STATE OF NEW JERSEY VS. OMAR BARRETT (12-06-0459, 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NOT FOR PUBLICATION WITHOUT THE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-0384-15T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
OMAR BARRETT,
Defendant-Appellant.
_______________________________
Submitted May 8, 2017 – Decided May 23, 2017
Before Judges Sabatino and Haas.
On appeal from Superior Court of New Jersey,
Law Division, Union County, Indictment No. 12-
06-0459.
Joseph E. Krakora, Public Defender, attorney
for appellant (Charles P. Savoth, III,
Designated Counsel, on the brief).
Grace H. Park, Acting Union County Prosecutor,
attorney for respondent (Meredith L. Balo,
Special Deputy Attorney General/Acting
Assistant Prosecutor, of counsel and on the
brief).
PER CURIAM
Defendant Omar Barrett appeals the trial court's denial of
his post-conviction relief ("PCR") petition, having pled guilty
to first-degree carjacking and been sentenced for that crime. We
affirm.
Defendant was charged in June 2012 with first-degree
carjacking, N.J.S.A. 2C:15-2, third-degree resisting arrest,
N.J.S.A. 2C:29-2(a), and various weapons offenses. The State's
proofs showed that on October 4, 2011, a family of four was in a
BMW parked in front of a residence in Elizabeth. The wife, who
had been in the BMW, got out to remove something from the car's
trunk. As she did so, defendant and his co-defendant, both wearing
masks, pulled up alongside the BMW in an Audi. The co-defendant
ordered the husband out of the vehicle at gunpoint, at which point
a struggle ensued. Meanwhile, the two children in the back seat
of the BMW managed to get out of the car. The co-defendant got
in the driver's seat, and after being joined by defendant in the
passenger seat, drove away in the BMW.1
The victims immediately reported the car theft, and a lengthy
police chase then took place across three towns. The chase ended
after the BMW collided head-on with a police car. Defendant and
his co-defendant resisted arrest, but were ultimately subdued.
The police found a gun, the wife's purse, and two masks inside of
1
The record is vague concerning what exactly happened to the Audi,
although it was apparently driven by someone else and was later
involved in the police chase.
2 A-0384-15T1
the BMW. The husband and wife were able to positively identify
the co-defendant at the hospital, where defendant and the co-
defendant had been taken after the crash. One of the children
positively identified defendant there.
After defendant and the co-defendant were indicted, plea
negotiations ensued. Among other things, defendant agreed to
plead guilty to carjacking, with the State agreeing to dismiss the
remaining counts against him. The State agreed to recommend a
custodial sentence of ten years, subject to an 85% parole
ineligibility period under the No Early Release Act ("NERA"),
N.J.S.A. 2C:43-7.2. Defendant pled guilty to carjacking, in
accordance with that agreement.
The trial court sentenced defendant, consistent with the plea
agreement, to a ten-year period of incarceration, subject to NERA.
Defendant thereafter filed his PCR petition. At the PCR hearing,
defendant argued that, under State v. Henderson, 208 N.J. 208(2011), the "show-up" identification of defendant made by the
child who had seen defendant when the BMW was stolen was
unreliable. Defendant further argued that his trial counsel erred
by not filing a motion to suppress or pursuing a Wade2 hearing
before defendant agreed to plead guilty.
2
United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed.
2d 1149 (1967).
3 A-0384-15T1
On March 16, 2015, the trial court issued a written opinion
denying defendant's petition. The trial court found that defendant
did not establish a prima facie case of ineffective assistance of
counsel, and that therefore no evidentiary hearing was required.
The trial court noted that defendant chose to plead guilty instead
of pursuing a Wade hearing, and defendant's guilt, even without
the child's identification of him, was "overwhelming."
In his appeal to this court of the PCR ruling, defendant
raises the following issues:
POINT I
DEFENDANT WAS DEPRIVED OF HIS CONSTITUTIONAL
RIGHT TO EFFECTIVE COUNSEL WHEN DEFENSE
COUNSEL FAILED TO FILE A MOTION TO SUPPRESS
THE 10-YEAR-OLD WITNESS' IDENTIFICATION UNDER
THE REQUIREMENTS OF STATE V. HENDERSON, 208
N.J. 208 (2011).
POINT II
THE PCR COURT ABUSED ITS DISCRETION AND ERRED
IN FAILING TO GRANT AN EVIDENTIARY HEARING TO
DEFENDANT TO ESTABLISH HE WAS DENIED THE
EFFECTIVE ASSISTANCE OF COUNSEL
CONSTITUTIONALLY GUARANTEED TO HIM AT TRIAL,
BY THE U.S. CONST., AMENDS. VI, XIV; N.J.
CONST. ART. I, PAR. 10.
We review the trial court's denial of defendant's PCR
petition, and his associated claims of counsel's ineffectiveness,
under well-established principles. Under the Sixth Amendment of
the United States Constitution, a criminal defendant is guaranteed
4 A-0384-15T1
the effective assistance of legal counsel in his defense.
Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052,
2064, 80 L. Ed. 2d 674, 693 (1984). To establish a deprivation
of that right, a convicted defendant must satisfy the two-part
test enunciated in Strickland by demonstrating that: (1) counsel's
performance was deficient, and (2) the deficient performance
actually prejudiced the accused's defense. Id. at 687, 104 S. Ct.
at 2064, 80 L. Ed. 2d at 693; see also State v. Fritz, 105 N.J.
42, 58 (1987) (adopting the Strickland two-part test in New
Jersey).
In this case, the trial court correctly recognized that
defendant cannot establish ineffective assistance of counsel under
either prong of the Strickland two-part test. Contrary to
defendant's assertions, the reliability of the child's
identification is analyzed under the traditional Manson/Madison3
standard, as the new rules adopted by the Supreme Court in
Henderson did not take effect until after new model jury charges
were promulgated in July 2012. See Henderson, supra, 208 N.J. at
302. Under the then-prevailing Manson/Madison standard, courts
3
See Manson v. Brathwaite, 432 U.S. 98, 114, 97 S. Ct. 2243, 2253,
53 L. Ed. 2d 140, 154 (1977) (reciting a two-part test of
impermissive suggestiveness and reliability); see also State v.
Madison, 109 N.J. 223, 232-33 (1988) (adopting the federal approach
in Manson to guide the courts of this State), displaced by
Henderson, supra, 208 N.J. at 288.
5 A-0384-15T1
look first at whether the procedure was "impermissibly
suggestive[,]" and, second, at whether the "objectionable
procedure" likely produced an unreliable identification. See
State v. Jones, 224 N.J. 70, 86 (2016) (quoting Madison, supra,109 N.J. at 232).
Defendant has failed to demonstrate how the child's
identification, made shortly after the carjacking, was unreliable
under the Manson/Madison test, beyond the mere fact that the
procedure was conducted as a show-up. See id. at 87 (citing State
v. Herrera, 187 N.J. 493, 504 (2006) (noting that show-ups,
"standing alone," do not require proceeding to the second step in
the analysis in every case).
When a defendant alleges ineffective assistance of counsel
based on failure to file a suppression motion, that defendant must
also demonstrate that such a motion was not "meritless[.]" State
v. O'Neal, 190 N.J. 601, 619 (2007). Here, defendant's trial
counsel's performance was not deficient, as a motion to suppress
would have undoubtedly failed. Apart from emphasizing the child's
age and speculating that the child might have been influenced by
the parents, defendant fails to show why the identification
procedure was unduly suggestive. Nothing in this record
demonstrates such undue suggestiveness or unreliability.
6 A-0384-15T1
Even if, for the sake of discussion, defendant were able to
satisfy prong one of the Strickland test, defendant was not
prejudiced by any such error. We agree with the trial court's
conclusion that the other evidence of defendant's guilt was
formidable, and defendant would have very likely been found guilty
by a jury at trial even without the child's identification.
Defendant was apprehended in the stolen car, after a lengthy
police chase. The police found incriminating masks and a gun in
the vehicle with defendant. The physical evidence and the
surrounding circumstances were strongly indicative of his guilt
of carjacking the BMW with his co-defendant. Defendant did not
sustain the required prejudice by any alleged error in failing to
file a motion to suppress, as the identification was not decisive
in this case. See Strickland, supra, 466 U.S. at 694, 104 S. Ct.
at 2068, 80 L. Ed. 2d at 698.
Affirmed.
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