STATE OF NEW JERSEY v. DWAYNE E. DRICKETTS (10-04-0439, UNION COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3354-20
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
DWAYNE E. DRICKETTS, 1
Defendant-Appellant.
_______________________
Submitted September 14, 2022 – Decided October 18, 2022
Before Judges Haas and Gooden Brown.
On appeal from the Superior Court of New Jersey, Law
Division, Union County, Indictment No. 10-04-0439.
Joseph E. Krakora, Public Defender, attorney for
appellant (Steven M. Gilson, Designated Counsel, on
the brief).
Matthew J. Platkin, Acting Attorney General, attorney
for respondent (Debra G. Simms, Deputy Attorney
General, of counsel and on the brief).
1
Referenced in the record also as Dwayne Erick Dricketts and a/k/a "Pimp."
PER CURIAM
Defendant appeals from a June 9, 2021 Law Division order denying his
petition for post-conviction relief (PCR) without an evidentiary hearing. We
affirm.
I.
Tried separately to a jury from his codefendant, Tyrell Jackson, defendant
was convicted of first-degree murder, N.J.S.A. 2C:11-3(a)(1) or (2); second-
degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a);
and third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(a). On
January 4, 2013, defendant was sentenced to an aggregate forty-five-year term
of imprisonment with an eighty-five percent period of parole ineligibility
pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.
In an unpublished opinion, we affirmed defendant's convictions, but
remanded for resentencing to allow the sentencing court to "engage in a
qualitative analysis of the aggravating and mitigating factors" and to "address "
defendant's contention that the possession of a weapon for an unlawful purpose
conviction should have merged into the murder conviction. State v. Dricketts,
A-3354-20
2
No. A-3677-13 (App. Div. Apr. 18, 2018) (slip op. at 37). Our Supreme Court
denied certification. State v. Dricketts, 236 N.J. 20, 21 (2018).2
We incorporate by reference the detailed recitation of the facts contained
in our unpublished opinion. To summarize,
[t]he charges against defendant and Jackson stemmed
from the shooting death of Dana Reid on May 9, 2005.
The State presented evidence at trial that defendant and
Jackson were engaged in a drug dealing operation
headed by defendant, Jackson was defendant's close
friend and the drug operation's "enforcer," defendant
ordered Jackson to kill Reid after Reid failed to pay for
drugs defendant gave him to sell, and Jackson shot and
killed Reid. Witnesses heard defendant threaten to
shoot Reid, and a witness identified Jackson as the
person who shot him.
[Dricketts, slip op. at 2.]
The eyewitness to the shooting was Reid's girlfriend. Id., slip op. at 3.
She testified at trial that at approximately 12:30 a.m. on May 9, 2005, Reid was
gunned down by Jackson while they were "walking down Madison Avenue in
Elizabeth." Id., slip op. at 4. At the time, she and several of the State's witnesses
stayed at "a house in Elizabeth called the 'Honeycomb' or 'the Honeycomb
2
Codefendant Jackson was convicted of the same offenses. His convictions
were also affirmed on direct appeal and our Supreme Court denied certification.
State v. Jackson, No. A-2372-11 (App. Div. Sept. 12, 2016), certif. denied, 230
N.J. 556 (2017). Jackson is not a participant in this appeal.
A-3354-20
3
Hideout' because 'it was a hideout for drug dealing'" and a haven for drug users
and prostitutes. Ibid. Defendant and several others sold drugs out of the
Honeycomb, and witnesses testified that the drug exchange with defendant that
led to Reid being killed occurred at the Honeycomb. Id., slip op. at 5-6, 12.
At trial, one of the drug dealers from the Honeycomb testified that, at the
time of the shooting, he saw defendant and Jackson in the area "running," and
they "seemed nervous." Id., slip op. at 11. "A few weeks later, he asked
defendant why he and Jackson were running, and defendant said 'that the y got
at [Reid]' and Jackson had killed him." Id., slip op. at 11 (alteration in original).
In contrast, defendant testified on his own behalf and denied that either he or
Jackson had killed Reid. Although defendant acknowledged giving Reid "five
bottles" of cocaine in early March 2005, defendant explained that it was
compensation for Reid serving as "a lookout for [him]." Defendant also denied
threatening Reid or giving Reid "anything for him to owe [defendant] any
money." Defendant asserted that Reid was shot by another drug dealer by the
name of M.Q.M., a/k/a "Q." 3
3
We use initials to identify the witnesses involved in this matter to protect their
identity.
A-3354-20
4
However, earlier in the trial, Q had testified for the State and had denied
shooting Reid. Q admitted selling drugs to Reid but denied having any
"problems with [Reid]," or being "rip[ped] . . . off" by Reid. Q also
acknowledged being in the area on his way to purchase a sandwich just before
Reid was shot but testified that the shooting had already occurred when he
returned from the sandwich shop. Reid's girlfriend confirmed seeing Q just
before the shooting but denied Q's involvement in the shooting.
On February 12, 2013, approximately five weeks after defendant was
sentenced, a supervising assistant prosecutor provided defense counsel with
discoverable materials that had not been previously disclosed. In an
accompanying letter, the prosecutor stated that a "DVD-recorded interview of
[H.P.] by Elizabeth Police Department (EPD) Detective Thomas Dubeau was
inadvertently overlooked and was not turned over to [defendant] as part of . . .
discovery." The prosecutor explained that "[a]lthough the interview contain[ed]
solely inadmissible hearsay information," he was "of the opinion that the DVD
should still have been released . . . in discovery."
The prosecutor expounded that "[u]pon learning that a copy of th[e]
interview was not given to [defendant]," he "had the circumstances surrounding
the discovery of the DVD memorialized." Additionally, "after watching the
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interview of [H.P.], [he] ordered [Union County Prosecutor's Office (UCPO)
investigators] . . . to conduct a recorded interview of [P.L.], a potential witness
identified by [H.P.], who was apparently never interviewed by EPD Detective
Dubeau." The prosecutor also forwarded to defense counsel "a DVD copy of
that interview," which was conducted on February 7, 2013, "along with the
corresponding [i]nvestigation [r]eport."
H.P.'s interview with Dubeau was conducted on April 28, 2006, at the
Essex County Prosecutor's Office. Dubeau told H.P. he was being questioned
because "two names [were] being thrown around" in connection with Reid's
killing – "[ H.P.'s] name and Q's name." In response, H.P. stated he was "locked
up" at the time but his girlfriend, D.B., and her mother, P.L., had told him that
"Q" had killed Reid. According to H.P., P.L. had told him that "she [had] seen
[Q] ditch the gun in the sewer." H.P. also said he had heard that Reid "was going
around beating people [for drugs,]" that Reid could have ripped off Q, and that
Reid's girlfriend and Q had "set [Reid] up."
H.P. agreed to call P.L. from the interview room to confirm his account.
During the call, although P.L. denied knowing anything about "a gun" in
connection with the shooting, she stated "[t]hat gun is gone." H.P. also called
A-3354-20
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D.B., who told him she only knew what she had heard and did not have any
personal knowledge about the shooting.
During P.L.'s February 7, 2013 interview with UCPO investigators, P.L.
stated she "didn't see anything" and everything she knew about Reid's shooting
she had heard from "other people talking in the building." She said that although
she had been "clean [for] six years," "back then," she "drank and did drugs" and
"was kind of in a fog." As a result, she could not even recall who had told her
about the incident.
Based on this post-sentencing disclosure, in March 2019, defendant filed
a PCR petition asserting, among other things, that he was entitled to a new trial
because the State failed to disclose exculpatory evidence in violation of Brady
v. Maryland, 373 U.S. 83, 87 (1963), holding that "the suppression by the
prosecution of evidence favorable to an accused . . . violates due process where
the evidence is material either to guilt or to punishment[.]" Defendant also
asserted that he received ineffective assistance of counsel (IAC) because trial
counsel did not move for a new trial based on the prosecutor's failure to disclose
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evidence that was material and favorable to defendant in violation of both Rule
3:13-3 and the due process protections in the state and federal constitutions. 4
In support, defendant submitted a December 26, 2013 certification
prepared by trial counsel in connection with defendant's motion to file his direct
appeal as within time. In the certification, counsel stated defendant's appeal was
delayed because "after sentencing, the State disclosed exculpatory evidence
which needed further investigation." According to counsel, the exculpatory
evidence "was consistent with the third-party guilt theory of the defense."
Counsel explained that:
Initially [he] intended to briefly delay the
transmittal of appeal until after a motion for a [n]ew
[t]rial based on newly-discovered evidence pursuant to
[Rule] 3:20-2 was decided by the trial court. However,
the investigation of the matter has proven to be more
complex and time consuming than expected.
Therefore, so to not cause any further delay of
[defendant's] appeal, counsel is submitting this appeal
while concurrently continuing the investigation to
support a motion for a [n]ew [t]rial.
4
Defendant's March 2019 petition was initially dismissed as "untimely" because
it was filed "over six years" after the entry of the judgment of conviction , and
defendant did not allege any "facts showing that [the] delay was due to excusable
neglect." Defendant filed a motion for reconsideration, which was granted by
the PCR judge because defendant "made a sufficient showing of excusable
neglect" to "permit th[e c]ourt to relax" the procedural bar. See R. 3:22-12(a)(1).
A-3354-20
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However, counsel never filed a motion for a new trial based on newly discovered
evidence or any other ground.
The PCR judge conducted oral argument on May 20, 2021. Following
oral argument, the judge entered an order on June 9, 2021, denying defendant's
PCR petition. In an oral opinion of the same date, the judge first addressed
whether a Brady violation had occurred as asserted by defendant. In that regard,
the judge acknowledged that the analysis was governed by the standard set forth
in State v. Russo, 333 N.J. Super. 119 (App. Div. 2000), where this court stated
that "[i]n order to establish a Brady violation, defendant must show that: (1) the
prosecution suppressed evidence; (2) the evidence is favorable to the defense;
and (3) the evidence is material." Russo, 333 N.J. Super. at 134.
Applying these principles, the judge found "the information withheld from
the defense . . . was not material as there was not a reasonable probability that
the result of the proceeding would have been different had the information been
disclosed to the defense prior to trial." In support, the judge reasoned that
"[H.P.] and [P.L.] . . . did not present any new helpful information that could
have changed the outcome of the case had they been able to testify" because
neither H.P. nor P.L. "had firsthand knowledge of the murder and only knew
what they had heard from other unidentified people," or, in H.P.'s case, "what
A-3354-20
9
he had heard from . . . [P.L.]." Therefore, "any testimony that they could have
presented . . . would have been hearsay."
Additionally, according to the judge, Reid's girlfriend "herself testified at
trial and confirmed with 100 percent certainty that the individual she saw was
[codefendant] Jackson and not Q." Further, "[a] review of the record reveals
trial counsel thoroughly cross-examined Q during which Q was confronted with
prior inconsistent statements." The judge pointed out that "[t]rial counsel
directly accused Q of being involved in the shooting . . . which Q repeatedly
denied." Additionally, other witnesses "testified that the victim owed a debt to
. . . defendant, . . . defendant was looking for the victim threatening to . . . pop
him, and that [codefendant] Jackson worked for . . . defendant as an enforcer."
One witness in particular "testified that he saw . . . defendant and Jackson
running from the direction of where the shooting occurred during the early hours
of May 9[], 2005 and that defendant later told him that they . . . 'got at' . . . the
victim" and that "Jackson killed . . . Reid."
Turning to defendant's contention that trial counsel was ineffective by
failing to file a motion for a new trial based on newly discovered evidence, the
judge determined defendant failed to meet his burden to show that counsel's
performance fell below the objective standard of reasonableness set forth in
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Strickland v. Washington, 466 U.S. 668, 687 (1984), and adopted by our
Supreme Court in State v. Fritz, 105 N.J. 42, 49-58 (1987). Further, the judge
found defendant failed to show that the outcome would have been different
without the purported deficient performance as required under the second prong
of the Strickland/Fritz test.
The judge posited that "even if th[e] court were to find" deficient
performance, defendant "failed to demonstrate a reasonable probability that said
motion would have been granted and the result of the proceeding would have
been different" based on the nature of "the alleged new evidence" and "the
overwhelming evidence of . . . defendant's guilt." In evaluating whether such a
motion would have been granted, the judge relied on the standard outlined in
State v. Carter, 85 N.J. 300 (1981), where our Supreme Court stated:
[T]o qualify as newly discovered evidence entitling a
party to a new trial, the new evidence must be (1)
material to the issue and not merely cumulative or
impeaching or contradictory; (2) discovered since the
trial and not discoverable by reasonable diligence
beforehand; and (3) of the sort that would probably
change the jury's verdict if a new trial were granted.
[Id. at 314.]
In concluding that defendant failed to meet the Carter test, the judge
stated:
A-3354-20
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All three prongs must be satisfied in order for a
new trial to be warranted. Here the only prong
defendant . . . is able to satisfy is [p]rong [two] that the
evidence was discovered at the completion of trial and
was not discoverable by reasonable diligence
beforehand. The defendant cannot satisfy [p]rong [one]
as the statement of . . . [H.P.] is not material to his case.
At most it can only be considered a somewhat
contradictory [statement], if admissible at all, due to a
lack of firsthand knowledge [by] . . . [H.P.].
. . . [D]efendant cannot satisfy [p]rong [three] of
the C[arter] test either because the jury was presented
with evidence of third[-]party guilt and they . . . rejected
that theory.
All . . . [H.P.'s] statement could have provided to
the defense was an indication that someone else . . . had
information that would've contradicted [Reid's
girlfriend's] testimony at trial that Jackson was the
shooter.
Additionally, the judge pointed out that the statement obtained from P.L.
showed "that the only thing she heard" was through unidentified persons. In
contrast, the judge explained that the State presented "overwhelming evidence
of . . . defendant's guilt at trial." Notably,
[Reid's girlfriend's] testimony . . . was effectively
attacked by trial counsel during the trial and the jury
still chose to convict . . . defendant. As such . . .
defendant has failed to show that he suffered prejudice
as a result of . . . trial counsel failing to make such an
argument.
A-3354-20
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After applying the governing principles, the judge also concluded that
"viewing the facts alleged in the light most favorable to . . . defendant,"
defendant was "not entitled to an evidentiary hearing" because he "failed to
make a prima facie showing of [IAC]." This appeal followed.
On appeal, defendant raises the following points for our consideration:
POINT I - DEFENDANT'S CONVICTIONS MUST
BE REVERSED BECAUSE THE STATE WITHHELD
EXCULPATORY EVIDENCE.
POINT II - THIS MATTER MUST BE REMANDED
FOR AN EVIDENTIARY HEARING BECAUSE
DEFENDANT ESTABLISHED A PRIMA FACIE
CASE OF TRIAL COUNSEL'S INEFFECTIVENESS
FOR FAILING TO PURSUE A MOTION FOR A NEW
TRIAL BASED ON NEWLY DISCOVERED
EVIDENCE.
II.
In Point I, defendant argues his convictions should be reversed because
"the very specter of Q's guilt compounded by defendant[] being deprived of
pursuing a comprehensive third-party [guilt] defense – predicated upon [H.P.'s]
information having been withheld from defendant – constituted a Brady
violation." He asserts that "[i]rrespective of [H.P.'s] information as to Q having
killed [Reid] constituting hearsay, a Brady violation did exist," especially when
A-3354-20
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the State's key witnesses "had substantial criminal backgrounds which seriously
impacted their credibility."
The suppression by the prosecution of evidence favorable to a defendant
is a violation of due process "where the evidence is material either to guilt or to
punishment, irrespective of the good faith or bad faith of the prosecution."
Brady, 373 U.S. at 87. As previously stated, three elements must be considered
when deciding whether a Brady violation has occurred: "(1) the evidence at
issue must be favorable to the accused, either as exculpatory or impeachment
evidence; (2) the State must have suppressed the evidence, either purposely or
inadvertently; and (3) the evidence must be material to the defendant's case."
State v. Brown, 236 N.J. 497, 518 (2019).
Here, it is clear H.P.'s statement contained evidence favorable to the
defense and the State conceded it inadvertently failed to disclose the evidence,
satisfying the first two elements of a Brady violation. Evidence is favorable to
the accused where it simply bolsters a defendant's claims. State v. Nelson, 155
N.J. 487, 497 (1998). Further, "the Brady disclosure rule applies . . . to
information of which the prosecution is actually or constructively aware," and
knowledge, for Brady purposes, may be imputed from police to prosecutor.
Nelson, 155 N.J. at 497-500; see id. at 519 (Handler, J., concurring in part and
A-3354-20
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dissenting in part) (collecting cases); see also State v. Mustaro, 411 N.J. Super.
91, 102 (App. Div. 2009) (imputing police officer's knowledge of a videotape
of defendant's arrest to the prosecutor).
As to the third element:
The materiality standard is satisfied if defendant
demonstrates that there is a reasonable probability that
had the evidence been disclosed to the defense, the
result of the proceeding would have been different.
Stated another way, the question is whether in the
absence of the undisclosed evidence . . . the defendant
receive[d] a fair trial[,] which is understood as a trial
resulting in a verdict worthy of confidence. If the
undisclosed evidence was merely cumulative or
repetitious as to the purpose for which it could have
been used, the conviction should not be set aside.
[Russo, 333 N.J. Super. at 134 (citations omitted).]
To determine "whether there is a reasonable probability that the result of
defendant's trial would have been different had the suppressed evidence been
disclosed," we must consider the evidence suppressed as a whole and not "view
in isolation the impact of each discrete item withheld." Id. at 135. Indeed, the
potential effect of the withheld information must be considered "in the context
of the entire record," State v. Marshall, 123 N.J. 1, 199-200 (1991), with
attention to "the strength of the State's case, the timing of disclosure of the
withheld evidence, the relevance of the suppressed evidence, and the withheld
A-3354-20
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evidence's admissibility." Brown, 236 N.J. at 519. Because "the issue of
materiality is a mixed question of law and fact," the trial judge's "conclusion
regarding whether defendant sustained his burden of proof is not entitled to the
same deference as his factual findings." Russo, 333 N.J. Super. at 135.
Applying these principles, we find no error in the PCR judge's
determination that H.P.'s statement was not material. The statement itself and
any testimony H.P. could potentially have given would not have been
admissible. H.P. only reported to police things he had heard from others. He
had no personal knowledge about the shooting or about any alleged gun disposal
by Q. Thus, his testimony would have been inadmissible hearsay. Further, in
her statement, P.L. did not corroborate H.P.'s account that she had seen Q drop
a gun down a sewer. Instead, like H.P., P.L. only reported things she had heard
from others and had no personal knowledge about the shooting.
Although P.L. told H.P. during their telephone conversation "that gun is
gone," under the circumstances, that comment would not have created a
reasonable doubt as to defendant's guilt given P.L.'s admission of impaired
memory from extensive drug and alcohol use, Q's trial testimony denying any
involvement in the killing, and Reid's girlfriend's eyewitness identification of
the shooter. See Kyles v. Whitley, 514 U.S. 419, 434-35 (1995) (explaining that
A-3354-20
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a "reasonable probability" of a different result is shown when the undisclosed,
favorable evidence "could reasonably be taken to put the whole case in such a
different light as to undermine confidence in the verdict" (citing United States
v. Bagley, 473 U.S. 667, 678, 682 (1985))); United States v. Agurs, 427 U.S.
97, 112 (1976) ("[I]f the omitted evidence creates a reasonable doubt that did
not otherwise exist, constitutional error has been committed."). Here, there was
no Brady violation warranting a new trial.
In Point II, defendant asserts the case should be remanded for an
evidentiary hearing because he demonstrated that trial counsel was ineffective
by failing to "pursu[e] a motion for a new trial based on newly discovered
evidence (specifically, [H.P.'s] statement)." In support, defendant relies on trial
counsel's certification that the filing of defendant's appeal was delayed in order
to file the motion but points out that the motion was never filed.
"We review the legal conclusions of a PCR judge de novo," State v.
Reevey, 417 N.J. Super. 134, 146 (App. Div. 2010), but "we review under the
abuse of discretion standard the PCR court's determination to proc eed without
an evidentiary hearing." State v. Brewster, 429 N.J. Super. 387, 401 (App. Div.
2013). Rule 3:22-10(b) provides that a defendant is entitled to an evidentiary
hearing only if: (1) the defendant establishes a prima facie PCR claim; (2) "there
A-3354-20
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are material issues of disputed fact that cannot be resolved by reference to the
existing record"; and (3) "an evidentiary hearing is necessary to resolve the
claims for relief." Indeed, "[i]f the court perceives that holding an evidentiary
hearing will not aid the court's analysis of whether the defendant is entitled to
post-conviction relief, . . . then an evidentiary hearing need not be granted."
Brewster, 429 N.J. Super. at 401 (second alteration in original) (quoting State v.
Marshall, 148 N.J. 89, 158 (1997)).
"To establish a prima facie case, defendant must demonstrate a reasonable
likelihood that his or her claim, viewing the facts alleged in the light most
favorable to the defendant, will ultimately succeed on the merits." R. 3:22-
10(b). Moreover, a defendant must make that showing "by a preponderance of
the credible evidence." State v. Echols, 199 N.J. 344, 357 (2009) (citing State
v. Goodwin, 173 N.J. 583, 593 (2002)). In particular, to establish a prima facie
IAC claim, a defendant must demonstrate that: (1) counsel's performance was
deficient; and (2) the deficient performance prejudiced the defense. Strickland,
466 U.S. at 687; Fritz, 105 N.J. at 58.
When reviewing IAC claims, "[j]udicial scrutiny of counsel's performance
must be highly deferential," and courts "must indulge a strong presumption" that
counsel's performance was reasonable. Strickland, 466 U.S. at 689. If the court
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finds error on counsel's part, "[t]he error committed must be so serious as to
undermine the court's confidence in the jury's verdict or result reached." State
v. Chew, 179 N.J. 186, 204 (2004) (citing Strickland, 466 U.S. at 694). Failure
to meet either prong of the Strickland test results in the denial of a petition for
PCR. State v. Nash, 212 N.J. 518, 542 (2013).
Defendant's ineffectiveness claim is predicated on counsel's failure to
pursue a motion for a new trial based on newly discovered evidence after the
State disclosed H.P.'s interview. As previously stated:
To meet the standard for a new trial based on newly
discovered evidence, [a] defendant must show that the
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 were granted."
[State v. Ways, 180 N.J. 171, 187 (2004) (quoting
Carter, 85 N.J. at 314).]
A defendant must satisfy "all three prongs" of the Carter test to obtain "the relief
of a new trial." Ibid.Focusing on prong three of the Carter test, defendant would not be entitled
to a new trial for the same reason that we determined there was no Brady
violation. Critically, the newly disclosed evidence would not alter the earlier
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verdict in a new trial. Where, as here, a defendant asserts his attorney was
ineffective by failing to file a motion, he must establish that the motion would
have been successful. "It is not ineffective assistance of counsel for defense
counsel not to file a meritless motion . . . ." State v. O'Neal, 190 N.J. 601, 619
(2007). Because a motion for a new trial based on newly discovered evidence
would not have been successful, defendant's IAC claim predicated on trial
counsel's failure to file such a motion must fail. Likewise, we discern no abuse
of discretion in the judge's denial of defendant's PCR claim without conducting
an evidentiary hearing.
Affirmed.
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