                               NOT FOR PUBLICATION WITHOUT THE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-4049-17T2

STATE OF NEW JERSEY,

         Plaintiff-Respondent,

v

KHALIF PADEN, a/k/a
PADEN RAFEI,

     Defendant-Appellant.
__________________________

                   Submitted September 16, 2019 – Decided March 26, 2020

                   Before Judges Messano and Vernoia.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Essex County, Indictment No. 11-02-0279.

                   Joseph Krakora, Public Defender, attorney for
                   appellant (Andrew P. Slowinski, Designated Counsel,
                   on the brief).

                   Theodore N. Stephens II, Acting Essex County
                   Prosecutor, attorney for respondent (Barbara A.
                   Rosenkrans, Special Deputy Attorney General/Acting
                   Assistant Prosecutor, of counsel and on the brief).

PER CURIAM
      Defendant Khalif Paden appeals from an order denying his post-

conviction relief (PCR) petition without an evidentiary hearing. Defendant

challenges his convictions, which we affirmed on direct appeal, State v. Paden,

No. A-4278-13 (App. Div. Apr. 14, 2016), on seven charges including first-

degree carjacking and second-degree robbery. We find no merit to his claim the

PCR court erred by denying his petition, and we affirm.

                                       I.

      Defendant was charged in an indictment with second-degree conspiracy

to commit carjacking and robbery, N.J.S.A. 2C:5-2, 2C:15-2, 2C:15-1 (count

one); first-degree carjacking, N.J.S.A. 2C:15-2 (count two); first-degree

robbery, N.J.S.A. 2C:15-1 (count three); third-degree aggravated assault with a

deadly weapon, N.J.S.A. 2C:12-1(b)(2) (count four); second-degree unlawful

possession of a handgun, N.J.S.A. 2C:39-5(b) (count five); second-degree

possession of a handgun with the purpose to use it unlawfully against another,

N.J.S.A. 2C:39-4(a) (count six); third-degree receiving stolen property, N.J.S.A.

2C:20-7 (count seven); fourth-degree credit card theft, N.J.S.A. 2C:21-6(c)(1)

(count eight); and third-degree hindering prosecution, N.J.S.A. 2C:29-3(b)(4)

(count nine).




                                                                         A-4049-17T2
                                       2
      In our decision on defendant's direct appeal, we provided a complete and

detailed summary of the facts established by the evidence at trial. See Paden,

slip. op. at 2-6. Therefore, it is necessary only to briefly recount the pertinent

facts here.

      On October 17, 2010, Sawadogo Boukary was robbed at gunpoint by four

men. During the robbery, Boukary saw the face of only one of the assailants;

the man holding the gun.       The next day, four men entered a gas station

convenience store to buy cigarettes. The cashier, Roukiatou Ba, was familiar

with Boukary and knew he had been robbed the previous night. When one of

the men attempted to pay with Boukary's bank card, she refused to accept it.

      The men left the gas station, but Ba followed them outside and alerted a

nearby police officer, Officer Jose A. Dannoys, Jr., that a man attempted to use

a bank card that did not belong to him. Dannoys saw four men walking away

from the gas station, called for back-up, and followed the four men in his patrol

car. While following the men, Officer Dannoys saw defendant toss something

as he passed a local firehouse. When back-up officers arrived, Officer Dannoys

detained the four men, including defendant. Afterwards, a firefighter sitting in

front of the firehouse picked up the item defendant had discarded and gave it to

Officer Dannoys, who determined it was Boukary's bank card.


                                                                          A-4049-17T2
                                        3
      Defendant was arrested, and the officers took the four men back to the gas

station. Defendant was in one patrol car, while the other men were in a second

patrol car. The officers asked Ba to exit the convenience store and identify

which man attempted to use the card. Ba refused to go outside, but she looked

through the window and identified defendant as the person who attempted to use

Boukary's card.

      The following day, Boukary went to the police station with his cousin,

Ouedroago Issa. Boukary spoke French and needed Issa to translate English to

French for him. Boukary and Issa met with Detective Tyrone Crawley to review

a photo array.     Crawley did not have any prior involvement with the

investigation and did not know any details about the incident, the invest igation,

or the suspects. With Issa serving as a translator, Crawley read Boukary detailed

instructions about the photo array procedure from a form, which Boukary

signed.

      Crawley separately showed Boukary six photos, numbered one through

six. When he saw photo number four, Boukary said "that's it, that's it," but

Crawley also showed him the remaining two photos. Following his review of

all the photos, Boukary again stated photo number four was "the person" whose

face he saw during the robbery. Photo number four depicted defendant.


                                                                          A-4049-17T2
                                        4
       In a voluntary statement given to police on that same day, Boukary

described his assailant as "black and short." At trial, Boukary elaborated that

his assailant was wearing "a t-shirt with a kind of hat," and that both articles of

clothing were black.

       The jury convicted defendant of second-degree conspiracy to commit

carjacking and robbery; first-degree carjacking; second-degree robbery as a

lesser-included offense of the first-degree robbery charged in the indictment;

third-degree aggravated assault with a deadly weapon; third-degree receiving

stolen property; fourth-degree credit card theft; and third-degree hindering

prosecution.    The court imposed an aggregate twenty-three-year sentence

subject to the requirements of the No Early Release Act, N.J.S.A. 2C:43-7.2,

consecutive to sentences imposed on charges in two other indictments.

       On defendant's direct appeal, he argued in part that his trial counsel was

ineffective by failing to request a Wade1 hearing to determine the admissibility

of Boukary's and Ba's out-of-court identifications. See Paden, slip op. at 7-8.

We noted the admissibility of the out-of-court identifications was "governed by

the standards established by the United States Supreme Court in Manson v.

Brathwaite, 432 U.S. 98 (1977), as adopted by our Supreme Court in State v.


1
    United States v. Wade, 388 U.S. 218 (1967).
                                                                           A-4049-17T2
                                        5
Madison, 109 N.J. 223 (1988)," Paden, slip op. at 11; generally explained the

standards, id. at 11-13; and found uncertainty as to whether the trial record alone

"permit[ted] a dispositive resolution of defendant's ineffective assistance of

counsel claim," id. at 13.        We "conclude[d] that defendant's ineffective

assistance of counsel claim is best left for a post-conviction relief petition." Id.

at 14.

         Defendant filed a timely pro se PCR petition, reprising his claim that his

trial counsel was ineffective by failing to request a Wade hearing on Boukary's

and Ba's out-of-court identifications, and by failing to file motions to suppress

the out-of-court identifications. The petition, as supplemented by defendant's

assigned PCR counsel, also alleged defendant's trial counsel was ineffective by

"hardly ever" meeting with defendant outside the courthouse, and by failing to:

provide defendant with full discovery; sufficiently cross-examine Boukary to

establish defendant did not commit a carjacking; and clearly explain

inconsistencies in Boukary's testimony to the jury. PCR counsel further asserted

trial counsel was ineffective by failing to challenge the admissibility of the out -

of-court identifications based on the police officers' alleged failure to document

the identifications as required under State v. Delgado, 188 N.J. 48 (2006).




                                                                            A-4049-17T2
                                          6
      The PCR court heard argument on the petition, rendered an opinion from

the bench denying PCR without an evidentiary hearing, and supplemented its

decision with a detailed, written twenty-two-page opinion. The court provided

the standard for analyzing a claim of ineffective assistance of counsel

established in Strickland v. Washington, 466 U.S. 668 (1984), as adopted by our

Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987), and explained the merits

of any putative motion for a Wade hearing or to suppress the out-of-court

identifications must be analyzed under the standard adopted in Manson and

Madison.

      The court analyzed the separate evidence related to Boukary's and Ba's

out-of-court identifications and determined defendant failed to demonstrate he

would have been entitled to either a Wade hearing or suppression of the

identifications under the Madison and Manson standard. Thus, the court found

defendant failed to establish a prima facie ineffective assistance of counsel claim

based on trial counsel's decision not to request a Wade hearing and not to move

to suppress the out-of-court identifications.

      The PCR court also considered defendant's claim his trial counsel was

ineffective by failing to move to suppress the out-of-court identifications based

on the police officers' alleged failure to record the dialogue between the officers


                                                                           A-4049-17T2
                                        7
and Boukary and Ba when the identifications were made, and it determined

defendant failed to establish a prima facie case of ineffective assistance of

counsel for failing to move to suppress Boukary's and Ba's identifications under

Delgado.

      Finally, the court found defendant's claims his trial counsel inadequately

discussed his options and failed to provide all discovery materials were too

vague to constitute cognizable PCR claims. The court entered an order denying

defendant's PCR petition. This appeal followed.

      On appeal, defendant presents the following arguments for our

consideration:

            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 MOTION
            TO EXCLUDE THE SUGGESTIVE EYEWITNESS
            IDENTIFICATIONS THAT WERE CENTRAL TO
            THE PROSECUTION'S CASE AT TRIAL.

            (a) Defendant Is Entitled to Relief Under Controlling
            Legal Principles Governing Petitions for Post-
            Conviction Relief Pursuant to R. 3:22-2 et seq.

            (b) The PCR Court's Decision to Deny Defendant an
            Evidentiary Hearing is Contrary to the Appellate
            Division's Prior Ruling on Direct Appeal, Which Found


                                                                        A-4049-17T2
                                       8
             that the Documentary Record Alone Was Insufficient to
             Decide Defendant's IAC Claims.

             (c) Trial Counsel Should Have Filed a Motion Pursuant
             to United State[s] v. Wade, 388 U.S. 218 (1967), to
             Exclude the Photo Array Identification Made By
             Sawadogo Boukary.

             (d) Trial Counsel Should Have Filed a Motion to
             Exclude the Photo Array Identification Made By
             Sawadogo Boukary for Failure to Comply with State v.
             Delgado, 188 N.J. 48 (2006).

             (e) Trial Counsel Should Have Filed a Wade Motion to
             Exclude the Showup Identification Made By Roukiatou
             Ba.

             (f) Trial Counsel Should Have Filed a Motion to
             Exclude the Showup Identification Made By Roukiatou
             Ba for Failure to Comply with State v. Delgado.

             (g) Trial Counsel Provided Ineffective Assistance By
             Failing to Communicate Adequately With Defendant
             Prior to Trial.

                                      II.

      Where, as here, the court denies a defendant's PCR petition without an

evidentiary hearing, we "conduct a de novo review" of the court's order. State

v. Jackson, 454 N.J. Super. 284, 291 (App. Div.) (quoting State v. Harris, 181

N.J. 391, 421 (2004)), certif. denied, 236 N.J. 35 (2018). We have conducted

that review, considered defendant's arguments in light of the record, and affirm

the court's order.

                                                                        A-4049-17T2
                                       9
      We reject defendant's claim the PCR court erred by denying his request

for an evidentiary hearing because on direct appeal we deemed the trial record

inadequate to determine the ineffective assistance of counsel claim. Defendant

argues our decision required that the court conduct an evidentiary hearing once

defendant's PCR claim was filed. Defendant misreads our decision on his direct

appeal.

      Although we stated the trial record "does not reveal the totality of the

circumstances required to determine whether the identifications would have

been admissible under the Manson/Madison standard" and lacked "information

regarding the basis for trial counsel's decision not to request a hearing," we

concluded only that defendant's ineffective assistance of counsel claim was "best

left for a post-conviction relief petition." Paden, slip op. at 13-14. We did not

order an evidentiary hearing in the event defendant filed a PCR petition, and we

made clear our opinion did "not constitute an opinion on the merits of

defendant's ineffective assistance of counsel claim." Id. at 14.

      An evidentiary hearing on a PCR petition should be granted only when a

defendant presents a prima facie case for PCR, the court determines the existing

record is not adequate for resolving the claim, and the court determines an

evidentiary hearing is required. State v. Porter, 216 N.J. 343, 354 (2013) (citing


                                                                          A-4049-17T2
                                       10
R. 3:22-10(b)).     "A prima facie case is established when a defendant

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

alleged in the light most favorable to the defendant, will ultimately succeed on

the merits.'" Id. at 355 (quoting R. 3:22-10(b)).

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

defendant must satisfy the two-part test established in Strickland by establishing

his trial "counsel's performance was deficient and . . . that there exists a

reasonable probability that, but for counsel's unprofessional errors, the result of

the proceeding would have been different." 466 U.S. at 694; see also Fritz, 105

N.J. at 58. A defendant must establish both prongs in order to obtain a reversal

of the challenged conviction. Strickland, 466 U.S. at 697; State v. Nash, 212

N.J. 518, 542 (2013). "The test is not whether defense counsel could have done

better, but whether he [or she] met the constitutional threshold for

effectiveness." Nash, 212 N.J. at 543.

      Because it is inherently difficult to evaluate defense counsel's tactical

decisions from his or her perspective during trial, a court must "indulge a strong

presumption that counsel's conduct falls within the wide range of reasonable

professional assistance, [and] the defendant must overcome the presumption

that, under the circumstances, the challenged action 'might be considered sound


                                                                           A-4049-17T2
                                       11
trial strategy.'" Harris, 181 N.J. at 431 (quoting Strickland, 466 U.S. at 689)

(citation omitted). When a PCR petition is based on an alleged failure to file a

suppression motion, "the defendant not only must satisfy both parts of the

Strickland test but also must prove that his [claim] is meritorious." State v.

Fisher, 156 N.J. 494, 500-01 (1998) (citing Kimmelman v. Morrison, 477 U.S.

365, 375 (1986)). In other words, to succeed on his ineffective assistance of

counsel claim, defendant was required to demonstrate he was entitled to a Wade

hearing and his motion to suppress the out-of-court identifications would have

been successful.

      Defendant makes four ineffective-assistance-of-counsel claims based on

his trial counsel's decisions not to request a Wade hearing or otherwise move to

suppress Boukary's and Ba's out-of-court identifications. After careful review,

we determine defendant failed to establish a prima facie case of ineffective

assistance of counsel on any of the claims, and, therefore, the PCR court

correctly denied PCR without an evidentiary hearing.

                                       A.

      Defendant first argues his trial counsel was ineffective by failing to move

for a Wade hearing to suppress Boukary's photo array identification of

defendant.


                                                                         A-4049-17T2
                                      12
      A trial court may hold a Wade 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). However, the

right to a Wade hearing is not absolute and a hearing is not required in every

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

371, 391 (App. Div. 2004).       "A threshold showing of some evidence of

impermissive suggestiveness is required." Ibid. (citing State v. Ortiz, 203 N.J.

Super. 518, 522 (App. Div. 1985)). Impermissible suggestibility is described as

follows:

            [T]he determination [of impermissible suggestibility]
            can only be reached so as to require the exclusion of the
            evidence where all of 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.

            [Madison, 109 N.J. at 234.]

      If the court finds the identification procedure was impermissibly

suggestive, it must then determine whether the procedure was nevertheless

reliable. Id. at 232-33. "The totality of the circumstances must be considered

in weighing the suggestive nature of the identification against the reliability of

the identification." State v. Herrera, 187 N.J. 493, 504 (2006).


                                                                          A-4049-17T2
                                       13
      In Manson, the United States Supreme Court identified five reliability

factors to be considered by the trial court: (1) whether the witness had the

opportunity to view the criminal at the time of the crime; (2) the witness's degree

of attention; (3) the accuracy of the witness's prior description of the criminal;

(4) the witness's level of certainty at the time of the identification confrontation;

and (5) the amount of time between the crime and the confrontation. 432 U.S.

at 114.    If after evaluating those factors the court is convinced that,

notwithstanding the suggestive nature of the procedure, the witness's

identification is reliable, then the identification may be admitted into evidence.

Ibid. Thus, to obtain a Wade hearing, defendant here was required to show that

Boukary's identification was tainted by impermissibly suggestive procedures,

and then that the identification was not reliable and should be suppressed.

Madison, 109 N.J. at 232.

      In arguing the photo array was impermissibly suggestive, defendant

contends he was the only person wearing a black hooded sweatshirt in his photo

and Boukary described his assailant as wearing black clothing. Defendant also

claims Boukary's identification was not sufficiently reliable under the

Manson/Madison factors because Boukary's prior description of the assailant

was deficient in detail and inaccurate regarding defendant's height.


                                                                             A-4049-17T2
                                        14
      We find unpersuasive defendant's argument his clothing in his photo was

impermissibly suggestive. During trial, Boukary described his assailant as

wearing either a black jacket or t-shirt with "some kind of hat." While the small

portion of the hooded sweatshirt that can be seen in defendant's photo is black,

he is not depicted wearing a black jacket, t-shirt, or a hat. Moreover, each of

the six photos in the array depict the face and neck of black males with short,

dark hair. Each man appears the same age, and their facial features are similar.

      As noted by the PCR court, the photo array was also presented by an

officer who had no knowledge concerning the investigation or the identity of the

suspect, and he presented the array to Boukary in accordance with the Attorney

General Guidelines. Boukary immediately identified defendant as the assailant

when presented with his photo, the fourth in the array, and defendant makes no

showing the identification constituted an "irreparable misidentification" that

was "imposed upon him." Madison, 109 N.J. at 234 (quoting State v. Farrow,

61 N.J. 434, 451 (1972)).

      Even if the photo array procedure was in some way suggestive, defendant

makes no showing the identification was otherwise not reliable. Defendant

argues the identification was unreliable because Boukary described his assailant

as "short," but the photo array did not show the size of the individuals depicted


                                                                         A-4049-17T2
                                      15
and the totality of the reliability factors, Herrera, 187 N.J. at 504, including

Boukary's close proximity—an "arm's length"—to the assailant holding the gun,

Boukary's certainty in his selection of defendant's photo, and the short amount

of time—two days—between the robbery and identification undermine any

reasoned conclusion there was a substantial likelihood of irreparable

misidentification requiring suppression of the identification. See Madison, 109

N.J. at 234.

      Trial counsel's alleged failure to request a Wade hearing or otherwise seek

suppression of Boukary's identification of defendant did not constitute deficient

performance because the identification was untainted by impermissible

suggestiveness and defendant makes no showing a suppression motion would

have had merit. "The failure to raise unsuccessful legal arguments does not

constitute ineffective assistance of counsel." State v. Worlock, 117 N.J. 596,

625 (1990); see also, State v. Taimanglo, 403 N.J. Super. 112, 124 (App. Div.

2008) ("[A]s there is no basis for reversing the conviction on the grounds

asserted, there is no basis for finding that defendant was denied the effective

assistance of counsel.").

      Defendant failed to satisfy his burden under both prongs of the Strickland

standard and therefore was not entitled to either PCR or an evidentiary hearing


                                                                         A-4049-17T2
                                      16
on his claim his counsel was ineffective by failing to move to suppress Boukary's

out-of-court identification of defendant. 466 U.S. at 694.

                                       B.

      Defendant also argues his trial counsel was ineffective by failing to move

to exclude Boukary's photo array identification because it did not comply with

the recording requirements at the time, as set forth in Delgado.2 Defendant

argues the officers did not adequately record the dialogue between Boukary, his

cousin Issa, and Detective Crawley, when they had the opportunity to make an

audio recording of the conversation, and that the records do not show which

officer prepared the photo array and how the filler photographs were selected.

      Addressing the admissibility of an out-of-court identification, the Court

in Delgado required that:

            law enforcement officers make a written record
            detailing the out-of-court identification procedure,
            including the place where the procedure was conducted,
            the dialogue between the witness and the interlocutor,
            and the results. Preserving the words exchanged
            between the witness and the officer conducting the
            identification procedure may be as important as

2
  In 2012, the Supreme Court adopted Rule 3:11, which provides the conditions
for admissibility of certain out-of-court identifications, including "from a photo
array," and describes the requirements for recording out-of-court identification
procedures. Rule 3:11 was not in effect when Boukary and Ba made the out-of-
court identifications at issue on appeal. Therefore, Delgado provides the
applicable standard.
                                                                          A-4049-17T2
                                       17
            preserving either a picture of a live lineup or a
            photographic array. When feasible, a verbatim account
            of any exchange between the law enforcement officer
            and witness should be reduced to writing. When not
            feasible, a detailed summary of the identification
            should be prepared. In the station house where tape
            recorders may be available, electronic recordation is
            advisable, although not mandated.

            [188 N.J. at 63.]

Thus, Delgado does not mandate an audio or video recording of an identification

procedure, provided the procedure is sufficiently captured in a written record.

      Here, as noted by the PCR court, the police officers maintained a written

record of the photo array identification procedure; the photo array ; the witness

instructions signed by Boukary; a photographic identification form; and a photo

display report. PCR counsel did not argue the written records were deficient.

In fact, PCR counsel stated during the PCR hearing "it appears that everything

was done properly." We need not address the merits of defendant's argument

that the records were inadequate under Delgado, see State v. Robinson, 200 N.J.

1, 20-22 (2009) (declining to address an argument on appeal because it was "not

properly presented to the trial court" and did not go to the court's jurisdiction or

"concern matters of great public interest" (quoting Nieder v. Royal Indem. Ins.

Co., 62 N.J. 229, 234-35 (1973))), other than to note we find no basis to reverse

the PCR court's finding the records substantially complied with the requirements

                                                                            A-4049-17T2
                                        18
of Delgado. We therefore reject defendant's claim trial counsel was ineffective

by failing to argue Boukary's identification was inadmissible under Delgado.

                                        C.

      Defendant next argues trial counsel was ineffective by failing to request a

Wade hearing and the suppression of Ba's showup identification. Defendant

claims Ba's identification was tainted by impermissibly suggestive procedures

because the officers placed defendant in one patrol car while his companions

were placed in a second car; failed to ask in an open-ended manner whether Ba

recognized anyone; and allowed Ba to make the identification while looking

through the store window.

      Our Supreme Court has determined "one-on-one showups are inherently

suggestive . . . because the [witness] can only choose from one person, and,

generally, that person is in police custody," and, therefore, "only a little more is

required in a showup to tip the scale toward impermissibly suggestive." Herrera,

187 N.J. at 504. However, the Court also stressed that "standing alone, a showup

is not so impermissibly suggestive to warrant proceeding to the second step ."

Ibid. "Each showup setting must necessarily stand or fall on its own unique

facts." State v. Romero, 191 N.J. 59, 77 (2007).




                                                                            A-4049-17T2
                                        19
        In Romero, the Court considered a showup procedure conducted after a

robbery victim saw a man he believed to be his attacker walking in front of his

house and called the police. 191 N.J. at 78-79. After the victim accompanied

the officers on an initial, unsuccessful search, the officers found defendant,

arrested him, and brought him in the back of a patrol car to the victim's home.

Ibid.   The officers summoned the victim to the car, telling him "we have

somebody that fits the description [that] you described" and "[w]hy don't you

take a walk around the corner with us and see if this is the person." Id. at 78.

The victim viewed the defendant through the side window of the patrol car and

identified him as the attacker. Ibid.

        The Court determined the procedure was not impermissibly suggestive

because "it originated from the victim's own observation of someone he believed

was his assailant."     Ibid.   The Court reasoned it would not have been an

impermissibly suggestive showup if the officers and the victim had found the

defendant while initially walking down the street, and the fact they separated for

a few minutes did not result in "the type of showup that is fraught with the

worries typically generated by a suggestive police-initiated showup." Ibid.

        The Court further reasoned that after arresting the defendant, the officers

told the victim "only that they had detained someone who fit the description


                                                                           A-4049-17T2
                                        20
given by [the victim] minutes earlier." Ibid. The Court determined "[t]he fact

that [the] defendant was handcuffed in the police car did not convert this showup

identification into one that was impermissibly suggestive." Ibid.; see also State

v. Wilson, 362 N.J. Super. 319, 327 (App. Div. 2003) ("[T]here is no question

that there was suggestiveness present because the defendant was identified while

seated and handcuffed in the back of a police car. However, such suggestive

circumstances did not render the identification procedure per se improper and

unconstitutional.")). The Court concluded that "[i]n presenting a man fitting

[the victim's] unsolicited description, the police made no representations that he

was the man who attacked [the victim], only that he matched [the victim 's]

description," and, therefore, the showup was not impermissibly suggestive. Id.

at 79.

         Here, Ba's identification procedure parallels the procedure upheld in

Romero. Ba knew Boukary's stolen card was being used improperly, and she

had a clear view of the card user during the attempted transaction. Immediately

after the attempted use of the card, Ba alerted an officer about the individuals

who had been in the store. After Ba made this initial identification, the officer

kept the individuals under surveillance until they were detained and returned to

the store in police vehicles. As the Court reasoned in Romero, if Ba had


                                                                          A-4049-17T2
                                       21
accompanied the officer she alerted while he followed the individuals and then

made her second identification, there would be no viable claim of impermissible

suggestiveness. The period during which the officers were separate from Ba

was brief – the time between the attempted use of the card and the showup

identification was roughly twenty minutes – and did not result in "the type of

showup that is fraught with the worries typically generated by a suggestive

police-initiated showup." Romero, 191 N.J. at 78.

      When the officers returned to Ba with the four individuals to perform the

showup identification procedure, Officer Dannoys asked Ba "[i]s that the

individual that you saw try to use the credit card." In phrasing the question this

way, Officer Dannoys did not alert Ba that he observed defendant discard the

credit card or suggest that defendant had attempted to use the card or was a

suspect in the robbery. Rather, he merely asked Ba to confirm the identification

she unilaterally and voluntarily made to him minutes earlier. This was similar

to Romero, where the officers told the victim they detained someone matching

his earlier description, without suggesting he was the assailant. In addition, as

in Romero, Ba's showup identification was consistent with her first

identification, which she initiated on her own, of the group of individuals who

left the store following the attempted use of Boukary's credit card.


                                                                          A-4049-17T2
                                       22
      Further, although the Court in Romero acknowledged it was suggestive to

have a person handcuffed in a patrol car, it determined such action was not per

se impermissibly suggestive; especially when the witness initiated the

identification, only a brief amount of time passed, and the officers did not ask

impermissibly suggestive questions. Id. at 78-79. We apply the same reasoning

here and conclude the showup procedure at the gas station was not

impermissibly suggestive.

      In addition, defendant makes no showing Ba's identification was not

reliable, and the record otherwise shows that it was. Ba had the opportunity to

view defendant at the store counter when the stolen card was presented; she

immediately directed the officer to the group of men, including defendant, who

attempted to use the stolen card; and she was certain of her identification that

she made only twenty minutes after defendant presented the stolen card. See

Madison, 109 N.J. at 234 (finding "sufficient reliability in the identification[] to

overcome the suggestive nature and establish that there was not a substantial

likelihood of irreparable misidentification").

      Defendant fails to demonstrate his counsel's performance was deficient by

not requesting a Wade hearing or moving to suppress Ba's out-of-court

identification, and he makes no showing that but for his counsel's purported error


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the result of his trial would have been different. The court correctly rejected his

PCR claim and his request for an evidentiary hearing because he failed to satisfy

either prong of the Strickland standard. Strickland, 466 U.S. at 697; Nash, 212

N.J. at 542.

                                        D.

      Defendant also argues trial counsel was ineffective by failing to move to

exclude Ba's identification under Delgado. Specifically, defendant contends

there is no documentation of Ba's showup identification in the police reports for

defendant's arrest; Ba provided no description of the suspect; police provided no

record of their dialogue with Ba; and the identification was never mentioned in

any reports or properly documented until Officer Dannoys testified before the

grand jury about the showup.

      There is no dispute the police did not mention Ba's identification in their

written records about defendant's arrest, and Delgado requires some "written

record" of out-of-court identifications. 188 N.J. at 63. Therefore, trial counsel

may have succeeded had he moved to exclude Ba's identification under Delgado.

However, even if we assume trial counsel's performance was deficient by not

moving to exclude Ba's identification, defendant must also satisfy the second




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prong of the Strickland standard to establish a prima facie case of ineffective

assistance of counsel. Nash, 212 N.J. at 542.

      Defendant fails to satisfy Strickland's second prong.        In his brief,

defendant addresses the second prong of Strickland with only the conclusory

assertion that, "[w]ithout Ba's testimony at trial . . . there is a substantial

probability that defendant would have been acquitted."

      However, even without Ba's out-of-court identification, the jury would

have heard her testimony that an individual accompanied by three others

attempted to use Boukary's stolen card; Ba immediately identified the group of

individuals to Officer Dannoys; Officer Dannoys saw defendant discard

Boukary's bank card; and Boukary identified defendant as the assailant who held

the gun during the robbery. Given the strength of this evidence, defendant did

not demonstrate "a reasonable probability that . . . the result of the proceeding

would have been different," ibid., if Ba's out-of-court identification had been

suppressed. Defendant's failure to satisfy Strickland's second prong requires the

denial of PCR on his claim his counsel was ineffective by failing to move to

suppress Ba's out-of-court identification. See State v. Gaitan, 209 N.J. 339, 350

(2012) ("Although a demonstration of prejudice constitutes the second part of

the Strickland analysis, courts are permitted leeway to choose to examine first


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whether a defendant has been prejudiced, and if not, to dismiss the claim

without" regard to whether "counsel's performance was constitutionally

deficient").

                                       E.

      We also address defendant's argument his trial counsel was ineffective by

failing to communicate adequately with him prior to trial. Defendant contends

that, although the PCR court found his claims to be overly vague and lacking in

specificity, he intended to supply additional detail when he testified before the

PCR court "to provide further support for his claims of inadequate preparation

and consultation."

      This claim is without merit.      "[A] defendant is not entitled to an

evidentiary hearing if the 'allegations are too vague, conclusory, or speculative

to warrant an evidentiary hearing.'" Porter, 216 N.J. at 355 (quoting State v.

Marshall, 148 N.J. 89, 158 (1997)). "Rather, defendant must allege specific

facts and evidence supporting his allegations." Ibid.

      Here, defendant fails to identify with specificity what trial counsel

allegedly failed to communicate and to demonstrate how, if such

communications had been made, they would have affected the trial proceedings.




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Defendant's claim is too vague and conclusory to establish a prima facie case

sufficient to warrant an evidentiary hearing. Ibid.

                                        F.

      We last address defendant's claim the court erred by denying his PCR

petition without an evidentiary hearing. We find the argument without sufficient

merit to warrant discussion in a written opinion, R. 2:11-3(e)(2), other than to

note that an evidentiary hearing was not required because defendant failed to

establish a prima facie case of ineffective assistance of counsel on any of his

claims. See Marshall, 148 N.J. at 157-58 (explaining an evidentiary hearing on

a PCR petition is not required where a defendant fails to establish a prima facie

case of ineffective assistance of counsel).

      Any of defendant's remaining arguments we have not addressed directly

are without sufficient merit to warrant discussion in a written opinion. R. 2:11-

3(e)(2).

      Affirmed.




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