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N.J.S.A. 2C:15-1; fourth-degree possession of an imitation firearm for an unlawful purpose, N.J.S.A. 2C:394(e); second-degree eluding, N.J.S.A. 2C:29-2(b); and fourth-degree obstructing, N.J.S.A. 2C:29-1. Citing State v. Ortiz, 203 N.J. Super. 518 (App. Div.), certif. denied, 102 N.J. 335 (1985), and concluding that defendant "failed to proffer any evidence that police procedures were impermissibly suggestive," the Law Division judge managing the case pre-trial denied defendant's request for a Wade1 hearing. "> Original

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(NOTE: The status of this decision is Unpublished.) Original Wordprocessor Version (NOTE: The status of this decision is Unpublished.)

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-0754-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JOSE L. GALLARDO,

Defendant-Appellant. _______________________________________________________ February 3, 2011 Argued October 19, 2010 - Decided

Before Judges Graves, Messano and Waugh.
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On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 06-06-0599.

Joshua D. Sanders, Assistant Deputy Public Defender, argued the cause for appellant (Yvonne Smith Segars, Public Defender, attorney; Robert Seelenfreund, Assistant Deputy Public Defender, of counsel and on the brief).

Meredith L. Balo, Assistant Prosecutor, argued the cause for respondent (Theodore J. Romankow, Union County Prosecutor, attorney; Ms. Balo, of counsel and on the brief).

Appellant filed a pro se supplemental brief.

PER CURIAM The Union County grand jury charged defendant Jose Gallardo with first-degree robbery, N.J.S.A. 2C:15-1; fourth-degree possession of an imitation firearm for an unlawful purpose, N.J.S.A. 2C:39-4(e); seconddegree eluding, N.J.S.A. 2C:29-2(b); and fourth-degree obstructing, N.J.S.A. 2C:29-1. Citing State v. Ortiz, 203 N.J. Super. 518 (App. Div.), certif. denied, 102 N.J. 335 (1985), and concluding that defendant "failed to proffer any evidence that police procedures were impermissibly suggestive," the Law Division judge managing the case pre-trial denied defendant's request for a Wade hearing. The case was tried before a different judge. At the close of the evidence, defendant's motion for a judgment of acquittal as to the obstruction count was granted. The remaining three counts were submitted to the jury, who convicted defendant of first-degree robbery and possession of an imitation firearm for an unlawful purpose, but acquitted him of eluding. The judge sentenced defendant to ten years in prison with an 85% period of parole ineligibility pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2. The judgment of conviction, however, erroneously listed possession of an imitation firearm for an unlawful purpose and obstructing as the charges of which defendant was convicted. Defendant raises the following issue on appeal:
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POINT I

THE SHOW-UP IDENTIFICATION PROCEDURE CONDUCTED BY POLICE WAS IMPERMISSIBLY SUGGESTIVE AND CREATED A SUBSTANTIAL LIKELIHOOD OF MISIDENTIFICATION.

In a supplemental pro se brief, defendant raises the following points: POINT ONE DEFENSE COUNSEL'S FAILURE TO IMPEACH THE CREDIBILITY OF [THE] STATE'S TWO PRINCIPAL WITNESSES AGAINST THE DEFENDANT, ON THE GROUND THAT "BOTH" OF THEM HAD MADE PRIOR INCONSISTENT STATEMENTS, CONSTITUTED INEFFECTIVE ASSISTANCE OF COUNSEL AND MANDATES A NEW TRIAL.

POINT TWO TRIAL COUNSEL'S FAILURE TO IMPEACH "TESTIMONY" OF ONE OF TWO CRITICAL STATE'S WITNESSES AMOUNTED TO A DENIAL OF DUE PROCESS AND THE RIGHT OF A DEFENDANT TO CONFRONT HIS ACCUSERS, IN VIOLATION OF HIS SIXTH AMENDMENT RIGHT AS GUARANTEED BY THE UNITED STATES CONSTITUTION.

POINT THREE

THE DEFENDANT WAS DENIED THE ABSOLUTE RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL BY COUNSEL'S FAILURE TO DRAW THE JURORS['] ATTENTION TO GROSS DISCREPANCIES BETWEEN CRITICAL STATE WITNESSES ATUL PATEL AND KIM JONES, THE OMISSION OF WHICH ALLOWED THE JURY TO ASSUME CRITICAL MATERIAL FACTS WHICH HAD NOT OTHERWISE BEEN ESTABLISH[ED] THROUGH TESTIMONY OR EVIDENCE, THE CUMULATIVE EFFECT [OF] WHICH DENIED THE DEF[ENDANT] THE FAIR TRIAL AND "EFFECTIVE" ASSISTANCE OF COUNSEL AS HAS BEEN GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION.

POINT FOUR

DEFENDANT'S CONVICTION FOR FIRST-DEGREE ROBBERY MUST BE REVERSED AS IT WAS NOT SUPPORTED BY THE EVIDENCE DEDUCED AT THE TRIAL; DEFENDANT MAINTAINS THAT THE RECORD EVIDENCES AN ABSOLUTE LACK

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OF PROOF THAT A THEFT HAD OCCUR[R]ED OR THAT A THEFT HAD EVEN BEEN ATTEMPTED, ENTITLING DEFENDANT TO A NEW TRIAL (AND/OR A VACATING OF THE JUDGMENT OF CONVICTION AND THE ENTRY OF A JUDGMENT OF ACQUITTAL FOR FIRST-DEGREE ROBBERY).

POINT FIVE

DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL BY [HIS] ATTORNEY'S FAILURE TO CHALLENGE THE ADMISSIBILITY OF THE VICTIM'S OUT-OF-COURT IDENTIFICATION ABSENT THE STATE'S LAYING OF A FOUNDATION FOR ITS PERMISSIBLENESS.

POINT SIX THE STATE COMMITTED REVERSIBLE ERROR BY FAILING TO PRESERVE THE VIDEO-TAPED FOOTAGE OF THE ALLEGED ROBBERY, CONTRAVENING THE 2 HOLDING OF BRADY V. MARYLAND, IN THAT THE FOOTAGE WAS MATERIAL TO BOTH GUILT AND/OR PUNISHMENT.

POINT SEVEN

COMMENTS MADE BY THE PROSECUTOR DURING CLOSING ARGUMENTS RESULTED IN SUBSTANTIAL PREJUDICE TO DEFENDANT'S FUNDAMENTAL RIGHT TO HAVE THE JURY FAIRLY ASSESS THE CASE AGAINST HIM.

POINT EIGHT

THE COURT COMMITTED PLAIN ERROR BY DIRECTING THE VERDICT AGAINST THE DEFENDANT; SPECIFICALLY, BY REFERRING TO DEFENDANT AS THE PERPETRATOR WHILE ISSUING JURY INSTRUCTIONS ON THE ISSUE OF 3 IDENTIFICATION.

We have considered these arguments in light of the record and applicable legal standards. We affirm defendant's conviction, preserve his claims of ineffective assistance of counsel for any future post-conviction relief petition, and remand the matter for correction of the judgment of conviction. I.

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The trial testimony revealed the following facts. On March 23, 2006, at approximately 9:15 p.m., Atul Patel was working at the Colonial liquor store in Linden. Patel observed three people enter the store. One of them, a woman, bought something and quickly left. The other two men stayed in the store speaking Spanish amongst themselves. One of the men walked outside and re-entered the store with a third man, who, joined by the other two men, came around the store's counter and brandished a gun at Patel as he stood by the cash register. Patel became "very scared" and raised his hands, covering his face as all the men began to "beat[] [him]" and threatened to shoot him. Patel's screams for help caused all three men to run out of the store without taking any money or merchandise. Two of the men, including the one holding the gun, wore rubber gloves. After refreshing his memory by reviewing the written statement he had provided to the police, Patel testified that the men wore hats: one had "a red B, [one] yellow, with a white B and one ha[d] a Yankee woolen hat." Patel believed the man with the Yankee hat was one of the first two men to enter the store, and was the man who exited the store and came back in with the third man who had the gun. After the individuals left, Patel called the Linden police and awaited their arrival. Sergeant Michael Babulski testified that the victim told him the store's surveillance camera may have recorded the incident. Patel testified that he and Babulski viewed the recording, but, before the tape could be preserved by an outside service provider, the system reset and the recording was essentially erased. Babulski, however, maintained that he never viewed the recording with Patel because he feared the tape might be accidentally erased. Detective Andrew Spano also testified that he did not view the recording and that his efforts to contact the service provider to preserve the video were fruitless. Defendant and the State stipulated that the system recycled "every 72 hours," thus erasing the footage, and that this automatic process could not be altered. Kim Jones was in his car stopped at a traffic light across from the liquor store when some activity grabbed his attention. Jones had an unobstructed view of the door of the store and saw a "young lady" exit and "jump[]" into an SUV. Jones then saw two "Spanish[-]looking gentlemen." The first exited the liquor store and "ran around the side of the building." The second "r[a]n from the store," but "h[eld] the door closed so someone couldn't get out." Jones saw a black car drive around the corner from the store and heard the driver blow its horn. The second man let go of the store door and, along with the first man, "jumped in the vehicle." Jones then saw a man he believed to be the store owner using his phone outside the store.
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Jones called the Linden Police Department and followed the black car as it proceeded toward the Garden State Parkway. Jones provided the police with its license plate number. He then saw the black car run a red light at an intersection where it was struck by a black SUV. Jones could not identify defendant as one of the occupants of the car. Lieutenant Kevin Foley of the Union County Prosecutor's Office was driving the black SUV involved in the collision with the black car, a Nissan Altima. Foley could see one of the passengers motion for the driver to back up and drive away. In court, Foley identified defendant as the driver of the Altima. Foley pursued the Altima toward the Garden State Parkway and "radio[ed] out a description of the vehicle, [and its] plate." He saw "two white objects [being] discarded" from the Altima as they "flutter[ed]" to the ground. A subsequent police search of that area resulted in the recovery of "two . . . latex white gloves." The Altima exited the Parkway and stopped in a "desolate" industrial area surrounded by woods and trees. Foley parked about "50 yards" away and two of the occupants exited the Altima and began walking toward his car. Foley exited his SUV, showed his police badge and screamed "stay where you are." The two men began to run toward Foley, who returned to the SUV for his own safety. The two men then ran into the woods. Defendant, now alone and standing by the Altima's car door, began screaming in Spanish, jumped in the car, and sped away. Foley gave chase, following defendant as he drove "very erratic[ally]" at high speed. Defendant stopped the car on Railroad Avenue in Carteret. He exited the vehicle and ran toward the front porch of a house, discarding items of clothing along the way. Defendant began banging and kicking the front door. Other officers soon arrived on the scene and assisted Foley in arresting defendant. The officers retrieved the discarded clothing that included a dark-blue Yankee hat, a hooded sweatshirt and a "dark color ski cap with [an] interlocking N.Y. [emblem]." The officers also secured the vehicle's registration certificate; the Altima was registered to defendant. A woman, later identified as defendant's wife, soon opened the front door of the house. In Spanish, defendant told her that "[he] didn't rob that liquor store, the other two guys did." Foley and several other officers subsequently searched the wooded industrial area near Woodbridge where defendant had stopped the car. They recovered a "replica handgun."

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II. (a) At issue on appeal is the out-of-court show-up identification procedure employed by the police after defendant was apprehended. Patel testified that about an hour after the robbery, he was taken to Carteret by the police and "s[aw] the guy who was in the store" wearing the Yankee hat. The following exchange took place on cross-examination: Q. [Y]ou said police officers took you to Carteret. Did they tell you why they were taking you to Carteret?

A. They said they catch the guy.

Q. Did they tell you why they were taking you to Carteret? Yes or no.

A. Yes, they say they want [me to] identify the guy they catch[,] they say.

Q. So they told you before you left the liquor store why they were taking you to Carteret, right?

A. No, I [was] in my liquor store [and] . . . [t]hey sa[id] let[']s go [because] we have to verify the person [t]here.

Q. They told you that?

A. Right.

Patel made no in-court identification of defendant.

Babulski testified that he informed Patel that the police officers had "stopped a suspect" and wanted him "to take a look." He took Patel to Carteret. When the prosecutor asked Babulski if Patel "ma[d]e a

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positive identification," defense counsel objected, claiming the anticipated testimony was "hearsay." At sidebar, defense counsel noted that his request for a Wade hearing had been denied by the pretrial judge. He argued that "a show up . . . [wa]s an inappropriate way for identifying any defendant," and, that in this case, Babulski had "already plant[ed] the seed in [Patel's] head that [they] ha[d] a suspect." The judge overruled the hearsay objection. See N.J.R.E. 803 (a)(3) (excepting "a prior identification of a person" from the hearsay rule). Defense counsel reiterated, "[T]his [wa]s a show up, the suggestion is inherent." Noting the pre-trial judge had already "ruled on it," the judge determined not to revisit defendant's earlier request for a Wade hearing. Defense counsel did not request that the judge conduct a hearing before Babulski's testimony continued, and he sought no other specific relief, noting only, "I'm preserving my record." Babulski then continued by testifying that Patel made a positive identification of the man as one of the robbers. However, Babulski could not identify defendant in court as the person Patel identified, only that the person identified by Patel was named Jose Gallardo. Babulski acknowledged that defendant was surrounded by a number of police officers when he was shown to Patel, but he could not recall if defendant was handcuffed. (b) Defendant contends that the "refusal to grant [him] a [Wade] hearing deprived him of due process of law." He further argues that the out-of-court identification procedure was "impermissibly suggestive," the resulting identification "was substantially likely to have been mistaken," and the admission of testimony in this regard warrants reversal. Alternatively, defendant argues a remand is necessary to conduct a Wade hearing. The State contends that defendant failed to proffer any evidence that the identification procedure was impermissibly suggestive. "[T]here is no automatic entitlement to an evidentiary hearing on an out-of-court identification." State v. Ruffin, 371 N.J. Super. 371, 391 (App. Div. 2004) (citing Watkins v. Sowders, 449 U.S. 341, 360, 101 S. Ct. 654, 665, 66 L. Ed.2d 549, 563 (1981)); Ortiz, supra, 203 N.J. Super. at 521); and see State v. Rodriquez, 264 N.J. Super. 261, 269 (App. Div. 1993), aff'd, 135 N.J. 3 (1994). "A threshold showing of some evidence of impermissive suggestiveness is required." Ruffin, supra, 371 N.J. Super. at 391 (citing

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Ortiz, supra, 203 N.J. Super. at 522). The decision whether to conduct such a hearing is "a matter of discretion under the totality of the circumstances," and we will not reverse that decision absent an abuse of that discretion. Ortiz, supra, 203 N.J. Super. at 522. It is unclear whether defendant sought a Wade hearing by formal motion. If he did, the motion is not part of the record. More importantly, we cannot determine if defendant ever made a pre-trial proffer of "some evidence of impermissible suggestiveness." The record certainly contains no such proffer nor is one referenced in the trial transcripts. Additionally, the record contains no police reports, witness statements, grand jury testimony or certifications upon which we might rest our review of the judge's discretionary decision, even presuming that evidence was submitted as part of defendant's request. There is no transcript of any pre-trial hearings at which the request for a Wade hearing was argued or considered. See, e.g. R. 3:9-1(d) (providing that "[h]earings to resolve issues relating to the admissibility of . . . pretrial identifications of defendant . . . shall . . . be held prior to the pretrial conference"). Simply put, the only evidence in the record available for review is the pre-trial judge's letter denying the request based upon Ortiz. At trial, defense counsel did not object to Patel's testimony regarding the Carteret show up. When Babulski testified, counsel objected and argued essentially that every "show up" is inherently suggestive and implied that was the basis of his pre-trial application. Assuming arguendo that this was the substance of defendant's request for a Wade hearing, we cannot conclude that the pre-trial judge mistakenly exercised his discretion by denying it. "[O]ne-on-one show ups are inherently suggestive" since the defendant is generally already in "police custody." State v. Herrera, 187 N.J. 493, 504 (2006). However, "[s]o-called 'show up' . . . identifications made within a reasonably short time at the scene of the crime are permissible under the Wade doctrine." State v. Wilson, 362 N.J. Super. 319, 327 (App. Div.), certif. denied, 178 N.J. 250 (2003); and see State v. Wilkerson, 60 N.J. 452, 461 (1972) (holding that a show up identification only ninety minutes after the crime occurred did not justify a Wade hearing). As defendant concedes in his reply brief, "a little more is required in a show up to tip the scale toward [it being] impermissibly suggestive." Herrera, supra, 187 N.J. at 504. With the gift of 20-20 hindsight, we now know from Patel's and Babulski's trial testimony what facts defendant alleges "tip[ped] the scale." However,

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we have previously noted that a defendant's reliance "upon the trial testimony" of an "alleged eyewitness" "has no bearing on the propriety of the judge's pre-trial Wade decision." State v. Basit, 378 N.J. Super. 125, 129 n. 2 (App. Div. 2005) (citing State v. Tavares, 364 N.J. Super. 496, 502 (App. Div. 2003)). In short, nothing in the record indicates that any evidence was presented to the pre-trial judge other than the fact that the out-of-court identification procedure was a "show up." The judge's decision not to conduct a Wade hearing under those circumstances was not a mistaken exercise of his discretion. Our procedures governing the admission of eyewitness identification testimony are undergoing review by the Court. See State v. Larry R. Henderson, No. A-08 (June 18, 2010) (containing the report of special master Honorable Geoffrey Gaulkin regarding the validity of State law standards on the admissibility of eyewitness identification). In the future, mandatory pre-trial hearings as to the admissibility of all pre-trial identification procedures may indeed be required. See id. at 86 (recommending "mandatory pretrial hearings to evaluate eyewitness identifications"). But we are bound to follow the law as it currently exists. The denial of a pre-trial Wade hearing under the circumstances presented by the record in this case does not warrant reversal of defendant's conviction. Defendant also contends that based upon the actual testimony adduced at trial, any evidence of Patel's outof-court identification should have been excluded. In Herrera, supra, 187 N.J. at 503-04, the Court reiterated the analytic framework for assessing the admissibility of such testimony. First, the reviewing court must assess whether the procedure used was "impermissibly suggestive, and, if so, whether the impermissibly suggestive procedure was nevertheless reliable." Ibid. The Herrera Court reiterated its acceptance of the following factors set forth in Manson v. Brathwaite, 432 U.S. 98, 99, 97 S. Ct. 2243, 2245, 53 L. Ed.2d 140, 144 (1977), utilized to assess the reliability of an out-of-court identification: [T]he opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation. Against these factors is to be weighed the corrupting effect of the suggestive identification itself.

[Herrera, supra, 187 N.J. at 503 (quoting Manson, supra, 432 U.S. at 114, 97 S. Ct. at 2253, 53 L. Ed. 2d at 154).]

As noted, defendant never objected to Patel's testimony regarding the show up procedure in Carteret.

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Although he objected when Babulski testified, defendant never asked for an N.J.R.E. 104 hearing before Babulski continued to testify about the show up, and he never sought to strike the testimony subsequently. Thus, we are denied the benefit of the trial judge's assessment of the credibility of the critical witnesses, his assessment of that testimony in light of the Manson factors, and his conclusion regarding the reliability of the identification which is "'the linchpin in determining the admissibility of identification testimony.'" Herrera, supra, 187 N.J. at 503 (quoting Manson, supra, 432 U.S. at 114, 97 S. Ct. at 2253, 53 L. Ed. 2d at 154). Nevertheless, for the purpose of complete consideration of defendant's argument as now raised before us, we assume arguendo that the procedure in this case was impermissibly suggestive. See, e.g., Herrera, supra, 187 N.J. at 506 (finding the out-of-court show up to be impermissibly suggestive based upon the defendant being handcuffed in the back of the police car and the victim having already been told by the police that the defendant was arrested in the victim's stolen car). However, "'the factors listed in Manson must be weighed against the corrupting effect of the suggestive procedure.'" Id. at 507 (quoting State v. Madison, 109 N.J. 223, 240 (1988)). Here, Patel was able to view defendant when he first entered the store and had the opportunity to see him again at closer range when all three men came behind the store's counter and assaulted him. He provided a description of the hats worn by the men and the fact that two of them wore rubber gloves. Patel was taken to Carteret approximately an hour after the incident and identified defendant as one of the men in the store. Prior to his apprehension, in front of his home, defendant discarded a hat fitting the description Patel had given to the police. Subsequently, officers found latex gloves that had been discarded from the car defendant was driving and owned. Patel's identification of defendant at the show up was, therefore, corroborated by other evidence and made its reliability quite strong. See, e.g., Wilson, supra, 362 N.J. Super. at 327 (noting that corroboration of vehicle's description by motel surveillance camera demonstrated reliability of victim's identification of defendant at a show up). In short, even if defendant had objected to the admission of the evidence regarding Patel's out-of-court identification of defendant in Carteret, the evidence would have been properly admitted. Lastly, even if we are wrong, and the testimony of Patel and Babulsky regarding the show up in Carteret should have been excluded, any error in its admission was harmless beyond a reasonable doubt. State v.

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Macon, 57 N.J. 325, 335-36 (1971). The State's proofs were overwhelming. Patel was robbed by three men, one of whom wore a Yankee cap, and two of whom wore latex gloves. Jones saw two of the men leave the store and get into a car that collided with Foley's SUV. Foley followed the Altima, driven by defendant, seamlessly from the accident scene, to the Parkway, to Woodbridge and then to Carteret. He saw the latex gloves being discarded from defendant's car. Foley also saw defendant park the car in front of his home and discard the baseball hat and other clothing as he ran to the front door. Defendant was heard telling his wife in Spanish that the other two men robbed the liquor store. In Wilkerson, supra, 60 N.J. at 462 (1972), a case involving a challenge to a show up, the Court considered the significant inculpatory evidence, other than the out-of-court identifications of the defendant. Affirming the defendant's conviction, the Court noted, "If there was in fact error in admitting the identification evidence, it was certainly harmless error and can form no basis for reversal." Id. at 462-63. The same is true in this case. III. We now consider those points raised in defendant's supplemental pro se brief. Defendant contends that the guilty verdict for first-degree robbery was against the weight of the evidence and he is entitled to a judgment of acquittal on that charge. Defendant argues that because the State failed to show that a theft or attempted theft occurred, he could not be found guilty of robbery beyond a reasonable doubt. A claim that the "jury verdict was against the weight of the evidence shall not be cognizable on appeal unless a motion for a new trial on that ground was made in the trial court." R. 2:10-1 ("mandat[ing] disregard to that challenge on appeal" without such a motion). No such motion was made in this case. Rule 3:18-1 permits a motion for acquittal to be made "[a]t the close of the State's case or after the evidence of all parties has been closed." Alternatively, if the jury has already returned its verdict, Rule 3:18-2 requires that the motion be brought "within 10 days after the jury is discharged." In this case, defendant never moved for acquittal on the robbery charge at any point. In any event, overlooking these procedural infirmities, we are convinced that there was sufficient evidence before the jury to support the guilty verdict

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on the charge of first-degree robbery. State v. Herrera, 385 N.J. Super. 486, 492 (App. Div. 2006). "A person is guilty of robbery if, in the course of committing a theft, he: (1) Inflicts bodily injury or uses force upon another; or (2) Threatens another with or purposely puts him in fear of immediate bodily injury . . . ." N.J.S.A. 2C:15-1(a). "An act shall be deemed to be included in the phrase 'in the course of committing a theft' if it occurs in an attempt to commit theft or in immediate flight after the attempt or commission." Ibid. Robbery is elevated to a first degree crime if "the actor . . . is armed with, or uses or threatens the immediate use of a deadly weapon." N.J.S.A. 2C:15-1(b).
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Although no actual theft occurred, the jury could have reasonably concluded that after he and another person entered the liquor store, defendant exited and re-entered with a third man who, together with defendant and the other man, went behind the counter, brandished what appeared to be a gun, and all three men then assaulted Patel as he stood by the store's register. Only the victim's cries for help thwarted the actual theft. Defendant then drove the getaway car from the scene, and, when apprehended, blurted out to his wife, in an attempt to exculpate himself, that the other two men robbed the store. These facts clearly permitted a finding of guilt beyond a reasonable doubt on the charge of first-degree robbery. Defendant alleges the State committed a Brady violation by failing to preserve exculpatory material contained on the digital video recording device used at the liquor store. "There are three elements of a Brady violation. The evidence must be favorable to the accused; it must be suppressed by the prosecution; and it must be material." State v. Nelson, 155 N.J. 487, 497 (1998), cert. denied sub nom., New Jersey v. Nelson, 525 U.S. 1114, 119 S. Ct. 890, 142 L. Ed.2d 788 (1999). If the evidence is "no longer available" for review, defendant must prove that it "had 'an exculpatory value that was apparent before [it] was destroyed.'" State v. Mustaro, 411 N.J. Super. 91, 102 (App. Div. 2009) (quoting California v. Trombetta, 467 U.S. 479, 489, 104 S. Ct. 2528, 2534, 81 L. Ed.2d 413, 422 (1984)). This means that there was a "'reasonable probability' that if the evidence had been disclosed[,] 'the result of the proceeding would have been different.'" Id. at 101 (quoting United States v. Bagley, 473 U.S. 667, 682, 105 S. Ct. 3375, 3383, 87 L. Ed.2d 481, 494 (1985)). We think it is obvious that defendant cannot meet these standards required to prove a Brady violation. Defendant next argues that four remarks made by the prosecutor during summation require reversal. The argument lacks sufficient merit to warrant extensive discussion. R. 2:11-3(e)(2). The comments were

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directly related "'to evidence revealed during the trial and reasonable inferences to be drawn from that evidence.'" State v. Mahoney, 188 N.J. 359, 376 (quoting State v. Smith, 167 N.J. 158, 178 (2001)), cert. denied sub nom., Mahoney v. New Jersey, 549 U.S. 995, 127 S. Ct. 507, 166 L. Ed. 2d 368 (2006). Defense counsel's failure to object "suggests that [he] did not believe the remarks were prejudicial at the time they were made . . . [and] deprive[d] the court of an opportunity to take curative action." State v. Frost, 158 N.J. 76, 84 (1999). The comments in no way "'deprived defendant of a fair trial.'" State v. Wakefield, 190 N.J. 397, 438 (2007) (quoting Smith, supra, 167 N.J. at 181), cert. denied sub nom., Wakefield v. New Jersey, 552 U.S. 1146, 128 S. Ct. 1074, 169 L. Ed.2d 817 (2008). Defendant argues the trial judge committed plain error by referring to him as the "perpetrator" when charging the jury with his instructions regarding the eyewitness identification. There was no error in the instructions and this argument also lacks sufficient merit to warrant any further discussion. R. 2:11-3(e)(2). Lastly, we defer consideration of defendant's claims of ineffective assistance of counsel to any future filing of an appropriate petition for post-conviction relief. It is clear from defendant's brief that his assertions "involve allegations and evidence that lie outside the trial record[,]" State v. Preciose, 129 N.J. 451, 460 (1992), including strategic decisions made by trial counsel. In doing so, we hasten to add that we express no opinion regarding the ultimate merits of defendant's claims on this issue. A

ffirmed. We remand the matter to the trial court for the entry of an amended judgment of conviction that accurately sets forth the charges for which defendant was sentenced. We do not retain jurisdiction. 1 United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed.2d 1149 (1967).

2 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed.2d 215 (1963). 3 In a second supplemental pro se brief, defendant repeats Points One and Four. 4 Patel, who testified without an interpreter, lacked some proficiency with the English language. Later testimony revealed that the statement actually described the men as wearing a "red-colored baseball [hat] with [a] Yankee emblem," and a hat with a "P" emblem. Patel claimed the officer made a mistake and he was sure that he told the officer one man wore a hat, "red with a 'P'" and the other wore a "Yankee" hat that was "black or blue [in] color."

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5 See N.J.S.A. 2C:11-1(c) defining "'[d]eadly [w]eapon'" as one "which in the manner it is fashioned would lead the victim reasonably to believe it to be capable of producing death or serious bodily injury." Patel testified that he believed he would be shot by the man waiving the "gun," later recovered and found to be a replica.

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