NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-0040-19
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
DENNIS THIGPEN, JR.,
Defendant-Appellant. _______________________
Submitted November 1, 2021 – Decided December 14, 2021
Before Judges Accurso and Enright.
On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 10-07-1359.
Joseph E. Krakora, Public Defender, attorney for appellant (James D. O'Kelly, Designated Counsel, on the briefs).
Bradley D. Billhimer, Ocean County Prosecutor, attorney for respondent (Samuel Marzarella, Chief Appellate Attorney, of counsel; Shiraz Deen, Assistant Prosecutor, on the brief).
PER CURIAM Defendant Dennis Thigpen, Jr. appeals from the August 1, 2019 order
denying his petition for post-conviction relief (PCR) without an evidentiary
hearing. We affirm.
I.
A jury convicted defendant of first-degree conspiracy to commit murder,
N.J.S.A. 2C:11-3(a) and N.J.S.A. 2C:5-2, and second-degree unlawful
possession of a weapon, N.J.S.A. 2C:39-5(b). The jury was hung on the
remaining charges of murder and possession of a gun for an unlawful purpose,
N.J.S.A. 2C:39-4(a). Defendant was tried twice more and each time the jury
deadlocked. The trial court dismissed the two outstanding charges at the State's
request.
The State theorized that eighteen-year-old Anthony Skyers was murdered
because the Bloods street gang believed he "snitched" on their second-highest
ranking member, Dyshon Ragland,1 and told the police Ragland committed an
armed robbery at a restaurant in Tom River. The State produced multiple
witnesses at trial to support its theory, including Ragland's girlfriend, Z.J.
During defendant's first trial in 2010, Z.J. testified that on the evening of June
1 Ragland was tried separately, convicted of Skyers's murder and related offenses, and sentenced to a forty-five-year prison term.
A-0040-19 2 5, 2008, she and Ragland were at her apartment in High Point when Ragland
received "between five to seven phone calls." Ragland appeared upset by the
calls and told Z.J., referring to Skyers, "I hope he didn't do what I think he did,
because if he did, I'm going to have to shut him up." Z.J. also stated a fellow
Bloods member, C.B., arrived at the apartment that night, the two men left the
apartment together, and Ragland returned alone to the apartment around 1:00 in
the morning.
According to Z.J., five minutes after Ragland came home, defendant
arrived at the apartment and his "eyes were big like in shock" and he was "very
sweaty." Z.J. stated defendant looked "[k]ind of upset" but more "frightened."
When she asked defendant why he "look[ed] like he killed someone," defendant
did not answer. He and Ragland went into the bathroom together, shut the door
and talked with the water running, but Z.J. could not hear what was said. Later
that morning, Skyers was found dead in the woods behind the High Point
apartment complex. He had two gunshot wounds in the back of his head.
The State also called defendant's former roommate, J.V., to testify. J.V.
stated that defendant told her
he lured [Skyers] to the woods and told [Skyers] to walk up ahead of him and he shot [Skyers]. The first time the safety was on the gun, it didn't go off and [Skyers] turned around and said what are you doing?
A-0040-19 3 [Defendant] said, I'm just kidding, go ahead. And then [Skyers] turned around and [defendant] shot him again.
According to J.V., defendant said that before the murder, Bloods members
were discussing who would kill Skyers and defendant "was the only one that had
the balls to do it." She also stated that defendant bragged: "I killed the kid, I
could do it again, it's nothing to kill somebody."
More than a year after the murder, C.B. and his cousin, B.N., also a Bloods
member, were arrested for multiple counts of unrelated armed robberies.
Detective Gregory Staffordsmith interviewed both men on July 6, 2009, and
each implicated defendant in Skyers's murder. The following day, defendant
was arrested based on Staffordsmith's probable cause affidavit.
The detective's affidavit included statements attributable to C.B. and B.N.
For example, it referred to C.B.'s statements that: Ragland invited him to his
apartment shortly after the murder; Ragland told him he murdered Skyers and
that defendant was present; and C.B. subsequently spoke with defendant, who
told him that "Ragland had ordered Skyers['s] murder because Skyers had
'snitched' to the police about Ragland's involvement in the [r]obbery of the
Subway in Toms River . . . on February 27, 2008[.]"
Additionally, the affidavit referenced B.N.'s statements that: C.B.
contacted him early on June 6, 2008 to advise that Ragland and another unknown
A-0040-19 4 male took C.B. to a wooded area behind Ragland's apartment complex to show
him the dead body of Anthony Skyers; and during that meeting, Ragland told
C.B. he murdered Skyers.
Pertinent to this appeal, the State admits Staffordsmith's affidavit also
contained three statements which were partially incorrect. The phrases
comprising the admitted misstatements are underscored: (1) "Mr. Ragland and
[defendant] then took [C.B.] in [the] wooded area behind the High Point
Apartments and showed [C.B.] the dead body of Anthony Skyers"; (2)
"[defendant] . . . told [B.N.] that he had murdered Anthony Skyers on the orders
of Dyshon Ragland"; and (3) "[defendant] advised [C.B.] that he had murdered
Skyers on the orders of Dyshon Ragland." (Emphasis added).
The State called C.B. and B.N. to testify during defendant's first trial and
their testimony was consistent with the unchallenged portions of Staffordsmith's
probable cause affidavit. For example, C.B. stated that Ragland ordered him to
go to Ragland's apartment after the murder, and that Ragland took him to the
woods behind the apartment complex to show him Skyers's corpse. C.B. also
testified that Ragland told him he "killed [Skyers]," that "[Skyers] had to go,"
and "this is what happens when somebody snitches."
A-0040-19 5 Additionally, C.B. stated that before the murder, defendant was trying to
join the Bloods, and by the fall of 2008, he was a new member of the gang.
Defendant immediately held a high-ranking position, which was unusual
because new members usually start at a low-level position and work their way
up by committing crimes. Defendant told some Bloods members that he gained
his high rank because he killed Skyers. C.B. stated that defendant also talked
about the murder a second time while he, defendant and other Bloods members
were riding in a car on their way to Newark.
B.N. testified that approximately a year after the murder, defendant told
him, "the way [defendant] was raised, when people snitch on you, you got to
handle that." B.N. asked defendant if he was talking about Skyers and defendant
responded, "yeah." Defendant also told B.N. that defendant achieved his rank
in the Bloods because of "the whole thing with [Skyers]."
A-0040-19 6 In anticipation of a retrial, defendant moved to suppress evidence resulting
from Staffordsmith's probable cause affidavit, pursuant to Franks v. Delaware,
438 U.S. 154 (1978). 2 The motion was denied in June 2011.3
Because defense counsel was disbarred after the first trial, successor
counsel assumed defendant's representation. Defendant's new attorney moved
to suppress the statements B.N. and C.B. gave to Staffordsmith during their 2009
interviews. He submitted a certification with the motion in January 2012, stating
"the representations made by Det. Gregory Staffordsmith . . . . were misleading
and incomplete." But counsel's certification did not specify which
representations in the probable cause affidavit were "misleading and
incomplete." The suppression motion was denied on June 14, 2012.4
2 A Franks hearing is required only "where the defendant makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause." Franks, 438 U.S. at 171. 3 Defendant did not provide a transcript from the motion hearing or other documentation from this motion to the PCR judge. Also, although neither party was able to find the trial court's 2011 decision, the State provided the PCR judge with a Promis/Gavel print out to establish the motion was denied. 4 Again, no transcript of the 2012 hearing was supplied to the PCR judge or to us.
A-0040-19 7 Less than two weeks later, Staffordsmith was called by the defense to
testify at the second trial.5 During defense counsel's examination, Staffordsmith
admitted his probable cause affidavit contained an error. Specifically, he
acknowledged the words, "and [defendant]" should not have been included in
the following statement attributed to C.B.: "Mr. Ragland and [defendant] then
took [C.B.] in [a] wooded area behind the High Point Apartments and showed
[C.B.] the dead body of Anthony Skyers." While on the stand, Staffordsmith
also denied he "put something in [the affidavit] knowing[] that it was wrong[,]"
explaining he "wasn't aware there was a mistake at the time[.]" Further, the
detective stated he did not alert the assistant prosecutor who handled the case to
the error. According to Staffordsmith's testimony, the mistake was "later
corrected[.]" The record does not reveal when or how the correction occurred.
Based on the limited record before us, it appears that only when defendant
stood trial for a third time in 2013 did Staffordsmith admit to the two remaining
misstatements in his probable cause affidavit, i.e., that defendant "advised
[C.B.] that he had murdered Skyers on the orders of Dyshon Ragland" and that
defendant "told [B.N.] that he had murdered Anthony Skyers on the orders of
Dyson Ragland." (Emphasis added). An excerpt of the trial transcript reveals
5 Staffordsmith was not called by either party to testify at defendant's first trial. A-0040-19 8 that when defense counsel asked Staffordsmith about these misstatements,
Staffordsmith asked for clarification. Specifically, the detective inquired, "is
your question whether or not your client shot [Skyers] or was he ordered to shoot
him?" Defense counsel responded, "[o]rdered to shoot him." Staffordsmith
replied that there was "nothing specific about an order to shoot [Skyers]" and
that it was a mistake for the affidavit to read that either C.B. or B.N. told him
defendant "was ordered to [shoot Skyers] by . . . Ragland." Critically, however,
Staffordsmith did not testify he made a mistake by swearing C.B. and B.N. told
him defendant "had murdered Anthony Skyers."
Following defendant's third trial, the court sentenced defendant to an
aggregate prison term of seventeen years with an eighty-five percent parole
disqualifier pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2. We
affirmed his convictions and sentence on direct appeal.6 State v. Thigpen, No.
A-2490-14T2 (App. Div. Aug. 11, 2017). In 2018, the Supreme Court denied
certification. State v. Thigpen, 232 N.J. 146 (2018).
6 We also remanded for the limited purpose of correcting a typographical error in the judgment of conviction. A-0040-19 9 II.
In February 2018, defendant filed a timely pro se PCR petition. He argued
his first trial attorney provided ineffective assistance of counsel, and that he was
convicted based on police and prosecutorial misconduct, as well as various
Fourteenth Amendment violations. After PCR counsel was appointed, he
supplemented defendant's petition, arguing that defendant's first trial counsel
was ineffective for failing to: "seek to dismiss the [i]ndictment[,]" given
Staffordsmith's flawed affidavit; request a hearing to address Staffordsmith's
misstatements; "conduct a proper investigation," which "at a bare minimum,"
would have included "interviewing potential witnesses"; call Staffordsmith to
testify; and uncover the two misstatements successor counsel later discovered.
Moreover, PCR counsel contended that even if each of his first attorney's errors
individually did not deprive him of the effective assistance of counsel,
cumulatively, they did. Lastly, PCR counsel argued appellate counsel was
ineffective for failing to "properly raise [the] issues asserted herein that could
have been raised on appeal."
The PCR judge heard argument on defendant's PCR petition in July 2019,
at which time defendant briefly addressed the court. Thereafter, defendant
submitted a handwritten letter to the judge, which was considered without
A-0040-19 10 objection from either party. On August 1, 2019, the judge denied the petition
without an evidentiary hearing.
The PCR judge concluded that defendant's claims about Staffordsmith's
affidavit were procedurally barred under Rules 3:22-4 and -5. He reasoned that
defendant had twice moved to suppress evidence based on the misstatements in
Staffordsmith's affidavit, and then failed to challenge the denial of the motions
on direct appeal.
The judge also found defendant "failed to show a prima facie case of
ineffective assistance of trial or appellate counsel." He specifically rejected the
notion that the post-trial disbarment of defendant's first attorney, without more,
demonstrated defendant received ineffective assistance of counsel. Indeed, the
judge found defendant failed to show "how his counsel's disbarment post-trial
had any effect on the proceedings." Moreover, the judge stated that his review
of the trial transcript showed defendant's first attorney was "engaged, zealous
and motivated[,]" and that the transcript "belie[d] any claim that trial counsel
was inattentive, unprepared or ineffective." Additionally, the judge concluded
defendant was properly counseled about his right to testify during the first trial .
The judge noted that at his first trial, defendant was asked if he had a "full and
fair opportunity to make [the] decision" about testifying and "underst[ood] all
A-0040-19 11 [his] options," and defendant "answered, 'Yes, sir' to both questions."
Accordingly, the judge found defendant was "informed thoroughly on the
advantages and disadvantages of testifying in court" and "intelligently exercised
his constitutional right to remain silent."
Further, the judge declined to find defendant's first attorney was
ineffective for failing to call Staffordsmith as a witness, concluding counsel's
decision not to call the detective demonstrated "sound strategy" because "calling
a hostile witness" to highlight an incorrect statement in an affidavit would have
allowed the State to cross-examine the detective, and "elicit testimony harmful
to [defendant]." Additionally, the judge found there was no merit to defendant's
claim that trial counsel was ineffective for failing to move to dismiss the
indictment, particularly given that successor counsel was unsuccessful when he
moved to dismiss the indictment.
Similarly, the judge rejected defendant's argument that the State
committed prosecutorial misconduct by relying heavily on hearsay testimony
during grand jury proceedings. The judge noted that defendant "relie[d] upon
outdated case law" to challenge the propriety of the grand jury proceedings.
Regarding defendant's contention that his appellate counsel was
ineffective, again, the judge was not persuaded. The judge found that although
A-0040-19 12 defendant argued "[a]ppellate counsel failed to properly raise those issues
asserted herein that could have been raised on direct appeal," PCR couns el
neglected "to . . . address what issues appellate counsel allegedly failed to raise."
III.
On appeal, defendant presents the following arguments:
POINT I
THE PCR COURT'S LEGAL AND FACTUAL CONCLUSIONS CONCERNING THE PCR CLAIMS [DEFENDANT] MADE ABOUT THE STAFFORDSMITH AFFIDAVIT WERE PATENTLY ERRONEOUS AND BASED ON AN INADEQUATE PCR RECORD AND SPECULATIVE ARGUMENTS MADE BY THE STATE.
A. [Defendant's] Claims Concerning The Staffordsmith Affidavit Were Not Procedurally Barred Pursuant to [Rule] 3:22-5 Because No Court Has Ever Adjudicated The Issue Of Whether Suppression Was Required Due To All Of The Misrepresentations In The Affidavit.
B. The PCR Court Erred In Concluding That [Defendant's] Claims Concerning The Erroneous Statements In The Staffordsmith Affidavit Were Procedurally Barred Because A Second Motion To Suppress Had Been Filed Prior To [Defendant's] Third Trial.
C. The Trial Court Erred In Concluding That [Defendant] Was Not Entitled To [PCR] Because The Issue Of The Numerous Misstatements In The Staffordsmith Affidavit Should Have Been Raised On Direct Appeal.
A-0040-19 13 POINT II
THE PCR COURT FAILED TO CONSIDER AND RESOLVE [DEFENDANT'S] PRO SE CLAIMS FOR [PCR]. (Not Raised Below).
POINT III
THIS MATTER SHOULD BE REMANDED BECAUSE PCR COUNSEL'S LEGAL REPRESENTATION FELL BELOW THE PROFESSIONAL STANDARD REQUIRED BY [RULE] 3: 22-6 (d). (Not Raised Below).
In his reply brief, defendant raises the following additional argument:
AT THE PCR LEVEL, THE STATE OF NEW JERSEY MADE AN ERRONEOUS REPRESENTATION THAT WAS ULTIMATELY RELIED ON BY THE PCR COURT TO DENY [DEFENDANT PCR]. INSTEAD OF ACKNOWLEDGING THIS ESTABLISHED FACT, THE STATE NOW OFFERS SPECULATIVE ARGUMENTS IN AN ATTEMPT TO SHIELD THE STAFFORDSMITH AFFIDAVIT FROM ADDITIONAL JUDICIAL SCRUTINY.
We review a PCR court's legal conclusions de novo, but generally defer
to its fact-findings when those findings are "supported by adequate, substantial
and credible evidence." State v. Harris, 181 N.J. 391, 415 (2004) (quoting Toll
Bros. v. Twp. of W. Windsor, 173 N.J. 502, 549 (2002)). If a PCR court does
not hold an evidentiary hearing, we "may exercise de novo review over the
A-0040-19 14 factual inferences drawn from the documentary record." Id. at 421 (emphasis in
original).
"A PCR petition is not a substitute for raising a claim on direct
appeal." State v. Hess, 207 N.J. 123, 145 (2011); see also R. 3:22-3. Unless
one of "the prescribed exceptions" apply, claims that could have been, but were
not, raised in prior proceedings cannot be asserted on PCR. State v. Preciose,
129 N.J. 451, 476 (1992). But defendants "are rarely barred from raising
ineffective-assistance-of-counsel claims on [PCR]." Id. at 459-60. These claims
are generally best suited for PCR petitions and "often cannot reasonably be
raised in a prior proceeding" given that they "involve allegations and evidence
. . . outside the trial record." Id. at 460. However, under Rule 3:22-5, "[a] prior
adjudication upon the merits of any ground for relief is conclusive whether made
in the proceedings resulting in the conviction or in any post-conviction
proceeding brought pursuant to this rule or prior to the adoption t hereof, or in
any appeal taken from such proceedings."
To succeed on a claim of ineffective assistance, a defendant must
establish, first, that "counsel's representation fell below an objective standard of
reasonableness" and, second, that "there is a reasonable probability that, but for
counsel's unprofessional errors, the result of the proceeding would have been
A-0040-19 15 different." Strickland v. Washington, 466 U.S. 668, 687-88, 694 (1984). A
defendant must do more than demonstrate that an alleged error might have "had
some conceivable effect on the outcome of the trial." State v. Sheika, 337 N.J.
Super. 228, 242 (App. Div. 2001). A defendant must prove the error is so serious
as to undermine the court's confidence that the "defendant's trial was fair, and
that the jury properly convicted him." State v. Pierre, 223 N.J. 560, 588 (2015).
There is no question but that a defendant's "right to effective assistance
includes the right to the effective assistance of appellate counsel on direct
appeal." State v. O'Neil, 219 N.J. 598, 610-11 (2014). But appellate counsel
need not advance every argument a defendant urges, even if non-frivolous.
Jones v. Barnes, 463 U.S. 745, 750-54 (1983).
Further, the right to the effective assistance of counsel extends
to PCR counsel. See State v. Rue, 175 N.J. 1, 18-19 (2002). PCR counsel must
"advance all of the legitimate arguments requested by the defendant that the
record will support, "Rule 3:22-6(d), and "make the best available arguments in
support of them," Rue, 175 N.J. at 19. Even if PCR counsel deems the claims
to be meritless, counsel must "list such claims in the petition or amended petition
or incorporate them by reference." R. 3:22-6(d); see also State v. Webster, 187
N.J. 254, 257-58 (2006). Like ineffective assistance of counsel claims against
A-0040-19 16 trial counsel, the resolution of claims against PCR counsel routinely involves
matters outside the record. Thus, an ineffective assistance of counsel claim
against PCR counsel is typically raised in a second or subsequent PCR petition.
See State v. Armour, 446 N.J. Super. 295, 317 (App. Div. 2016); see
also R. 3:22-12(a)(2)(C).
Mindful of these principles, we first address defendant's Point I
arguments, which collectively challenge the PCR judge's finding that
defendant's ineffective assistance claims about the misstatements in
Staffordsmith's affidavit were barred under Rules 3:22-4 and -5. We disagree
with the PCR judge that defendant's ineffective assistance of counsel claims
were procedurally barred. Because the ineffective assistance claims raised in
defendant's PCR petition involved alleged legal errors not contained completely
within the trial record, they were not ripe for appellate review. See Preciose,
129 N.J. at 460. In fact, defendant's claims were better suited for
a PCR proceeding because, as the PCR judge recognized, at least some of the
issues defendant raised concerned trial strategy decisions. See State v.
McDonald, 211 N.J. 4, 30 (2012). Additionally, given the partial record before
us, as well as defendant's assertions about when Staffordsmith's misstatements
were discovered, we are not convinced defendant's contentions regarding the
A-0040-19 17 probable cause affidavit were barred under Rule 3:22-5.7 Nonetheless, we are
persuaded defendant's ineffective assistance of counsel claims lack merit and
that the judge properly denied his petition without an evidentiary hearing.
The mere raising of an ineffective assistance claim on PCR does not entitle
a defendant to an evidentiary hearing. State v. Cummings, 321 N.J. Super. 154,
170 (App. Div. 1999). Trial courts should grant evidentiary hearings and make
a determination on the merits only if the defendant has presented a prima facie
claim of ineffective assistance, material issues of disputed facts lie outside the
record, and resolution of the issues necessitates a hearing. R. 3:22-10(b); State
v. Porter, 216 N.J. 343, 355 (2013).
Here, we are satisfied defendant did not establish a prima facie claim of
ineffective assistance of trial or appellate counsel because he did not satisfy the
prejudice prong under Strickland. Stated differently, defendant failed to
establish "there is a reasonable probability that, but for counsel's unprofessional
errors, the result of the proceeding would have been different ," Strickland, 466
U.S. at 687-88, particularly given that the State produced strong evidence of
7 To the extent defendant attempted to raise substantive contentions relating to the Staffordmith affidavit in his PCR petition, such as prosecutorial misconduct, we would agree such claims are barred under Rule 3:22-4, because they could have been brought on direct appeal. See State v. Quezada, 402 N.J. Super. 277, 280 (App. Div. 2008). A-0040-19 18 defendant's guilt through testimonial evidence. Accordingly, we need not
address whether counsel's performance was deficient. See State v. Gaitan, 209
N.J. 339, 350 (2012) (citations omitted) ("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.").
We reach this conclusion because although defendant seeks relief based
on Staffordsmith's affidavit, the record demonstrates that even if the three
misstatements we have discussed were excised from the affidavit, the police still
had probable cause to arrest him. See State v. Howery, 80 N.J. 563, 568 (1979).
In fact, the balance of the affidavit included statements from C.B. and B.N. that:
defendant confessed to murdering Skyers (albeit without saying he was ordered
by Ragland to do so); C.B. was told by Ragland that defendant "was present" for
the murder; and defendant told C.B. that Ragland ordered Skyers's murder
because Skyers had "snitched" to the police about Ragland's involvement in a
robbery.
A-0040-19 19 Similarly, defendant failed to show how he was prejudiced by appellate
counsel's purported errors. As the PCR judge aptly noted, PCR counsel
neglected "to . . . address what issues appellate counsel allegedly failed to raise."
Regarding Point II, defendant newly argues the PCR judge failed to
address each claim he raised in his pro se petition, despite that "PCR counsel
properly incorporated [defendant's] pro se claims in his petition brief." Again,
we are not convinced. Instead, our review of the certification accompanying
defendant's pro se petition persuades us the judge addressed each of the claims
raised in defendant's certification.
We also note defendant provided the following response in his pro se
petition where he was directed to "state with specificity the facts upon which the
[PCR] claim for relief is based, legal arguments and all claims": "Newly
Discovered Evidence, Evidence hearing, Prosecutorial misconduct, and violated
my [Fourteenth] [A]mendment[] right, and Frank [v.] Delaware hearing, and
[p]olice misconduct, Ineffective Counsel on [my first trial attorney]." From this
abbreviated list of claims, defendant contends that "[l]eft unaddressed in the
PCR court's written opinion were [defendant's] claims of newly discovered
evidence, 'evidence hearing,' [Fourteenth] Amendment violation and police
misconduct." But defendant does not explain how his vaguely worded
A-0040-19 20 arguments were tethered to the facts of his case. Under these circumstances, it
was not the role of the PCR judge, nor is it the role of this court, to weave
together the fabric of an argument on defendant's behalf.
Finally, we decline to address the arguments raised in Point III because
we are convinced the remedy for PCR counsel's purported failures to provide
effective assistance of counsel is a new PCR proceeding. See R. 3:22-4(b)(2)(C)
(a timely second PCR application will not be dismissed so long as it "alleges a
prima facie case of ineffective assistance of counsel that represented the
defendant on the first or subsequent application for [PCR]"). We reach this
conclusion because proof of any alleged errors of PCR counsel currently lies
outside this record. See Preciose, 129 N.J. at 460.
To the extent not addressed, defendant's remaining arguments lack
sufficient merit to warrant discussion in our written opinion. R. 2:11-3(e)(1)(E).
Affirmed.
A-0040-19 21