SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4429-16T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

RANDY WILLIAMS,

Defendant-Appellant.

_______________________________

Submitted October 10, 2018 – Decided

Before Judges Hoffman and Suter.

On appeal from Superior Court of New Jersey, Law 

Division, Middlesex County, Indictment No. 10-09-

1289.

Joseph E. Krakora, Public Defender, attorney for 

appellant (Mark Zavotsky, Designated Counsel, on the 

brief).

Andrew C. Carey, Middlesex County Prosecutor, 

attorney for respondent (Joie D. Piderit, Assistant 

Prosecutor, of counsel and on the brief).

PER CURIAM

NOT FOR PUBLICATION WITHOUT THE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.

October 23, 2018
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A-4429-16T1

In 2011, a jury found defendant and his co-defendant, Lemont Love, guilty

of second-degree robbery, N.J.S.A. 2C:15-1; second-degree burglary, N.J.S.A. 

2C:18-2; and third-degree aggravated assault, N.J.S.A. 2C:12-1b(1). The trial 

judge sentenced defendant to an aggregate term of eighteen years of 

imprisonment with an eighty-five percent period of parole ineligibility, pursuant 

to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. On his direct appeal, 

we affirmed defendant's convictions and aggregate sentence but remanded for 

the trial court to merge the aggravated assault conviction into the armed robbery 

conviction. State v. Williams, No. A-1321-11 (App. Div. July 31, 2014) (slip 

op. at 27) (Da1) Our Supreme Court denied certification. State v. Williams,

220 N.J. 269 (2015). 

In April 2015, defendant filed a petition for post-conviction relief (PCR). 

In a comprehensive written opinion, Judge Dennis Nieves denied PCR. 

Defendant appeals, and we affirm.

I

We briefly summarize the evidence presented at trial. Darin Sloat owed

Love a significant amount of money. On the morning of February 17, 2010, 

Sloat was staying at a motel in East Brunswick with his girlfriend, K.E., and her 

ten-month-old son, when defendant and two co-defendants entered the room and 
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attacked Sloat. Love stomped and kicked Sloat, defendant punched Sloat in the 

head and neck, and co-defendant Charles Opher punched Sloat in the lower back. 

After the assault, defendant, Love, and Opher ran out of the motel room, taking 

Sloat's cell phone with them, and fleeing in a silver Pontiac. 

The police apprehended the trio in Spotswood after an alert went out for 

their vehicle. The police recovered Sloat's cell phone from the vehicle, and 

testing confirmed the presence of blood on Love's sneakers. The police 

transported defendant, Love, and Opher to the police station, where East 

Brunswick police also brought Sloat to see if he could identify the persons who 

assaulted him. As defendant, Love, and Opher stepped out of the police vehicle,

one by one, Sloat identified each one as participating in the assault. Sloat then 

gave a statement to the police. Sloat testified to these events at trial.

A Middlesex County grand jury indicted defendant, Love, and Opher on 

charges of robbery, burglary, and aggravated assault. Opher resolved his

charges through a plea agreement, which called for him to testify against 

defendant and Love. At trial, Opher testified that he, defendant, and Love each 

hit or stomped Sloat. K.E. also testified that she saw all three defendants 

"kicking [Sloat] and punching him in the head and the back." 

In his direct appeal, defendant raised the following issues:
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POINT I

IT WAS ERROR FOR THE TRIAL COURT TO 

DENY DEFENDANT'S MOTION FOR 

MISTRIAL AFTER THE DELIBERATING 

JURY VIEWED THE DEFENDANT IN 

HANDCUFFS.

POINT II

THE TRIAL COURT'S RESPONSE TO THE 

JURY QUESTION REGARDING THE OBJECT 

OF THE THEFT WAS ERRONEOUS AND 

DEPRIVED DEFENDANT OF A FAIR TRIAL.

POINT III

THE COURT'S FAILURE TO GIVE A CLAIM 

OF RIGHT CHARGE AND ITS 

INADEQUATE[,] CONFUSING AND 

CONTRADICTORY INSTRUCTION 

DEPRIVED DEFENDANT OF A FAIR TRIAL. 

(NOT RAISED BELOW)

POINT IV

THE DEFENDANT WAS DENIED A FAIR 

TRIAL WHEN THE STATE ARGUED THAT 

THE TREAD MARKS ON THE VICTIM'S 

BACK WERE MADE BY DEFENDANT'S 

SHOES WITHOUT SUPPORTING 

TESTIMONY.

POINT V

DENIAL OF DEFENDANT'S MOTION FOR 

NEW TRIAL WAS ERROR.
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POINT VI

IT WAS ERROR FOR THE SENTENCING 

COURT TO FAIL TO MERGE THE OFFENSES 

OF SECOND[-]DEGREE ROBBERY AND 

AGGRAVATED ASSAULT.

In this appeal from the denial of PCR, defendant argues: 

POINT I 

DEFENDANT WAS DENIED THE EFFECTIVE 

ASSISTANCE OF COUNSEL ENTIT[]LING HIM TO 

[PCR] AND AN EVIDENTIARY HEARING[.] 

(A) Counsel was ineffective for failing to sufficiently 

communicate with defendant so he may assist in 

his own defense[.]

(B) Counsel was ineffective for not requesting a 

Wade1 hearing on the issue of defendant's 

identification by the victim[.]

II

PCR is New Jersey's analogue to the federal writ of habeas corpus. State 

v. Afanador, 151 N.J. 41, 49 (1997); State v. Preciose, 129 N.J. 451, 459 (1992). 

It is the vehicle through which a defendant may, after conviction and sentencing, 

challenge a judgment of conviction by raising issues that could not have been 

raised on direct appeal and, therefore, ensures that a defendant was not unjustly 

 

1

 United States v. Wade, 388 U.S. 218 (1967).
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convicted. State v. McQuaid, 147 N.J. 464, 482 (1997). Pursuant to Rule 3:22-

2(a), a criminal defendant is entitled to post-conviction relief if there was a 

"[s]ubstantial denial in the conviction proceedings of defendant's rights under 

the Constitution of the United States and the Constitution or laws of the State of 

New Jersey." A petitioner must establish the denial of such a right by a 

"preponderance of the credible evidence." Preciose, 129 N.J. at 459 (citations 

omitted). "To sustain that burden, specific facts" that "provide the court with an 

adequate basis on which to rest its decision" must be articulated. State v.

Mitchell, 126 N.J. 565, 579 (1992). 

Claims of constitutionally ineffective assistance of counsel are well-suited 

for post-conviction review. R. 3:22-4(a)(2); Preciose, 129 N.J. at 460. To 

establish a prima facie claim of ineffective assistance of counsel, a defendant 

must demonstrate the reasonable likelihood of success under the test set forth in 

Strickland v. Washington, 466 U.S. 668, 694 (1984), which the New Jersey 

Supreme Court adopted in State v. Fritz, 105 N.J. 42, 58 (1987). Preciose, 129 

N.J. at 463.

Under the Strickland-Fritz standard, the first issue is whether counsel's 

performance was deficient. The second prong of the Strickland-Fritz test is 

whether there exists "a reasonable probability that, but for counsel's 
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unprofessional errors, the result of the proceeding would have been different." 

Strickland, 466 U.S. at 694. To succeed under this prong, 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. State v. Cummings, 321 N.J. Super. 154, 170 (App. 

Div. 1999); see also State v. Porter, 216 N.J. 343, 354 (2013) (holding that in 

order to establish a prima facie claim, the petitioner "must allege specific facts 

and evidence supporting his allegations"). As in a summary judgment motion, 

the PCR judge must view the facts in the light most favorable to the defendant 

to determine whether the defendant has established a prima facie claim. Ibid.

Here, defendant asserts the lack of communication between him and his 

counsel led to his counsel's failure to request a Wade hearing, the subject of his 

second point on appeal. Defendant further argues he was prejudiced by his 

counsel's acts because "[t]here were no limits or barriers on counsel's ability to 

sufficiently communicate with [defendant]. If he had, the results of the 

proceedings would have been different." 

Following our review of defendant's brief and the record, we agree with 

the PCR judge, who found that defendant "supplies absolutely no evidence that 

trial counsel was unprepared other than through assertions. There are no 
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certifications or affidavits based on the personal knowledge of any party, let 

alone [d]efendant." The judge further noted that "trial counsel successfully 

suppressed the use of brass knuckles at trial which [defendant] had in his 

possession at the time of his arrest following the incident." On appeal, defendant 

wholly fails to "allege specific facts supporting his allegations" that counsel was 

unprepared or insufficiently communicated with defendant. Porter, 216 N.J. at 

354. We conclude that the record supports the judge's findings, and the 

conclusion that counsel was not ineffective for failing to sufficiently 

communicate with defendant.

Defendant next argues his counsel was ineffective for not requesting a 

Wade hearing on the issue of Sloat's identification of defendant, when defendant 

exited the police vehicle in handcuffs. Defendant argues he suffered prejudice

because a Wade hearing would have prevented his indictment, or alternatively 

his conviction.

A trial court may hold a hearing pursuant to N.J.R.E. 104(a) to determine 

whether a pretrial identification of a criminal defendant was properly conducted 

and therefore admissible under N.J.R.E. 803(a)(3). A hearing to determine the 

admissibility of a pretrial identification of a criminal defendant should be held 

when an identification is at issue. Wade, 388 U.S. at 242. The identification's 
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reliability and ultimate admissibility must be strictly tested through a pretrial 

hearing. See State v. Michaels, 136 N.J. 299, 319 (1994) (citations omitted).

The right to a Wade hearing is not absolute and is not granted in every 

case involving an out-of-court identification. State v. Ruffin, 371 N.J. Super. 

371, 391 (App. Div. 2004) (citations omitted). The threshold issue is whether 

the identification procedure was impermissibly suggestive. State v. Herrera, 

187 N.J. 493, 503 (2006). "A Wade hearing will be held when a defendant 

presents 'some evidence of impermissible suggestiveness' in the identification 

process." State v. Cherry, 289 N.J. Super. 503, 517 (App. Div. 1995) (quoting 

State v. Rodriquez, 264 N.J. Super. 261, 269 (App. Div. 1993)). Impermissible 

suggestibility is described as follows:

[T]he determination [of impermissive suggestibility] 

can only be reached so as to require the exclusion of the 

evidence where all the circumstances lead forcefully to 

the conclusion that the identification was not actually 

that of the eyewitness, but was imposed upon him so 

that a substantial likelihood of irreparable 

misidentification can be said to exist.

[State v. Madison, 109 N.J. 223, 234 (1998) (emphasis 

omitted) (quoting State v. Farrow, 61 N.J. 434, 451 

(1972)).]

Defendant argues that Sloat's identification of defendants was "the only 

identification presented to the grand jury . . . . If [Sloat]'s identification w[as] 
10 A-4429-16T1

successfully deemed unreliable[] and suppressed, then the grand jury would 

have had no basis by which to indict the defendant." However, defendant's 

assumption that his trial counsel could have requested a Wade hearing or filed a 

suppression motion at the pre-indictment stage, regarding Sloat's identification, 

lacks support in the law. Evidence arising from impermissibly suggestive 

identifications are subject to exclusion from trial proceedings, but "the 

exclusionary rule and the 'fruit of the poisonous tree' doctrine are not applicable 

to exclude the presentation of evidence to a grand jury, and a grand jury may 

return an indictment based on evidence which would be excluded at trial under 

that rule or that doctrine." 31 N.J. Practice, Criminal Practice and Procedure § 

10.35, at 504 (Leonard N. Arnold) (2018) (citation omitted). Defendant's 

argument that his trial counsel could have excluded Sloat's identification from 

the grand jury proceedings clearly lacks substantive merit.

Alternatively, defendant argues that because his trial counsel provided 

ineffective assistance by failing to interview Sloat regarding his identification 

of defendant, and then failing to request a Wade hearing at the commencement 

of trial. Defendant argues Sloat's identification was impermissibly suggestive 

because it occurred when "defendant was already in custody [and] in handcuffs," 
11 A-4429-16T1

and Sloat "told the jury he could recognize Love 'but the other ones I do [not] 

know.'" 

First, defendant's assertion regarding Sloat's testimony was taken out of 

context, as Sloat was able to identify all three defendants, but he personally 

knew only Love. The relevant testimony occurred during the following 

colloquy:

Q What did the officer ask you? . . . .

A If I can identify him, if that was the perps.

Q Okay. And what did you say? Were you able to 

see these people?

A Yes.

Q You knew Love ahead of time . . . right?

A Yes.

Q Was he brought out?

A Yes.

Q Okay. Were any other individuals brought out?

A [T]wo other individuals. . . . [O]ne with gray, 

silver, platinum, whatever. And another one with 

a hoodie on.

Q Okay. When you say gray, silver, are you talking 

about the chain you told us about before?
12 A-4429-16T1

A Chain, yes.

Q So . . . were you able to identify these 

individuals?

A Lemont Love. The other ones I do [not] know.

Q Were you able to identify them that day? . . . . 

Were they the people who did this to you?

A Yes. Yeah.

Q Well –

A I saw them walk in. So I knew what they were 

wearing.

Q Were they wearing the exact same thing?

A They were all black.

Q Were they wearing the same things that they were 

wearing when they came into your hotel room?

A Yes.

Further, the detective with Sloat at the time of the identification testified that 

defendants "exited the vehicle one at a time [,a]nd Mr. Sloat identified . . . all 

three as being the gentlemen who had assaulted him." After being asked if Sloat 

"seem[ed] positive," the detective stated, "Absolutely. Yes." 
13 A-4429-16T1

Second, defendant provides no convincing support or reasoning for his 

argument that Sloat's identification was unduly suggestive as a result of 

defendant, Love, and Opher being in custody and in handcuffs. This court has 

found that [a] witness' identification of [a] defendant 

seated and handcuffed in the back of [a] police car was 

suggestive[,] but that 'such suggestive circumstances 

did not render the identification procedure per se 

improper and unconstitutional.' The panel concluded 

that the detailed description by the two witnesses of the 

defendant and the vehicle involved was corroborated by 

the motel security videotape, and, therefore, the 

reliability of the witnesses' identifications was strong. 

[State v. Herrera, 187 N.J. 493, 505 (2006) (quoting 

State v. Wilson, 362 N.J. Super. 319, 327 (App. Div. 

2003)).] 

Here, Sloat identified the individuals who attacked him within approximately 

one hour of the attack. Sloat knew co-defendant Love personally, and then 

recognized the other defendants, who were wearing the same clothes they wore

at the time of the attack. Similar to Wilson, it was known defendants were 

driving a silver Pontiac, leading to the alert that went out after the attack and the 

discovery of the vehicle and defendant and his co-defendants in Spotswood. 

Finally, the police found Sloat's cell phone in the silver Pontiac. We therefore 

conclude Sloat's identification was reliable, albeit suggestive.
14 A-4429-16T1

Significantly, defendant proffers only a conclusory argument as to how he 

suffered prejudice from the lack of a Wade hearing, as he merely states that 

"defendant would have been successful at trial" and "an appropriate [m]otion to 

[d]ismiss would have been granted," had a Wade hearing been conducted. On 

this point, the PCR court judge discussed at length why a Wade hearing would 

have been "fruitless," based on the plethora of other evidence admitted into trial 

that implicated defendant. The judge stated, in relevant part:

[Defendant] was identified as one of the three 

individuals that attacked Mr. Sloat in the motel room. 

[Co-defendant] Opher . . . testified that [defendant] 

joined in on hitting Mr. Sloat and that he had seen 

[defendant] hitting Mr. Sloat. In addition, another 

witness, [K.E.], testified at trial that all three of the codefendants were on top of Mr. Sloat- kicking and 

punching him in the head and back. . . . 

Moreover, physical evidence was presented at trial 

linking Mr. Williams to the crime charged. 

Specifically, Mr. Sloat's shirt had three different shoe 

tread marks on it – a result of being kicked multiple 

times during the attack at the motel. . . . All three of 

the defendants' shoes were taken in as evidence. 

Photographs of Mr. Sloat's shirt with the three different 

shoe tread marks were presented to the jury along with 

the shoes seized from the three co-defendants. The jury 

found that the three pairs of shoes matched the three 

different shoe print marks on Mr. Sloat's shirt, one pair 

of which belonged to [defendant].
15 A-4429-16T1

Defendant's argument that had a Wade hearing been conducted he would 

have been successful at trial is merely a "bald assertion[]" that he was 

prejudiced. Cummings, 321 N.J. Super. at 170. Therefore, defendant's second 

point on appeal also lacks merit.

Affirmed.