                                NOT FOR PUBLICATION WITHOUT THE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-4664-18T2

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

CRUZ MARTINEZ, JR.,

     Defendant-Appellant.
_____________________________

                   Submitted May 19, 2020 – Decided June 17, 2020

                   Before Judges Hoffman and Firko.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Hudson County, Indictment No. 13-08-1528.

                   Joseph E. Krakora, Public Defender, attorney for
                   appellant (Andrew Robert Burroughs, Designated
                   Counsel, on the brief).

                   Esther Suarez, Hudson County Prosecutor, attorney for
                   respondent (Erin M. Campbell, Assistant Prosecutor,
                   on the brief).

PER CURIAM
       Defendant Cruz Martinez, Jr. appeals the February 5, 2019 Law Division

order denying his petition for post-conviction relief (PCR), claiming he received

ineffective assistance of counsel without an evidentiary hearing. We affirm.

                                       I.

       The underlying facts, procedural history, and trial court rulings were

recounted in detail in our opinion affirming defendant's conviction and sentence

on direct appeal, State v. Martinez, No. A-395-15 (App. Div. May 15, 2017), 1

and need not be repeated here. The Supreme Court denied defendant's petition

for certification. State v. Martinez, 232 N.J. 159 (2018).

       On August 6, 2013, a Hudson County grand jury returned Indictment No.

13-08-1528, charging defendant with: the murder of Alisha Colon, N.J.S.A.

2C:11-3(a)(1) (count one); felony murder, N.J.S.A. 2C:11-3(a)(3) (count two);

burglary, N.J.S.A. 2C:18-2 (count three); possession of a handgun, N.J.S.A.

2C:39-5(b) (count four); possession of a handgun for an unlawful purpose,

N.J.S.A. 2C:39-4(a) (count five); and certain persons not to have possession of

a handgun, N.J.S.A. 2C:39-7(b) (count six).




1
    We remanded for correction of the judgment of conviction.


                                                                         A-4664-18T2
                                       2
        On November 7 and 13, 2014, the trial court conducted a Wade2 hearing

on defendant's motion to preclude the out-of-court identification of defendant

by a minor witness. The trial court denied defendant's motion. Thereafter,

defendant was tried before a jury and convicted on all counts. Defendant was

sentenced to an aggregate term of seventy-five years of imprisonment subject to

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

        In our opinion on defendant's direct appeal, we stated that on January 17,

2013, there was a dispute at W.F.'s 3 apartment in Kearny where W.F. was

residing with her three children and other family members.             The dispute

escalated and W.F.'s niece accidentally struck her. The niece called her father,

E.M., who arrived at the apartment with a machete and warned the individuals

present to stay away from him and his daughter. The police were called and

arrested E.M.

        W.F. went to the police station to file a complaint against E.M. W.F. left

her seven-year-old son I.T.4 at the apartment with her sixteen-year-old daughter,

Alisha Colon, I.T.'s sister. Later that day, defendant and three other individuals


2
    United States v. Wade, 388 U.S. 218 (1967).
3
    We use initials to protect the privacy of individuals involved in this matter.
4
    I.T. was referred to as I.F. in our prior opinion.
                                                                            A-4664-18T2
                                           3
drove to W.F.'s apartment. Defendant pushed the door open to W.F.'s apartment

and fatally shot Colon in the head.          Defendant told J.F., who drove with

defendant to W.F.'s apartment, Colon was dead, and that he saw a young boy,

who was later determined to be I.T., at the apartment, but did not feel like killing

two people. J.F. told detectives that defendant wanted to send a message not to

mess with his family.

      Sergeant Shona Rosario testified at trial that she interviewed I.T. on

January 17, 2013, and video recorded the proceeding. During the interview, I.T.

described the shooting of his sister, Colon, and was asked if he knew who the

men were involved with the crime. I.T. was not requested to identify defendant

at the initial interview.

      Two days later on January 19, 2013, I.T. was shown a photo array by

Detective Kristen Fusiak, and he identified defendant as the man who shot his

sister. I.T. was also shown photographs of J.F. and K.S., who participated in

the murder plot, but I.T. could not identify them.

      During trial on October 10, 2014, defense counsel argued that a Wade

hearing was required to challenge the admissibility of the out-of-court

identification of defendant as the perpetrator by I.T. Defendant's counsel argued

that a hearing was required to determine whether or not: (1) the photo array was


                                                                            A-4664-18T2
                                         4
impermissibly suggestive as the investigator dealt with a minor; (2) the voir dire

was inadequate as to whether I.T. understood the nature of truth versus falsity;

(3) Detective Fusiak failed to inform I.T. that the suspect's photo may or may

not be in the photo array in violation of New Jersey Attorney General

Guidelines; and (4) I.T. was interviewed two days before being shown the

photographs and did not make an identification of defendant.

       At the Wade hearing, defense counsel informed the trial court that he had

no witnesses to present. Counsel stated, "I did not subpoena [I.T.] and there's a

reason why . . . ." Defense counsel explained he was not certain whether I.T.'s

guardian would make the child available to testify and confirmed, "I'm not going

to be calling the boy." The trial court denied defendant's Wade motion and

concluded that the standards set forth in State v. Henderson 5 were satisfied.

Additionally, the trial court found there was no indication that the photo

identification process warranted suppression of I.T.'s identification of

defendant.

       On June 13, 2018, defendant filed a pro se PCR petition, and the court

appointed counsel for defendant. In the superseding PCR petition filed by

counsel, defendant claimed that he was denied the effective assistance of counsel


5
    208 N.J. 208 (2011).
                                                                          A-4664-18T2
                                        5
because his trial attorney failed to subpoena I.T. or any live witnesses to testify

at the Wade hearing. Defendant sought an evidentiary hearing on his petition.

      On January 31, 2019, the PCR court heard oral argument and reserved

decision. On February 5, 2019, the PCR court issued a five-page written opinion

denying defendant's petition without an evidentiary hearing. The PCR court

considered the merits of defendant's claims and found he failed to demonstrate

his trial counsel was ineffective.

      The PCR court held defendant "failed to state a prima facie claim of

ineffective assistance of counsel" and "has failed to allege facts sufficient to

warrant an evidentiary hearing . . . ." The PCR court further determined:

            [I]t is purely speculative that the alleged deficiency in
            not calling I.T. as a testifying witness at the Wade
            hearing would have had any bearing on the
            admissibility of the identification or the ensuing trial
            result, because the trial court [made] specific reliability
            findings that did not turn on the applicant's proffer of a
            failed first identification but turned instead on the
            proper police procedure used in the photo array.

      The PCR court noted that the trial court found nothing suggestive with the

photo array used "because all individuals pictured appeared with similar

physical characteristics and skin complexion." Furthermore, the PCR court

pointed out that defendant's trial counsel chose not to subpoena I.T. as a matter



                                                                           A-4664-18T2
                                        6
of "trial strategy." On February 5, 2019, the court entered an order denying

PCR.

       On appeal, defendant raises the following arguments for our

consideration:

             POINT I

             AS MR. MARTINEZ HAS ESTABLISHED A PRIMA
             FACIE CASE OF INEFFECTIVE ASSISTANCE OF
             TRIAL COUNSEL, THE PCR COURT ERRED
             WHEN IT DENIED HIS PETITION FOR [PCR] FOR
             FAILING TO CALL THE MINOR WITNESS AT THE
             WADE HEARING.

             POINT II

             AS THERE WERE GENUINE ISSUES                           OF
             MATERIAL    FACTS   IN   DISPUTE,                      AN
             EVIDENTIARY HEARING WAS REQUIRED.

                                         II.

       Initially, we note that an evidentiary hearing is only required on a PCR

petition if the defendant presents a prima facie case in support of relief, the court

determines that there are material issues of fact that cannot be resolved based on

the existing record, and the court finds that an evidentiary hearing is required to

resolve the claims presented. State v. Porter, 216 N.J. 343, 354 (2013) (citing

R. 3:22-10(b)). Moreover, "[t]o establish a prima facie case, defendant must

demonstrate a reasonable likelihood that his or her claim, viewing the facts

                                                                             A-4664-18T2
                                         7
alleged in the light most favorable to the defendant, will ultimately succeed on

the merits." R. 3:22-10(b).

      To prevail on a claim of ineffective assistance of counsel, a defendant

must satisfy the two-part test established in Strickland v. Washington, 466 U.S.

667, 693 (1984), and later adopted by our Supreme Court in State v. Fritz, 105

N.J. 42, 58 (1987). Under the test, a defendant first "must show that counsel's

performance was deficient." Strickland, 466 U.S. at 687. Defendant must

establish that counsel's performance "fell below an objective standard of

reasonableness" and "that counsel made errors so serious that counsel was not

functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment."

Id. at 687-88.

      Defendant also must show "that the deficient performance prejudiced the

defense." Id. at 687. To establish prejudice, the defendant must establish "that

there is a reasonable probability that, but for counsel's unprofessional errors, the

result of the proceeding would have been different. A reasonable probability is

a probability sufficient to undermine confidence in the outcome" of the matter.

Id. at 694.

      A petitioner bears the burden of establishing a prima facie case. State v.

Gaitan, 209 N.J. 339, 350 (2012). "[W]e consider [a] petitioner's contentions


                                                                            A-4664-18T2
                                         8
indulgently and view the facts asserted . . . in the light most favorable t o him."

State v. Cummings, 321 N.J. Super. 154, 170 (App. Div. 1999).

      We review the legal conclusions of a PCR court de novo. State v. Harris,

181 N.J. 391, 420 (2004) (citing Mickens-Thomas v. Vaughn, 355 F.3d 294, 303

(3d Cir. 2004)); (Hakeem v. Beyer, 990 F.2d 750, 758 (3d Cir. 1993)). The de

novo standard of review applies to mixed questions of fact and law. Ibid. Where

an evidentiary hearing has not been held, it is within our authority "to conduct a

de novo review of both the factual findings and legal conclusions of the PCR

court . . . ." Id. at 421. We apply that standard here.

      Having    carefully   considered       defendant's   arguments,   we    affirm

substantially for the reasons expressed by the PCR court in its well -reasoned

written opinion. We add the following comments.

      Defendant argues he was denied the effective assistance of counsel

because his trial attorney failed to subpoena I.T. or any witnesses to testify at

the Wade hearing. He argues the PCR court erred by rejecting this claim.

      "A Wade hearing is required to determine if [an] identification procedure

was impermissibly suggestive and, if so, whether the identification is reliable.

[A] trial court conducts a Wade hearing to determine the admissibility of the

out-of-court identifications." State v. Micelli, 215 N.J. 284, 288 (2013).


                                                                             A-4664-18T2
                                         9
       Here, defendant's trial counsel requested a Wade hearing. To be entitled

to a pretrial Wade hearing, the defendant must first present "some evidence of

suggestiveness" that could result in a misidentification. Henderson, 208 N.J. at

288.    When evaluating whether evidence of suggestiveness warrants an

evidentiary hearing courts consider various "system variables," which include

pre-identification instructions, witness feedback, and whether the witness

viewed the defendant multiple times. Id. at 289-90.

       Defendant asserts that I.T. failed to identify him during his first

investigatory interview with Sergeant Rosario. In addition, defendant postulates

that I.T. might have been influenced before the photo array was shown to him

and no inquiry was undertaken to ascertain whether I.T. could distinguish truth

from fiction.   Defendant also contends his counsel was ineffective for not

subpoenaing Sergeant Rosario and Detective Fusiak to testify at the Wade

hearing. We conclude that defendant failed to establish he was prejudiced by

his counsel's handling of his issue.

       The record shows the trial court presiding over the Wade hearing found,

"It is clear and uncontroverted that the child had every opportunity to view t he

individual at the time of the offense . . . [I.T.'s] focus and attention was directly

on the shooter." After viewing both recordings of I.T., the trial court found his


                                                                             A-4664-18T2
                                        10
identification was reliable. I.T. testified at trial and acknowledged to the court

he "can't lie and [has] to tell the truth." During his testimony, I.T. described

defendant as "a little bit chubby" and "dark skinned," and pointed to defendant

in the courtroom. We are convinced defendant failed to present a prima facie

claim of ineffective assistance of counsel regarding his attorney's decision not

to subpoena I.T., Rosario, or Fusiak on I.T.'s identification. Defendant failed to

present sufficient evidence to show that counsel's decision "fell below an

objective standard of reasonableness." Strickland, 466 U.S. at 688.

      Moreover, defendant did not submit any certifications or affidavits setting

forth the factual basis for his claim as required by Rule 3:22-10(c). To establish

a prima facie claim, defendant "must do more than make bald assertions that he

was denied the effective assistance of counsel." State v. Cummings, 321 N.J.

Super. at 170 (App. Div. 1999). Here, defendant did not present any competent

evidence to support his claim.

      We are satisfied that the PCR court did not err in denying defendant an

evidentiary hearing on this claim.      Defendant failed to present sufficient

evidence to satisfy either prong required to establish a prima facie case of

ineffective assistance under the Strickland test.




                                                                          A-4664-18T2
                                       11
      For these reasons, we conclude that defendant failed to establish a prima

facie claim of ineffective assistance of trial counsel.          Accordingly, an

evidentiary hearing was not necessary to resolve defendant's petition, and we

affirm the PCR court's denial of defendant's petition for PCR.

      Affirmed.




                                                                         A-4664-18T2
                                      12
