NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

PER CURIAM.

Defendant Ibn Adams appeals from a March 24, 2010 order of the Law Division denying his petition for post-conviction relief (PCR) and request for an evidentiary hearing. Defendant alleged ineffective assistance of trial counsel in failing to suppress evidence and an out-of-court identification, and in failing to subpoena or produce critical witnesses for a Wade1 hearing. We affirm.

The record reflects that defendant and two others committed a series of robberies of various people at gunpoint and one victim was killed during a robbery. Additionally, defendants stole cars to accomplish their purpose. After their arrest, one of the three robbers, Dexter Harrison, turned State's witness in order to accept a plea deal. Prior to trial, the court conducted a Wade hearing, during which Detective David Montgomery of the Kearney Police Department testified about the photo identification process, and the trial court found the procedures used were unduly suggestive but nevertheless reliable and thus admissible.

The jury found defendant and co-defendant, James Comer, guilty of felony murder, four separate robberies, and related offenses, all committed during two consecutive days in April 2000. The convictions were based on the testimony of Harrison; eye-witness identifications by the three surviving robbery victims, Deru Abernathy, Alyson Gardner, and Tassandra Wright; the arrest at the end of the crime spree of all three defendants, still together and still in possession of the car used in the crimes; and recovery of one of the handguns and items stolen from the victims. On March 5, 2004, Judge Thomas Vena sentenced defendant to an aggregate custodial sentence of 67 years with a parole ineligibility period of 61.45 years.

Defendant filed a direct appeal, arguing, in part, that the trial judge should have excluded, as the product of unduly suggestive police procedures, the eyewitness identification of the three victims, and that of Dinis Sachdeva, who was working as an attendant at the gas station where defendants and their accomplice were arrested at the end of the crime spree. In an unreported opinion, we affirmed defendant's conviction and sentence. State v. Adams and Comer, No. A-4915-03T4; A-6307-03T4 (Dec. 28, 2006).

Defendant petitioned the Supreme Court for certification of our decision, which was granted on February 23, 2007, limited solely to the following issues:

The Supreme Court acknowledged that "[d]uring the criminal investigation, the police engaged in less than optimal out-of-court criminal photographic identification techniques" and noted the trial court's finding at the Wade hearing that the procedures were unduly suggestive but nonetheless reliable. State v. Adams, 194 N.J. 186, 190 (2008). The Court affirmed, concluding, in part, the cases did not present a proper record to consider modifying its standards for evaluating the admissibility of out-of-court photographic identification procedures articulated in State v. Herrera, 187 N.J. 493 (2006), and agreed with us that there was sufficient credible evidence to affirm the trial court's decision to admit the identification testimony. Id. at l9l.

About six weeks later, on or about May 12, 2008, defendant filed a petition for PCR relief. In a pro se submission and that of PCR counsel, defendant claimed trial counsel was ineffective in failing to suppress evidence and out-of-court identifications and failing to subpoena or produce critical witnesses for a Wade hearing. Defendant also urged his claims were not procedurally barred by Rule 3:22 as they asserted constitutional issues arising under the State and Federal Constitutions, and he provided prima facie proof of ineffective assistance of trial counsel to warrant an evidentiary hearing under State v. Preciose, 129 N.J. 451, 462-63 (1992). Defendant supplemented his petition with a certification. He pointed out that Detective Montgomery was the sole witness at the Wade hearing, and claimed the detective's testimony did not accurately reflect statements pertaining to identification he contended were reported by Gardner and Wright. Defendant urged that had his trial counsel called both of these witnesses "to refute the incriminating testimony" of Detective Montgomery, the trial court "would have had a more complete understanding of what actually took place, and that [Detective] Montgomery's testimony was not itself complete and the results of the [Wade] hearing would have been different."

Following oral argument on March 12, 2010, the court rendered an oral decision, supplemented by a written opinion on March 24, 2010, denying defendant's PCR petition. Judge Vena found that to the extent defendant's argument relies on the assertion the Wade hearing was suggestive, that was already adjudicated on direct appeal and is procedurally barred under Rule 3:22-5. However, the judge gave defendant the benefit of the doubt in noting that "to the extent that [defendant's] argument relies on counsel's failure in general to investigate these witnesses," the claim is not procedurally barred thereunder. The judge also concluded that defendant's claim was not procedurally barred by Rule 3:22-4, i.e., could have been but was not raised in a prior proceeding, because it fit within the third exception, i.e., denial of relief would contravene the State and Federal Constitutions.

The judge then rejected defendant's claim of ineffective assistance of counsel on the merits, finding, in part, defendant merely had made "a blanket assertion" that counsel's investigation of the State's witnesses would have helped in his defense and acquittal, which was not competent evidence presenting a prima facie showing of ineffectiveness of counsel as required to warrant an evidentiary hearing. See Preciose, supra, 129 N.J. at 462-63. As noted by the judge following oral argument, both Gardner and Wright testified at trial on behalf of the State as to their in-court and out-of-court identifications of defendant and were vigorously cross-examined by both counsel for defendant and for co-defendant Comer, and defendant failed to provide any affidavit by Gardner or Wright indicating their testimony would be in any way favorable to him had they testified at the Wade hearing.

In his oral and written opinion, Judge Vena amply explained why defendant's allegations of ineffective assistance of counsel were without substantive merit and were insufficient to warrant relief under the two-prong Strickland/Fritz test. See Strickland v. Washington, 466 U.S. 668, 687, 694, 104 S.Ct. 2052, 2064, 2068, 80 L. Ed. 2d 674, 693, 698 (l984) (holding that in order to prevail on a claim of ineffective assistance of counsel, a defendant must meet a two-prong test of establishing both that: (l) counsel's performance was deficient and he or she made errors that were so serious that counsel was not functioning effectively as guaranteed by the Sixth Amendment to the United States Constitution, and (2) the defect in performance prejudiced the defendant's right to a fair trial such that there exists a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different"). See also State v. Fritz, 105 N.J. 42, 58 (1987) (adopting the Strickland test in New Jersey); Preciose, supra, 129 N.J. at 462-63 (holding that to establish a prima facie claim of ineffective assistance of counsel within the Strickland/Fritz test warranting an evidentiary hearing, a defendant must demonstrate a reasonable likelihood that his or her claim will ultimately succeed on the merits).

On appeal, defendant renews his arguments, contending his claims are not procedurally barred and he is, at a minimum, entitled to an evidentiary hearing. Based on our review of the record and applicable law, we are satisfied defendant failed to make a prima facie showing of ineffectiveness of trial counsel within the Strickland/Fritz test warranting an evidentiary hearing. We are further satisfied all of defendant's arguments raised on PCR are without substantive merit. Defendant's arguments renewed on appeal were more than adequately addressed by Judge Vena following oral argument and in his written opinion and do not warrant additional discussion save for the following brief comment. R. 2:ll-3(e)(2).

The judge gave defendant the benefit of the doubt and gave an expansive interpretation to Rule 3:22-4 when he found defendant's claim rose to the level of a potential constitutional violation allowing him relief from the procedural bar of having had to raise the claim on direct appeal. We do not necessarily agree defendant sustained that burden as he does not contend the facts supporting his claims lie outside the trial record, Preciose, supra, 129 N.J. at 461, nor does he provide specific facts to corroborate his allegations, substantiate any infringement of his constitutional rights, or demonstrate a fundamental injustice, State v. Mitchell, 126 N.J. 565, 587 (l992). That being said, however, we are not convinced the judge abused his discretion in the ruling.

Affirmed.