NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
PER CURIAM.
Defendant Anthony A. Vinas appeals the denial of his post-conviction relief (PCR) petition by the trial judge after an evidentiary hearing. Defendant was caught on video committing one robbery, and was caught with the weapon and the proceeds from a second robbery and was promptly identified by the victim.
We affirm the May 13, 2013 order denying the PCR petition.
I.
The facts established in defendant's trial before Judge Michael A. Toto were summarized by Judge Toto in his May 3, 2013 opinion denying defendant's PCR petition. We highlight the relevant facts here.
Defendant was convicted of committing two armed robberies, occurring on January 16, 2009, in Perth Amboy. The grand jury charged him with: two counts of first-degree robbery, N.J.S.A. 2C:15-1; second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1); third-degree possession of a weapon for unlawful purposes, N.J.S.A. 2C:39-4(d); and unlawful possession of a weapon, N.J.S.A. 2C:39-5(d).
First, defendant robbed victim G.M., a seventy-seven-year-old man, as G.M. was standing in the lobby of his apartment building waiting for his ride to work. As recorded by a surveillance camera, defendant, wearing a red hoody, a gray jacket, and gray pants, entered the lobby with his girlfriend, held a knife to G.M.'s face, and demanded G.M.'s money. When G.M. told defendant he did not have any money, defendant shoved G.M. against a wall and punched him in the side of his face and his mouth. G.M. gave defendant the $11 he had in his pocket, and defendant threw the money at G.M. Defendant then pushed G.M. to the floor and kicked him in the head. G.M.'s injuries included a cut to his face, swelling of his face, and later, a subdural hematoma.
G.M. exited the lobby and crossed the street. Defendant followed G.M. outside, again brandished his knife, and demanded G.M.'s wallet. G.M. complied, and defendant fled. G.M. returned to his apartment, where his wife called the police.
Moments later, defendant robbed victim A.J. A.J. was crossing the street when she was approached by defendant, who A.J. saw was wearing a red hoody and gray pants. Defendant again brandished his knife and demanded A.J.'s money. A.J. tried to get away, but defendant blocked her. Defendant then took her pocketbook and left. A friend of A.J. witnessed the encounter, called the police, and described defendant as wearing a red hoody, gray jacket, and gray pants.
Police officers responded promptly. Officer Brandon Bucior saw defendant, who fit the description. Once defendant saw the officer, he began running and discarding items, including cash and A.J.'s pocketbook, which contained her bank card and keys. When the officers caught up to him, they found a knife with a broken blade.
Approximately ten minutes after A.J. had been robbed, the police took A.J. to the police car where defendant was detained. She was able to positively identify defendant as the man who robbed her.
At trial, defendant testified in his own defense. He claimed that he had no memory of what transpired on the morning of the robberies because he had taken drugs and consumed alcohol. Specifically, he testified he would use one to one-and-a-half grams of cocaine in a weekend. He also testified that on January 16 he took an "ecstasy pill," and imbibed a type of alcohol referred to as "ENJ."
At trial, the surveillance footage of defendant assaulting and robbing G.M. was played, and defendant was asked for his reaction to that footage. Defendant testified that he was "heartbroken" by the footage, and that "I feel real bad. I'm very sorry for what I did." He also testified that he felt sorry about the robbery of A.J., because he "sympathize[s] a lot with women."
The jury convicted defendant on all charges. On July 1, 2010, the trial court sentenced defendant to an aggregate term of thirteen years in prison, subject to 85% parole ineligibility under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.
Defendant did not appeal.
In January 2011, defendant filed a PCR petition. Judge Toto granted defendant an evidentiary hearing, which was conducted in December 2011, November 2012, and March 2013. On May 13, 2013, the court denied defendant's PCR petition in an eleven-page written opinion.
Defendant appeals, arguing:
POST-CONVICTION RELIEF should have been granted where defendant was denied effective assistance of counsel and, but for counsel's errors, the result would have been different.
(A) The Show-Up Identification Procedure and the Subsequent Out-Of Court Identification Were Ineffectively Attacked by Trial Counsel Resulting in the Admission of Critical and Damaging Testimony at Trial.
(B) Trial Counsel Was Ineffective In His Opening Statement When He Committed The Defendant To Testify At Trial, And But For This Error, The Result Would Have Been Different.
(C) Trial Counsel Was Ineffective When He Presented An Intoxication Defense That Was Impossible To Prove, Conceded In Opening Statements That The Defendant Committed The Robberies, And Advised Defendant To Admit Factual Guilt.
II.
We must hew to our standard of review. We review a PCR court's conclusions of law de novo. State v. Nash, 212 N.J. 518, 540-41 (2013). However, we defer "to a PCR court's factual findings based on its review of live witness testimony," id. at 540, because of its "`opportunity to hear and see the witnesses and to have the feel of the case, which a reviewing court cannot enjoy,'" State v. Nunez-Valdéz, 200 N.J. 129, 141 (2009) (citations omitted). Moreover, "credibility determinations are given greater deference." State v. Harris, 181 N.J. 391, 420-21 (2004), cert. denied, 545 U.S. 1145, 125 S.Ct. 2973, 162 L. Ed. 2d 898 (2005). We must affirm the PCR court's factual findings unless they are not supported by "sufficient credible evidence in the record," and "`are so clearly mistaken "that the interests of justice demand intervention and correction."'" Nunez-Valdéz, supra, 200 N.J. at 141 (citations omitted).
Based on our standard of review, we affirm substantially for the reasons set forth in Judge Toto's thoughtful and well-reasoned May 13, 2013 opinion. We add the following.
Defendant alleges that trial counsel failed to attack his out-of-court identification by A.J. In fact, trial counsel filed a motion to suppress that identification and challenged it in a hearing under United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L. Ed. 2d 1149 (1967). Nonetheless, defendant claims trial counsel was ineffective for not citing to the trial court certain cases allegedly relating to the issue of whether the "show-up" should have been memorialized in a police report. However, as Judge Toto points out, trial counsel successfully brought that issue to the attention of the trial court. If defendant believed those cases should have been considered in the legal analysis of the trial court, he could have filed a direct appeal. He did not. See R. 3:22-4(a)(1).
Defendant challenges trial counsel's strategy to defeat the State's highly incriminating evidence by a defense of voluntary intoxication. Voluntary intoxication is a defense if "it negatives an element of the offense," here intent. N.J.S.A. 2C:2-8(a). Defendant fails to overcome a "`strong presumption that counsel rendered reasonable professional assistance.'" State v. Arthur, 184 N.J. 307, 319 (2005) (citation omitted). Merely because a trial strategy fails does not mean that counsel was ineffective." State v. Bey, 161 N.J. 233, 251 (1999), cert. denied, 530 U.S. 1245, 120 S.Ct. 2693, 147 L. Ed. 2d 964 (2000).
Defendant now critiques trial counsel's decision to preview in his opening that defendant would testify, as he in fact did. That is "precisely the kind of tactical decision that should not be disturbed by a reviewing court." State v. Marshall, 148 N.J. 89, 262-63 (1997).
Affirmed.
