STATE OF NEW JERSEY VS. JERMAINE A. WILLIAMS (00-03-0263, PASSAIC COUNTY AND STATEWIDE)

• Court: New Jersey Superior Court Appellate Division
• Decided: June 20, 2018
• Docket: A-1676-16T4
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-1676-16T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JERMAINE A. WILLIAMS, a/k/a BLACK,

Defendant-Appellant. ______________________________

Argued telephonically May 10, 2018 – Decided June 20, 2018

Before Judges Yannotti and Carroll.

On appeal from Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 00-03-0263.

Jermaine A. Williams, appellant, argued the cause pro se.

Christopher W. Hsieh, Chief Assistant Prosecutor, argued the cause for respondent (Camelia M. Valdes, Passaic County Prosecutor, attorney; Christopher W. Hsieh, on the brief).

PER CURIAM

Defendant Jermaine A. Williams appeals from an order entered

by the Law Division on November 30, 2016, which denied his second petition for post-conviction relief (PCR) and his application for

the assignment of counsel. We affirm.

I.

A Passaic County grand jury charged defendant with first-

degree felony murder, N.J.S.A. 2C:11-3(a)(3) (count one); first-

degree robbery, N.J.S.A. 2C:15-1 and 2C:2-6 (count two); second-

degree conspiracy to commit robbery, N.J.S.A. 2C:5-2, 2C:15-1

(count three); first-degree aggravated manslaughter, N.J.S.A.

2C:11-4(a) (count four); second-degree possession of a weapon for

an unlawful purpose, N.J.S.A. 2C:39-4(a), 2C:2-6 (count five); and

third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b),

2C:2-6 (count six).

Defendant was tried before a jury. At the trial, the State

presented evidence that, on the afternoon of September 26, 1999,

defendant and two of his friends, Stuart Jones and Jahkeam Francis,

gathered in Newark. They decided to travel by taxi to the home of

Jahkeam's cousin, A.C., in Paterson.1 Defendant was in possession

of a silver handgun. Defendant said he needed money and would rob

someone if he had the opportunity to do so.

Late in the afternoon, defendant, Jones, and Francis took a

taxi to East Orange, and there they got into a livery cab that was

1 In this opinion, we use initials to identify certain individuals.

2 A-1676-16T4 driven by another man. Defendant was seated in the rear with Jones.

Francis sat up front, alongside of the driver. The cab stopped at

A.C.'s mother's home and then proceeded to the intersection of

North Fourth Street and Haledon Avenue in Paterson.

There, at approximately 5:30 p.m., defendant observed Miguel

"Danny" Mercado on the sidewalk in front of his father's grocery

store. Mercado, who was sixteen-years old, was talking to a friend.

Mercado was wearing a thick, gold chain around his neck. The car

stopped and defendant got out. He grabbed Mercado from behind,

placed the gun to the right side of Mercado's neck and demanded

that Mercado give him the chain.

Mercado resisted and attempted to extricate himself from

defendant's grip. Mercado and defendant struggled. Defendant shot

Mercado in the abdomen, took the necklace, and got back into the

cab, which then drove off. Mercado died the following day as a

result of the internal hemorrhaging caused by the gunshot wound

in his abdomen.

After the robbery, the driver drove defendant, Jones and

Francis to A.C.'s home. The driver dropped them off and left. A.C.

was at home with her boyfriend, Rasheem White, and her daughter.

Later that evening, defendant, Jones, and Francis went with A.C.

and White to a club. They left at around 2:30 a.m. A.C. dropped

defendant and Jones off at a location in Orange. Defendant told

3 A-1676-16T4 Jones that he wanted to get rid of the gold chain. They sold the

chain in New York City two days later.

Officers from the Paterson Police Department investigated the

matter, and that investigation led them to A.C. and White, who

gave statements to the police. Detective Richard Reyes testified

that A.C. and Francis had identified defendant, Jones, and Francis

from photo lineups. In October 1999, Jones was arrested. He

initially denied involvement in the incident, but later said that

defendant robbed and shot Mercado and he had been in the car at

the time. Francis was arrested in March 2000. On June 16, 2000,

defendant was arrested in York, Pennsylvania.

On count four, the jury found defendant not guilty of

aggravated manslaughter, but guilty of the lesser-included offense

of first-degree reckless manslaughter, N.J.S.A. 2C:11-4(a). The

jury found defendant guilty on the other counts. At sentencing,

the court merged counts two, three, and four with count one and

sentenced defendant on that count to life imprisonment, with a

thirty-year period of parole ineligibility. On count five,

defendant was sentenced to a concurrent term of ten years, with a

five-year period of parole ineligibility. On count six, the court

sentenced defendant to a consecutive term of five years of

incarceration, with two-and-one-half years of parole

ineligibility.

4 A-1676-16T4 Defendant appealed his conviction and sentence and raised the

following issues:

POINT I: THE PROSECUTOR COMMITTED MISCONDUCT, AND THUS DEPRIVED DEFENDANT OF A FAIR TRIAL, WHEN HE TOLD THE JURORS DURING SUMMATION THAT THEIR ROLE IN THE CASE WAS "ABOUT COURAGE" AND "ABOUT ALLOCATING RESPONSIBILITY."

POINT II: THE COURT'S FAILURE TO INSTRUCT THE JURY TO APPLY SPECIAL SCRUTINY TO THE TESTIMONY OF ACCOMPLICES REQUIRES REVERSAL.

POINT III: THE AGGREGATE SENTENCE OF LIFE PLUS FIVE YEARS, WITH A 32-1/2 YEAR PAROLE BAR, WAS MANIFESTLY EXCESSIVE UNDER ALL OF THE APPLICABLE CIRCUMSTANCES.

POINT IV: THE CONVICTION FOR POSSESSION OF A WEAPON FOR AN UNLAWFUL PURPOSE SHOULD HAVE BEEN MERGED INTO THE FELONY-MURDER CONVICTION.

Defendant also filed a pro se brief and addendum in which he

raised the following issues:

POINT I: PROSECUTOR IN SUMMATION CALLING DEFENSE WITNESS A "BUM" PRODUCED PREJUDICIAL ERROR REQUIRING REVERSAL.

POINT II: COUNSEL WAS INEFFECTIVE FOR STATING DEFENDANT WAS IN GETAWAY CAR OF ROBBERY DURING [HIS] OPENING ARGUMENT.

POINT III: THE COURT'S JURY CHARGE OF FLIGHT WAS INAPPROPRIATE. TRIAL JUDGE INSTRUCTED JURY THAT IT "COULD INFER THAT DEFENDANT HAD FLED

5 A-1676-16T4 SHORTLY AFTER ALLEGED COMMISSION OF CRIME"; SUCH INSTRUCTION TO JURY MAY HAVE SUGGESTED THAT JUDGE BELIEVED DEFENDANT TO BE THE PERPETRATOR OF CRIME. THEREFORE REQUIRING REVERSAL.

POINT IV: THE COURT'S CHARGE TO THE JURY ON IDENTIFICATION WAS INADEQUATE AND INCOMPLETE DEPRIVING DEFENDANT OF HIS RIGHT TO A FAIR TRIAL UNDER BOTH THE NEW JERSEY AND FEDERAL CONSTITUTION[S].

POINT V: TRIAL COURT COMMITTED HARMFUL ERROR WHEN IT OVERRULED DEFENDANT'S OBJECTION TO AN ALLEGED OUT-OF-COURT IDENTIFICATION MADE BY SOMEONE OTHER THAN THE POLICE OFFICER TESTIFYING IN THE PROCEEDING. THUS, DEFENDANT WAS DENIED THE RIGHT TO CONFRONTATION, AND IN EFFECT [DEPRIVED] OF A FAIR TRIAL.

POINT VI: THE HEARSAY RULE AND DEFENDANT'S CONSTITUTIONAL RIGHT TO CONFRONTATION WERE VIOLATED DURING THE COURSE OF THE TRIAL WHEN [J.F.] TESTIFIED ABOUT HER BOYFRIEND'S KNOWLEDGE OF THE ASSAILANTS AND THE CRIME. CONSEQUENTLY, THE TRIAL COURT SHOULD HAVE TRIED TO CORRECT OR INSTITUTE CURATIVE MEASURES FOR THE HEARSAY TESTIMONY OF [J.F.] IN REGARDS TO WHAT SHE SAID HER BOYFRIEND ALLEGEDLY SAID.

We affirmed defendant's convictions. State v. Williams, No.

A-3568-01 (App. Div. Feb. 26, 2004) (slip. op. at 10). We also

rejected defendant's contention that his sentences were excessive,

but vacated the separate concurrent sentence that the court had

imposed on the conviction for possession of a weapon for an

unlawful purpose. Ibid. We remanded the matter for entry of an

6 A-1676-16T4 amended judgment of conviction merging the count charging that

offense with count one, charging felony murder. Ibid.

II.

In October 2004, defendant filed his first PCR petition, and

the trial court assigned counsel to represent defendant. On October

18, 2006, the court denied the petition without a hearing.

Defendant appealed and raised the following arguments:

POINT I:

THE [PCR] COURT SHOULD HAVE GRANTED THE DEFENDANT AN EVIDENTIARY HEARING ON THE DEFENDANT'S MOTION FOR POST-CONVICTION RELIEF ON THE BASIS OF INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL.

A: TRIAL COUNSEL FAILED TO ADEQUATELY INVESTIGATE AND PREPARE FOR TRIAL BY FAILING TO INTERVIEW AND CALL AN ALIBI WITNESS.

B: TRIAL COUNSEL FAILED TO ADEQUATELY ADVISE THE DEFENDANT ON HIS RIGHT TO TESTIFY.

POINT II: THE DEFENDANT'S MOTION FOR POST-CONVICTION RELIEF SHOULD HAVE BEEN GRANTED DUE TO PROSECUTORIAL MISCONDUCT IN KNOWINGLY PRESENTING PERJURED TESTIMONY.

POINT III: APPELLATE COUNSEL WAS INEFFECTIVE DUE TO HIS FAILURE TO RAISE THE ISSUE, ON DIRECT APPEAL REGARDING PROSECUTORIAL MISCONDUCT IN THE OPENING STATEMENTS.

POINT IV: DEFENDANT'S MOTION FOR POST-CONVICTION RELIEF SHOULD HAVE BEEN GRANTED BASED UPON A FLAWED JURY SELECTION PROCESS; THE DEFENDANT WAS NOT

7 A-1676-16T4 PERMITTED BY HIS ATTORNEY TO PARTICIPATE IN JURY SELECTION.

Defendant also filed a pro se brief in which he raised the

following points:

POINT I: POST-CONVICTION RELIEF COUNSEL FAILED TO ADVANCE ALL CLAIMS BY PETITIONER IN HIS PRO- SE PETITION. FAILURE OF COUNSEL TO [BRIEF], AND ARGUE INEFFECTIVE ASSISTANCE CLAIMS VIOLATES [RULE] 3:22-6(d)[.] COUNSEL ALSO FAILED TO ADVANCE GROUNDS INSISTED UPON BY DEFENDANT.

POINT II: THE COURT ERRED IN REFUSING TO SET ASIDE DEFENDANT'S CONVICTIONS ON THE BASIS OF THE INEFFECTIVE ASSISTANCE OF COUNSEL CLAIMS. THAT CLEARLY VIOLATED THE [SIXTH] AMENDMENT.

We affirmed the denial of PCR. State v. Williams, No. A-1494-

06 (App. Div. Sept. 25, 2008) (slip op. at 16-17). Defendant then

petitioned the Supreme Court for certification. The Court denied

the petition. State v. Williams, 197 N.J. 259 (2008).

It appears that in April 2009, defendant filed a petition for

a writ of habeas corpus in the United States District Court for

the District of New Jersey. On September 4, 2009, defendant filed

his second PCR petition in the Law Division. On September 24,

2010, the Law Division dismissed the petition without prejudice.

The court indicated that defendant could re-file the petition

after his federal claims had been resolved.

8 A-1676-16T4 On January 22, 2015, the federal district court denied

defendant's habeas petition and refused to issue a certificate of

appealability. Williams v. Ricci, No. 09-1822, 2015 U.S. Dist.

LEXIS 7618, at *36 (D.N.J. Jan. 22, 2015). It appears defendant's

Third Circuit appeal of that decision was unsuccessful.

Thereafter, the Supreme Court of the United States denied his

petition for a writ of certiorari. Williams v. Johnson, 136 S. Ct.

849 (2016).

III.

On February 9, 2016, defendant filed his PCR petition, in

which he alleged: (1) James F. Avigliano, who represented co-

defendant Jones, had a conflict of interest because he later became

County Prosecutor; (2) the assistant prosecutor committed

misconduct and violated R.P.C. 3.8(a) by prosecuting a case that

was not supported by probable cause; (3) the prosecutor violated

Brady v. Maryland, 373 U.S. 83 (1963), because he failed to turn

over certain exculpatory evidence to the defense; (4) his trial

attorney was ineffective because he did not file a motion to

dismiss the indictment; and (5) appellate counsel was ineffective

because he failed to raise Avigliano's alleged conflict of interest

on appeal.

The PCR court found that the petition was barred under Rule

3:22-12(a)(2) and Rule 3:22-4(b). The court nevertheless addressed

9 A-1676-16T4 the claims and found that they lacked merit. The court also found

that defendant had not established good cause under Rule 3:22-6(b)

for the assignment of counsel. This appeal followed.

On appeal, defendant raises the following arguments:

I. DEFENDANT['S] SECOND [PCR] IS TIMELY UNDER [RULE] 3:22-12[] BECAUSE IT WAS FILED BEFORE THE NEWLY AMENDED ONE-YEAR TIME REQUIREMENT, THE SECOND [PCR] HERE WAS FILED WITHIN THE [FIVE]-YEAR STIPULATION OF THE INITIAL [PCR] AND DISMISSED WITHOUT PREJUDICE BY THE TRIAL COURT BELOW, AND THEREFORE SHOULD BE CONSIDERED TIMELY (Not Raised Below).

II. FORMER HEAD PASSAIC COUNTY PROSECUTOR JAMES F. AVIGLIANO COMMITTED A CONFLICT OF INTEREST DURING THE APPELLANT'S TRIAL AND APPEAL PROCESS. FIRST BY FAILING TO ALERT THE TRIAL COURT THAT HE WAS CAMPAIGNING[] AND SEEKING EMPLOYMENT WITH THE PASSAIC COUNTY PROSECUTOR'S OFFICE[] WHILE ASSISTING THE APPELLANT'S CO-DEFENDANT IN TESTIFYING AGAINST APPELLANT[] KNOWING WEEKS AFTER THE APPELLANT'S TRIAL, HE WOULD BE THE BOSS OF THE [INDIVIDUALS] THAT HE NEGOTIATED THE UNCONSITUTIONAL DEALS WITH. SECONDLY, DURING THE APPELLANT['S] FIRST [PCR] MR. AVIGLIANO ALSO COMMITTED A CONFLICT OF INTEREST[] BECAUSE HE NOW REPRESENTED THE PASSAIC COUNTY PROSECUTOR'S OFFICE, AND IT WAS ONLY WHEN THE APPELLANT WAS APPEALING HIS FIRST [PCR] THAT THE ATTORNEY GENERAL REVEALED THE CONFLICT IN VIOLATION OF THE APPELLANT'S [FIFTH, SIXTH, AND FOURTEENTH] AMENDMENT RIGHTS UNDER THE U.S. CONSTITUTION.

III. FORMER PROSECUTOR WILLIAM J. PURDY COMMITTED MISCONDUCT BY PROSECUTING A CASE THAT WAS NOT SUPPORTED BY PROBABLE CAUSE UNDER [RPC] 3.8(a). THE APPELLANT'S CO- DEFENDANT RASHEEM WHITE WAS THE FIRST OF THE [SUSPECTS] INITIALLY ARRESTED, AND THE

10 A-1676-16T4 PROSECUTOR'S CASE HINGED OFF [SIC] HIS ILLEGAL INVOLUNTARY, INADMISSIBLE STATEMENT[] BECAUSE THE COMPLAINT (ARREST WARRANT) WAS SIGNED BY A POLICE OFFICER[ ]WHO WAS NOT AUTHORIZED TO ISSUE A WARRANT UNDER NEW JERSEY LAW[][.] IT WAS NOT SIGNED UNDER OATH BY THE PROPER JUDICIAL OFFICER. THE LAW ENFORCEMENT OFFICER WHO TOOK THE COMPLAINT, IN FACT[,] ISSUED THE WARRANT, AND THIS WAS IN VIOLATION OF THE APPELLANT'S [FOURTH AND FOURTEENTH] AMENDMENT CONSITUTIONAL DUE PROCESS RIGHTS. THE NEW JERSEY CONSTITUTION, ART. 1, PARA 7, STATES: THAT NO WARRANT SHALL ISSUE EXCEPT UPON PROBABLE CAUSE, SUPPORTED BY OATH OR AFFIRMATION.

IV. THE PROSECUTOR COMMITTED A DUE PROCESS VIOLATION OF BRADY[] BY FAILING TO [TURN OVER] EXCULPATORY EVIDENCE TO THE DEFENSE. THE APPELLANT'S TRIAL COUNSEL HAD REQUESTED THE 9-1-1 TAPE DURING THE TRIAL, AND THE PROSECUTOR FAILED TO [TURN OVER] THE TAPE TO THE DEFENSE, AND CONTINUES TO WITHHOLD THE EVIDENCE[] IN VIOLATION OF THE APPELLANT'S DUE PROCESS RIGHTS UNDER THE U.S. CONSTITUTION, AND THE [PROSECUTOR'S] DISCLOSURE DUTIES.

V. TRIAL COUNSEL THOMAS KAISER WAS INEFFECTIVE[] FOR FAILING TO MOVE TO GET THE INDICTMENT DISMISSED AGAINST THE APPELLANT, DUE TO THE DEFECTIVE WARRANT THAT WAS IN VIOLATION OF THE APPELLANT'S FEDERAL[] AND STATE PROVISIONS [SIC]. THE PROSECUTOR WOULD NOT HAVE BEEN ABLE TO MOVE THE CASE FORWARD WITHOUT THE DEFECTIVE WARRANT, INVOLUNTARY[] AND INADMISSIBLE STATEMENT OF RASHEEM WHITE[] THAT TRIAL COUNSEL MR. KAISER FAILED TO HAVE SUPPRESSED, IN VIOLATION OF THE APPELLANT'S [SIXTH] AMENDMENT RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL UNDER THE STATE AND U.S. CONSTITUTION[S].

VI. APPELLANT'S INITIAL [PCR] APPEAL COUNSEL . . . WAS INEFFECTIVE DURING THE APPELLANT'S APPEAL PROCESS[] FOR FAILING TO ADDRESS THE

11 A-1676-16T4 NEWLY DISCOVERED APPELLATE GROUND OF CONFLICT OF INTEREST THAT WAS REVEALED AGAINST THE NOW FORMER PROSECUTOR JAMES F. AVIGLIANO, IN VIOLATION OF THE APPELLANT'S [SIXTH] AMENDMENT RIGHTS UNDER THE U.S. CONSTITUTION.

IV.

As stated previously, although the PCR court found the

petition was barred under Rules 3:22-12(a)(2) and 3:22-4(b), the

court addressed the merits of the claims and found they were

entirely without merit. We agree.

A. Conflict of Interest

Defendant argues that James F. Avigliano, who was co-

defendant Jones's trial attorney, had a conflict of interest.

Defendant asserts that Jones pled guilty, obtained a favorable

plea agreement, and agreed to testify against defendant. Defendant

notes that several months after the trial, Avigliano became County

Prosecutor.

Defendant alleges Avigliano "had his hat in the

prosecutor['s] arena" before his trial. He claims "everyone" in

the prosecutor's office "had to feel some sort of pressure" from

Avigliano knowing "he would soon be their boss." Defendant also

notes that the Attorney General assumed responsibility for his

direct appeal, which was pending after Avigliano became County

12 A-1676-16T4 The PCR court found that Avigliano's representation of co-

defendant Jones did not result in the denial of defendant's

constitutional right to a fair trial. The record supports the

court's finding. Indeed, there is no evidence in the record to

support defendant's claim that Avigliano and persons in the

prosecutor's office knew at the time of trial that he would be

appointed as County Prosecutor, or that Avigliano worked with the

prosecutor's office to obtain a favorable plea agreement for Jones

and prosecute defendant.

Moreover, the Attorney General stepped in and superseded the

Passaic County Prosecutor's Office (PCPO) in the handling of

defendant's direct appeal because Avigliano had become County

Prosecutor, and he had previously represented one of the defendants

charged in the indictment. The Attorney General's decision to

supersede the PCPO for the appeal does not support defendant's

claim that Avigliano had a conflict of interest during the trial

court proceedings.

B. Alleged Prosecutorial Misconduct

Defendant argues the assistant prosecutor committed

misconduct by purportedly prosecuting this case without probable

cause. According to defendant, co-defendant White was arrested on

the basis of a warrant that was not signed by a judicial officer

13 A-1676-16T4 and not supported by probable cause. He claims White's unlawful

arrest tainted his conviction.

Defendant argues that the statement White provided to the

police regarding the robbery and shooting of Mercado should have

been excluded at trial. The record shows, however, that White's

statement was not the product of an allegedly invalid warrant.

White was arrested at around 11:30 p.m. on September 29, 1999,

based on an outstanding warrant for an unrelated crime. The police

questioned White about the Mercado robbery and shooting. At around

2:45 a.m., White provided a statement. White then was arrested and

charged.

Defendant claims that White's arrest on the charges related

to the Mercado robbery and shooting was the product of an invalid

arrest warrant. However, even if there was some technical flaw in

the warrant, White's statement was not the product of that arrest.

As noted, White provided his statement before that warrant was

issued.

Moreover, as the PCR court noted, the State did not use

White's statement as evidence against defendant at trial. Instead,

the defense called White as a witness in an effort to exculpate

defendant. White testified that although he was not in the car at

the time of the shooting, he signed a typed statement placing him

14 A-1676-16T4 in the car because he was told to sign it and he did "whatever

they told [him] to do."

In any event, the PCR court correctly found that defendant's

claim that the assistant prosecutor pursued a matter without

probable cause was entirely without merit. Wholly aside from

White's statement, the State had sufficient evidence to support

defendant's indictment.

C. Brady Violation

Defendant asserts the State violated Brady by failing to

provide the defense with a copy of a 9-1-1 call to police

headquarters on September 26, 1999. The record shows that the

assistant prosecutor agreed to provide the defense with a copy of

the 9-1-1 recording. The assistant prosecutor told the court an

unknown person made the call and reported the shooting. It was,

the prosecutor stated, a "very brief call."

To establish a Brady violation, the defendant must show that

"(1) the prosecution suppressed evidence; (2) the evidence is

favorable to the defense; and (3) the evidence is material." State

v. Martini, 160 N.J. 248, 268 (1999) (citation omitted). Here,

there is no evidence that the State failed to provide the defense

with a copy of the recording of the 9-1-1 call.

Moreover, defendant has not shown that the recording was

exculpatory and material to the defense. According to the assistant

15 A-1676-16T4 prosecutor, the caller merely reported the shooting and did not

identify herself. The PCR court correctly determined that

defendant had not shown that the State violated its obligation

under Brady to provide the defense with material, favorable

evidence.

D. Ineffective Assistance of Trial and PCR Counsel

Defendant further argues he was denied the effective

assistance of counsel because his trial attorney did not seek

dismissal of his indictment on the ground that White's arrest

warrant was illegal. He also claims he was denied the effective

assistance of PCR counsel because his attorney did not raise a

claim regarding Avigliano's purported conflict of interest in the

first PCR proceeding.

To establish a claim of ineffective assistance of counsel,

the defendant must meet the two-part test established in Strickland

v. Washington, 466 U.S. 668, 686 (1984), and adopted by our Supreme

Court in State v. Fritz, 105 N.J. 42, 58 (1987)). The defendant

first must show that his attorney made errors "so serious that

counsel was not functioning as the 'counsel' guaranteed the

defendant by the Sixth Amendment." Strickland, 466 U.S. at 687.

Counsel's performance is deficient if it "[falls] below an

objective standard of reasonableness." Id. at 688.

16 A-1676-16T4 The defendant also must show that his counsel's "deficient

performance prejudiced the defense." Id. at 687. The defendant

must establish that "there is a reasonable probability that, but

for counsel's unprofessional errors, the result of the proceeding

would have been different." Id. at 694. A "reasonable probability"

is a "probability sufficient to undermine confidence in the

outcome" of the proceeding. Ibid.

Here, defendant failed to show that his trial attorney was

deficient in failing to seek the dismissal of his indictment based

on White's alleged illegal arrest warrant and his alleged coerced

statement. As we stated previously, wholly aside from White's

statements, there was probable cause for the indictment. Thus, if

defendant's attorney had made such a motion, it would have been

denied.

Defendant also failed to show that his PCR counsel erred by

failing to raise Avigliano's purported conflict of interest in the

first PCR petition. The claim was meritless and the result of that

proceeding would not have been different if counsel had raised the

issue.

In view of our decision, we need not address defendant's

contention that the PCR court erred by finding that his second PCR

petition was barred by Rules 3:22-12(a)(2) and 3:22-4(b).

Affirmed.

17 A-1676-16T4