STATE OF NEW JERSEY VS. BENJAMIN CAPERSÂ (09-04-0384 AND 09-04-0385, UNION COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-5645-14T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
BENJAMIN CAPERS,
a/k/a COOPER BENJAMIN,
Defendant-Appellant.
________________________________________________________________
Submitted March 7, 2017 – Decided July 31, 2017
Before Judges Messano and Espinosa.
On appeal from Superior Court of New Jersey,
Law Division, Union County, Indictment Nos.
09-04-0384 and 09-04-0385.
Joseph E. Krakora, Public Defender, attorney
for appellant (William Welaj, Designated
Counsel, on the brief).
Grace H. Park, Acting Union County Prosecutor,
attorney for respondent (Milton S. Leibowitz,
Special Deputy Attorney General/Acting
Assistant Prosecutor, of counsel and on the
brief).
PER CURIAM
Defendant appeals from the denial of his petition for post-
conviction relief (PCR) without an evidentiary hearing. We affirm.
Following a jury trial, defendant filed a direct appeal from
his convictions for two armed robberies, eluding, weapons
offenses, assault and resisting arrest. Among the arguments
presented in his direct appeal were defendant's contentions in a
pro se supplemental brief that his counsel was ineffective for
failing to move for a Wade1 hearing. We affirmed his convictions
and sentence in an unpublished opinion, State v. Capers, No. A-
4369-10 (App. Div. Apr. 19), certif. denied, 216 N.J. 86 (2013).
We did not address defendant's ineffective assistance of counsel
claims, observing that, because they concerned the "decisions of
trial counsel, the bases for which are not apparent from the
appellate record . . . they may be appropriate subjects for a
subsequent petition for [PCR], not direct appeal." Id. at 6.
Defendant filed a timely PCR petition that was supplemented
by his pro se letter brief and a brief by appointed PCR counsel.
Following legal argument, the PCR judge denied his petition and
set forth his reasons on the record.
In his appeal, defendant presents the following arguments:
1
United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed.
2d 1149 (1967).
2 A-5645-14T1
POINT I
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 AT THE TRIAL LEVEL.
A. THE PREVAILING LEGAL
PRINCIPLES REGARDING CLAIMS OF
INEFFECTIVE ASSISTANCE OF COUNSEL,
EVIDENTIARY HEARINGS AND PETITIONS
FOR POST CONVICTION RELIEF.
B. THE DEFENDANT DID NOT
RECEIVE ADEQUATE LEGAL
REPRESENTATION FROM TRIAL COUNSEL
AS A RESULT OF COUNSEL'S FAILURE TO
PURSUE A WADE HEARING PRIOR TO
TRIAL.
C. THE DEFENDANT DID NOT
RECEIVE ADEQUATE LEGAL
REPRESENTATION FROM TRIAL COUNSEL
AS A RESULT OF TRIAL COUNSEL'S
FAILURE TO CONDUCT AN ADEQUATE
PRETRIAL INVESTIGATION WHICH WOULD
HAVE RESULTED IN PURSUING AN ALIBI
DEFENSE WITH RESPECT TO THE FIRST OF
THE TWO ROBBERIES WITH WHICH THE
DEFENDANT WAS CHARGED.
I.
The facts underlying defendant's convictions are set forth
in our opinion in his direct appeal. Therefore, we review only
the facts pertinent to the issues raised.
Defendant was convicted of two armed robberies that occurred
sixteen days apart. He was arrested after he crashed a brown
3 A-5645-14T1
minivan following a high speed police chase shortly after the
second robbery.
The first robbery occurred at a store in Linden. The owner
of the store recognized defendant when he walked in because he had
been in the store twice recently. After the second robbery, the
police prepared a photographic array that included defendant's
photograph and showed them to the owner of the Linden store and a
customer who had been in the store at the time of the robbery.
The Linden store owner positively identified defendant from the
photo array and in court. The customer selected a photograph of
defendant and was 60-80% sure he was the robber. At trial, she
testified she was not 100% certain of her identification.
Defendant does not contend his counsel was ineffective for failing
to seek a Wade hearing to challenge the identifications made by
the Linden store owner and customer.
The second robbery occurred in Elizabeth. The owner spoke
directly to defendant before he pulled out a gun to demand money.
After taking the money, defendant fled. The owner called 911 and
ran outside, where he saw a brown minivan leaving and heading in
the direction of Broad Street. The store owner gave the make and
license plate number of the minivan to police over the phone and
provided the responding officer with a description of defendant's
clothing, mask, gun and the bag used during the robbery.
4 A-5645-14T1
Shortly thereafter, an Elizabeth police officer saw a vehicle
matching the minivan's description speeding and turned on his
lights and siren. A high speed chase ensued until defendant
crashed the minivan into a concrete median at the on-ramp to
Interstate 78 West. Defendant jumped out of the minivan and ran
across several lanes of Interstate 78 West, ignoring the officer's
commands to stop. When police caught up with him, defendant
continued to struggle to avoid being handcuffed.
A search of the minivan resulted in the recovery of a laundry
bag containing $4.66 in change, a loaded silver .40 caliber
handgun, a knit cap and gloves. When defendant was processed
following his arrest, he had $418.
After defendant's arrest, the Elizabeth store owner was
brought to the scene by Officer Patrick Vaughn, who told him, "we
are going to show you a possible suspect, please tell us whether
or not you believe that he may be a suspect." Defendant was
removed from the vehicle and placed on the shoulder of the roadway.
Officer Vaughn testified that it took "[a]bout a second" for the
store owner to say, "yes, sir, that's the one." The witness also
volunteered that the car defendant was removed from was the one
he had seen leaving the vicinity of his store earlier. The store
owner testified he was a "[h]undred percent" certain defendant was
the person who robbed him.
5 A-5645-14T1
II.
A PCR court should grant an evidentiary hearing if the
defendant has presented a prima facie case of ineffective
assistance of counsel. State v. Preciose, 129 N.J. 451, 462
(1992). "To establish such a prima facie case, the defendant must
demonstrate a reasonable likelihood that his or her claim will
ultimately succeed on the merits." State v. Marshall, 148 N.J.
89, l58, cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed.
2d 88 (1997).
An evidentiary hearing is required if "there is a dispute of
fact with respect to matters which are not of record." Pressler
& Verniero, Current N.J. Court Rules, comment 2 on R. 3:22-10
(2017). However, "[i]f the court perceives that holding an
evidentiary hearing will not aid the court's analysis of whether
the defendant is entitled to [PCR], . . . then an evidentiary
hearing need not be granted." Marshall, supra, 148 N.J. at l58
(citations omitted). "As in a summary judgment motion, courts
should view the facts in the light most favorable to a defendant
to determine whether a defendant has established a prima facie
claim." Preciose, supra, 129 N.J. at 462-63.
To establish a prima facie claim of ineffective assistance
of counsel, a defendant must demonstrate a reasonable likelihood
of success under the two-prong test set forth in Strickland v.
6 A-5645-14T1
Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984),
and adopted by New Jersey in State v. Fritz, 105 N.J. 42 (1987).
That test is as follows:
First, the defendant must show that counsel's
performance was deficient. This requires
showing that counsel made errors so serious
that counsel was not functioning as the
"counsel" guaranteed the defendant by the
Sixth Amendment. Second, the defendant must
show that the deficient performance prejudiced
the defense. This requires showing that
counsel's errors were so serious as to deprive
the defendant of a fair trial, a trial whose
result is reliable. Unless a defendant makes
both showings, it cannot be said that the
conviction . . . resulted from a breakdown in
the adversary process that renders the result
unreliable.
[Strickland, supra, 466 U.S. at 687, 104 S.
Ct. at 2064, 80 L. Ed. 2d at 693.]
Viewing the facts most favorably to defendant, he has failed to
present prima facie evidence to warrant an evidentiary hearing.
III.
Because the identifications challenged here occurred before
the Supreme Court's decision in State v. Henderson, 208 N.J. 208(2011), the standards set forth in Manson v. Braithwaite, 432 U.S.
98, 97 S. Ct. 2243, 53 L. Ed. 2d 140 (1977), and adopted in State
v. Madison, 109 N.J. 223 (1988), apply. See State v. Jones, 224
N.J. 70, 85 n.2 (2016). Therefore, defendant was required to
first "proffer . . . some evidence of impermissible
7 A-5645-14T1
suggestiveness" to be entitled to a Wade hearing. State v.
Rodriquez, 264 N.J. Super. 261, 269 (App. Div. 1993), aff'd o.b.,
135 N.J. 3 (1994).
Although "[o]ne-on-one showups are inherently suggestive,"
the fact that an identification was made at a showup will not
alone provide a sufficient basis for excluding an identification.
Jones, supra, 224 N.J. at 87.
Our law has permitted "on or near-the-scene
identifications because they are likely to be
accurate, taking place . . . before memory has
faded and because they facilitate and enhance
fast and effective police action and they tend
to avoid or minimize inconvenience and
embarrassment to the innocent."
[Ibid. (alteration in original) (quoting State
v. Herrera, 187 N.J. 493, 504 (2006)).]
Applying the Manson/Madison standard, the Court suppressed
the identification of the defendant at a showup in Jones, supra,
224 N.J. at 90, finding the procedure impermissibly suggestive.
A fourteen-year-old girl, C.W., reported that an adult male wearing
a yellow ski mask and a blue and white plaid jacket approached her
and exposed himself. Id. at 74-75. After the defendant was
arrested, he was brought to C.W.'s school and made to stand between
two officers. Id. at 78. She testified at trial: "He just had
on a black shirt. At first I didn't recognize him, then they put
the jacket back on and I realized it was him." Ibid. She admitted
8 A-5645-14T1
she had not seen the face of the man and that it was his jacket,
and not his face, that she recognized. Id. at 79. C.W. also
acknowledged that the police told her before the showup that they
had caught the man she had encountered on her way to school. Id.
at 78.
In support of his contention that the showup was impermissibly
suggestive, defendant relies upon his trial testimony. He stated
he was handcuffed and two police officers were holding him, that
there were a lot of police on the scene and a helicopter overhead.
He could not see the face of the person who identified him. These
assertions fall far short of the level of impermissible
suggestiveness defendant was required to show to be entitled to a
Wade hearing. Because defendant has failed to present prima facie
evidence that a request for a Wade hearing would have been
successful, he cannot satisfy the first prong of the Strickland
test. See State v. Ball, 381 N.J. Super. 545, 554-555 (App. Div.
2005); State v. Roper, 378 N.J. Super. 236, 237 (App. Div.),
certif. denied, 185 N.J. 265 (2005).
IV.
Defendant also argues his counsel was ineffective for failing
to conduct an adequate investigation regarding the first robbery
and, as a result, failed to call an alibi witness. This argument
was not presented in defendant's PCR petition or in either his pro
9 A-5645-14T1
se letter brief or the brief submitted by PCR counsel. Because
it was raised for the first time at oral argument before the PCR
judge, it was not properly before the court. The PCR judge
nonetheless addressed the contention on its merits and found no
ground for relief. Defendant's argument that he was improperly
denied an evidentiary hearing on this basis lacks sufficient merit
to warrant discussion, Rule 2:11-3(e)(2), beyond the following
limited comments.
Rule 3:22-10(c) states that "[a]ny factual assertion that
provides the predicate for a claim of relief [in a petition for
PCR] must be made by an affidavit or certification . . . and based
upon personal knowledge of the declarant before the court may
grant an evidentiary hearing." Under this rule, a defendant
asserting a claim of ineffective assistance of counsel in a
petition for PCR based on his counsel's failure to produce a
witness at trial must present a certification by that witness
concerning the testimony the witness would have been prepared to
give. See State v. Petrozelli, 351 N.J. Super. 14, 23 (App. Div.
2002); State v. Cummings, 321 N.J. Super. 154, 170-71 (App. Div.),
certif. denied, 162 N.J. 199 (1999).
Defendant relied upon: (1) a handwritten note from the
purported alibi witness, dated January 2, 2015, in which she stated
she was with defendant from 5:14 p.m. on January 12, 2009 until
10 A-5645-14T1
1:26 a.m. the following morning, (2) a report, dated January 5,
2015, from an investigator that reflected the same, and (3) a
certification from the investigator, dated January 2, 2015, in
which she stated the witness "reviewed, signed, and dated the
handwritten notes [she] took while interviewing her."
There is no certification to supply the essential link here
– that defendant, who was obviously aware if he had an alibi,
disclosed this information to his attorney. The documents
submitted, which do not comply with the requirements of Rule 3:22-
10(c), fail to present prima facie evidence of ineffective
assistance of counsel necessitating an evidentiary hearing.
Affirmed.
11 A-5645-14T1