NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
PER CURIAM.
Defendant Sterling Strauss appeals from a July 23, 2014 order denying, without an evidentiary hearing, his petition for post-conviction relief (PCR). He raises one point in his brief:
THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST[-]CONVICTION RELIEF WITHOUT AFFORDING HIM AN EVIDENTIARY HEARING TO FULLY ADDRESS HIS CONTENTION THAT HE FAILED TO RECEIVE ADEQUATE LEGAL REPRESENTATION FROM TRIAL COUNSEL AS A RESULT OF TRIAL COUNSEL'S FAILURE TO REQUEST A WADE HEARING.
In a pro se supplemental brief he also argues:
THE PETITIONER WAS DENIED THE EFFECTIVE ASSISTANCE OF TRIAL COUNSEL. A.) DEFENSE COUNSEL[`S] FAILURE TO CHALLENGE PHOTO ARRAY OUT OF COURT IDENTIFICATION FELL BELOW THE OBJECTIVE STANDARD OF REASONABLENESS AND PREJUDICED THE PETITIONER AT TRIAL PURSUANT TO THE CASE LAW STANDARD REFER[R]ED TO AS [MANSON/MADISON] IN VIOLATION OF [U.S.] [CONST.] AMEND. 6., AND [NEW JERSEY CONST.] ART. I PARA 9.
Finding no merit in either argument, we affirm.
In August 2008, a jury convicted defendant of first-degree carjacking and thereafter a judge sentenced him to a twenty-two year prison term subject to the No Early Release Act, N.J.S.A. 2C:43-7.2. We affirmed defendant's conviction and sentence. State v. Strauss, No. A-2789-08 (App. Div. June 3, 2011), certif. denied, 208 N.J. 599 (2011). Six months after the Supreme Court denied defendant's petition for certification, he filed his PCR petition, alleging his trial counsel refused to request a hearing to challenge the victims' identification of him from photographs. Defendant alleged his attorney said such a hearing "is not necessary in every misidentification case." The trial court denied defendant's petition, explaining that trial counsel's not seeking a hearing was likely a tactical decision, and in any event, the attempt to suppress the out-of-court identifications would not have succeeded.
In our opinion affirming defendant's conviction, we recounted how the carjacking occurred:
At about 9:45 p.m. on October 18, 2006, Velma Williams and her daughter, Raymona Williams, were seated in the front of Velma's Nissan Pathfinder adjacent to Velma's house in Newark. Velma's younger daughter was in the backseat.
Two men walked past the car. According to Raymona, one of the men was thin and the other was heavy, and both were dark-skinned and wearing dark clothing. According to Velma, one of the men was short and wore a dark "hoodie." She estimated that the shorter man was approximately five feet, five inches tall, and was the heavier of the two. She estimated the height of the other man to be five feet, six or seven inches.
After walking past, the men returned to the car. The man subsequently identified as Strauss yelled "Boo," which startled Velma and Raymona. He said: "Oh my God. I'm sorry. Did I scare you?" Velma responded that he had scared her. The man walked over to the driver's side, where he apologized again and said that he had thought Velma was his aunt.
As Velma was getting out of the car, the man held out his hand. She thought he wanted to shake hands, but then realized that he had a gun in his left hand. He said: "Get out the car and give me everything you have." She threw her car keys down, screamed, and ran from the car. Her daughters, also screaming, got out of the car and ran. The man jumped into the car and drove away.
[Strauss, supra, No. A-2789-08 at 2-3].
We also recounted the circumstances under which the victims identified defendant from photographs:
The following day, Raymona reviewed approximately 200 photographs, which had been computer generated on the basis of her description of a bald, black male, between thirty and forty years old, as the man who drove away with her mother's car. She picked out Strauss's picture and identified him as the carjacker. An officer who was not familiar with the case showed Velma a photo array of six pictures, including Strauss's, sequentially. Velma identified Strauss as the perpetrator. Both Velma and Raymona also identified Strauss while testifying.
[Id. at 3].
On appeal, defendant reasserts his trial counsel was ineffective for failing to request a Wade1 hearing. Reiterating and emphasizing the discrepancy in the victim's identifications of their assailant, defendant asserts "it was likely any identification of either victim made was inherently unreliable."
To prove ineffective assistance of counsel, a defendant must satisfy the Strickland two-part test by demonstrating "counsel's performance was deficient," that is, "that counsel made errors so serious that counsel was not functioning as the `counsel' guaranteed the defendant by the Sixth Amendment"; and "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington, 466 U.S. 668, 687, 694, 104 S.Ct. 2052, 2064, 2068, 80 L. Ed. 2d 674, 693, 698 (1984); accord, State v. Fritz, 105 N.J. 42, 58 (1987). When defendants establish a prima facie case of ineffective assistance of counsel, they are entitled to a hearing on their claims. State v. Preciose, 129 N.J. 451, 462 (1992); R. 3:22-10(b). Here, defendant did not establish a prima facie case.
Preliminarily, we reject the trial court's presumption that trial counsel made a tactical decision. "As in a summary judgment motion, the motion judge should view the facts in the light most favorable to a defendant to determine whether a defendant has established a prima facie claim." State v. Cummings, 321 N.J.Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). Absent testimony from trial counsel, the court's presumption about trial tactics was nothing more than speculation. Engaging in speculation adverse to a defendant contravenes a trial court's obligation to review facts in a PCR petition in the light most favorable to a defendant. State v. Marshall, 148 N.J. 89, 158 (1997) cert. denied, 522 U.S. 850, S. Ct. 140, 139 L. Ed. 2d 88 (1997).
Having said that, we nonetheless affirm the trial court's denial of defendant's PCR petition. A defendant must establish by a preponderance of the credible evidence that he or she is entitled to the relief requested in the PCR petition. State v. Nash, 212 N.J. 518, 541 (2013). To sustain that burden, the defendant must allege and articulate specific facts that "provide the court with an adequate basis on which to rest its decision." State v. Mitchell, 126 N.J. 565, 579 (1992). In other words, a defendant must do more than make bald assertions that he was denied effective assistance of counsel; he must allege specific facts sufficient to demonstrate counsel's alleged substandard performance. Cummings, supra, 321 N.J. Super. at 170.
Before State v. Henderson, 208 N.J. 208 (2011), the reliability of the State's evidence of an out-of-court photographic identification was assessed at a Wade hearing under the standard set forth in Manson v. Brathwaite, 432 U.S. 98, 114, 97 S.Ct. 2243, 2253, 53 L. Ed. 2d 140, 154 (1977), adopted by our Supreme Court in State v. Madison, 109 N.J. 223, 233 (1988).
Pursuant to the Manson/Madison test, the process of determining whether an out-of-court identification is admissible at trial consists of two steps. At a hearing out of the presence of the jury, the judge first must determine whether or not the out-of-court identification procedure was impermissibly suggestive. [State v.]Herrera, 187 N.J. [493,] 503 [(2006).] If the judge finds that the identification was not impermissibly suggestive, then the evidence may be admitted at trial. If there is a finding of impermissible suggestiveness, the court must determine "whether the objectionable procedure resulted in a `very substantial likelihood of irreparable misidentification.'" Madison, supra, 109 N.J. at 232 (citations omitted). To make that assessment, the judge must analyze the reliability of the identification by considering the totality of the circumstances and weighing the suggestive nature of the procedure against the reliability of the identification. Id. at 233; Manson, supra, 432 U.S. at 114, 97 S. Ct. at 2253, 53 L. Ed. 2d at 154. The evidence may be admitted at trial if the judge finds that the identification procedure was nevertheless reliable despite the impermissibly suggestive procedure used. Herrera, supra, 187 N.J. at 503-04.
[State v. Micelli, 215 N.J. 284, 291 (2013)].
Here, defendant has offered no persuasive evidence to support his apparent claim that the photographic identification procedures were unduly suggestive. One victim viewed 120 computer-generated photographs when identifying defendant, and the other victim selected defendant's photograph from an array of six photos. Defendant has made no attempt to attack the 120 computer-generated photos as unduly suggestive. As to the array shown the second victim, defendant claims the other photos depicted men in white shirts but he was not wearing a white shirt; and in his photo he was looking to the left, but in the other photos the men were looking directly at the camera. Considering that the six photos in the array shown to the second victim were displayed sequentially, we are unpersuaded the array was somehow unduly suggestive.
Having failed to demonstrate that the photographic identification was unduly suggestive, defendant failed to establish a prima facie case of ineffective assistance of counsel. For that reason, defendant was not entitled to an evidentiary hearing on his PCR petition.
Affirmed.
