STATE OF NEW JERSEY VS. P.S. (12-11-1535, BURLINGTON COUNTY AND STATEWIDE) (RECORD IMPOUNDED)

• Court: New Jersey Superior Court Appellate Division
• Decided: February 15, 2019
• Docket: A-1782-17T4
• Status: Unpublished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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-1782-17T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

P.S.,1

Defendant-Appellant. _________________________

Submitted January 28, 2019 – Decided February 15, 2019

Before Judges Fasciale and Rose.

On appeal from Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 12-11- 1535.

Joseph E. Krakora, Public Defender, attorney for appellant (Durrell Wachtler Ciccia, Designated Counsel, on the brief).

Scott A. Coffina, Burlington County Prosecutor, attorney for respondent (Alexis R. Agre, Assistant Prosecutor, of counsel and on the brief).

1 We use initials to protect the privacy of the victim. PER CURIAM

Defendant appeals from an August 31, 2017 order denying his petition for

post-conviction relief (PCR). Defendant maintains that his trial counsel

rendered ineffective assistance. Judge Jeanne T. Covert, who had tried the case,

entered the order and rendered a thorough written opinion. On appeal, defendant

argues:

THE [PCR] COURT ERRED IN DENYING DEFENDANT'S REQUEST FOR AN EVIDENTIARY HEARING.

We conclude that defendant's argument is without sufficient merit to warrant

further discussion in a written opinion. R. 2:11-3(e)(2). We affirm substantially

for the reasons given by Judge Covert, and add the following brief remarks. 2

A defendant is entitled to an evidentiary hearing only when he "has

presented a prima facie [case] in support of [PCR]," State v. Marshall, 148 N.J.

89, 158 (1997) (first alteration in original) (quoting State v. Preciose, 129 N.J.

451, 462 (1992)), meaning that a "defendant must demonstrate a reasonable

2 In his merits brief, defendant briefly claims, for the first time, that appellate counsel rendered ineffective assistance. We conclude that such a contention is without merit to warrant further discussion in this opinion. R. 2:11-3(e)(2). Nevertheless, we considered that argument on direct appeal. State v. P.S., No. A-3442-13 (App. Div. Nov. 4, 2015) (slip op. at 11). As such, defendant's claim is barred procedurally. R. 3:22-5; see also State v. Marshall, 173 N.J. 343, 350- 53 (2002). A-1782-17T4 2 likelihood that his . . . claim will ultimately succeed on the merits." Ibid. For a

defendant to obtain relief based on ineffective assistance grounds, he is obliged

to show not only the particular manner in which counsel's performance was

deficient, but also that the deficiency prejudiced his right to a fair trial.

Strickland v. Washington, 466 U.S. 668, 687 (1984); accord State v. Fritz, 105

N.J. 42, 58 (1987). We conclude that defendant failed to demonstrate a

reasonable likelihood that his PCR claim will ultimately succeed on the merits.

And we conclude further that defendant has failed to satisfy either prong of

Strickland.

Affirmed.

A-1782-17T4 3