                                NOT FOR PUBLICATION WITHOUT THE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-3247-17T1

STATE OF NEW JERSEY,

         Plaintiff-Respondent,

v.

PATRICK J. D'ALESANDRO,

     Defendant-Appellant.
___________________________

                   Submitted March 20, 2019 - Decided May 16, 2019

                   Before Judges Accurso and Moynihan.

                   On appeal from Superior Court of New Jersey, Law
                   Division, Ocean County, Indictment No. 15-04-0759.

                   Joseph E. Krakora, Public Defender, attorney for
                   appellant (Alison S. Perrone, Designated Counsel, on
                   the brief).

                   Bradley D. Billhimer, Ocean County Prosecutor,
                   attorney for respondent (Samuel J. Marzarella, Deputy
                   Executive Assistant Prosecutor, of counsel; Roberta
                   DiBiase, Supervising Assistant Prosecutor, on the
                   brief).

PER CURIAM
       Defendant Patrick J. D'Alesandro appeals from the denial of his petition

for post-conviction relief (PCR), contending he established a prima facie case

of ineffective assistance of counsel requiring an evidentiary hearing. Because

the trial judge correctly determined the evidence insufficient to sustain

defendant's burden, we affirm.

       The gas station attendant defendant robbed at knife-point on Christmas

Eve in 2014, memorized his license plate number and provided it to police, along

with the exact make, model and year of the car. That information, along with a

description of the robber, video from the gas station's surveillance camera and

E-ZPass records from the transponder the prior owner left in the car when he

sold it to defendant several months earlier, led police to him within two weeks.

Following Miranda1 warnings, defendant confessed.

       Defendant was indicted on charges of first-degree robbery, N.J.S.A.

2C:15-1 and weapons offenses. His counsel negotiated an agreement with the

prosecutor to recommend defendant be sentenced on the first-degree robbery

charge within the second-degree range to an eight-year prison term, subject to

the periods of parole ineligibility and supervision required by the No Early

Release Act (NERA), N.J.S.A. 2C:43-7.2, with dismissal of the weapons


1
    Miranda v. Arizona, 384 U.S. 436 (1966).
                                                                       A-3247-17T1
                                       2
charges and defendant reserving the right to argue for a five-year NERA term.

The sentencing judge imposed a six-year NERA term, noting defendant was

thirty-nine years old facing his first Superior Court conviction, had a long

history of drug and alcohol problems, had relapsed and was under the influence

of both at the time of the offense, and that she received a letter from the jail

commending defendant for participating in every therapeutic support program

offered during the year he was confined awaiting trial.

      Defendant did not appeal, but filed a timely petition for PCR, alleging his

counsel was ineffective in failing to pursue motions to suppress the gas station

attendant's identification evidence and defendant's confession. After hearing

argument by assigned counsel, Judge Blaney issued a comprehensive written

opinion denying the petition on the basis that defendant had failed to establish a

prima facie claim for relief. State v. Preciose, 129 N.J. 451, 462-64 (1992).

      Following a lengthy review of the facts and a discussion of the controlling

law, the judge rejected defendant's claim his counsel was ineffective for failing

to suppress the victim's out-of-court identification because the gas station

attendant did not identify defendant in the photo array. Based on the victim's

failure to identify defendant's photo, the judge noted it was "highly likely" either




                                                                           A-3247-17T1
                                         3
the State would not have proffered it at trial or defendant would have used its

inconclusiveness to his benefit had it been introduced.

       As Judge Blaney observed, "[e]ither way, the failure to file a motion to

suppress evidence that did not implicate [defendant] in the first place does not

amount to ineffective assistance of counsel." Even assuming defendant was

correct that the officer conducting the identification procedure attempted to

influence the victim's choice, the judge again noted "it did not result in the victim

identifying [defendant] as the perpetrator," and thus, defendant could not

establish prejudice under the second prong of the Strickland 2 test.

       Judge Blaney also rejected defendant's claim his counsel was ineffective

for failure to move to suppress his confession based on counsel's assertion that

detectives promised to bring defendant his medication "and would try to get a

'better deal' for him by talking to a judge." The judge noted "[n]o citation has

been provided for this allegation and a scouring of the record reveals that

nothing exists to support this contention."        He found the absence of any

statement by defendant that such conduct occurred, "signals that the claim is

unworthy of relief." He accordingly rejected the claim as nothing more than a

bald assertion unsupported by any certification attesting to the facts asserted.


2
    Strickland v. Washington, 466 U.S. 668, 687-88, 694 (1984).
                                                                            A-3247-17T1
                                         4
See State v. Cummings, 321 N.J. Super. 154, 170 (App. Div. 1999); see also

State v. Jones, 219 N.J. 298, 311-12 (2014).

      Defendant appeals, raising a single issue:

            DEFENDANT IS ENTITLED TO AN EVIDENTIARY
            HEARING ON HIS CLAIM THAT HIS PLEA
            COUNSEL WAS INEFFECTIVE IN FAILING TO
            PURSUE MOTIONS TO SUPPRESS EYEWITNESS
            IDENTIFICATION      EVIDENCE        AND
            DEFENDANT'S CONFESSION.

      We reject those arguments as without sufficient merit to warrant

discussion in a written opinion, R. 2:11-3(e)(2), and affirm the denial of

defendant's petition substantially for the reasons set forth in Judge Blaney's

August 22, 2017 cogent and well-reasoned written opinion.

      Affirmed.




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