                                NOT FOR PUBLICATION WITHOUT THE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-4429-16T1

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

RANDY WILLIAMS,

     Defendant-Appellant.
_______________________________

                    Submitted October 10, 2018 – Decided October 23, 2018

                    Before Judges Hoffman and Suter.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Middlesex County, Indictment No. 10-09-
                    1289.

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

                    Andrew C. Carey, Middlesex County Prosecutor,
                    attorney for respondent (Joie D. Piderit, Assistant
                    Prosecutor, of counsel and on the brief).

PER CURIAM
      In 2011, a jury found defendant and his co-defendant, Lemont Love, guilty

of second-degree robbery, N.J.S.A. 2C:15-1; second-degree burglary, N.J.S.A.

2C:18-2; and third-degree aggravated assault, N.J.S.A. 2C:12-1b(1). The trial

judge sentenced defendant to an aggregate term of eighteen years of

imprisonment with an eighty-five percent period of parole ineligibility, pursuant

to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. On his direct appeal,

we affirmed defendant's convictions and aggregate sentence but remanded for

the trial court to merge the aggravated assault conviction into the armed robbery

conviction. State v. Williams, No. A-1321-11 (App. Div. July 31, 2014) (slip

op. at 27) (Da1)   Our Supreme Court denied certification. State v. Williams,

220 N.J. 269 (2015).

      In April 2015, defendant filed a petition for post-conviction relief (PCR).

In a comprehensive written opinion, Judge Dennis Nieves denied PCR.

Defendant appeals, and we affirm.

                                           I

      We briefly summarize the evidence presented at trial. Darin Sloat owed

Love a significant amount of money. On the morning of February 17, 2010,

Sloat was staying at a motel in East Brunswick with his girlfriend, K.E., and her

ten-month-old son, when defendant and two co-defendants entered the room and


                                                                         A-4429-16T1
                                       2
attacked Sloat. Love stomped and kicked Sloat, defendant punched Sloat in the

head and neck, and co-defendant Charles Opher punched Sloat in the lower back.

After the assault, defendant, Love, and Opher ran out of the motel room, taking

Sloat's cell phone with them, and fleeing in a silver Pontiac.

      The police apprehended the trio in Spotswood after an alert went out for

their vehicle. The police recovered Sloat's cell phone from the vehicle, and

testing confirmed the presence of blood on Love's sneakers. The police

transported defendant, Love, and Opher to the police station, where East

Brunswick police also brought Sloat to see if he could identify the persons who

assaulted him. As defendant, Love, and Opher stepped out of the police vehicle,

one by one, Sloat identified each one as participating in the assault. Sloat then

gave a statement to the police. Sloat testified to these events at trial.

      A Middlesex County grand jury indicted defendant, Love, and Opher on

charges of robbery, burglary, and aggravated assault.          Opher resolved his

charges through a plea agreement, which called for him to testify against

defendant and Love. At trial, Opher testified that he, defendant, and Love each

hit or stomped Sloat. K.E. also testified that she saw all three defendants

"kicking [Sloat] and punching him in the head and the back."

      In his direct appeal, defendant raised the following issues:


                                                                            A-4429-16T1
                                         3
POINT I

     IT WAS ERROR FOR THE TRIAL COURT TO
     DENY    DEFENDANT'S   MOTION   FOR
     MISTRIAL AFTER THE DELIBERATING
     JURY VIEWED THE DEFENDANT IN
     HANDCUFFS.

POINT II

     THE TRIAL COURT'S RESPONSE TO THE
     JURY QUESTION REGARDING THE OBJECT
     OF THE THEFT WAS ERRONEOUS AND
     DEPRIVED DEFENDANT OF A FAIR TRIAL.

POINT III

     THE COURT'S FAILURE TO GIVE A CLAIM
     OF    RIGHT    CHARGE    AND     ITS
     INADEQUATE[,]    CONFUSING      AND
     CONTRADICTORY          INSTRUCTION
     DEPRIVED DEFENDANT OF A FAIR TRIAL.
     (NOT RAISED BELOW)

POINT IV

     THE DEFENDANT WAS DENIED A FAIR
     TRIAL WHEN THE STATE ARGUED THAT
     THE TREAD MARKS ON THE VICTIM'S
     BACK WERE MADE BY DEFENDANT'S
     SHOES      WITHOUT     SUPPORTING
     TESTIMONY.

POINT V

     DENIAL OF DEFENDANT'S MOTION FOR
     NEW TRIAL WAS ERROR.


                                            A-4429-16T1
                    4
             POINT VI

                   IT WAS ERROR FOR THE SENTENCING
                   COURT TO FAIL TO MERGE THE OFFENSES
                   OF SECOND[-]DEGREE ROBBERY AND
                   AGGRAVATED ASSAULT.

       In this appeal from the denial of PCR, defendant argues:

             POINT I

             DEFENDANT WAS DENIED THE EFFECTIVE
             ASSISTANCE OF COUNSEL ENTIT[]LING HIM TO
             [PCR] AND AN EVIDENTIARY HEARING[.]

             (A)   Counsel was ineffective for failing to sufficiently
                   communicate with defendant so he may assist in
                   his own defense[.]

             (B)   Counsel was ineffective for not requesting a
                   Wade1 hearing on the issue of defendant's
                   identification by the victim[.]

                                            II

       PCR is New Jersey's analogue to the federal writ of habeas corpus. State

v. Afanador, 151 N.J. 41, 49 (1997); State v. Preciose, 129 N.J. 451, 459 (1992).

It is the vehicle through which a defendant may, after conviction and sentencing,

challenge a judgment of conviction by raising issues that could not have been

raised on direct appeal and, therefore, ensures that a defendant was not unjustly



1
    United States v. Wade, 388 U.S. 218 (1967).
                                                                         A-4429-16T1
                                        5
convicted. State v. McQuaid, 147 N.J. 464, 482 (1997). Pursuant to Rule 3:22-

2(a), a criminal defendant is entitled to post-conviction relief if there was a

"[s]ubstantial denial in the conviction proceedings of defendant's rights under

the Constitution of the United States and the Constitution or laws of the State of

New Jersey."    A petitioner must establish the denial of such a right by a

"preponderance of the credible evidence." Preciose, 129 N.J. at 459 (citations

omitted). "To sustain that burden, specific facts" that "provide the court with an

adequate basis on which to rest its decision" must be articulated.       State v.

Mitchell, 126 N.J. 565, 579 (1992).

      Claims of constitutionally ineffective assistance of counsel are well-suited

for post-conviction review. R. 3:22-4(a)(2); Preciose, 129 N.J. at 460. To

establish a prima facie claim of ineffective assistance of counsel, a defendant

must demonstrate the reasonable likelihood of success under the test set forth in

Strickland v. Washington, 466 U.S. 668, 694 (1984), which the New Jersey

Supreme Court adopted in State v. Fritz, 105 N.J. 42, 58 (1987). Preciose, 129

N.J. at 463.

      Under the Strickland-Fritz standard, the first issue is whether counsel's

performance was deficient. The second prong of the Strickland-Fritz test is

whether there exists "a reasonable probability that, but for counsel's


                                                                          A-4429-16T1
                                        6
unprofessional errors, the result of the proceeding would have been different."

Strickland, 466 U.S. at 694. To succeed under this prong, a defendant must do

more than make bald assertions that he was denied effective assistance of

counsel; he must allege specific facts sufficient to demonstrate counsel's alleged

substandard performance. State v. Cummings, 321 N.J. Super. 154, 170 (App.

Div. 1999); see also State v. Porter, 216 N.J. 343, 354 (2013) (holding that in

order to establish a prima facie claim, the petitioner "must allege specific facts

and evidence supporting his allegations"). As in a summary judgment motion,

the PCR judge must view the facts in the light most favorable to the defendant

to determine whether the defendant has established a prima facie claim. Ibid.

      Here, defendant asserts the lack of communication between him and his

counsel led to his counsel's failure to request a Wade hearing, the subject of his

second point on appeal. Defendant further argues he was prejudiced by his

counsel's acts because "[t]here were no limits or barriers on counsel's ability to

sufficiently communicate with [defendant].       If he had, the results of the

proceedings would have been different."

      Following our review of defendant's brief and the record, we agree with

the PCR judge, who found that defendant "supplies absolutely no evidence that

trial counsel was unprepared other than through assertions.        There are no


                                                                          A-4429-16T1
                                        7
certifications or affidavits based on the personal knowledge of any party, let

alone [d]efendant." The judge further noted that "trial counsel successfully

suppressed the use of brass knuckles at trial which [defendant] had in his

possession at the time of his arrest following the incident." On appeal, defendant

wholly fails to "allege specific facts supporting his allegations" that counsel was

unprepared or insufficiently communicated with defendant. Porter, 216 N.J. at

354.    We conclude that the record supports the judge's findings, and the

conclusion that counsel was not ineffective for failing to sufficiently

communicate with defendant.

       Defendant next argues his counsel was ineffective for not requesting a

Wade hearing on the issue of Sloat's identification of defendant, when defendant

exited the police vehicle in handcuffs. Defendant argues he suffered prejudice

because a Wade hearing would have prevented his indictment, or alternatively

his conviction.

       A trial court may hold a hearing pursuant to N.J.R.E. 104(a) to determine

whether a pretrial identification of a criminal defendant was properly conducted

and therefore admissible under N.J.R.E. 803(a)(3). A hearing to determine the

admissibility of a pretrial identification of a criminal defendant should be held

when an identification is at issue. Wade, 388 U.S. at 242. The identification's


                                                                           A-4429-16T1
                                        8
reliability and ultimate admissibility must be strictly tested through a pretrial

hearing. See State v. Michaels, 136 N.J. 299, 319 (1994) (citations omitted).

      The right to a Wade hearing is not absolute and is not granted in every

case involving an out-of-court identification. State v. Ruffin, 371 N.J. Super.

371, 391 (App. Div. 2004) (citations omitted). The threshold issue is whether

the identification procedure was impermissibly suggestive. State v. Herrera,

187 N.J. 493, 503 (2006). "A Wade hearing will be held when a defendant

presents 'some evidence of impermissible suggestiveness' in the identification

process." State v. Cherry, 289 N.J. Super. 503, 517 (App. Div. 1995) (quoting

State v. Rodriquez, 264 N.J. Super. 261, 269 (App. Div. 1993)). Impermissible

suggestibility is described as follows:

            [T]he determination [of impermissive suggestibility]
            can only be reached so as to require the exclusion of the
            evidence where all the circumstances lead forcefully to
            the conclusion that the identification was not actually
            that of the eyewitness, but was imposed upon him so
            that a substantial likelihood of irreparable
            misidentification can be said to exist.

            [State v. Madison, 109 N.J. 223, 234 (1998) (emphasis
            omitted) (quoting State v. Farrow, 61 N.J. 434, 451
            (1972)).]

      Defendant argues that Sloat's identification of defendants was "the only

identification presented to the grand jury . . . . If [Sloat]'s identification w[as]


                                                                            A-4429-16T1
                                          9
successfully deemed unreliable[] and suppressed, then the grand jury would

have had no basis by which to indict the defendant." However, defendant's

assumption that his trial counsel could have requested a Wade hearing or filed a

suppression motion at the pre-indictment stage, regarding Sloat's identification,

lacks support in the law.     Evidence arising from impermissibly suggestive

identifications are subject to exclusion from trial proceedings, but "the

exclusionary rule and the 'fruit of the poisonous tree' doctrine are not applicable

to exclude the presentation of evidence to a grand jury, and a grand jury may

return an indictment based on evidence which would be excluded at trial under

that rule or that doctrine." 31 N.J. Practice, Criminal Practice and Procedure §

10.35, at 504 (Leonard N. Arnold) (2018) (citation omitted).          Defendant's

argument that his trial counsel could have excluded Sloat's identification from

the grand jury proceedings clearly lacks substantive merit.

      Alternatively, defendant argues that because his trial counsel provided

ineffective assistance by failing to interview Sloat regarding his identification

of defendant, and then failing to request a Wade hearing at the commencement

of trial. Defendant argues Sloat's identification was impermissibly suggestive

because it occurred when "defendant was already in custody [and] in handcuffs,"




                                                                           A-4429-16T1
                                       10
and Sloat "told the jury he could recognize Love 'but the other ones I do [not]

know.'"

      First, defendant's assertion regarding Sloat's testimony was taken out of

context, as Sloat was able to identify all three defendants, but he personally

knew only Love.      The relevant testimony occurred during the following

colloquy:

            Q     What did the officer ask you? . . . .

            A     If I can identify him, if that was the perps.

            Q     Okay. And what did you say? Were you able to
                  see these people?

            A     Yes.

            Q     You knew Love ahead of time . . . right?

            A     Yes.

            Q      Was he brought out?

            A     Yes.

            Q     Okay. Were any other individuals brought out?

            A     [T]wo other individuals. . . . [O]ne with gray,
                  silver, platinum, whatever. And another one with
                  a hoodie on.

            Q     Okay. When you say gray, silver, are you talking
                  about the chain you told us about before?


                                                                       A-4429-16T1
                                      11
            A     Chain, yes.

            Q     So . . . were you able to identify these
            individuals?

            A     Lemont Love. The other ones I do [not] know.

            Q     Were you able to identify them that day? . . . .
                  Were they the people who did this to you?

            A     Yes. Yeah.

            Q     Well –

            A     I saw them walk in. So I knew what they were
                  wearing.

            Q     Were they wearing the exact same thing?

            A     They were all black.

            Q     Were they wearing the same things that they were
                  wearing when they came into your hotel room?

            A     Yes.

Further, the detective with Sloat at the time of the identification testified that

defendants "exited the vehicle one at a time [,a]nd Mr. Sloat identified . . . all

three as being the gentlemen who had assaulted him." After being asked if Sloat

"seem[ed] positive," the detective stated, "Absolutely. Yes."




                                                                          A-4429-16T1
                                       12
      Second, defendant provides no convincing support or reasoning for his

argument that Sloat's identification was unduly suggestive as a result of

defendant, Love, and Opher being in custody and in handcuffs. This court has

             found that [a] witness' identification of [a] defendant
             seated and handcuffed in the back of [a] police car was
             suggestive[,] but that 'such suggestive circumstances
             did not render the identification procedure per se
             improper and unconstitutional.' The panel concluded
             that the detailed description by the two witnesses of the
             defendant and the vehicle involved was corroborated by
             the motel security videotape, and, therefore, the
             reliability of the witnesses' identifications was strong.

             [State v. Herrera, 187 N.J. 493, 505 (2006) (quoting
             State v. Wilson, 362 N.J. Super. 319, 327 (App. Div.
             2003)).]

Here, Sloat identified the individuals who attacked him within approximately

one hour of the attack. Sloat knew co-defendant Love personally, and then

recognized the other defendants, who were wearing the same clothes they wore

at the time of the attack. Similar to Wilson, it was known defendants were

driving a silver Pontiac, leading to the alert that went out after the attack and the

discovery of the vehicle and defendant and his co-defendants in Spotswood.

Finally, the police found Sloat's cell phone in the silver Pontiac. We therefore

conclude Sloat's identification was reliable, albeit suggestive.




                                                                             A-4429-16T1
                                        13
      Significantly, defendant proffers only a conclusory argument as to how he

suffered prejudice from the lack of a Wade hearing, as he merely states that

"defendant would have been successful at trial" and "an appropriate [m]otion to

[d]ismiss would have been granted," had a Wade hearing been conducted. On

this point, the PCR court judge discussed at length why a Wade hearing would

have been "fruitless," based on the plethora of other evidence admitted into trial

that implicated defendant. The judge stated, in relevant part:

            [Defendant] was identified as one of the three
            individuals that attacked Mr. Sloat in the motel room.
            [Co-defendant] Opher . . . testified that [defendant]
            joined in on hitting Mr. Sloat and that he had seen
            [defendant] hitting Mr. Sloat. In addition, another
            witness, [K.E.], testified at trial that all three of the co-
            defendants were on top of Mr. Sloat- kicking and
            punching him in the head and back. . . .

            Moreover, physical evidence was presented at trial
            linking Mr. Williams to the crime charged.
            Specifically, Mr. Sloat's shirt had three different shoe
            tread marks on it – a result of being kicked multiple
            times during the attack at the motel. . . . All three of
            the defendants' shoes were taken in as evidence.
            Photographs of Mr. Sloat's shirt with the three different
            shoe tread marks were presented to the jury along with
            the shoes seized from the three co-defendants. The jury
            found that the three pairs of shoes matched the three
            different shoe print marks on Mr. Sloat's shirt, one pair
            of which belonged to [defendant].




                                                                            A-4429-16T1
                                        14
      Defendant's argument that had a Wade hearing been conducted he would

have been successful at trial is merely a "bald assertion[]" that he was

prejudiced. Cummings, 321 N.J. Super. at 170. Therefore, defendant's second

point on appeal also lacks merit.

      Affirmed.




                                                                    A-4429-16T1
                                    15
