                                NOT FOR PUBLICATION WITHOUT THE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-5223-16T1

STATE OF NEW JERSEY,

           Plaintiff-Respondent,

v.

RAMIL ROBINSON,

           Defendant-Appellant.

____________________________

                    Submitted April 24, 2018 – Decided October 3, 2018

                    Before Judges Mawla and DeAlmeida.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Hudson County, Indictment No. 12-06-1143.

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

                    Esther Suarez, Hudson County Prosecutor, attorney for
                    respondent (Svjetlana Tesic, Assistant Prosecutor, on
                    the brief).

           The opinion of the court was delivered by
DeALMEIDA, J.A.D.

        Defendant Ramil Robinson appeals from an order entered by the Law

Division on July 6, 2017, denying his petition for post-conviction relief (PCR)

without a hearing. We affirm.

                                          I.

        The following facts are derived from the record. In the early morning

hours of February 17, 2012, A.G.1 was walking from a convenience store to his

home in West New York listening to his mp3 player. An assailant jumped on

A.G. and punched him repeatedly. The assault caused A.G. to drop his mp3

player. The assailant demanded money from A.G. The two stood approximately

three feet apart in an area illuminated by a street light. When informed that A.G.

had no money in his possession, the assailant removed his jacket and attempted

to engage in a fight. Noticing the mp3 player on the ground, the assailant picked

it up, along with his jacket, and ran away.

        A.G. went home and called police.        He described the assailant to a

detective as an African-American male, wearing a brown jacket, approximately

six feet tall, with long hair, a beard, and missing some teeth. A.G. informed




1
    We use initials to protect the privacy of the victim.
                                                                          A-5223-16T1
                                          2
police that his mp3 player was black and silver with white headphones. The

police searched for the assailant.

      A.G.'s brother also separately searched for the assailant.         He found

defendant, whom he believed matched the description provided by his brother,

and flagged down a patrol car. The officers determined that defendant matched

A.G.'s description of the assailant and was using a black and silver mp3 player

with white headphones. They informed defendant that they were investigating

a robbery and asked him where he obtained the mp3 player. Defendant said he

found the device on the ground.

      Officers arrested defendant and brought him to the police station. About

thirty minutes after the robbery, A.G.'s brother brought him to the station.

There, A.G. identified defendant, who was alone in a holding cell, as the

assailant. He also identified the mp3 player as his property.

      A.G.'s identification of defendant was of the type commonly known as a

show-up identification. "Showups are essentially single-person lineups: a single

suspect is presented to a witness to make an identification . . . often . . . at the

scene of a crime soon after its commission." State v. Henderson, 208 N.J. 208,

259 (2011).




                                                                            A-5223-16T1
                                         3
       On June 19, 2012, a Hudson County Grand Jury returned an indictment

charging defendant with: (1) second-degree robbery, N.J.S.A. 2C:15-1; and (2)

third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(7). Defendant waived his

right to a jury trial.

       Our Supreme Court has found show-up identifications to be "inherently

suggestive." State v. Herrera, 187 N.J. 493, 504 (2006). Although defendant's

counsel did not move to suppress A.G.'s out-of-court identification of defendant,

see United States v. Wade, 388 U.S. 218 (1967), the trial court examined the

reliability of the identification because the State's evidence "hinge[d] upon an

eyewitness identification made by the victim." The court acknowledged the

concerns inherent in a show-up identification:

              Our Supreme Court has held that one-on-one show-ups
              are inherently suggestive. Such a procedure is, by
              definition, suggestive because the victim can only
              choose from one person and generally this person is in
              police custody. The procedure is also suggestive
              because it cannot be performed blind or double blind.
              Thus, the main problem with show-ups is that compared
              to lineups, they fail to provide a safeguard against
              witnesses with poor memories or those inclined to
              guess because every mistake in identification in a
              show-up will point to the suspect . . . .




                                                                         A-5223-16T1
                                        4
      Applying the standards set forth in Henderson to determine whether the

circumstances of A.G.'s identification of defendant were unduly suggestive, the

court found that a

            show-up already suggestive in its own right was
            conducted with the defendant confined in a location
            that could lead one to conclude he had engaged in
            criminal activity. This is sufficiently suggestive to
            proceed on to the next prong of the analysis . . . . Once
            the requisite level of suggestiveness has been
            demonstrated, the next inquiry is whether the State has
            offered proof to show the proffered eyewitness
            identification is reliable accounting for system and
            estimator variables. The ultimate burden remains on
            the defendant to prove a very substantial likelihood of
            irreparable misidentification. The only system variable
            in an inquiry requires examination of statements made
            by police before and during the identification.
            Testimony indicated that [A.G.] was told by police, the
            defendant may or may not have been the person that
            robbed him which weighs in favor of the State because
            it partially mitigates the inherent suggestiveness of the
            show-up.

      In addition, the court noted a number of estimator variables weighing in

favor of the identification's reliability. Among those factors were the amount of

time A.G. was face-to-face with his assailant, that the encounter took place in a

well-lighted area, that A.G. was spatially close to his assailant, that A.G. and

defendant are close in age, and that only thirty minutes had elapsed from the

time of the robbery to the time of the identification. The court found that the


                                                                         A-5223-16T1
                                       5
cross-racial nature of the identification weighed against its reliability. After

considering the variables, the court found as follows:

              Weighing the system and estimator variables, I find the
              overall reliability of the identification made by [A.G.]
              to be high. The level of detail that [A.G.] provided to
              police regarding particular characteristics of defendant,
              his skin color, height, facial hair, missing teeth, brown
              jacket and dark jeans, suggest that [A.G.] had ample
              opportunity to observe defendant under sufficiently
              reliable circumstances. There's also no evidence that
              the subsequent identification was tainted by any police
              misconduct.       Accordingly, I will consider the
              identification in my final determination of innocence or
              guilt.

      On February 14, 2013, the court, relying, in part, on A.G.'s identification

found defendant guilty on both counts. The State filed a motion pursuant to

N.J.S.A. 2C:44-3(a) for an extended term, which was granted.              The court

sentenced defendant to fourteen years of incarceration, with an eighty-five

percent period of parole ineligibility, pursuant to the No Early Release Act,

N.J.S.A. 2C:43-7.2(a).

      Defendant appealed his convictions and sentence. We affirmed. State v.

Robinson, No. A-5302-12 (App. Div. Feb. 13, 2015). We rejected defendant's

argument that the trial court erred by admitting A.G.'s identification of

defendant. The Supreme Court denied certification. State v. Robinson, 223 N.J.

282 (2015).

                                                                            A-5223-16T1
                                         6
      On October 6, 2016, defendant filed a PCR petition in the Law Division.

Defendant alleged that his trial counsel was ineffective for failing to move to

suppress A.G.'s identification of defendant.

      Judge John A. Young, Jr., who presided at defendant's original trial,

denied defendant's PCR petition. The trial court found that defendant failed to

present a prima facie case of ineffective assistance of counsel, and did not

demonstrate the need for an evidentiary hearing. The court found that it engaged

in a detailed analysis of the reliability of A.G.'s identification of defendant and

a motion by trial counsel to suppress the identification would not have resulted

in a different outcome. The court noted the decision to admit the identification

was affirmed on direct appeal.       Finally, the trial court rejected as "mere

speculation" defendant's argument that an evidentiary hearing was necessary

because "without a doubt" A.G.'s brother had a suggestive conversation with

A.G. as the two traveled to the police station to identify defendant.

      This appeal followed. Defendant raises 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 WADE

                                                                           A-5223-16T1
                                        7
            MOTION TO CHALLENGE THE INHERENTLY
            SUGGESTIVE        SHOW-UP      IDENTIFICATION
            PROCEDURE       USED BY        POLICE   AFTER
            DEFENDANT'S ARREST (U.S. CONST. AMEND.
            VI; N. J. CONST. ART. I, ¶ 10.

            (A) DEFENDANT PRESENTED A SUFFICIENT
            SHOWING TO MEET THE FIRST PRONG OF THE
            STRICKLAND/FRITZ STANDARD.

            (B) DEFENDANT PRESENTED A SUFFICIENT
            SHOWING TO MEET THE SECOND PRONG OF
            THE STRICKLAND/FRITZ STANDARD.

            POINT II

            THE PCR COURT SHOULD HAVE AFFORDED
            DEFENDANT AN OPPORTUNITY TO MEET HIS
            BURDEN OF PROOF AT AN EVIDENTIARY
            HEARING.

                                      II.

      The Sixth Amendment to the United States Constitution and Article I,

Paragraph 10 of the New Jersey Constitution guarantee criminal defendants the

right to the effective assistance of counsel. State v. O'Neil, 219 N.J. 598, 610

(2014) (citing Strickland v. Washington, 466 U.S. 668, 686 (1984); State v.

Fritz, 105 N.J. 42, 58 (1987)). To succeed on a claim of ineffective assistance

of counsel, the defendant must meet the two-part test established by Strickland,

466 U.S. at 687, and adopted by our Supreme Court in Fritz, 105 N.J. at 58.



                                                                        A-5223-16T1
                                       8
      Under Strickland, a defendant first must show that his or her attorney

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

guaranteed the defendant by the Sixth Amendment." Strickland, 466 U.S. at

687. Counsel's performance is deficient if it "[falls] below an objective standard

of reasonableness." Id. at 688.

      A defendant also must show that counsel's "deficient performance

prejudiced the defense." Id. at 687. He must establish that "there is a reasonable

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

proceeding would have been different." Id. at 694. "A reasonable probability

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

proceeding. Ibid.

      We review a PCR court's decision to proceed without an evidentiary

hearing for abuse of discretion. State v. Brewster, 429 N.J. Super. 387, 401

(App. Div. 2013) (citing State v. Marshall, 148 N.J. 89, 157-58 (1997)). A

defendant is entitled to an evidentiary hearing on a PCR petition if the defendant

presents a prima facie case in support of PCR, the court determines 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. R. 3:22-10(b); see also State v. Porter, 216 N.J. 343, 354 (2013)


                                                                          A-5223-16T1
                                        9
(citing R. 3:22-10(b)). The court must "view the facts in the light most favorable

to a defendant." State v. Preciose, 129 N.J. 451, 463 (1992). The defendant,

however, "must do more than make bald assertions" and must instead "allege

facts sufficient to demonstrate counsel's alleged substandard performance."

State v. Cummings, 321 N.J. Super. 154, 170 (App. Div. 1999). "[V]ague,

conclusory, or speculative" allegations will not suffice. Porter, 216 N.J. at 355

(quoting Marshall, 148 N.J. at 158).

      In addition, "PCR provides a defendant with a means to challenge the

legality of a sentence or final judgment of conviction which could not have been

raised on direct appeal." State v. McQuaid, 147 N.J. 464, 482 (1997). However,

it does not allow a defendant "to relitigate a claim already decided on the

merits." Id. at 483. Rule 3:22-5 makes clear that "[a] prior adjudication upon

the merits of any ground for relief is conclusive whether made in the proceedings

resulting in the conviction or . . . in any appeal taken from such proceedings."

Therefore, an argument should be barred from being pursued in a PCR petition

"only if the issue raised is identical or substantially equivalent to that

adjudicated previously on direct appeal." State v. Bontempo, 170 N.J. Super.

220, 234 (Law Div. 1979).




                                                                          A-5223-16T1
                                       10
      Having reviewed the record in light of the applicable legal principles, we

discern no abuse of discretion here. There is ample support in the record for the

trial court's conclusion that defendant failed to produce any evidence that the

trial court would have determined that A.G.'s identification of defendant was

inadmissible had his trial counsel made a Wade suppression motion. The trial

court, in the absence of a motion from defense counsel, engaged in a thorough

analysis of the credibility of the identification. Nothing in defendant's PCR

petition suggests the analysis or outcome would have changed had a motio n to

suppress been made by counsel. Moreover, defendant challenged the admission

of the identification on direct appeal, precluding him from raising the argument

again in his PCR petition. R. 3:22-5.

      Affirmed.




                                                                         A-5223-16T1
                                        11
