State of New Jersey v. Sandro Vargas ( 2024 )

NOT FOR PUBLICATION WITHOUT THE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-2431-21
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
SANDRO VARGAS,
Defendant-Appellant.
_________________________
Submitted January 24, 2024 – Decided February 9, 2024
Before Judges Accurso and Vernoia.
On appeal from the Superior Court of New Jersey, Law
Division, Essex County, Indictment No. 15-08-1756.
Joseph E. Krakora, Public Defender, attorney for
appellant (Richard Sparaco, Designated Counsel, on the
brief).
Theodore N. Stephens II, Acting Essex Prosecutor,
attorney for respondent (Stephen Anton Pogany,
Special Deputy Attorney General/Acting Assistant
Prosecutor, of counsel and on the brief).
PER CURIAM
After a jury convicted defendant Sandro Vargas of the first-degree murder
of Patricia Hiciano, the court imposed a thirty-year sentence with a thirty-year
period of parole ineligibility. We affirmed defendant's conviction and sentence
on his direct appeal, State v. Vargas, 463 N.J. Super. 598, 619 (App. Div. 2020),
and the Supreme Court denied his petition for certification, State v. Vargas, 244
N.J. 302 (2020). Defendant appeals from an order denying his post-conviction
relief (PCR) petition without an evidentiary hearing. We affirm.
I.
We described the evidence presented at defendant's trial in our decision
on defendant's direct appeal. See Vargas, 463 N.J. Super. at 604-07. We
summarize the evidence to the extent necessary to provide context for our
discussion of the issues presented on appeal.
Defendant had an intimate relationship with Hiciano, a single mother of
four children. Id. at 604. A few months before Hiciano's murder, defendant
pushed his way into her home, and defendant and Hiciano argued. Ibid. At a
pre-trial N.J.R.E. 104 hearing, Hiciano's teenage daughter testified that
defendant was drunk, and she heard defendant threaten Hiciano, stating, "if you
can't be with me, then you can't be with anyone." Ibid. Hiciano's daughter then
testified at trial that defendant said, "he was tired of telling [Hiciano] that if she
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wasn't with him[,] she wouldn't be with anybody." Ibid. During a custodial
interrogation following his arrest, defendant confirmed he was last intimate with
Hiciano about five months before her murder. Ibid.
On the evening of Hiciano's murder, defendant appeared at the restaurant
at which Hiciano worked. Id. at 605. As defendant ate dinner and drank several
beers, he was joined by a friend, Jose Luis Silva Lopez. Ibid. At trial, Lopez
testified defendant told him he intended to have sex with Hiciano at a hotel later
that evening and then showed Lopez a photo of Hiciano with her new boyfriend.
Ibid. Lopez explained defendant appeared jealous and told Lopez that he had a
compromising video of Hiciano that could get her in trouble with her boss. Ibid.
Lopez and Hiciano later accepted defendant's offer to drive them to their
homes. Ibid. Defendant drove his wife's Honda. Ibid. Relying on video
surveillance recordings from various points along defendant's route, the State
established defendant's whereabouts after he left the restaurant. Ibid.
Defendant first dropped Lopez off at his home. Ibid. Defendant then
drove with Hiciano to a hotel where Hiciano left defendant's vehicle and walked
away. Ibid. Defendant followed Hiciano slowly in the car, then drove off when
Hiciano went into a pizzeria to buy a pizza she had promised her children. Ibid.
Hiciano waited at the pizzeria for over twenty minutes, and then walked roughly
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half a mile toward her home with the pizza. Ibid. As she approached her
building shortly before 10:30 p.m., she spoke by phone to a friend, saying she
would call the friend back once she arrived home. Ibid.
Surveillance recordings showed that while Hiciano was getting the pizza,
defendant had parked his car around the block from Hiciano's building and then
got out. Ibid. Defendant had sufficient time to arrive at Hiciano's building prior
to her arrival with the pizza. Ibid.
A resident of the first-floor apartment at the building testified that shortly
after 10:30 p.m., she heard a scuffle in the vacant apartment above her, including
muffled screams and the sound of athletic shoes—like those defendant had worn
that evening—squeaking on the floor. Ibid. Another recording showed
defendant returning to his car minutes later and leaving the area. Ibid. A
recording made about an hour later showed defendant arriving home. Id. at 605-
06.
Hiciano did not return home that evening. The following morning,
Hiciano's daughter called defendant, but her call went to voicemail. Id. at 606.
She then called one of Hiciano's co-workers, who happened to be with
defendant, and Hiciano's daughter spoke with defendant at that time. Ibid.
Defendant said he had not seen Hiciano in a while, pretended he had a bad phone
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connection, and hung up the phone. Ibid. Hiciano's daughter then reported her
mother missing to the police. Ibid.
Later the same day, Hiciano's sister spoke with defendant concerning
Hiciano's whereabouts. Ibid. At that time, defendant said he had dropped
Hiciano off in front of her building the night before, left, and had not seen her
again. Ibid.
Five days later, police discovered Hiciano's body in a vacant second-floor
apartment of her building. Id. at 606. The evidence presented at trial established
she had been strangled to death. Ibid. DNA matching defendant was found
under Hiciano's fingernails and small pieces of debris found on the floor of
defendant's wife's Honda matched debris recovered from the vacant apartment
in which Hiciano's body was found. Ibid.
The police questioned defendant concerning Hiciano. During the initial
questioning, defendant insisted he had dropped Hiciano off across the street
from her building and stated that when he did so, there was a group of men and
a woman who had congregated there. Ibid. During his two interviews with the
police, defendant changed his story when confronted by the police with
information they had obtained in video surveillance recordings and their
investigation. Ibid. Defendant finally insisted he last saw Hiciano when she left
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his car after she exited it in front of the hotel. Ibid. Defendant asserted that
Hiciano proposed to have sex with him but had changed her mind, got out of the
car, and walked away. Id. at 606-07. Defendant denied entering Hiciano's
building and killing her. Id. at 607.
Defendant did not testify or present any witnesses at trial, and his trial
counsel argued in summation that: the police planted the debris in the Honda;
Hiciano would not have gone to the second-floor apartment without a struggle,
and no witnesses from the apartment building testified about hearing a struggle;
there were discrepancies in the State's timeline of the events; and the DNA could
have come from Hiciano's prior contacts with defendant. Ibid. In its summation,
the State reviewed the evidence and argued in part that defendant's threatening
statement to Hiciano, as recounted by her daughter, provided proof of
defendant's motive for the murder. Ibid.
Following our affirmance of defendant's conviction and sentence on his
direct appeal, Vargas, 463 N.J. Super. at 619, and the Supreme Court's denial of
his petition for certification, Vargas, 244 N.J. at 302, defendant filed a pro se
PCR petition. The petition did not include any averments of fact supporting a
cognizable PCR claim. Instead, defendant listed only three "points" he sought
to have PCR counsel "raise or look into." Those three points were described as
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follows: (1) an unspecified statement by Jose Lopez; (2) Hiciano's daughter's
statement that defendant had "threaten[ed]" Hiciano; and (3) "[t]he officer that
was use[d] to [interpret for defendant]" during his interviews with the police
was not "certified."
Defendant's assigned PCR counsel later filed an extensive brief in support
of the petition, arguing defendant's trial and appellate counsel provided
ineffective assistance and defendant otherwise was denied a fair trial by the trial
court. More particularly, the brief included the following arguments:
POINT I
BUT FOR TRIAL COUNSEL'S INEFFECTIVE
REPRESENTATION, THE DEFENDANT'S
STATEMENTS WOULD NOT HAVE BEEN HELD
ADMISSIBLE.
POINT II
THE DEFENDANT WAS DEPRIVED HIS
CONSTITUTIONAL RIGHT TO TESTIFY ON HIS
OWN BEHALF.
POINT III
THE DEFENDANT WAS DEPRIVED HIS
CONSTITUTIONAL RIGHT TO PRESENT A
DEFENSE.
A-2431-21
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POINT IV
THE TRIAL COURT DENIED THE DEFENDANT
HIS RIGHT TO A FAIR TRIAL BY IMPARTIAL
JURY AND HIS DUE PROCESS RIGHT TO A FAIR
TRIAL BECAUSE OF IMPROPER CHARGES TO
THE JURY.
POINT V
DEFENDANT WAS DENIED THE EFFECTIVE
ASSISTANCE OF TRIAL COUNSEL IN
VIOLATION OF THE UNITED STATES AND NEW
JERSEY CONSTITUTIONS.
POINT VI
THE CUMULATIVE EFFECT OF THE ERRORS
COMPLAINED OF RENDERED THE TRIAL
UNFAIR.
POINT VII
DEFENDANT WAS DENIED THE EFFECTIVE
ASSISTANCE OF APPELLATE COUNSEL.
POINT VIII
AN EVIDENTIARY HEARING IS REQUIRED WITH
REGARD TO THE ALLEGATIONS OF
DEFENDANT'S PETITION FOR [PCR.]
POINT IX
THE DEFENDANT'S MOTION FOR [PCR] SHOULD
NOT BE BARRED BY PROCEDURAL
CONSIDERATION.
A-2431-21
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After hearing argument on the petition, the court issued a written
statement of reasons rejecting defendant's claims. The court reasoned that
defendant failed to sustain his burden of establishing a prima facie ineffective
assistance of counsel claim under the standard established by the United States
Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984), and adopted
for application under our State Constitution by our Supreme Court in State v.
Fritz, 105 N.J. 42 (1987). The court further concluded defendant otherwise
failed to demonstrate he was denied his right to a fair trial.
The court entered an order denying defendant's PCR petition without an
evidentiary hearing. This appeal followed. Defendant presents the following
arguments for our consideration:
POINT I
DEFENDANT PRESENTED A PRIMA FACIE
CASE OF INEFFECTIVE ASSISTANCE OF
COUNSEL BECAUSE TRIAL COUNSEL FAILED
TO ADVISE DEFENDANT OF HIS RIGHT TO
TESTIFY AT THE MIRANDA[1] HEARING, AND
HAD HE DONE SO, THE RESULT WOULD HAVE
BEEN DIFFERENT.
POINT II
DEFENDANT PRESENTED A PRIMA FACIE
CASE OF INEFFECTIVE ASSISTANCE OF
1
Miranda v. Arizona, 384 U.S. 436 (1966).
A-2431-21
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COUNSEL BECAUSE TRIAL COUNSEL FAILED
TO ADVISE DEFENDANT OF HIS RIGHT TO
TESTIFY AT TRIAL DESPITE HIS HAVING NO
CRIMINAL RECORD THAT COULD BE USED TO
IMPEACH HIM, AND HAD HE DONE SO, THE
RESULT WOULD HAVE BEEN DIFFERENT.
POINT III
DEFENDANT PRESENTED A PRIMA FACIE
CASE OF INEFFECTIVE ASSISTANCE OF TRIAL
AND APPELLATE COUNSEL BECAUSE
NEITHER COUNSEL ARGUED THAT THE TRIAL
COURT SHOULD HAVE GIVEN THE REQUIRED
INSTRUCTION WHEN N.J.R.E. 404(b) EVIDENCE
IS ADMITTED AT TRIAL, AND HE WAS
THEREFORE ENTITLED TO AN EVIDENTIARY
HEARING.
II.
We review the legal conclusions of a PCR court de novo. State v. Harris,
181 N.J. 391, 419 (2004). The de novo standard of review also applies to mixed
questions of fact and law. Id. at 420. We may "conduct a de novo review" of
the court's "factual findings and legal conclusions" where, as here, the PCR court
has not conducted an evidentiary hearing. Id. at 421; see also State v. Lawrence,
463 N.J. Super. 518, 522 (App. Div. 2020).
The Sixth Amendment to the United States Constitution and Article I,
Paragraph 10 of the New Jersey Constitution guarantee a defendant in a criminal
proceeding the right to the assistance of counsel in their defense. The right to
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counsel requires "the right to the effective assistance of counsel." State v. Nash,
212 N.J. 518, 541 (2013) (quoting Strickland, 466 U.S. at 686).
To establish a prima facie case of ineffective assistance of counsel, a
defendant must show a "reasonable likelihood" of success under the two-prong
test outlined in Strickland. State v. Preciose, 129 N.J. 451, 463 (1992); see also
Strickland, 466 U.S. at 694; Fritz, 105 N.J. at 58. The Strickland test requires
that a defendant show (1) "counsel made errors so serious that counsel was not
functioning as the 'counsel' guaranteed . . . by the Sixth Amendment" and (2)
counsel's "deficient performance prejudiced the defense." Fritz, 105 N.J. at 52(quoting Strickland, 466 U.S. at 687). "With respect to both prongs of the
Strickland test, a defendant asserting ineffective assistance of counsel on PCR
bears the burden of proving his or her right to relief by a preponderance of the
evidence." State v. Gaitan, 209 N.J. 339, 350 (2012) (citations omitted). If a
defendant fails to sustain his burden under either prong of the standard, a
defendant's ineffective assistance of counsel claim fails. Strickland, 466 U.S. at
687.
Under the first prong, a defendant must show "counsel's acts or omissions
fell outside the wide range of professionally competent assistance considered in
light of all the circumstances of the case." State v. Allegro, 193 N.J. 352, 366
A-2431-21
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(2008) (citation omitted). Our analysis under the first prong is highly deferential
to counsel. State v. Arthur, 184 N.J. 307, 318-19 (2005) (citing Strickland, 466
U.S. at 689). There is "'a strong presumption' that [counsel] provided reasonably
effective assistance" and counsel's "decisions followed a sound strategic
approach to the case[,]" State v. Pierre, 223 N.J. 560, 578-79 (2015) (quoting
Strickland, 466 U.S. at 689), even when a strategic decision turns out to be a
mistake, State v. Buonadonna, 122 N.J. 22, 42 (1991). A defendant may rebut
the presumption of effectiveness by proving trial counsel's actions were not
"sound trial strategy." Arthur, 184 N.J. at 319 (quoting Strickland, 466 U.S. at
689).
Under the second Strickland prong, a defendant must "affirmatively
prove" "a reasonable probability that, but for counsel's unprofessional errors,
the result of the proceeding would have been different." State v. Gideon, 244
N.J. 538, 551 (2021) (quoting Strickland, 466 U.S. at 693-94). "A reasonable
probability is a probability sufficient to undermine confidence in the outcome."
Ibid. (citations omitted). Proof of prejudice under Strickland's second prong "is
an exacting standard." Ibid. (quoting Allegro, 193 N.J. at 367). A defendant
"must affirmatively prove prejudice" in a PCR petition to satisfy the second
prong of the Strickland standard. Ibid. (quoting Strickland, 466 U.S. at 693).
A-2431-21
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Defendant first argues the PCR court erred by rejecting his claim that trial
counsel was ineffective at the N.J.R.E. 104 hearing during which the trial court
considered the admissibility of his statements to the police. Defendant 's claim
is founded on the contention that his statements to the police should have been
deemed inadmissible because he did not understand his Miranda rights "due to
the 'mixed bag' of English and Spanish spoken to him" when advised of his
rights.
Defendant argues the PCR court erred by rejecting his claim that trial
counsel was ineffective in prosecuting his motion to suppress his statements to
police because the PCR court found, in part, that defendant was aware of his
right to remain silent by virtue of his prior employment as a police officer in the
Dominican Republic. Defendant further argues there is no competent evidence
supporting the PCR court's finding that individuals in the Dominican Republic
have the same rights to remain silent as those enjoyed by individuals in the
United States, and the court could not properly take judicial notice of those
purported facts.
We agree the PCR court erred by citing a travel website as support for its
determination that individuals in the Dominican Republic enjoy the same right
to remain silent as individuals in the United States. Moreover, even if a right to
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remain silent comparable to that which exists in the United States was extant in
the Dominican Republic while defendant served as a police officer there, the
suppression motion record is bereft of evidence establishing defendant was
aware that he enjoyed the same rights when he was arrested and questioned by
the police in the United States following Hiciano's murder. And, neither the
motion court nor the PCR court could correctly assume defendant was aware of
his right to remain silent under the laws of the United States and State of New
Jersey because the State has the burden of proving, beyond a reasonable doubt,
that defendant knowingly, intelligently, and voluntarily waived his right to
remain silent. See State v. Sims, 250 N.J. 189, 211 (2022).
The PCR court's error in relying on what it concluded in part was
defendant's knowledge of his right to remain silent based on his prior
employment in the Dominican Republic does not, however, require a reversal of
the court's order denying the PCR petition. That is because, based on our de
novo review of the record before the PCR court, we agree that defendant failed
to sustain his burden of establishing a prima facie ineffective assistance of
counsel claim under the Strickland standard.
Defendant claims trial counsel was ineffective at the suppression hearing
by failing to call defendant as a witness. Defendant argues counsel's failure to
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call him as witness deprived him of "the opportunity to present evidence that
would have" resulted in the suppression of his statements to the police.
According to defendant's brief on appeal, if he had been called as a witness at
the suppression hearing, "he would have been able to testify as to the true
circumstances, and in particular, that he was having trouble understanding the
Spanish-speaking detectives that were translating" during his police interviews
and "that there was also a lot of confusion on [his] part resulting therefrom."
Defendant's brief also asserts that "his primary language was Spanish" and
"although he was living in the United States[,] his ability to understand was very
limited." Defendant further asserts in his brief on appeal that trial counsel did
not advise him "he could be called as a witness" at the suppression hearing.
We reject defendant's claim trial counsel was ineffective in prosecuting
the motion to suppress defendant's statements to the police because it is
supported solely by the arguments of counsel in defendant's brief on appeal.
Stated differently, none of the assertions of purported fact on which defendant's
claim is based are supported by competent evidence presented to the PCR court.
It is well established that "bald assertions" are insufficient to sustain a
defendant's burden of establishing a prima facie case of ineffective assistance
under the Strickland standard. State v. Cummings, 321 N.J. Super. 154, 170
A-2431-21
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(App. Div. 1999). PCR petitions must be "accompanied by an affidavit or
certification by defendant, or by others, setting forth with particularity," State v.
Jones, 219 N.J. 298, 312 (2014), "'facts sufficient to demonstrate counsel's
alleged substandard performance,'" State v. Porter, 216 N.J. 343, 355 (2013)
(quoting Cummings, 321 N.J. Super. at 170).
Defendant's claims concerning his purported confusion and inability to
understand his Miranda warnings—that the record otherwise shows were
provided through a Spanish interpretation provided by a police officer and were
written in Spanish and reviewed and signed by defendant—and his attorney's
alleged failure to inform defendant he could testify at the hearing, find no
support in any competent evidence presented to the PCR court. Proffers of fact
offered by counsel at argument on a PCR petition and assertions of fact in a brief
to the court do not establish facts supporting a PCR claim. See Jones, 219 N.J.
at 312. For those reasons alone, the PCR court therefore correctly rejected
defendant's claim his trial counsel was ineffective in prosecuting the motion to
suppress defendant's statements to the police.
Lacking any competent evidence establishing grounds supporting
defendant's motion to suppress his statements to the police, defendant failed to
sustain his burden under Strickland's first prong. An attorney's performance is
A-2431-21
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not constitutionally deficient by failing to prosecute a claim or make an
argument that lacks support in the facts and is therefore meritless. See generally
State v. O'Neal, 190 N.J. 601, 619 (2007) (holding "[i]t is not ineffective
assistance of counsel for defense counsel not to file a meritless motion"); State
v. Worlock, 117 N.J. 596, 625 (1990) ("The failure to raise unsuccessful legal
arguments does not constitute ineffective assistance of counsel" (citing
Strickland, 466 U.S. at 688)).
For the same reasons, the court correctly determined defendant failed to
sustain his burden of establishing, under Strickland's second prong, that there
was a reasonable probability that but for counsel's alleged errors in prosecuting
the suppression motion, the result of the suppression hearing would have been
different. 466 U.S. at 693-94. As noted, defendant had the burden of
affirmatively proving prejudice under Strickland's second prong as a result of
his counsel's purported error. Gideon, 244 N.J. at 551. Defendant did not
sustain that burden because he failed to present any competent evidence
establishing that had he testified at the hearing, there is a reasonable probability
the court would have suppressed his statements to the police.
In sum, the court correctly denied defendant's claim trial counsel was
ineffective during the prosecution of the motion to suppress defendant's
A-2431-21
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statements to the police. As correctly determined by the PCR court, and even
absent its reliance on defendant's prior employment as a police officer in the
Dominican Republic, defendant failed to present competent evidence satisfying
his burden under both prongs of the Strickland standard. See Strickland, 466
U.S. at 687.
Defendant also contends the PCR court erred by rejecting his claim trial
counsel was ineffective by not presenting defendant as a witness at trial.
Defendant argues counsel advised him it would be best if he did not testify at
trial, failed to inform him the decision whether to testify was his "alone to
make," and failed to prepare defendant to testify. Defendant further argues that
he proffered before the PCR court that "he would have testified that he was
innocent of the murder, and the State would not have been able to attack his
credibility with any prior criminal convictions because he did not have any."
Defendant's arguments the PCR court erred by rejecting his claim trial
counsel was ineffective by not calling him as a witness at trial fail because,
again, all the factual underpinnings of the claim are unsupported by competent
evidence. The record lacks any certifications, affidavits, or other competent
evidence establishing what counsel advised or failed to advise defendant about
testifying at trial and, perhaps more importantly, defendant failed to provide an
A-2431-21
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affidavit or certification setting forth the facts about which he would have
testified at trial if he had been called. Defendant's vague, scant, and conclusory
putative proffer to the PCR court, and the conclusory assertions in his brief on
appeal, do not satisfy his burden of presenting competent evidence establishing
facts sufficient to satisfy his burden under the Strickland standard. See Jones,
219 N.J. at 312; Cummings, 321 N.J. Super. at 170.
As the PCR court aptly recognized, defendant failed to sustain his burden
under the Strickland standard on his claim trial counsel was ineffective by
allegedly failing to call defendant as a witness at trial, advise defendant he could
testify at trial, and prepare defendant to testify at trial. We therefore affirm the
court's rejection of the claim.
Defendant also asserts the court erred by rejecting his claim that trial
counsel was ineffective by failing to request a limiting instruction under
N.J.R.E. 404(b) describing the proper use of Hiciano's daughter's testimony that
defendant had threatened Hiciano "if he could not have her, no one would." The
argument is based on the inaccurate premise that the trial court admitted the
statement under N.J.R.E. 404(b) when, in fact, the trial court determined the
statement was inadmissible under the Rule. In our view, trial counsel's
A-2431-21
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performance was not deficient by failing to request an instruction under a Rule
that the trial court had determined did not support admission of the evidence.
In any event, we recognize that on defendant's direct appeal, we
determined the trial court erred by failing to admit evidence of the threat under
N.J.R.E. 404(b), Vargas, 463 N.J. Super. at 610, and that generally, admission
of evidence under N.J.R.E 404(b) requires a jury instruction detailing the
permissible and impermissible uses of the evidence in a jury's deliberations, see
State v. Rose, 206 N.J. 141, 161 (2011).
However, we agree with the PCR court that under the circumstances
presented, admission of the evidence of defendant's threat without the required
N.J.R.E. 404(b) instruction did not deprive defendant of a fair trial . That is
because the evidence of defendant's guilt—including the recordings, DNA,
debris found in defendant's wife's Honda, and defendant's conflicting and
inconsistent statements about his whereabouts and actions, many of which are
contradicted by recordings—is overwhelming. As such, there is no reasoned
basis to conclude the absence of the instruction resulted in an unfair trial. See
Vargas, 463 N.J. Super. at 618 n.9 (collecting cases finding the absence of a jury
instruction concerning the proper use of N.J.R.E. 404(b) evidence did not
require reversal).
A-2431-21
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Because we are not persuaded the absence of a jury instruction under
N.J.R.E. 404(b) deprived defendant of a fair trial, we reject his argument the
PCR court erred by denying his claim that trial counsel was ineffective by failing
to request the jury instruction. Moreover, even if counsel's performance was
deemed deficient for failing to request the instruction under Strickland's first
prong, defendant's ineffective assistance claim fails because he cannot, and has
not, affirmatively proven a reasonable probability that but for the error, the
result of the trial would have been different. See Gideon, 244 N.J. at 551.
Defendant's failure to sustain his burden under Strickland's second prong alone
requires a denial of his ineffective assistance claim based on counsel's failure to
request a N.J.R.E. 404(b) instruction. See Gaitan, 209 N.J. at 350 ("Although a
demonstration of prejudice constitutes the second part of the Strickland analysis,
courts are permitted leeway to choose to examine first whether a defendant has
been prejudiced, and if not, to dismiss the claim without determining whether
counsel's performance was constitutionally deficient." (citation omitted)).
Defendant also claims appellate counsel was ineffective by failing to raise
meritorious issues in support of defendant's direct appeal. See State v. Gaither,
396 N.J. Super. 508, 513 (App. Div. 2007) (finding the Strickland standard is
also applied to a claim appellate counsel provided ineffective assistance). We
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reject the argument because it is untethered to any citation to the record or
applicable law demonstrating appellate counsel failed to raise an available
meritorious argument, or that there is a reasonable probability that but for any
purported error to properly raise an available argument, the result of the appeal
would have been different.
We recognize appellate counsel did not argue on appeal that the trial court
erred by failing to provide the N.J.R.E. 404(b) instruction. However, even if
appellate counsel erred by failing to do so, defendant makes no showing he
suffered prejudice under the Strickland standard as a result and, for the reasons
we have explained, the absence of the instruction did not deprive defendant of a
fair trial and, in our view, would not have required a reversal of his conviction
on appeal. We therefore conclude appellate counsel's failure to raise the issue
on direct appeal did not constitute ineffective assistance of counsel under the
Strickland standard because there is no reasonable probability that but for
counsel's purported error, the result of defendant's appeal would have been
different. See Strickland, 466 U.S. at 693-94.
In making each of his arguments on appeal, defendant also argues the PCR
court erred by denying his petition without an evidentiary hearing. The
argument finds no support in the record or applicable law.
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A defendant is entitled to an evidentiary hearing only
upon[:] the establishment of a prima facie case in
support of [PCR], a determination by the court that
there are material issues of disputed fact that cannot be
resolved by reference to the existing record, and a
determination that an evidentiary hearing is necessary
to resolve the claims for relief.
[R. 3:22-10(b).]
"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, 158 (1997). Because defendant did not
establish a prima facie case supporting any of his claims, the court correctly
denied his petition without an evidentiary hearing. See Strickland, 466 U.S. at
687.
Any remaining arguments presented on defendant's behalf that we have
not expressly addressed are without sufficient merit to warrant discussion in a
written opinion. R. 2:11-3(e)(2).
Affirmed.
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