                                 NOT FOR PUBLICATION WITHOUT THE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 i s limited. R. 1:36-3.




                                                         SUPERIOR COURT OF NEW JERSEY
                                                         APPELLATE DIVISION
                                                         DOCKET NO. A-5862-17T1

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

RANDALL L. FIELDS,

     Defendant-Appellant.
_______________________

                    Submitted February 10, 2020 – Decided May 15, 2020

                    Before Judges Fasciale and Rothstadt.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Burlington County, Indictment No. 13-05-
                    0464.

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

                    Gurbir S. Grewal, Attorney General, attorney for
                    respondent (Evgeniya Sitnikova, Deputy Attorney
                    General, of counsel and on the brief).
            Appellant filed a pro se supplemental brief.1

PER CURIAM

      Defendant Randall L. Fields appeals from the Law Division's June 26,

2018 order denying his petition for post-conviction relief (PCR) without an

evidentiary hearing. We affirm.

      A jury convicted defendant of first-degree armed robbery, N.J.S.A. 2C:15-

1(a)(1), third-degree making terroristic threats, N.J.S.A. 2C:12-3(b), fourth-

degree criminal mischief, N.J.S.A. 2C:17-3(b)(2), and related weapons offenses.

The charges arose from his robbery of a convenience store on March 6, 2013.

After his conviction, defendant pled guilty to a single unrelated charge of fourth-

degree failure to register as a sex offender, N.J.S.A. 2C:7-2. The trial court then

sentenced defendant to an aggregate term of eighteen years, subject to a parole

ineligibility period under the No Early Release Act, N.J.S.A. 2C:43-7.2.

      We affirmed defendant's conviction and sentence in an unpublished

opinion. See State v. Fields, No. A-1416-14 (App. Div. Mar. 24, 2016) (slip op.




1
  Defendant's handwritten supplemental brief did not set forth any specific point
headings or whether his arguments were raised before the PCR judge as required
by Rule 2:6-2(a)(1). Moreover, defendant's supplemental brief arguments are
procedurally barred by Rule 3:22-5 or without sufficient merit to warrant
discussion in a written opinion. R. 2:11-3(e)(2).
                                                                           A-5862-17T1
                                        2
at 22). The Supreme Court denied defendant's petition for certification. See

State v. Fields, 227 N.J. 218 (2016).

      The facts underlying defendant's conviction are set forth in our earlier

opinion and need not be restated here. See Fields, slip op. at 2-8.

      In his direct appeal, defendant challenged the victim's out-of-court

identification. He argued that it should have been suppressed and that the "trial

court's jury charge on identification was fatally flawed." He also contended that

a reversal was warranted because the trial court erroneously excluded evidence

of injuries he sustained "during the course of his arrest." Finally, he challenged

his sentence as excessive.

      After the Supreme Court denied defendant's petition for certification, on

May 5, 2017, defendant filed his PCR petition. In his supporting certification,

he stated that his petition was not procedurally barred by Rule 3:22-4 because

of the "unique circumstances" presented, which "could not have been raised

before this time, because of [his] reliance upon [his] attorney throughout" his

appeal.

      In December 2017 defendant filed an amended petition and brief. In that

filing, he argued he was denied the effective assistance of counsel. Citing first

to the arguments he made in a "pro se [forty-one]-page supplemental letter-brief


                                                                          A-5862-17T1
                                        3
dated May 5, 2017," defendant asserted additional claims against trial counsel. 2

Defendant stated that trial counsel "was ineffective for failing to request a line -

up identification procedure . . . because the show-up procedure utilized by the

police . . . was suggestive." Defendant also asserted that trial counsel was

ineffective because he did not "challenge the 'identification' of [defendant] by

the police dog."

      Judge Terrence R. Cook, who was also the trial judge, considered oral

argument as to defendant's petition on March 16, 2018. On June 26, 2018, Judge

Cook issued an order denying defendants petition, supported by a

comprehensive fifteen-page written decision.

      After reviewing the applicable test for whether defendant established a

prima facie claim of ineffective assistance of counsel under Strickland v.

Washington, 466 U.S. 668, 687-88 (1984), as adopted by the New Jersey

Supreme Court in State v. Fritz, 105 N.J. 42, 49-50 (1987), the judge addressed

each of defendant's claims in his PCR petition. Judge Cook first concluded that

defendant's contention about the out-of-court identification by the victim and

defendant's assertion that counsel should have pursued a lineup were barred



2
  Defendant's appendix does not contain a copy of the pro se brief, preventing
us from determining what other issues he raised before the PCR judge.
                                                                            A-5862-17T1
                                         4
under Rule 3:22-5 because those issues were "substantially similar to the issues

previously raised on appeal."

      Despite finding the claims were barred, Judge Cook considered them

under Strickland and concluded that defendant failed to demonstrate that trial

counsel committed any errors.        The judge found that the record belied

defendant's contentions to the contrary because it reflected that "trial counsel

properly challenged [defendant's] identification under State v. Henderson, 208

N.J. 208 (2001)." The judge noted that at the time that counsel was assigned,

defendant "was already in police custody and incarcerated," and therefore had

no "authority or ability to gather any participants for a line-up, take them to the

jail, line them up with the [defendant], secure the victim and compel him to

identify the person who conducted the robbery and attacked him." Moreover ,

defendant could not demonstrate that such a procedure, even if it could occur,

would have changed the outcome in this matter.

      Judge Cook also addressed defendant's claim against counsel arising from

his alleged failure to challenge testimony about the police department's canine's

"identification" of defendant. Here again, Judge Cook found that defendant's

contention was belied by the record. He found that trial counsel challenged the

testimony and elicited from the canine officer that the tracking scent they used


                                                                           A-5862-17T1
                                        5
"could have belonged to anyone."        Further, the witness was also forced to

concede that "he was unaware multiple people had been in the vicinity of the

back of the store."     The judge concluded defendant failed to prove any

deficiencies in counsel's performance in that regard.

      Turning to defendant's allegation that counsel "fail[ed] to object to

evidence that [defendant] resisted arrest," the judge found that counsel's failure

to object did "not constitute deficient conduct nor was it prejudicial." The judge

concluded that the evidence of defendant's resisting was not barred by Rule

404(b) as argued by defendant, but was in fact "an act intrinsic to the underlying

offense," a conclusion we reached in our opinion affirming defendant's

conviction. See Fields, slip op. at 18. And again, the judge found that contrary

to defendant's assertion, his trial counsel did address "the resisting arrest

allegations when he argued for admission of the evidence of injuries [defendant]

received as a result of struggling with law enforcement."

      Turning to other claims evidently raised by defendant in his pro se

supplemental brief, the judge identified each of the issues argued by defendant.

The judge concluded as to each of them that defendant failed to establish any

deficiencies in trial counsel's performance but, even if he had been able to do

so, "given the strong evidence of guilt in this case," defendant could not establish


                                                                            A-5862-17T1
                                         6
the second prong under Strickland because "it would not have produced a

different result." This appeal followed.

      On appeal defendant contends the following points:

            POINT I

            DEFENDANT'S PETITION FOR [PCR] SHOULD
            NOT BE BARRED BECAUSE DEFENDANT'S
            CLAIM THAT COUNSEL WAS INEFFECTIVE FOR
            NOT CHALLENGING THE LEGALITY OF THE
            SHOW-UP    PROCEDURE     WAS     NEVER
            ADJUDICATED    PRIOR   TO    HIS   PCR
            PROCEEDINGS.

            POINT II

            DEFENDANT     WAS    DENIED   EFFECTIVE
            ASSISTANCE OF TRIAL COUNSEL ENTITLING
            HIM TO [PCR] OR AN EVIDENTIARY HEARING
            ON THE ISSUES OF FAILING TO PROPERLY
            INVESTIGATE AND ADEQUATELY CHALLENGE
            THE IDENTIFICATION OF DEFENDANT AT HIS
            SUPPRESSION    HEARING,    ARGUE    THE
            INADMISSIBILITY OF THE K-9 OFFICER'S
            TESTIMONY, FAILING TO OBJECT TO THE
            PREJUDIC[I]AL     POLICE     TESTIMONY
            REGARDING THE EVENTS OF HIS ARREST,
            FAILING TO ARGUE MITIGATING MENTAL
            HEALTH FACTORS AT SENTENCING, AND
            FAILING TO OBJECT TO THE TESTIMONY AND
            ADMISSION OF THE MONEY INTO EVIDENCE
            WITHOUT REQUIRING PROOF OF A CHAIN OF
            CUSTODY.




                                                                A-5862-17T1
                                       7
                 A.    APPLICABLE LAW.

                B.  COUNSEL WAS INEFFECTIVE FOR
           FAILING TO ADEQUATELY CHALLENGE THE
           VERACITY      OF     VICTIM'S   VOICE
           IDENTIFICATION   OF   DEFENDANT  AND
           INHERENTLY      SUGGESTIVE    SHOW-UP
           PROCEDURE.

                C.   COUNSEL WAS INEFFECTIVE FOR
           FAILING TO OBJECT TO THE ADMISSION OF K-9
           OFFICER'S    TESTIMONY     AS    UNDULY
           PREJUDICIAL.

                D. COUNSEL WAS INEFFECTIVE FOR
           FAILING TO OBJECT TO THE PREJUDICIAL
           EFFECT   THE    REPEATED STATEMENTS
           REGARDING NON-COMPLIANCE DURING THE
           EVENTS OF HIS ARREST HAD ON HIS
           CONVICTION FOR ROBBERY.

                E.  COUNSEL WAS INEFFECTIVE FOR
           FAILING TO REQUIRE PROOF OF A CHAIN OF
           CUSTODY FROM THE MONEY FOUND ON THE
           DEFENDANT AT THE TIME OF ARREST PRIOR
           TO ALLOWING TESTIMONY AS TO ITS
           CONTENTS.

     We are not persuaded by any of these contentions.

     We review de novo a decision to deny a PCR petition where a PCR court

did not conduct an evidentiary hearing. State v. Harris, 181 N.J. 391, 419

(2004). Applying that standard, we conclude that Judge Cook correctly denied

defendant's petition substantially for the reasons expressed in the judge's


                                                                     A-5862-17T1
                                     8
thorough written decision. We find no merit to any of defendant's contentions

to the contrary and conclude, as did the PCR judge, that defendant failed to

establish his petition was not time barred or that his contentions met the two-

pronged test under Strickland. For that reason, defendant failed to establish he

was entitled to an evidentiary hearing. State v. Preciose, 129 N.J. 451 (1992).

      Affirmed.




                                                                        A-5862-17T1
                                       9
