                             NOT FOR PUBLICATION WITHOUT THE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-5363-16T4

STATE OF NEW JERSEY,

       Plaintiff-Respondent,

v.

PABLO S. MACHADO,

     Defendant-Appellant.
_____________________________

                Submitted September 12, 2018 – Decided November 16, 2018

                Before Judges Sabatino and Mitterhoff.

                On appeal from Superior Court of New Jersey, Law
                Division, Middlesex County, Indictment No. 07-10-
                1579.

                Joseph E. Krakora, Public Defender, attorney for
                appellant (Andrew P. Slowinski, 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
      Defendant Pablo Machado appeals from the trial court's July 14, 2017

order, denying his petition for post-conviction relief ("PCR"). We affirm.

      This case was tried twice, both trials resulting in defendant's conviction

for armed robbery. The indictment arose out of the robbery of a taxi driver in

New Brunswick in 2007. The driver had taken two passengers to their requested

destination about a mile away. One of the passengers, alleged to be defendant,

then pointed a gun at the driver's head, demanded money, and began striking

him. Several other men wearing masks appeared, and they took part in robbing

the driver of cash, a silver chain, and other items. At some point, defendants

also allegedly disconnected the taxi cab's two-way radio.

      That same night, the victim reported the incident to police.      He was

interviewed at the police station by an Officer Bobadilla, who is not a native

Spanish speaker and who might have misunderstood some of the victim's

account. Three months later, the victim returned to the police station and was

shown an array of six photos, one of which was of defendant. The array was set

up by Detective John Selesky, but administered by Officer Sergio Matias.

Notably, the instruction sheet given to the victim was in English rather than in

Spanish. The victim unequivocally identified defendant from the photos as one

of the robbers, although Officer Matias neglected to ask the victim to sign the


                                                                        A-5363-16T4
                                       2
back of the photo. The victim also told Detective Selesky he had seen defendant

on the street since the robbery and that defendant had made a threatening gesture

to him.

      At defendant's first trial in December 2008, the primary factual dispute

centered on the identification of defendant as one of the robbers. The jury

convicted defendant of armed robbery, terroristic threats, and fourth-degree

theft. After mergers, the court sentenced defendant on the armed robbery count

to a thirteen-year custodial term, subject to a parole disqualifier under the No

Early Release Act, N.J.S.A. 2C:43-7.2, plus a seven-year concurrent term on the

conspiracy charge.

      Defendant appealed this conviction, arguing, among other things, that the

trial judge improperly admitted proof of caller identification, which the

prosecution used to connect him to the robbery. See State v. Machado, No. A-

3047-09 (App. Div. Oct. 14, 2011) (slip. op. at 9-10). We concluded that the

judge had erred in admitting that evidence, because it was based on multiple

levels of inadmissible hearsay. Id. at 12-18. Because the admission of the

hearsay proof was not harmless, we remanded the matter for a new trial. Id. at

19-22.




                                                                         A-5363-16T4
                                       3
      Thereafter, defendant was tried again before a jury and a different judge

in August 2012. 1    He was once again found guilty of armed robbery and

conspiracy to commit armed robbery. The State dismissed the weapons count,

and the jury found defendant not guilty of the remaining counts. The sentencing

judge imposed the same custodial terms that had been imposed after the first

trial, subject to certain jail credits and a five-year period of parole supervision.

      In defendant's second appeal, we affirmed defendant's conviction and

sentence. State v. Machado, No. A-6185-12 (App. Div. May 22, 2015) (slip. op.

at 3-5). We rejected defendant's arguments that the trial court erred in failing to

charge the jury with an accomplice liability charge, or that prosecutorial

misconduct during the trial and in summation deprived defendant of a fair trial.

Id. at 5-10. We also affirmed the trial court's sentence as being within the

sentencing guidelines and based on a valid assessment of the mitigating and

aggravating factors, which included the fact that the robbery was perpetrated

while defendant was on probation. Id. at 11-13.

      On April 16, 2016, defendant filed a petition for PCR based on alleged

ineffective assistance of counsel.       Defendant alleged his trial attorney's


1
   The judge who presided over the first trial had been assigned to a different
trial division before the second trial.


                                                                            A-5363-16T4
                                         4
representation was deficient because he failed to request a Wade2 hearing before

both his first and second trials to suppress the victim's out-of-court identification

of defendant as unreliable. Defendant also alleged ineffective assistance of

counsel based on a conflict of interest because his trial attorney's firm

represented Officer Matias, who conducted the photo-array line up, on an

unrelated family court matter.

       Judge Diane Pincus held an evidentiary hearing on defendant's PCR

petition on June 22, 2017.       At the PCR hearing, defendant's trial attorney

testified that at the time of the first trial, he was working as a pool attorney for

the Office of the Public Defender. It was his first robbery trial, and he had never

previously conducted a Wade hearing. He knew, however, that he may have to

request a Wade hearing, but was not sure if he could overcome the threshold

burden of impermissible suggestibility in the photo-array procedure.               He

therefore consulted with more experienced public defenders. The consulting

attorneys advised trial counsel that he would probably lose the hearing, and that

by examining the victim prior to trial, he risked solidifying the victim's self-

assurance that he identified the correct individual. The consulting attorneys

advised that the better strategy would be to capitalize on the inconsistencies in


2
    United States v. Wade, 388 U.S. 218 (1967).
                                                                             A-5363-16T4
                                         5
the victim's statements during cross-examination at trial. Nevertheless, at the

PCR hearing, trial counsel expressed regret, in hindsight, that he had chosen not

to pursue the hearing because he could have gained some critical information

for use during trial. He also testified, however, that a Wade hearing would have

been pointless before the second trial, because by then it was clear there was no

evidence of impermissible suggestibility.

      Defendant testified at the PCR hearing that he asked his attorney to pursue

a Wade hearing before both trials and alleged his trial attorney had a conflict of

interest. On July 14, 2017, Judge Pincus denied defendant's PCR application in

a written opinion. The PCR court found that trial counsel's decision not to

pursue a Wade hearing during the first and second trial was due to sound trial

strategy and did not amount ineffective assistance of counsel. The court also

found that defendant knowingly waived any conflict of interest arising from trial

counsel's partner representing Officer Matias in an unrelated matter. On appeal

of the court's denial of PCR, defendant raises the following points for our

review:

            POINT I

            THE PCR COURT SHOULD HAVE HELD THAT
            DEFENDANT'S    RIGHT   TO    EFFECTIVE
            ASSISTANCE OF COUNSEL WAS VIOLATED BY
            HIS ATTORNEY'S FAILURE TO FILE A WADE

                                                                          A-5363-16T4
                                        6
            MOTION BEFORE EITHER THE FIRST OR
            SECOND       TRIAL    DESPITE  DEFENDANT'S
            REPEATED REQUESTS. (U. S. CONST. AMEND.
            VI; N. J. CONST. ART. I, ¶ 10)

            (a) Defense Counsel Admitted that his Decision Not to
            File a Wade Motion at the First Trial Was an Error Due
            to Inexperience.

            (b) Defense Counsel Was Ineffective in Rejecting His
            Client's Request to File a Wade Motion Before the
            Second Trial.

            (c) The Trial Judge Denied Defendant's Application to
            Exclude the Victim's Highly Unreliable Identification
            Testimony at the Second Trial Based on the Mistaken
            Assumption That a Wade Hearing Had Already Been
            Conducted on the Issue.

            (d) The PCR Court's Decision Affords Inadequate
            Respect to Defendant's Right to Make Critical
            Decisions Regarding the Conduct of His Own Trial.

            POINT II

            THE PCR COURT ERRED IN FAILING TO
            RECOGNIZE THE DISQUALIFYING CONFLICT OF
            INTEREST   THAT    AFFECTED    DEFENSE
            COUNSEL'S PERFORMANCE DURING THE
            SECOND TRIAL.

      Mindful of the trial judge's opportunity to hear and see live witnesses, we

defer to a trial court's factual findings made after an evidentiary hearing on a

petition for PCR. State v. Nash, 212 N.J. 518, 540 (2013). "[W]e will uphold

the PCR court's findings that are supported by sufficient credible evidence in

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                                       7
the record." Ibid. (citing State v. Harris, 181 N.J. 391, 415 (2004)). However,

we need not "defer to a PCR court’s interpretation of the law; a legal conclusion

is reviewed de novo." Id. at 540-41 (citing Harris, 181 N.J. at 415-16). A PCR

petitioner carries the burden to establish the grounds for relief by a

preponderance of the credible evidence. State v. Goodwin, 173 N.J. 583, 593

(2002) (citations omitted). Further, to establish an ineffective-assistance-of-

counsel claim, a convicted defendant must demonstrate: (1) counsel's

performance was deficient, and (2) the deficient performance actually

prejudiced the accused's defense. Strickland v. Washington, 466 U.S. 668, 687

(1984); see also State v. Fritz, 105 N.J. 42, 58 (1987).

      To satisfy the first prong of the Strickland test, a defendant must show

"that counsel made errors so serious that counsel was not functioning as the

'counsel' guaranteed . . . by the Sixth Amendment." Fritz, 105 N.J. at 52 (quoting

Strickland, 466 U.S. at 687). There is a presumption that counsel exercised

reasonable judgment in trial strategy:

            To satisfy prong one, [a defendant] ha[s] to overcome a
            strong presumption that counsel exercised reasonable
            professional judgment and sound trial strategy in
            fulfilling his responsibilities. [I]f counsel makes a
            thorough investigation of the law and facts and
            considers all likely options, counsel's trial strategy is
            virtually unchallengeable. Mere dissatisfaction with a


                                                                          A-5363-16T4
                                         8
            counsel's exercise of judgment is insufficient to warrant
            overturning a conviction.

            [Nash, 212 N.J. at 542 (third alteration in original)
            (citations omitted).]

      To satisfy the second prong, a defendant must prove he suffered prejudice

due to counsel's deficient performance.      Strickland, 466 U.S. at 687.       A

defendant must show by a "reasonable probability" that the deficient

performance affected the outcome. Fritz, 105 N.J. at 60-61. "A reasonable

probability is a probability sufficient to undermine confidence in the outcome."

Strickland, 466 U.S. at 694.

      We first turn to defendant's argument that his counsel was constitutionally

ineffective in failing to request a Wade hearing before both the first and second

trials. In between defendant's two trials, the New Jersey Supreme Court revised

the standard for determining the admissibility of an out-of-court identification.

See State v. Henderson, 208 N.J. 208, 285-96 (2011). The revised standard

imposes more stringent obligations on the State to show the reliability of the

eyewitness identification, delineating specific factors to be considered by the

court in assessing whether there is evidence of suggestiveness that could lead to

a mistaken identity. See id. at 288-92. The Court, however, specifically held

that the revised test would apply only in future cases and that its ruling would


                                                                         A-5363-16T4
                                       9
"take effect thirty days from the date this Court approves new model jury

charges on eyewitness identification." Id. at 302. The Court approved the

revised charges on September 4, 2012, so the revised Henderson test was not

applicable at the time of either of defendant's trials. Cf. State v. Sanchez-

Medina, 231 N.J. 452, 466-67 (2018) (holding that Henderson test applied when

trial was held after October 4, 2012).

      Accordingly, the pre-Henderson standard, as outlined in by the United

States Supreme Court in Manson v. Brathwaite, 432 U.S. 98 (1977), and adopted

by the New Jersey Supreme Court in State v. Madison, 109 N.J. 223 (1988), was

in effect during the pendency of defendant's case. Under the Manson/Madison

standard, a defendant must first show that the identification procedure was

"impermissibly suggestive." Id. at 232. An identification is impermissibly

suggestive "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. Farrow, 61 N.J. 434, 451 (1972). If a defendant meets the

burden to establish that the police used impermissibly suggestive identification

procedures, then a court considers whether the identification was nevertheless

reliable based on the totality of the circumstances. See Madison, 109 N.J. at


                                                                         A-5363-16T4
                                         10
232-33.

      Considering the facts of this case under the Manson/Madison standard, we

conclude that the PCR court's finding that the trial attorney exercised reasonable

judgment in forgoing a Wade hearing before each trial is supported by

substantial credible evidence in the record.           By consulting with more

experienced public defenders, trial counsel engaged in a "thorough investigation

of law" with respect to a Wade hearing. Strickland, 466 U.S. at 690. These

attorneys advised trial counsel that he may not be able to establish evidence of

impermissible suggestibility. Similarly, the PCR court found that despite the

procedural errors made by Officer Matias in administering the photo array,

"there was no apparent evidence to suggest that under the totality of

circumstances, the victim's identification of the Defendant was somehow

influenced by the police." Based on the record before us, we agree that there

was a reasonable possibility that defendant would have been unable to meet the

first prong of the Manson/Madison test and would have risked fortifying the

victim's identification and testimony if he pursued a Wade hearing prior to the

first trial. Likewise, prior to the second trial, trial counsel had further reason to

believe that he would be unable to establish impermissible suggestibility based

on the victim's testimony at the first trial.


                                                                             A-5363-16T4
                                         11
      Moreover, trial counsel was not bound by defendant's choice to pursue a

Wade hearing, as it is not one of the specific instances in which a criminal lawyer

is bound to abide by the client's decision under the New Jersey Rules of

Professional Conduct. See RPC 1.2(a) ("In a criminal case, the lawyer shall

consult with the client and, following consultation, shall abide by the client's

decision on the plea to be entered, jury trial, and whether the client will testify.").

Accordingly, this decision rested within the ambit of trial counsel's strategy and

tactics.   As noted above, trial counsel reasonably consulted with more

experienced attorneys and weighed the potential benefits and harms of pursuing

a Wade hearing.       Thus, notwithstanding trial counsel's testimony that he

regretted declining to pursue a Wade hearing prior to the first trial, we find that

there is sufficient objective evidence in the record to sustain the PCR's court's

finding that trial counsel's performance was not constitutionally deficient.

Because we conclude that defendant failed to establish the first Strickland prong,

we need not consider the prejudice prong. See Nash, 212 N.J. at 543-44.

      Next, we turn to defendant's contention that trial counsel had a conflict of

interest. The representation of Officer Matias by a partner of defendant's trial

attorney in an unrelated matter occurred between defendant's two trials. We

agree with the PCR court that defendant knowing and voluntarily waived any


                                                                               A-5363-16T4
                                         12
potential conflict by this representation.   Defendant gave written informed

consent to the continued representation by his trial attorney, and the

representation was permissible under RPC 1.7(b). Consequently, we find that

defendant's contention is barred by the doctrine of invited error. See Brett v.

Great Am. Recreation, 144 N.J. 479, 503 (1996) ("The doctrine of invited error

operates to bar a disappointed litigant from arguing on appeal that an adverse

decision below was the product of error, when that party urged the lower court

to adopt the proposition now alleged to be error.").

      The remaining issues raised by defendant lack sufficient merit to warrant

discussion in a written opinion. R. 2:11-3(e)(1)(E).

      Affirmed.




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