58 (1987). To establish a prima facie case of ineffective assistance of counsel, a defendant must prove:
First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant bythe Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.
[Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693.]
Under the first prong, a defendant must demonstrate "counsel's representation fell below an objective standard of reasonableness." Id. at 687-88, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. Thus, "[the] test requires the defendant to identify specific acts or omissions that are outside the wide range of reasonable professional assistance . . . ." State v. Jack, 144 N.J. 240, 249 (1996) (internal quotation marks and citation omitted). "'Reasonable competence' does not require the best of attorneys, but certainly not one so ineffective as to make the idea of a fair trial meaningless." State v. Davis, 116 N.J. 341, 351 (1989).
To meet the second prong, "[a] 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." Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Ibid.
An evidentiary hearing, as provided by Rule 3:22-10(b), is triggered when a defendant establishes "a prima facie case in support of post-conviction relief, a determination by the court that there are material issues of disputed fact that cannot be resolved by reference to the existing record, and a determination that an evidentiary hearing is necessary to resolve the claims for relief."
On appeal, defendant reiterates arguments presented before the PCR judge and maintains the judge erred in applying the procedural bar of Rule 3:22-4 and in denying his request for an evidentiary hearing. Rule 3:22-4 establishes a procedural bar to PCR relief in certain circumstances. The rule states, in pertinent part:
Any ground for relief not raised in the proceedings resulting in the conviction . . . or in any appeal taken in any such proceedings is barred from assertion in a proceeding under this rule unless the court on motion or at the hearing finds:
(1) that the ground for relief not previously asserted could not reasonably have been raised in any prior proceeding; or
(2) that enforcement of the bar to preclude claims, including one for ineffective assistance of counsel, would result in fundamental injustice[.]
We agree with the PCR judge that defendant could have raised his claim the trial judge erred in denying defendant's motion for a Wade hearing, but did not. Consequently, the issue may not serve as a basis for PCR as it is barred by Rule 3:22-4(a). For completeness, we consider the merits of this issue.
Prior to trial, defendant moved to suppress the identification evidence. Although a hearing was scheduled, the trial judge reviewed the support submitted with the motion and found no evidence to show the photo array procedure was impermissibly suggestive.
We review the issue under the standard applicable at the time of defendant's trial. A successful challenge to the admissibility of proffered identification testimony shows the procedure in question was "in fact impermissibly suggestive," such that the witness's choice did not represent his or her independent recollection. State v. Madison, 109 N.J. 223, 232 (1988). If the judge found the procedures impermissively suggestive, it then must determine "whether the objectionable procedure resulted in a 'very substantial likelihood of irreparable misidentification.'" Ibid. (quoting Simmons v. United States, 390 U.S. 377, 384, 88 S. Ct. 967, 971, 19 L. Ed. 2d 1247, 1253 (1968)). See also State v. Carter, 91 N.J. 86, 129 (1982) (stating reliability is the lynchpin of an analysis reviewing a suggestibility challenge to an identification).
The admissibility of out-of-court identifications is now guided by State v. Henderson, 208 N.J. 208, 286-87 (2011), which is only applied prospectively.
Defendant's identification challenge proved two of the eight photographs were the same individual; otherwise he offered no evidence showing procedures employed by police were suggestive. Rather, he suggested Navinchal Patel was mistaken because he was in shock and was focusing on the gun, not the robber. Trial counsel explained defendant sought to cross-examine Navinchal Patel; however, the State declined, offering police, not the complaining witness's testimony. The judge rejected defendant's request to subpoena Navinchal Patel to testify prior to trial. Based on the anticipated police testimony, trial counsel agreed he could not demonstrate suggestibility. The State noted Investigator DeCosmo would be called to testify at trial, and defense counsel acknowledged he would have the opportunity to challenge the identification procedures at that time.
Following our review, we reject as unfounded defendant's assertion trial and appellate counsel neglected the identification issue. In fact, during cross-examination, defendant concentrated on Navinchal Patel's inability to identify defendant in court and attacked his identification made the day after the robbery. Counsel was able to establish Navinchal Patel could not "exactly" see the robber's face because it was partially obscured by his hood; the witness was scared, nervous and concentrating on the gun aimed at his face at the time of the robbery; and when pressed in court he could not again describe the facial features of the eyes or nose of the assailant that aided Navinchal Patel's choice of defendant's photograph.
Although cross-examination thoroughly attacked the credibility of the victim and Investigator DeCosmo, the effort yielded no facts supporting a claim the photo array procedures were improper. See State v. Farrow, 61 N.J. 434, 451 (1972) ("The strength or credibility of the identification is not the issue on admissibility; that is a matter of weight, for the fact finder[.]"). Consequently, his petition contained only bald assertions, which do not satisfy the two prongs of the Strickland/Fritz test for PCR relief. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.) (noting PCR relief requires more than "bald assertions" by a defendant), certif. denied, 162 N.J. 199 (1999).
Ineffective assistance of appellate counsel claims are also governed by the Strickland standard. State v. Morrison, 215 N.J. Super. 540, 546 (App. Div.), certif. denied, 107 N.J. 642 (1987). Because we have rejected defendant's suggestions trial counsel was ineffective, the same claims lodged against appellate counsel fail for the same reasons we discussed.
Next, we do not agree counsel's decision not to call defendant's wife Veronica Yates, as an additional alibi witness, demonstrated ineffective assistance. Veronica Yates certified "on May 7, 2202 [sic]," she left defendant at the Turnersville Baby Depot after an argument, and went straight home. When she went to give a friend a ride, she realized her car was stolen, surmising she left the keys in the ignition or the trunk. Further, she explained, at her urging, defendant always left his driver's license in "the glove department [sic]."
The decision not to call Veronica Yates as a witness was strategic and tactical. The record shows trial counsel interviewed Veronica Yates prior to trial and was familiar with her testimony and prior statements to police. In his review, counsel considered the recent factual recitation was inconsistent with the May 9 and 10, 2002 statements Veronica Yates previously gave to police. Also, a sequestration order would prevent her presence in the courtroom, until she testified. Consequently, on the opening day of trial, defense counsel advised the court Veronica Yates decided not to testify and would be staying in the courtroom, apparently to show the jury her support for her husband.
The facts asserted in Veronica Yates's certification do not add to the trial testimony that was provided by defendant's mother, Mrs. Yates. After she left him at 8 p.m., Veronica Yates offers no information establishing defendant's whereabouts. Also, the inconsistencies posed by her prior statements allowed Veronica Yates to be discredited at trial, with the resultant effect of undermining Mrs. Yates's testimony. Finally, counsel made the tactical decision defendant benefited by his wife's daily presence and show of support throughout the trial.
The record contains no evidence regarding the testimony of Tiffany Bush. Accordingly, defendant's unsupported allegation she should have been called as a witness does not warrant PCR.
Our review reveals counsel's exercise of professional judgment in not calling Veronica Yates was reasonable, and will not be second guessed. "If counsel thoroughly investigates law and facts, considering all possible options, his or her trial strategy is 'virtually unchalleng[e]able.'" State v. Savage, 120 N.J. 594, 617 (1990) (quoting Strickland, supra, 466 U.S. at 690-91, 104 S. Ct. at 2065-66, 80 L. Ed. 2d at 695).
We also reject as meritless defendant's claim counsel failed to investigate the facts of the case. Specifically, defendant contends video tapes from the Baby Depot or testimony from two customers in the convenience store at the time of the robbery would have supported his defense. However, defendant does not show there was a working video camera, which captured him waiting outside the Baby Depot at 9:30 p.m. Further, the two store customers were not known to Navinchal Patel, and he stated they fled after defendant departed, but before police arrived, making their identity unknown.
Counsel has no duty to investigate unfounded or meritless claims. Cummings, supra, 321 N.J. Super. at 170. Counsel's duty is to make "'reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary." Savage, supra, 120 N.J. at 618 (internal quotation marks and citation omitted).
Defendant's PCR petition failed to establish a prima facie case satisfying the Strickland/Fritz test, entitling him to an evidentiary hearing to further develop assertions of ineffective assistance of counsel. We discern no basis to set aside the PCR judge's order denying the requested relief.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION