NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-3323-23
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
ONDRE H. WEEKES, a/k/a ANDRE WEEKS,
Defendant-Appellant. ________________________
Submitted February 2, 2026 – Decided February 26, 2026
Before Judges Sabatino and Natali.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 16-04-1358.
Jennifer N. Sellitti, Public Defender, attorney for appellant (Louis H. Miron, Designated Counsel, on the brief).
Theodore N. Stephens, II, Essex County Prosecutor, attorney for respondent (Shep A. Gerszberg, Assistant Prosecutor, of counsel and on the brief).
PER CURIAM Defendant Ondre Weekes appeals the trial court's May 3, 2024 order
denying his petition for post-conviction relief ("PCR") after an evidentiary
hearing. We affirm.
We incorporate by reference the facts and procedural history recited in
our October 2021 opinion on direct appeal upholding defendant's convictions
and sentence. State v. Weekes, No. A-2524-18 (App. Div. October 5, 2021).
Briefly stated, defendant was found guilty of armed robbery and weapons
offenses and sentenced to an aggregate ten-year custodial term, subject to parole
ineligibility period mandated by the No Early Release Act, N.J.S.A. 2C:43-7.2.
Those convictions stem from a February 2016 incident when seventeen-
year-old Zafar Cantine was flagged down by defendant while skateboarding to
a friend's house. Defendant asked Cantine if he could borrow his phone to call
his girlfriend because he had been locked out of his house. Cantine gave
defendant his cellphone and observed him dialing but grew concerned after he
noticed that defendant was not typing "full ten digit[ ]" numbers. Cantine
thought defendant was "faking," and he was now in a "bad situation." Cantine
accordingly backed away from defendant and stood approximately three feet
away. Defendant asked Cantine if he wanted anything out of his bookbag to
which Cantine declined because he believed defendant was referring to illegal
A-3323-23 2 narcotics.
After defendant attempted to dial another number, he put the phone into
his jacket pocket and placed his hand into the bookbag. Defendant told Cantine
to "be cool," proceeded to pull out a kitchen knife, and swung it at him. Cantine
successfully blocked defendant's attempt, and the knife did not pierce his
clothing or skin.
Cantine testified that defendant was wearing "dark clothing" and gray
Nike Jordans, and that defendant was "pretty tall compared to [him]." Cantine
further explained that defendant was holding his cellphone by his waist and the
light from the phone was shining on defendant's face during this encounter.
Defendant fled the scene and Cantine initially chased after him until he
realized that defendant still had a knife. Cantine then stopped a vehicle,
explained to the driver that he had just been robbed and asked her to call the
police. The driver, however, pulled away, which led Cantine to believe that she
had not contacted the police. The driver did, however, call 911 and the call was
played at trial.
Cantine proceeded to a nearby hair salon and again explained that he had
just been robbed and requested that an employee call the police, which she did.
Portions of that 911 call were also played at trial.
A-3323-23 3 When law enforcement arrived, Cantine provided them with defendant's
physical description, including the clothes he was wearing and the fact he was
carrying a black bookbag. The police quickly located an individual matching
the Cantine's description nearby, but when they approached him, defendant fled
and ignored the officer's commands to stop. He was quickly apprehended,
detained, and arrested. Following a search of his bookbag incident to that arrest,
the police seized a collection of knives, a cellphone, pills, and marijuana.
The police transported Cantine to the arrest location where he positively
identified defendant as his assailant and specifically noted his clothing and
footwear. He identified and unlocked his cellphone that was found in
defendant's bookbag and also identified the knife that was used in the attack.
One of the officers completed a "show up identification procedures
worksheet" on the day of the incident. The form indicated that the officer had
instructed Cantine "that the actual perpetrator may or may not be in procedure
or show up and that the witness should not feel compelled to make an
identification." The form also noted that the officer instructed Cantine "not to
discuss identification procedure, whether an identification was made or not, with
any other witness or witnesses, or obtain information for other sources." Finally,
the form acknowledged that Cantine made a positive identification based on
A-3323-23 4 defendant's "mustache . . . and the gray sneakers." Despite the fact that multiple
police vehicles involved were equipped with dashboard cameras, the police
failed to preserve any recordings depicting the arrest or identification process.
Before trial, the court conducted a Wade1 hearing to address defendant's
application to suppress Cantine's show up identification. The court, after
addressing the applicable system variables delineated in State v. Henderson, 208
N.J. 208 (2011), denied defendant's motion. The court found the officer
provided Cantine with appropriate pre-identification instructions and advised
him "that the person detained may or may not be the perpetrator" and that he
"should not feel compelled to make an identification." The court also concluded
that Cantine "was not given any information about defendant" and that the show
up occurred "within a reasonable time . . . shortly after the incident."
Cantine testified at trial where he again positively identified defendant as
his assailant. During his testimony, he also discussed a surveillance tape of the
incident introduced by the State that recorded part of the interaction from a street
corner and a nearby gas station. The State also called the 911 dispatcher and
three officers involved in defendant's arrest and interrogation. Finally, the State
introduced inculpatory physical evidence, including the bookbag, its contents,
1 United States v. Wade, 388 U.S. 218 (1967). A-3323-23 5 and defendant's clothing.
Defendant successfully moved pursuant to State v. Reyes, 50 N.J. 454
(1967), to dismiss one of the drug charges, and the State dismissed a number of
other charges in the indictment prior to deliberations. The jury subsequently
convicted defendant of first-degree robbery, unlawful possession of a weapon,
and possession of a weapon for unlawful purposes, and found him not guilty of
aggravated assault, resisting arrest by force, and resisting arrest by flight .
Defendant appealed his convictions and sentence and argued the court
erred when it denied his motion to suppress Cantine's identification and
improperly admitted the identification testimony at trial. He also argued the
court provided an inadequate jury instruction that the "officers' failure to record
the eyewitness proceeding could be used in evaluating the credibility of the
eyewitness testimony." He also challenged the court's decision to admit the 911
calls as violative of his confrontation rights and his sentence.
As noted, we affirmed defendant's convictions and sentence. Weekes, slip
op. at 2. Defendant filed a petition for certification with the Supreme Court but
withdrew the application. Instead, he filed a timely PCR petition, which he also
initially withdrew, but resubmitted and later supplemented with a brief filed by
appointed counsel.
A-3323-23 6 In his revised submission, defendant contended his trial counsel was
constitutionally deficient under the two part test established in Strickland v.
Washington, 466 U.S. 668 (1984), as adopted in New Jersey by State v. Fritz,
105 N.J. 42 (1987) because he: 1) was unprepared for trial and did not file an
application for an adjournment, and 2) failed to request an appropriate jury
charge regarding law enforcement's failure to record Cantine's identification.2
Further, in his self-represented submission defendant maintained,
consistent with his counsel's advocacy at trial, that he did not rob Cantine, but
they were instead involved in an aborted drug transaction. Defendant
maintained "questions and inconsistencies" with respect to their interaction
"would have held more weight if we have the entire surveillance [recording]. "
He contended the State only introduced select portions of the footage "due to
the fact that the recorded [incident] in its entirety would have contradicted" the
officers' and Cantine's testimony. After considering the parties' oral arguments,
the court determined an evidentiary hearing was necessary to address
2 Defendant has not reprised all of the arguments he raised before the PCR court. We accordingly discuss and address only those contentions that defendant raises before us and consider all unbriefed arguments waived. See Telebright Corp. v. Dir., N.J. Div. of Tax'n, 424 N.J. Super. 384, 393 (App. Div. 2012) (deeming a contention waived when the party failed to include any arguments supporting the contention in its brief); Pressler & Verniero, Current N.J. Court Rules, cmt. 5 on R. 2:6-2 (2026) ("[A]n issue not briefed is deemed waived."). A-3323-23 7 defendant's Strickland-based claims.
At the hearing, defendant's trial counsel detailed his trial preparation and
strategy and also explained that he was ready for trial despite receiving the file
from another attorney shortly before trial. He disputed any claim that an
adjournment was necessary and explained he discussed the file with defendant's
previous counsel. Counsel explained he had been assigned the case "roughly
two weeks" after a conflict arose, and the reassignment "made sense" because
he was handling a "full … trial list . . . in that court already." He testified he
was prepared and did not need more than the two weeks to prepare for trial
because it was a "pretty straightforward case," despite only having conducted
one other jury trial as a public defender.
He stated he assessed the strength of the State's case by "looking at all the
evidence, the police reports, . . . statements from . . . complaining witness, . . .
surveillance footage, [and] also considering the evidence that [it] did[ not]
have." He explained when evaluating the case, he determined there were "some
problematic factors" including defendant's arrest in the area while in possession
of the cell phone and other inculpatory physical evidence. He also stated he was
aware that defendant's prior counsel held a similar opinion with respect to
defendant's case, had advised defendant accordingly, and defendant had
A-3323-23 8 indicated to prior counsel that he "felt pretty firmly about going to trial."
In preparation for trial, counsel testified he met with defendant "[a]t least
once," where he "confirmed that he received discovery from prior counsel" and
he had explained his own assessment of the case to him, "making sure he
understood the exposure, what the plea offer [was], and . . . what problems I
thought there were." Counsel testified he remembered the plea was for six years,
subject to NERA, in light of another robbery charge defendant had pending at
the time. He explained he did not "detect any issues" in his relationship with
defendant and recalled him "not having a lot of questions."
Counsel also explained his theory of the case, specifically that he believed
"it was not a robbery" but rather a "drug deal that had gone wrong . . . to explain
how [defendant] came to be in possession of the phone without it being a
robbery." He stated this narrative was not his only trial strategy and explained
how he planned to "attack and undermine the State's theory and their witnesses"
through cross-examination. Counsel recalled attacking the victim's credibility
on a number of issues and inconsistencies concerning the alleged robbery that
"did not make sense." He testified to his efforts to attack the officers' credibility,
including their inconsistencies with respect to the allegation of the use of force
against defendant and with respect to Cantine's jacket that the police failed to
A-3323-23 9 preserve and which allegedly was slashed during the robbery.
Counsel further explained the efforts behind some of the other key
decisions at trial. He stated that defendant specifically decided to testify at trial
and the conversations they had with respect to that decision. He also discussed
the preparations he made for his successful Reyes motion and the objections
with respect to the 911 call.
Defendant also testified at the hearing and stated he believed his trial
counsel only had seven days to prepare for trial, not two weeks, and he felt
counsel's efforts to discredit the officers with respect to the alleged use of force
were inaccurate. He stated his counsel "meant to do the right thing, but he just
did not have enough time" and further testified he did not understand why his
previous counsel, with whom he had a "great" relationship, was removed from
the case. He also stated he urged counsel to seek an adjournment and testified
he met with his counsel only once for, at most, an hour.
In a May 3, 2024 order and written decision Judge Karina D. Fuentes
denied defendant's petition and concluded he failed to establish a prima facie
claim of ineffective assistance of counsel under Strickland. The court first
rejected defendant's argument that his counsel's performance was
constitutionally ineffective for failing to prepare adequately for trial or seek an
A-3323-23 10 adjournment. The court found counsel reviewed the evidence, consulted with
defendant's former counsel, independently developed a trial strategy, and met
with defendant. The court clearly credited defendant's counsel's testimony over
defendant's, despite noting both appeared "sincere," and determined based on
counsel's testimony at the evidentiary hearing, and the trial record, there was no
support for the conclusion counsel's representation fell below acceptable
professional standards or that defendant was prejudiced by any of counsel's
actions or inactions, including his failure to request a trial adjournment or in
failing to object the jury instruction on the identification issue.
This appeal followed in which defendant raises the following point for our
consideration:
POINT I
THE PCR COURT ERRED IN RULING THAT DEFENDANT RECEIVED THE EFFECTIVE ASSISTANCE OF COMPETENT TRIAL COUNSEL WHERE COUNSEL DID NOT HAVE SUFFICIENT TIME TO PREPARE FOR TRIAL AND THUS FAILED TO MAKE NECESSARY OBJECTIONS WITH RESPECT TO THE JURY CHARGE AND THE SURVEILLANCE VIDEO SHOWN TO THE JURY.
Defendant contends again that his trial counsel's performance was
constitutionally deficient because he did not sufficiently prepare for trial after
being substituted for prior counsel shortly before jury selection and stated he
A-3323-23 11 met with him only once. He maintains, under the circumstances, his trial counsel
should have sought an adjournment to permit adequate time to prepare and to
"obtain and review the entire surveillance video." That purported lack of
preparation also resulted in his counsel's failure to make necessary and
appropriate objections relating to the identification jury charge and the
admission of a surveillance video.
With respect to the jury instruction issue, defendant maintains his counsel
failed to seek an appropriate instruction under State v. Anthony, 237 N.J. 213
(2019) and Rule 3:11(b). He also reprises his self-represented argument that his
counsel failed to object to the surveillance video that the State moved into
evidence because it contained but a partial recording of the incident. Defendant
explains that the omitted portions would have supported further his theory that
the incident was not a robbery but a drug transaction gone bad. He maintains
these omissions deprived him of his constitutional right to the effective
assistance of counsel under both the United States and the New Jersey
Constitutions and under the circumstances, prejudice should be presumed, or, in
the alternative, he demonstrated a reasonable probability that but for counsel 's
errors the outcome of the trial would have been different under Strickland's
prejudice prong.
A-3323-23 12 Having considered these arguments in light of the record and the
applicable law, we affirm the PCR court's denial of defendant's petition,
substantially for the sound reasons expressed in Judge Fuentes' written opinion.
We add the following comments to amplify our decision.
Our review of a PCR claim after a court has held an evidentiary hearing
"is necessarily deferential to [the] PCR court's factual findings based on its
review of live witness testimony." State v. Nash, 212 N.J. 518, 540 (2013). 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.
To establish a deprivation of the Sixth Amendment right to the effective
assistance of trial counsel, a convicted defendant is required to satisfy the two -
part test enunciated by the United States Supreme Court in Strickland v.
Washington, 466 U.S. at 690 (1984), demonstrating that: (1) counsel's
performance was deficient; and (2) counsel's deficient performance prejudiced
the accused's defense. Id. at 687; see also Fritz, 105 N.J. at 58. In reviewing
such ineffective assistance claims, courts apply a strong presumption that
defense counsel "rendered adequate assistance and made all significant
decisions in the exercise of reasonable professional judgment." Strickland, 466
A-3323-23 13 U.S. at 690. "[C]omplaints 'merely of matters of trial strategy' will not serve to
ground a constitutional claim of inadequacy . . ." Fritz, 105 N.J.at 54 (citation
omitted); see also State v. Echols, 199 N.J. 344, 357-59 (2009).
Here, we concur with the judge's determination that defendant has not
presented a prima facie claim of ineffective assistance under Strickland. First,
we find no support for defendant's argument that his counsel was ill-prepared
for trial based on the timing of his assignment or for failing to seek an
adjournment. As the trial record and the record from the evidentiary hearing
confirm, defendant's counsel was clearly prepared for trial. He met with
defendant, formulated a trial strategy consistent with defendant's then, and now,
theory of the case that the incident reflected a consensual drug transaction not a
robbery, properly objected at trial when appropriate, was successful in the
dismissal of one of the drug charges based on his Reyes application, and
received an acquittal on a number of other serious charges after the State
voluntarily dismissed other charges. Simply put, as Judge Fuentes correctly
found, defendant has failed to establish that his counsel's actions when preparing
for trial or his representation during trial were constitutionally ineffective or that
any alleged deficiency in his performance affected the outcome of the trial.
Fritz, 105 N.J. at 57-63.
A-3323-23 14 For similar reasons, we reject defendant's argument that his counsel was
ineffective for failing to object to the court's jury instructions. As Judge Fuentes
noted, we rejected defendant's challenge to the sufficiency of the jury charge
related to law enforcement's failure to preserve the dash cam footage on direct
appeal. Although we reviewed the issue under a plain error analysis, we were
nevertheless satisfied the entire charge accurately recited the law and instructed
the jury appropriately regarding the consequences of the police's failure to
preserve the videos and other evidence. Weekes, slip op. at 10. We also held
that the "court properly introduced evidence of Cantine's show up identification,
and the court sufficiently instructed the jury regarding law enforcement's failure
to preserve the dash cam videos and other evidence related to the show up
identification." Ibid. In addition, we were satisfied "jury properly considered
both the credibility of the officers' testimony and the reliability of the
identification procedure" and despite acknowledging that the "charge was not as
robust as defendant claims is required under Rule 3:1l(d)," we are convinced it
did not result in unjust convictions. Id. at 9.
We observe also that before us defendant has not specifically identified
what language in State v. Anthony his counsel should have requested the court
include in the charge. Indeed, we note that the court specifically informed the
A-3323-23 15 jury that the police "failed to preserve the video recordings from the [dash]cam
recordings . . . [and] the Use of Force Report in this case." The court also
instructed the jury it could consider those failures when evaluating the
identification evidence when determining credibility of the officers. In any
event, we are unconvinced that defense counsel's failure to object to the charge
prejudiced defendant at trial or with respect to his appeal.
Defendant's final argument that the court erred in denying his petition
because his counsel failed to request that the entire surveillance footage be
played for the jury or request an adjournment to review the footage is easily
dismissed. First, nothing in the trial or PCR record supports any argument that
the State edited the surveillance footage. In defendant's appendix in support of
his direct appeal, he included a description of the surveillance videos played
during Cantine's testimony. There simply is no support in the record before us
for the contention that the State or defendant's counsel failed to play the videos
available, or that any portion of the video factually supports his present
conclusory claims. Simply put, defendant failed to establish his counsel's
performance was constitutionally deficient under Strickland's first prong on this
point.
Further, defendant has failed to establish, as is his obligation under
A-3323-23 16 Strickland's prejudice prong that the allegedly edited videos would have
impacted Cantine's identification of him or the inculpatory evidence found in
his bookbag after he fled the scene. On this point, we also note that defendant
failed to provide any such evidence at his evidentiary hearing either during his
direct testimony or on cross-examination that another angle of the video, or a
separate portion of the video, supported any of his claims.
To the extent we have not addressed any of defendant's remaining claims,
it is because we have determined they lack sufficient merit to warrant discussion
in a written opinion. R. 2:11-3(e)(2).
Affirmed.
A-3323-23 17