STATE OF NEW JERSEY VS. PAUL CIBELLI, JR. (06-01-0106, MIDDLESEX 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NOT FOR PUBLICATION WITHOUT THE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-3941-15T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
PAUL CIBELLI, JR.,
Defendant-Appellant.
_______________________________
Argued May 30, 2018 – Decided July 6, 2018
Before Judges Koblitz, Manahan and Suter.
On appeal from Superior Court of New Jersey,
Law Division, Middlesex County, Indictment No.
06-01-0106.
John V. Saykanic argued the cause for
appellant.
Nancy A. Hulett, Assistant Prosecutor, argued
the cause for respondent (Andrew C. Carey,
Middlesex County Prosecutor, attorney; Nancy
A. Hulett, of counsel and on the brief).
Appellant filed pro se supplemental briefs.
PER CURIAM
Defendant Paul Cibelli, Jr., appeals from the denial of his
petition for post-conviction relief (PCR) without an evidentiary
hearing. Defendant also appeals from the ruling denying post-
conviction DNA testing. We affirm.
On January 20, 2006, a Middlesex County Grand Jury charged
defendant with first-degree murder, N.J.S.A. 2C:11-3; third-degree
hindering apprehension or prosecution, N.J.S.A. 2C:29-3(b); and
third-degree possession of a weapon for an unlawful purpose,
N.J.S.A. 2C:39-4(d). A jury convicted defendant of all counts.
Defendant appealed. We reversed and remanded for a new trial.
State v. Cibelli, No. A-6422-06 (App. Div. June 12, 2009), certif.
denied, 200 N.J. 371 (2009).
In October 2010, after trial, defendant was found guilty of
all charges. On January 5, 2011, defendant was sentenced to a
fifty-five year prison term, subject to an eighty-five percent
parole ineligibility period pursuant to the No Early Release Act
(NERA), N.J.S.A. 2C:43-7.2; and a consecutive five-year prison
term for the hindering apprehension charge. The possession of a
weapon charge was merged with the murder charge. Defendant
appealed. We affirmed. State v. Cibelli, No. A-2454-10 (App.
Div. July 15, 2013) (Cibelli II), certif. denied, 217 N.J. 293(2014).
We derive the salient facts from Cibelli II:
Silva and defendant moved in with
defendant's father in the spring of 2005 after
defendant was laid off from his job.
2 A-3941-15T4
On October 6, 2005, having decided to
leave defendant, Silva rented an apartment
where she planned to move the next day. That
evening she went with defendant to rent a U-
Haul truck and arranged to pick it up the
following morning at 8 a.m.
Defendant and Silva returned home to
pack. Defendant's father woke up around 6:30
a.m. the next morning and went out. Upon
returning, he noticed that both defendant's
and Silva's cars were in the driveway. Silva
was not home and defendant said that he did
not know where she was.
Silva's two friends who had agreed to
help her move tried calling her, but she did
not answer her cellphone. When they called
again later, defendant answered and informed
them that he was unsure of her whereabouts.
They drove to defendant's house and Silva was
not there. Soon two other friends came to
defendant's home to look for Silva after she
failed to answer their phone calls. Defendant
approached their vehicle and explained that
he did not know where she was.
Silva's four friends converged on the
police station to report her missing. The
police drove to defendant's home where he
informed them that he last saw Silva at [1]
a.m., did not know where she was, and that her
cellphone and purse were still upstairs.
Later, the police saw Silva's clothes hanging
in the closet, dirty clothes in the corner of
the room and an open purse with a cellphone
on top, which they took.
Two days later, on October 9, 2005,
defendant's father called the police to report
him missing. That same day, the New Paltz,
New York Police Department responded to a call
at a motel, where they found defendant in an
incoherent state. A backpack was recovered
that contained suicide notes and a document
3 A-3941-15T4
entitled last will and testament. Defendant
agreed to go to the hospital.
Three days later, Silva's body was found
by an employee of a paper company who was
sorting trash from recyclable papers at a
plant in Philadelphia, Pennsylvania. The
plant receives garbage from various pick-up
locations in the region. The body was found
in trash bags that also contained a yellow
short-sleeve T-shirt with the words "Corona
Extra Cancun" on it, yellow and blue bath
towels, a Bostitch stapler and a green dowel.
The State presented evidence that it takes
approximately one hour and eighteen minutes
to drive from defendant's house to the plant's
pick-up location.
Dr. Edward Chmara performed the autopsy
and determined that the cause of death was
asphyxiation by manual strangulation. The
body also had a fractured left collarbone, a
blunt force injury below the right eye, and
multiple bruises about the head, thorax and
extremities. The body also had multiple
defensive abrasions on the back of the hands
and a two-inch laceration on the crown of the
head, likely caused by being struck with a
firm, hard item. Dr. Chmara believed the head
would have bled profusely.
The Chief Medical Examiner of the State
of Delaware testified on defendant's behalf
and offered testimony consistent with Dr.
Chmara about the cause of death. He believed
there would have been blood found in the area
where the head injury took place.
After the body was found, the FBI's
Evidence Response Team searched defendant's
home and the two cars. Several items were
seized, including a blue-colored Bathroom
Basics brand bath towel, which was similar in
style, size and fiber content to the towel
recovered with Silva's body. Photos on the
4 A-3941-15T4
hard drive of a computer in the home showed
defendant wearing a yellow T-shirt that said
"Corona Extra Cancun," and a photo of
construction work being done on the house
showed a green handled tool and hammer like
the Bostitch stapler. These three items
resembled the ones found with the body and
were not found in defendant's house. Police
seized a tool belt with a sheath labeled
Bostitch. The Bostitch stapler recovered with
the body fit into the sheath.
Laura Cannon, an expert on mitochondrial
DNA, performed tests on a pubic hair that was
recovered from the yellow towel found with the
body. She was on maternity leave at the time
of trial. Accordingly, Colleen Kumar, an
expert on mitochondrial DNA, testified without
objection, based on a review of Cannon's work
and her own independent analysis.
Kumar agreed with the analysis done by Cannon
and another done by the FBI. The hair did not
belong to Silva. According to the
mitochondrial DNA testing, it was consistent
with defendant's hair.
A defense forensic scientist testified
that blood tends to stick and get absorbed
under floor tiles and wood flooring, which
makes it difficult to remove. Even when
invisible to the naked eye, crime scene
officers can detect blood and evidence of
attempts to clean it up. No trace blood
evidence was found in the house or in the cars.
[Slip op. at 2-6.]
On October 26, 2015, defendant filed a petition for PCR
arguing that he received ineffective assistance of trial and
appellate counsel. Defendant also moved to compel post-conviction
DNA testing of a head hair found under Silva's nail. After oral
5 A-3941-15T4
argument, but without an evidentiary hearing, Judge James F.
Mulvihill denied the PCR in a forty-three page written decision.
This appeal followed.
On appeal, defendant raises the following arguments:
POINT I
THE CONVICTIONS SHOULD BE VACATED AS DEFENDANT
WAS DEPRIVED OF HIS SIXTH AMENDMENT AND NEW
JERSEY STATE CONSTITUTIONAL RIGHT TO EFFECTIVE
ASSISTANCE OF COUNSEL AND TO HIS FOURTEENTH
AMENDMENT RIGHT TO DUE PROCESS DUE TO THE
FAILURE OF TRIAL COUNSEL TO ENSURE THE COURT
COMPLIED WITH N.J.S.A. 2B:20-8(B) AND 2B:20-
8(C).
[A.] THE PCR COURT'S DECISION.
[B.] THE LAW REGARDING [PCR].
[C.] THE LAW REGARDING INEFFECTIVE
COUNSEL (AND DUE PROCESS).
[D.] THE LAW CONCERNING JURY
SELECTION.
[E.] THE LAW REGARDING "STRUCTURAL
ERROR."
POINT II
THE CONVICTIONS SHOULD BE VACATED SINCE TRIAL
COUNSEL INTENTIONALLY AND AGAINST DEFENDANT'S
WILL ABSENTED HIMSELF FROM THE FIRST FOUR DAYS
OF JURY SELECTION; U.S. CONST. AMENDS. VI AND
XIV; N.J. CONST. (1947) ART. 1, PAR. 10.
[A.] THE PCR COURT'S DECISION.
6 A-3941-15T4
POINT III
THE CONVICTIONS SHOULD BE VACATED DUE TO THE
FAILURE OF COUNSEL TO PROPERLY LITIGATE AT
TRIAL AND RAISE ON APPEAL THE SLEEPING JUROR
ISSUE; U.S. CONST. AMENDS. VI AND XIV; N.J.
CONST. (1947) ART. 1, PAR. 10.
[A.] THE PCR COURT'S DECISION.
POINT IV
THE CONVICTIONS SHOULD BE VACATED DUE TO THE
FAILURE OF COUNSEL (AT TRIAL AND ON APPEAL)
TO PROPERLY LITIGATE THE ISSUE OF JUROR NO.
2'S DISMISSAL; U.S. CONST. AMENDS. VI AND XIV;
N.J. CONST. (1947) ART. 1, PAR. 10.
[A.] THE PCR COURT'S DECISION.
POINT V
THE CONVICTIONS SHOULD BE VACATED DUE TO THE
FAILURE OF TRIAL COUNSEL TO ENSURE THAT THE
JURORS WERE ABLE TO HEAR THE EVIDENCE ADDUCED
AND FAILURE TO MOVE TO QUESTION THEM AS TO
SUCH (OR TO INQUIRE AS TO THE NEED FOR
READBACKS); U.S. CONST. AMENDS. VI AND XIV;
N.J. CONST. (1947) ART. 1, PAR. 10.
[A.] THE PCR COURT'S DECISION.
POINT VI
THE CONVICTIONS SHOULD BE VACATED DUE TO THE
FAILURE OF COUNSEL TO RAISE AND PROPERLY
LITIGATE (AT TRIAL AND ON APPEAL) THE IMPACT
OF THE PROSECUTOR'S PRESS CONFERENCE RELATED
TO THE DEFENDANT'S MID-TRIAL ARREST ON THE
JURY; U.S. CONST. AMENDS. VI AND XIV; N.J.
CONST. (1947) ART. 1, PAR. 10.
[A.] THE PCR COURT'S DECISION.
7 A-3941-15T4
POINT VII
THE CONVICTIONS SHOULD BE VACATED DUE TO THE
FAILURE OF COUNSEL TO PROPERLY LITIGATE AT
TRIAL AND RAISE ON APPEAL THE ALTERNATE JUROR
SELECTION PROCESS; U.S. CONST. AMENDS. VI AND
XIV; N.J. CONST. (1947) ART. 1, PAR. 10.
[A.] THE PCR COURT'S DECISION.
POINT VIII
THE PCR COURT'S ORDER DENYING DNA TESTING
SHOULD BE REVERSED AND THE COURT SHOULD ORDER
DNA TESTING ON THE BIOLOGICAL EVIDENCE FOUND
UNDER SILVA'S FINGERNAIL TO POSITIVELY
ELMINATE [SIC] [DEFENDANT] AS THE OFFENDER
AND, MORE IMPORTANTLY, TO REVEAL THE IDENTITY
OF THE INDIVIDUAL WHO LEFT THIS HEAD HAIR.
[A.] THE PCR COURT'S DECISION ON THE
DNA MOTION.
[B.] THE CARTER[1] FIRST AND THIRD
PRONGS – THE MATERIALITY OF THE DNA
EVIDENCE[,] WHICH WOULD PROBABLY
CHANGE THE JURY'S VERDICT.
[C.] THE SECOND PRONG OF THE CARTER
TEST (THE EVIDENCE WAS DISCOVERED
SINCE THE TRIAL AND WAS NOT
DISCOVERABLE BY REASONABLE
DILIGENCE).
[D.] THE NUMEROUS DNA EXONERATIONS.
POINT IX
THE BRADY[2] VIOLATION CONCERNING THE HEAD HAIR
MANDATES REVERSAL OF DEFENDANT'S CONVICTIONS.
1
State v. Carter, 85 N.J. 300 (1981).
2
Brady v. Maryland, 373 U.S. 83 (1963).
8 A-3941-15T4
[A.] RECONSTRUCTION OF FACTS
RELATIVE TO THE DNA BRADY VIOLATION.
POINT X
THE PCR COURT MUST BE REVERSED AND DEFENDANT'S
CONVICTIONS VACATED AS THE NUMEROUS INSTANCES
OF PROSECUTORIAL MISCONDUCT, ALONG WITH THE
NUMEROUS LEGAL ERRORS COMMITTED BY COUNSEL AND
THE COURT, DEPRIVED DEFENDANT OF HIS FIFTH,
SIXTH AND FOURTEENTH AMENDMENT DUE PROCESS AND
NEW JERSEY CONSTITUTIONAL RIGHT TO A FAIR
TRIAL U.S. CONST. AMEND. VI AND XIV; N.J.
CONST. ART. 1, PAR. 10.
[A.] THE PCR COURT'S DECISION.
Defendant raises the following arguments in his supplemental
pro se brief:
POINT I
THE CONVICTIONS SHOULD BE VACATED DUE TO THE
FAILURE OF COUNSEL TO CONDUCT A PRE-TRIAL
INVESTIGATION AND FAILURE TO RETAIN A PRIVATE
INVESTIGATOR DESPITE DEFENDANT'S REQUESTS;
U.S. CONST. AMENDS. VI AND XIV; N.J. CONST.
(1947) ART. I, PAR. 10.
[A.] THE PCR COURT'S DECISION.
POINT II
THE CONVICTIONS SHOULD BE VACATED DUE TO THE
FAILURE OF COUNSEL TO DEVELOP THE ALLEGED
CRIME SCENE AND FAILURE TO MOVE THE COURT,
DESPITE THE DEFENDANT'S REPEATED REQUESTS, TO
BRING THE JURY TO THE CIBELLI HOME IN
VIOLATION OF THE SIXTH AMENDMENT AND DUE
PROCESS CLAUSE; U.S. CONST. AMENDS. VI AND
XIV; N.J. CONST. (1947) ART. I, PAR. 10.
[A.] THE PCR COURT'S DECISION.
9 A-3941-15T4
POINT III
THE CONVICTIONS SHOULD BE VACATED DUE TO: I)
THE FAILURE OF COUNSEL TO SUBJECT THE STATE'S
ALLEGED TIME-OF-DEATH (T.O.D.) OF THE VICTIM
TO ANY MEANINGFUL ADVERSARIAL TESTING AND II)
THE FAILURE TO EFFECTIVELY UTILIZE RETAINED
PATHOLOGIST DR. RICHARD CALLERY TO REFUTE THE
STATE'S T.O.D. IN VIOLATION OF THE SIXTH
AMENDMENT AND DUE PROCESS CLAUSE; U.S. CONST.
AMENDS. VI AND XIV; N.J. CONST. (1947) ART.
I, PAR. 10.
[A.] THE FAILURE TO SUBJECT THE
STATE'S T.O.D. TO ADVERSARIAL
TESTING.
[B.] THE FAILURE TO EFFECTIVELY
UTILIZE DR. CALLERY.
[C.] THE PCR COURT'S DECISION.
POINT IV
PROSECUTORIAL MISCONDUCT WARRANTS VACATION OF
DEFENDANT'S CONVICTIONS DUE TO THE STATE'S
SUMMATION IN THE FIRST CIBELLI TRIAL WHICH
CONTRIBUTED TO THE REVERSAL OF DEFENDANT'S
CONVICTIONS IN VIOLATION OF UNITED STATES
CONSTITUTIONAL AMENDMENTS SIX AND FOURTEEN AND
ARTICLE I, PARAGRAPH 10 OF THE NEW JERSEY
CONSTITUTION.
[A.] THE PCR COURT'S DECISION.
[B.] THE LAW REGARDING
PROCEDUTORIAL [SIC] MISCONDUCT.
POINT V
PROSECUTORIAL MISCONDUCT WARRANTS VACATION OF
DEFENDANT'S CONVICTIONS DUE TO THE FAILURE TO
PROVIDE FULL AND PROPER DISCOVERY (THE
UNDISCLOSED THIRD-PARTY OPINION OF DR. LES
MCCURDY AS TO MTDNA RESULTS); U.S. CONST.
10 A-3941-15T4
AMENDS. VI, XIV; N.J. CONST. (1947), ART. 1,
PAR. 10.
[A.] THE PCR COURT'S DECISION.
POINT VI
PROSECUTORIAL MISCONDUCT WARRANTS A VACATION
OF DEFENDANT'S CONVICTIONS DUE TO THE FAILURE
BY THE STATE TO PROVIDE AN UPDATED EXPERT
WITNESS LIST; U.S. CONST. AMENDS. VI, XIV;
N.J. CONST. (1947), ART. 1, PAR. 10.
POINT VII
PROSECUTORIAL MISCONDUCT WARRANTS VACATION OF
DEFENDANT'S CONVICTIONS DUE TO THE FAILURE TO
PROVIDE A PROPER CHAIN OF CUSTODY AS TO THE
PUBIC HAIR; U.S. CONST. AMENDS. VI, XIV; N.J.
CONST. (1947), ART. 1, PAR. 10.
[A.] THE PCR COURT'S DECISION.
POINT VIII
PROSECUTORIAL MISCONDUCT WARRANTS VACATION OF
DEFENDANT'S CONVICTIONS DUE TO THE
PROSECUTOR'S REPORTING TO THE MEDIA OF THE
DEFENDANT'S MIDTRIAL ARREST; U.S. CONST.
AMENDS. VI, XIV; N.J. CONST. (1947), ART. 1,
PAR. 10.
[A.] THE PCR COURT'S RULING.
POINT IX
PROSECUTORIAL MISCONDUCT MANDATES VACATION OF
DEFENDANT'S CONVICTIONS DUE TO THE STATE'S
CONCOCTING A NEW LOCATION OF THE CRIME SCENE
FOR THE FIRST TIME DURING THE SECOND TRIAL
SUMMATION; U.S. CONST. AMENDS. V, VI, XIV;
N.J. CONST. (1947), ART. 1, PAR. 10.
[A.] THE PCR COURT'S DECISION.
11 A-3941-15T4
POINT X
PROSECUTORIAL MISCONDUCT WARRANTS VACATION OF
DEFENDANT'S CONVICTIONS DUE TO THE STATE'S
CHANGING THEORIES (ON FIVE OCCASIONS) AS TO
THE CRIME SCENE WHEN THE STATE NEVER
ESTABLISHED A CRIME SCENE; U.S. CONST. AMENDS.
VI, XIV; N.J. CONST. (1947), ART. 1, PAR. 10.
[A.] THE STATE'S FIRST THEORY AS TO
WHERE THE HOMICIDE OCCURRED – (SILVA
ASLEEP ON SOFA IN HER BEDROOM WHEN
STRUCK WITH STAPLER; STAPLER CAUSED
INDENTATION TO CEILING).
[B.] THE STATE'S SECOND THEORY AS TO
WHERE THE HOMICIDE OCCURRED – THE
HALLWAY JUST OUTSIDE SILVA'S
BEDROOM.
[C.] THE STATE'S THIRD THEORY – THE
HOMICIDE OCCURRED ON THE SECOND
FLOOR DECK.
[D.] THE STATE'S FOURTH THEORY – THE
HOMICIDE OCCURRED NOT FAR FROM THE
CIBELLI HOME.
[E.] THE STATE'S FIFTH THEORY – THE
HOMICIDE OCCURRED ON THE SECOND
FLOOR DECK OF THE CIBELLI HOME.
[F.] THE PCR COURT'S DECISION.
POINT XI
PROSECUTORIAL MISCONDUCT WARRANTS VACATION OF
DEFENDANT'S CONVICTIONS DUE TO THE STATE'S
OBTAINING THE INDICTMENT ON A PROVEN FALSE
THEORY; U.S. CONST. AMENDS. V, VI, XIV; N.J.
CONST. (1947), ART. 1, PAR. 10.
[A.] THE PCR COURT'S DECISION.
12 A-3941-15T4
POINT XII
PROSECUTORIAL MISCONDUCT WARRANTS VACATION OF
DEFENDANT'S CONVICTIONS DUE TO THE STATE
PROSECUTING THE CASE WITHOUT JURISDICTION;
U.S. CONST. AMENDS. VI, XIV; N.J. CONST.
(1947), ART. 1, PAR. 10.
[A.] THE PCR COURT'S DECISION.
Defendant raised the following arguments in his reply brief:
POINT I
THE TRIAL COURT ERRED IN DENYING THE
DEFENDANT'S PCR PETITION WITHOUT AN
EVIDENTIARY HEARING.
POINT II
JUDGE MULVIHILL IMPROPERLY DENIED DEFENDANT'S
MOTION FOR POST-CONVICTION DNA TESTING.
Defendant further raises the following arguments in his pro
se supplemental reply brief:
POINT I
THE PCR COURT ERRED BY FAILING TO VACATE
DEFENDANT'S CONVICTIONS OR IN THE ALTERNATIVE
BY DENYING THE DEFENDANT'S PCR PETITION
WITHOUT AN EVIDENTIARY HEARING.
POINT II
THE DEFENDANT SHOULD BE GRANTED A NEW PCR ORAL
ARGUMENT IN A DIFFERENT COUNTY OR, IN THE
ALTERNATIVE, AN EVIDENTIARY HEARING IN A
DIFFERENT COUNTY (NOT RAISED BELOW).
We have considered defendant's arguments in light of the
record and the applicable legal principles and conclude they are
13 A-3941-15T4
without sufficient merit to warrant extended discussion in a
written opinion. R. 2:22-3(e)(2). We affirm substantially for
the reasons set forth in the comprehensive, well-reasoned written
opinion of Judge Mulvihill. We add only the following.
I.
We commence with the judge's determination that some of
defendant's claims were procedurally barred. The judge held that
some of defendant's claims were barred per Rule 3:22-4 or Rule
3:22-5 as they either were substantially similar to the issues
previously raised on appeal in Cibelli II or could have been raised
on direct appeal.
"[A] prior adjudication on the merits ordinarily constitutes
a procedural bar to the reassertion of the same ground as a basis
for post-conviction review." State v. Preciose, 129 N.J. 451, 476
(1992) (citing R. 3:22-5). Additionally, a defendant is precluded
from raising an issue on PCR that could have been raised on direct
appeal. State v. McQuaid, 147 N.J. 464, 483 (1997). As explained
by our Supreme Court in McQuaid:
A defendant ordinarily must pursue relief
by direct appeal, see [Rule] 3:22-3, and may
not use post-conviction relief to assert a new
claim that could have been raised on direct
appeal. See R. 3:22-4. Additionally, a
defendant may not use a petition for post-
conviction relief as an opportunity to
relitigate a claim already decided on the
merits. See R. 3:22-5.
14 A-3941-15T4
[Ibid.]
The application of these standards requires the "[p]reclusion
of consideration of an argument presented in post-conviction
relief proceedings . . . if the issue raised is identical or
substantially equivalent to that adjudicated previously on direct
appeal." State v. Marshall, 173 N.J. 343, 351 (2002) (quoting
State v. Marshall, 148 N.J. 89, 150 (1997)). A PCR claim is based
upon the "same ground" as a claim already raised by direct appeal
when "'the issue is identical or substantially equivalent' to
[the] issue previously adjudicated on its merits." McQuaid, 147
N.J. at 484 (quoting Picard v. Connor, 404 U.S. 270, 276-77
(1971)). However, a procedural rule otherwise barring post-
conviction relief may be overlooked to avoid a fundamental
injustice where the deficient representation of counsel affected
"a determination of guilt or otherwise wrought a miscarriage of
justice." State v. Nash, 212 N.J. 518, 546 (2013) (quoting State
v. Mitchell, 126 N.J. 565, 587 (1992)).
Defendant raised the argument regarding the jury selection
process on the second direct appeal. In our decision, we noted:
We are troubled by the ad hoc method of
accumulating jurors used here. Jurors are
administratively excused based on physical or
medical incapacity, prior criminal
conviction, age or inability to read or
understand English. See N.J.S.A. 2B:20-1.
They may also defer service or seek a hardship
15 A-3941-15T4
excuse. N.J.S.A. 2B:20-10(c). We are unaware
of any precedent, however, for asking jurors
to volunteer for service on a murder trial at
a later date. Such a process could skew the
jury pool by obtaining a disproportionate
number of retired people, people who are paid
by their employer to serve on jury duty, or
people eager to serve on a murder case.
Whether these categories of jurors are
inclined to favor the defense or the State is
unknown. But a pool should be a random
selection of eligible jurors. N.J.S.A. 2B:20-
2. Arguably, this process might interfere
with that random selection. Defendant cannot
demonstrate, however, that he was prejudiced
in any way by this unorthodox method of pre-
screening and therefore we do not order a
third trial.
[Cibelli II, slip op. at 20-21.]
In comparing the arguments raised by defendant on direct appeal,
the judge found "that the three arguments utilize diverse language,
but focus on the same underlying substantive issue[.]" As such,
Rule 3:22-5 barred the argument on the PCR.
II.
Although defendant's petition includes claims that were
procedurally barred, we briefly discuss defendant's claims of
ineffective assistance of trial and appellate counsel.
Defendant argues he received ineffective assistance of trial
and appellate counsel for various reasons, including their failure
to raise the issue of a sleeping juror; to raise the issue of
juror number two's dismissal; to ensure all jurors could hear the
16 A-3941-15T4
proceedings; to raise the issue of the prosecutor's press
conference; and to raise the issue of the alternate juror selection
process. In his supplemental pro se brief, defendant also argues
he received ineffective assistance due to the failure of trial
counsel to properly investigate; to develop the alleged crime
scene; and to challenge the State's time-of-death theory.
We recite those legal precepts that inform our review. "Post-
conviction relief is New Jersey's analogue to the federal writ of
habeas corpus." Preciose, 129 N.J. at 459. Under 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
or the Constitution or laws of the State of New Jersey[.]" "A
petitioner must establish the right to such relief 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. Mitchell, 126 N.J. at 579.
Claims of constitutionally ineffective assistance of counsel
are well suited for post-conviction review. See R. 3:22-4(a)(2);
Preciose, 129 N.J. at 460. In determining whether a defendant is
entitled to relief on the basis of ineffective assistance of
counsel, New Jersey courts apply the two-prong test articulated
17 A-3941-15T4
by the United States Supreme Court in Strickland v. Washington,
466 U.S. 668, 687 (1984), and United States v. Cronic, 466 U.S.
648, 658-60 (1984). Preciose, 129 N.J. at 463; see State v. Fritz,
105 N.J. 42, 49-50 (1987).
Under the first prong of the Strickland test, a "defendant
must show that [defense] counsel's performance was deficient."
466 U.S. at 687. Under the second prong, a defendant must
demonstrate "a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would have
been different." Id. at 694.
In representing a defendant in a criminal matter, a trial
attorney "has a duty to make reasonable investigations or to make
a reasonable decision that makes particular investigations
unnecessary." State v. Porter, 216 N.J. 343, 353
(2013) (quoting State v. Chew, 179 N.J. 186, 217 (2004)). To
support a claim of ineffective assistance of counsel based on an
alleged failure to investigate, a defendant "must do more than
make bald assertions . . . ." Id. at 355 (quoting State v.
Cummings, 321 N.J. Super. 154, 170 (App. Div. 1999)). The
defendant must "assert the facts that an investigation would have
revealed, supported by affidavits or certifications based upon the
personal knowledge of the affiant or the person making the
18 A-3941-15T4
certification." Id. at 353 (quoting Cummings, 321 N.J. Super. at
170).
Here, as the judge held, and we agree, defendant's bald
unsupported allegations of ineffective assistance are wholly
without merit.
III.
The judge also held that appellate counsel's performance did
not fall below an objective standard of reasonableness.
[R]easonable appellate counsel might have
focused on the [arguments raised on direct
appeal] and ignored other potentially valid
arguments, such as those that [defendant]
identifies in the instant PCR, because he or
she believed that the selected arguments had
a higher likelihood of success. A review of
the Appellate Division's 2013 opinion affirms
this finding[.]
Although defendant is entitled to the effective assistance
of appellate counsel, "appellate counsel does not have a
constitutional duty to raise every non[-]frivolous issue requested
by the defendant." State v. Morrison, 215 N.J. Super. 540, 549
(App. Div. 1987) (citing Jones v. Barnes, 463 U.S. 745, 754
(1983)); see also State v. Gaither, 396 N.J. Super. 508, 516 (App.
Div. 2007) (holding that appellate counsel is not "required to
advance every claim insisted upon by a client on appeal.").
Upon consideration of the record, we conclude that defendant
has failed to demonstrate that appellate counsel's representation
19 A-3941-15T4
"fell below an objective standard of reasonableness," Strickland,
466 U.S. at 687-88, and that but for appellate counsel's failure
to raise that argument on direct appeal the outcome of his appeal
of his conviction would have been different. State v. Allegro,
193 N.J. 352, 367 (2008). Because defendant failed to establish
both prongs of the Strickland standard, the judge properly rejected
defendant's claim that his appellate counsel was constitutionally
ineffective. See Strickland, 466 U.S. at 700.
In numerous opinions addressing the standard for effective
assistance of counsel, the courts have held that effective
representation is not synonymous with errorless
representation. Both trial and appellate counsel may make
decisions in the lens of hindsight that were debatable or even
erroneous. For any error by counsel to be constitutionally
significant, it must undermine the fundamental fairness of the
proceeding. Strickland, 466 U.S. at 693. The competency standard
enunciated by Strickland is both broad and flexible. Ibid. The
proper test is whether counsel's advice and decisions were within
the range of competence required of attorneys in criminal cases.
While criminal attorneys are expected to fulfill their duty of
competent representation, a conviction should not be overturned
unless there was a breach of that duty that mattered.
20 A-3941-15T4
IV.
We next address defendant's motion for post-conviction
testing. Defendant argues the head hair found under Silva's broken
left-hand fingernail should be DNA tested. Defendant argues that
a favorable result would provide the basis for a new trial. We
disagree.
In his analysis, the judge noted there were ample biological
samples taken from Silva's body that were analyzed. The judge
stated that "[n]one of the[] experts testified that they could
link the biological samples to [defendant] with a reasonable degree
of medical certainty." This included the head hair defendant
argues should have been tested. The judge provided that
"[c]learly, the jury knew that a microscopic analysis of the
disputed head hair failed to identify [defendant] or Ms. Silva as
the hair's source and the jury knew that no nuclear DNA evidence
identified him as Ms. Silva's killer." As such, the judge
concluded that "even if the requested DNA testing demonstrated
that the head hair came from a third-party, such results would be
redundant." Thus, the judge denied defendant's request to have
the head hair tested for DNA, finding the testing would produce
"repetitive and insignificant" evidence, thus failing to satisfy
the requirements set forth in N.J.S.A. 2A:84A-32a(d)(1)-(8).
21 A-3941-15T4
N.J.S.A. 2A:84A-32a "permits '[a]ny person who was convicted
of a crime and is currently serving a term of imprisonment' to
make a motion for DNA testing." State v. Hogue, 175 N.J. 578, 584
(2003) (alteration in original) (quoting N.J.S.A. 2A:84A-32a(a)).
However, the court "shall not grant the motion for DNA testing
unless" the defendant has established eight requirements. Under
N.J.S.A. 2A:84A-32a(d), the eight requirements are that:
(1) the evidence to be tested is available and
in a condition that would permit the DNA
testing that is requested in the motion;
(2) the evidence to be tested has been subject
to a chain of custody sufficient to establish
it has not been substituted, tampered with,
replaced or altered in any material aspect;
(3) the identity of the defendant was a
significant issue in the case;
(4) the eligible person has made a prima facie
showing that the evidence sought to be tested
is material to the issue of the eligible
person's identity as the offender;
(5) the requested DNA testing result would
raise a reasonable probability that if the
results were favorable to the defendant, a
motion for a new trial based upon newly
discovered evidence would be granted. The
court in its discretion may consider any
evidence whether or not it was introduced at
trial;
(6) the evidence sought to be tested meets
either of the following conditions: (a) it was
not tested previously; (b) it was tested
previously, but the requested DNA test would
provide results that are reasonably more
22 A-3941-15T4
discriminating and probative of the identity
of the offender or have a reasonable
probability of contradicting prior test
results;
(7) the testing requested employs a method
generally accepted within the relevant
scientific community; and
(8) the motion is not made solely for the
purpose of delay.
One of the key requirements to be satisfied is whether there
is a "reasonable probability" that a motion for a new trial would
be granted if the DNA results proved favorable to the defendant.
N.J.S.A. 2A:84A-32a(d)(5); State v. Armour, 446 N.J. Super. 295,
311-12 (App. Div. 2016). It is well-settled that to obtain a new
trial based on newly-discovered evidence, the defendant must
establish the new "evidence is 1) material, and not 'merely'
cumulative, impeaching, or contradictory; 2) that the evidence was
discovered after completion of the trial and was 'not discoverable
by reasonable diligence beforehand'; and 3) that the evidence
'would probably change the jury's verdict if a new trial [was]
granted.'" State v. Ways, 180 N.J. 171, 187 (2004)
(quoting Carter, 85 N.J. at 314).
Here, there was substantial evidence of defendant's guilt
introduced at trial. In Cibelli II, slip op. at 13-14, we noted,
"[T]he State presented sufficient evidence to allow a jury to
find, beyond a reasonable doubt, that defendant killed Silva."
23 A-3941-15T4
Given the proposed new evidence's cumulative nature, we are
satisfied that the jury's verdict would not be altered. During
trial, the jury heard testimony that the head hair was neither
from defendant nor from Silva — yet that testimony was not
sufficient to produce a reasonable doubt in the jurors' minds.
Finally, even if resubmitting the hair for further testing
produced a favorable result, it would not constitute grounds for
a new trial as, standing alone, it would neither exculpate
defendant nor inculpate another person. Therefore, as in Armour,
446 N.J. Super. at 314-15, we conclude that defendant failed to
satisfy the factors set forth in N.J.S.A. 2A:84A-32a(d) and the
test in Carter, 85 N.J. at 314.
Affirmed.
24 A-3941-15T4