NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

PER CURIAM

Defendant Maurice Pierce appeals from an order denying his petition for post-conviction relief (PCR). Defendant raised an issue on his direct appeal concerning the ineffectiveness of his trial counsel where, among other contentions, there was a failure to request a Wade hearing.1 In an opinion of this court affirming defendant's conviction, this issue was reserved for post-conviction proceedings, and is now before us. State v. Pierce, No. A-6172-02 (App. Div. May 11, 2005) (slip op. at 19-20), rev'd and remanded on other grounds, 188 N.J. 155 (2006).

The relevant facts surrounding this first-degree robbery conviction, along with other charges, were summarized by this court as follows.

Following defendant's conviction, he was sentenced to a discretionary extended term of forty years imprisonment with sixteen years of parole ineligibility. This sentence was reimposed following a resentencing. The other charges for which defendant was sentenced were all made to run concurrent with this lead charge and need not be further enumerated.

In presenting the argument involving defendant's trial counsel's failure to request a Wade hearing, defendant argued to the PCR judge, who had also been the trial judge, that there was "suggestiveness in the photo identification" and that identification would have been suppressed, leading to a different trial outcome.

Defendant asserted that the second prong of the Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L. Ed. 2d 674 (1984), and State v. Fritz, 105 N.J. 42 (1987), test would have thereby been satisfied. In support of his argument, defendant pointed out there was an initial different description of the make of the automobile defendant was traveling in; that the description of defendant was inaccurate as to color of his complexion; and that there was an age and height difference. He also contended that the procedure was suggestive because the police had indicated they "arrested someone with a silver handgun," but nothing was said about which of those depicted in the six-person photo array was the arrestee. Reportedly, the victim was told after the immediate identification that he had selected the person who had been arrested. Defendant then argued that this comment "tainted the in-court identification."

Defendant also urged the court to follow the Attorney General Guidelines regarding photo identifications, which were, however, not in effect at the time of this photo identification procedure. Defendant urged the court that "an evidentiary hearing to explore the issue of ineffective assistance [of] counsel" should be held and that as part of that proceeding, a Wade hearing should be conducted.

In rejecting defendant's petition, the PCR judge was satisfied that the second prong of the Strickland test, that "prejudice must be actually proven by showing that there is a reasonable probability that, but for the professional errors made by the defendant's lawyers, the result of the proceeding would have been different," was not satisfied.

According to the PCR judge, with regard to the examination itself, the detectives had testified that they "conducted a photo identification and neither of them discussed the [identification] with the victim prior to" the photo array being displayed. The judge stated that "[t]he victim immediately identified the defendant from the photo array." The judge suggested that there was no gross dissimilarity in the photo array. During the robbery, the judge noted that defendant was wearing a do-rag "so that his hairstyle was unknown." Although defendant was the only individual with a corn row hair style, that was not visible at the time of the robbery so that the hair style was of no consequence. The PCR judge further pointed out that "the victim was three to four feet from the defendant when the robbery occurred," which lasted approximately four or five minutes. He had a clear view of defendant with a heightened sense of awareness because a gun was pointed at him. The description provided was "consistent with the trial testimony, including his weight and approximate age," with the PCR court not finding a "significant difference between a 21 and a 25-year-old man."

In concluding, the PCR judge had this to say:

On appeal, defendant raises the following issue:

Defendant raises the same arguments on appeal that were presented to the PCR judge, quoting extensively from that argument. We are satisfied that the trial court properly rejected defendant's argument and affirm substantially for the reasons expressed in the oral opinion of Judge Heimlich of November 20, 2008. We, however, add the following comments.

We reiterate that there is a two-prong test to determine whether counsel's representation "so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Strickland, supra, 466 U.S. at 686, 104 S. Ct. at 2064, 80 L. Ed. 2d at 692-93; See also Fritz, supra, 105 N.J. at 58. The first prong of the test is to show that counsel's representation was deficient "considering all [of] the circumstances." Strickland, supra, 466 U.S. at 688, 690, 104 S. Ct. at 2065, 2066 80 L. Ed. 2d at 694, 695. Here, we are not satisfied that defense counsel was ineffective for not requesting a Wade hearing where the photo array was not suggestive or improper. Trial counsel was of the view that it would not have made a difference. Moreover, as a trial strategy, we note that defense counsel did not alert the detectives who conducted the photo array on the line that cross-examination would follow, which led to a very aggressive trial examination before the jury. Since the victim's credibility was a key issue, this was not an inappropriate way to proceed. We, therefore, do not consider that the first prong of the Strickland test was satisfied.

We also note that a defendant is not constitutionally entitled to a Wade hearing upon his mere request. With regard to the photo array itself, it was not suggestive and the victim relied on his own recollection in identifying defendant. Defendant was only three feet away from the victim and his face was unobstructed with the victim looking directly at him. The only time the victim did not look at defendant was when defendant instructed the victim not to look at him, whereupon the victim looked down while he gave defendant everything he had on him. The victim also was able to identify the gun that defendant had pointed at him when he was apprehended. Under the standards governing an out-of-court identification, the procedures employed here were not so suggestive as to give rise to "a very substantial likelihood of irreparable misidentification." Manson v. Brathwaite, 432 U.S. 98, 116, 97 S.Ct. 2243, 2254, 53 L. Ed. 2d 140, 155 (1977) (citation and internal quotations marks omitted); see also State v. Madison, 109 N.J. 223, 232 (1988).

Here, the factors in evaluating reliability all coalesced to show that the victim had the "opportunity . . . to view the criminal at the time of the crime"; the degree of attention that he demonstrated; the level of certainty he exhibited when he made an immediate identification upon being shown the photo array; and the time between the crime and the viewing, which was only a few days later. Neil v. Biggers, 409 U.S. 188, 199, 93 S.Ct. 375, 382, 34 L. Ed. 2d 401, 411; see also State v. James, 144 N.J. 538, 546 (1996) (citations omitted). Under these circumstances, the second prong of the Strickland test would not have been met because there was no "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698.

The order denying post-conviction relief is affirmed.