SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2358-18

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DANTE WILSON,

a/k/a DONTA WILSON,

Defendant-Appellant.

_______________________

Submitted April 28, 2021 – Decided May 21, 2021

Before Judges Geiger and Mitterhoff.

On appeal from the Superior Court of New Jersey, 

Law Division, Union County, Indictment No. 04-12-

1517.

Kelly Anderson Smith, attorney for appellant. 

Gurbir S. Grewal, Attorney General, attorney for 

respondent (Deborah Bartolomey, Deputy Attorney 

General, of counsel and on the brief).

PER CURIAM

NOT FOR PUBLICATION WITHOUT THE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.
A-2358-18 2

Defendant Dante Wilson was convicted of the fatal shooting of Cage 

Suttle and related crimes. He appeals from an October 12, 2018 Criminal Part 

order denying his petition for post-conviction relief (PCR) following a six-day

evidentiary hearing. We affirm.

The underlying trial evidence and procedural history are detailed in our 

unpublished decision affirming defendant's conviction on direct appeal. State 

v. Wilson, No. A-3732-10 (App. Div. Aug. 12, 2015). We incorporate both by 

reference. We recounted the underlying facts as follows: 

William Troy Mayes, the State's primary 

witness, began transporting heroin to Pittsburgh, 

Pennsylvania in 2002. The victim, Cage Suttle, 

assisted Mayes with bagging the heroin and 

transporting it from Elizabeth, where they both lived, 

to Pittsburgh, where it was resold. In the process, 

Mayes became familiar with a gang known as the 

C.R.E.A.M. Team, members of which were engaged in 

the sale of heroin in Pittsburgh. . . . 

In early April 2004, Mayes sent Suttle to 

Pittsburgh with a package of heroin. Because Mayes 

was dissatisfied with its quality, he requested that 

Suttle bring the heroin back to Elizabeth. Mayes 

intended to return the heroin to the supplier from 

whom he had purchased it. 

. . . . 

Shortly before midnight on April 7, Mayes was 

in front of his aunt's home in Elizabeth, meeting with 

his heroin source. The source gave him a "finger" of 

heroin, which consists of approximately ten grams of 

heroin in a glove. As Mayes was talking with his 
A-2358-18 3

source, a silver Ford Explorer SUV with Pennsylvania 

license plates pulled up and double parked in front of 

the house. Suttle was in the passenger's seat of the 

Explorer. 

Mayes went over to the Explorer and stood on 

the driver's side. He testified that the street light was 

near the car and it was “[r]eally lit up out there.”

According to Mayes, he looked into the Explorer to 

see who Suttle had with him . . . . 

The driver of the Explorer was later identified as 

Eurie Nunley, a drug dealer from Pittsburgh. A man, 

subsequently identified as Wilson, was sitting in the 

back seat. Mayes recognized Nunley and Wilson, 

both of whom he had seen in the past with a friend 

who was affiliated with the C.R.E.A.M. Team in 

Pittsburgh, but he did not know their names. . . . 

Mayes told Nunley to come inside his aunt's 

house, so he could show him some new heroin. 

Nunley, Suttle, and Mayes went inside the house to 

talk. Shortly thereafter, however, Suttle left and went 

outside. Nunley and Mayes remained inside. Mayes 

showed Nunley the finger of heroin, and told him that 

he would bring heroin from that batch to Pittsburgh 

later. 

While Mayes was showing Nunley the heroin, 

he heard three or four shots from outside the house. 

As Mayes and Nunley were going downstairs to see 

what had happened, Nunley expressed concern that 

Mayes might be setting him up. 

Once outside, Mayes saw the Explorer with its 

passenger door and glove compartment open. Money

was scattered on the floor and around the car. Mayes 

then saw Wilson running towards him and holding a 

gun pointed at him. After Nunley yelled "nah, nah" to 
A-2358-18 4

Wilson, he and Wilson got inside the Explorer and 

drove away. . . . 

A.E., a neighbor who lived across the street, 

witnessed the shooting from a window in his 

apartment. He testified that he heard four 

"continuous" gunshots from "under [his] window." 

After A.E. heard the first shot, he "ran" to the window 

and saw "a guy chasing another guy on the sidewalk 

running after him with a gun in his hand." He 

witnessed one of the men shoot the other. 

A.E. described the two men as black males. He 

could not see their faces, but testified that they were 

about the "same size, medium build." According to 

A.E., one of the men had hair with "stripes." He did 

not know the proper name for the hairstyle. 

After the last shot was fired, A.E. saw the 

shooter go on "top of the victim and kind of twist him 

to the side" and go through his pockets and take 

money. A.E. then heard the shooter yell towards men1

who had come out of the adjacent house, “Let’s go, 

let’s go, let’s get out of here."

The shooter got into the passenger’s seat of the 

Explorer, while one of the men who had just come out 

of the house got into the driver’s seat. The Explorer 

backed into the car behind it, then pulled away. A.E. 

saw another man go back inside the house. The third 

man got into another vehicle parked on the street and 

drove away.

A.E. called 9–1–1 to report the shooting. 

Fifteen minutes later, he saw a Pontiac sedan pull up. 

A man came out of the house and got into the car, 

which then drove away. According to Mayes, after 

the shooting, he had called C.H. and asked him to pick 

him up at his aunt’s house. C.H. confirmed that he 
A-2358-18 5

had, and also testified that he had driven Suttle to 

Walnut Street in Elizabeth earlier that evening. . . .

Mayes was subsequently arrested and 

questioned by the police. After viewing a photo array, 

he identified the driver of the Explorer as Nunley. 

Following a second photo array, Mayes identified 

Wilson as the shooter. With the assistance of the 

police in Pennsylvania, the Elizabeth police arranged 

for a lineup in Pittsburgh. Mayes identified Wilson 

from a group of six men. Mayes testified that he had 

no doubt about his choice. 

[Id. at 1-2.]

A Union County grand jury returned an indictment charging defendant 

with first-degree murder of Suttle, N.J.S.A. 2C:11-3(a)(1), (2) (count one); 

second-degree conspiracy to possess a controlled dangerous substance (CDS) 

with intent to distribute, N.J.S.A. 2C:5-2 and 2C:35-5(a)(1) (count two); thirddegree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-5(b)

(count three); second-degree possession of a firearm for an unlawful purpose, 

N.J.S.A. 2C:39-4(a) (count four); and second-degree possession of a weapon

while committing a CDS offense, N.J.S.A. 2C:39-4.1(a) (count five). 

At one point, jail authorities seized defendant's mail, which became the 

subject of a pretrial suppression hearing. The trial court ultimately denied the 

motion, finding the seizure was authorized by N.J.A.C. 10A:31-19.5, because 

there was reliable information sufficient to raise legitimate concerns about 

witness tampering and possible threats against Mayes, and defendant had not 
A-2358-18 6

established that the search was pretextual or based on anything other than 

reliable information of potential illegal activity. 

Following a three-week trial, the jury found defendant guilty of the 

lesser included offense of first-degree aggravated manslaughter, N.J.S.A. 

2C:11-4(a)(1) on count one, and the remaining four counts. We affirmed 

defendant's conviction on direct appeal and the Supreme Court denied 

certification. State v. Wilson, 224 N.J. 244 (2016).

Defendant filed a pro se petition for PCR. The court dismissed it 

without prejudice because his petition for certification was still pending. In 

March 2016, defendant refiled his petition. Counsel was assigned to represent 

him and submitted a supplemental petition along with certifications of family 

members and his own certification in support of his alibi claim. 

Defendant asserted that Lucy Cruz was interviewed by police shortly 

after the shooting. She indicated that she heard three shots. When she looked 

out of her door, she saw the victim leaning on the white Honda with a Hispanic 

male with long black hair, wearing a white shirt and blue jeans with a black 

handgun in his right hand, standing next to him. She claimed that the Hispanic 

male took something from the victim and ran east on Marshall Street. 

Defendant notes that trial counsel did not interview Cruz or call her as a 

witness despite subpoenaing her and her presence in the courthouse. 
A-2358-18 7

However, Cruz became ill and unavailable before the trial began. An 

investigator for the Office of the Public Defender certified that Cruz "suffers 

from multiple illnesses, such as anxiety, depression, heart problems and nerve 

deficiency[,]" "did not want to talk to" the investigators, and "[i]t became 

abundantly clear to [him] that Lucy Cruz was no longer available as a witness 

for this case." 

Defendant further asserted that during its investigation, law enforcement 

learned that the victim was engaged to Clara McNeil, who gave a statement to 

police, which was provided in discovery to trial counsel. McNeil indicated 

that Suttle, Mayes, Charles Hawley, Nunley, and another individual were all in 

her presence at various times on the night of the shooting. McNeil stated that 

the men were together at 8:00 p.m., 8:30 p.m., and 11:30 p.m. that night. 

McNeil did not identify defendant as being present on the night of the 

shooting. Trial counsel did not use McNeil's statement at trial and did not 

subpoena her as a witness. Defendant claims the statement could have been 

used to undermine the credibility of Mayes and Hawley. 

On January 11, 2018, the PCR judge determined defendant established a 

prima facie case of ineffective assistance of counsel and granted an evidentiary 

hearing to determine: (1) notice of the codefendant’s willingness to provide 

exculpatory testimony; (2) the investigation of Tiffani Walker as a witness; 
A-2358-18 8

and (3) the investigation of alibi witnesses Kendren Broadus, Tyrell Ferguson, 

Tamika Ferguson, Aushakee Ferguson, Pernell Ferguson, Michael Jefferson, 

and Angel Diggs. 

Defendant, Aushakee,1 Tyrell, Tamika, Pernell, and trial counsel 

testified at the evidentiary hearing. Defendant withdrew his claims concerning 

Nunley and Walker because they refused to testify. Jefferson did not testify at 

the hearing because he had passed away. 

Aushakee is defendant's second cousin and the daughter of Tamika. At 

the time of the hearing, she was twenty-seven years old. Aushakee testified 

she was thirteen years old and lived in Pittsburg in 2004. She visited 

defendant's mother's home on April 8, 2004. Defendant gave her a t-shirt as a 

birthday present that day. Aushakee later saw defendant at her birthday party 

on April 9, 2004. Her testimony was partially contradicted by a July 25, 2019 

certification she signed that averred that her birthday party was held on April 

8, 2004. Aushakee further testified that she did not attend defendant's trial, did 

not know the name of defendant's trial counsel, and was not contacted by 

counsel or a Public Defender investigator. 

1

 We refer to several of the witnesses by their first name because they share a 

common surname. We intend no disrespect. 
A-2358-18 9

The PCR judge determined Aushakee "promoted inaccurate testimony 

before [the] [c]ourt in a misguided effort to assist her cousin based upon their 

familial relationship." He found Aushakee's testimony was not credible, 

observing: "Her testimony contained many internal inconsistencies and was 

contrived. If she is to be believed, her memory of events has improved with 

time, contrary to human experience." 

Tyrell, defendant's cousin, testified that when he was between fourteen 

and eighteen years old, he lived with defendant's mother and was close with 

defendant during that period. Around 7:00 p.m. on April 7, 2004, Tyrell 

returned to defendant's mother's home from a youth detention program. 

Around 8:00 p.m., defendant, his girlfriend, defendant's best friend Kendren

Broadus, and Broadus' girlfriend arrived. Defendant spent the night there. 

Tyrell saw him the following morning with Broadus and his girlfriend. 

Tyrell further testified that when he came home from school on April 8, 

2004, defendant, Broadus, and others were there. The atmosphere was tense 

because there were suspicions that Pernell stole money from Broadus' 

girlfriend's purse. Tyrell did not attend Aushakee's birthday party that day 

because it would have violated his curfew but claimed defendant attended it. 

Tyrell did not reach out to defendant's trial attorney, and neither the 

attorney nor investigators reached out to him. He was later contacted by 
A-2358-18 10

defendant's PCR counsel and signed a certification that stated the day before 

his arrest defendant was in a fight with Pernell. 

The PCR judge found Tyrell's testimony was incredible, "[d]efying 

common sense and human experience." He found Tyrell's mannerisms and 

tonal inflections had "the appearance of unreliability." Furthermore, his 

testimony contradicted his prior "certification in material respects." 

Tamika is defendant's first cousin and Aushakee's mother. She testified 

that in 2004, she lived in Pittsburgh with her four children and was employed 

as a corrections officer. She and defendant had a close relationship; defendant 

visited her home three to four times a week and often babysat her children. 

Tamika testified that the day before her eldest child Aushakee’s 

thirteenth birthday, she went to defendant's home early in the morning with 

Aushakee before work to pick up the gift. She remembered Aushakee being 

excited about her new t-shirt. 

Tamika was not contacted by the Public Defender's office, its 

investigator, or defendant's trial counsel. On August 22, 2017, she signed a 

certification that she could not remember what kind of t-shirt defendant gave 

Aushakee. 

The PCR judge rejected Tamika’s testimony, stating it "defies common 

sense." He found her body language and voice intonation made her a "wholly 
A-2358-18 11

incredible witness" and her certification contradicted her testimony. The judge

further noted "the substantive portions of her testimony were developed 

through leading questions to the point where the [c]ourt had to ask for nonleading questions."

Pernell is defendant's first cousin. He testified that around seven or 

eight p.m. on April 7, 2004, he and his younger brother visited defendant at his 

home in Pittsburgh. Pernell was in high school and already had a criminal 

record. Both stayed with defendant on April 7 and 8, 2004. Tyrell and several 

of defendant's friends were also there. 

The judge found Pernell's testimony "belied common-sense and appeared 

to be scripted as he had specific recollection of the defense's key points, and 

poor recollection of anything else." Pernell's "substantial criminal history" and 

"untruthful" demeanor "negatively impact[ed] his credibility." The judge 

deemed Pernell an incredible witness and rejected his testimony.

Defendant testified that in January 2008, after spending two and one-half

years in prison in Pennsylvania, he was extradited to New Jersey and met trial 

counsel one month later. He told trial counsel he had never been to Union 

County and clearly remembered his whereabouts on April 8, 2004, because of 

Aushakee's party. Defendant said he spent the weekend at his mother's house 

and told trial counsel that Tamika, Aushakee, Tyrell, Pernell, and four others 
A-2358-18 12

could place him there on that day. He was under the impression trial counsel 

would contact his alibi witnesses, with his mother acting as the contact person. 

Defendant further alleged trial counsel only contacted him about five 

times over the course of over two years. He claimed trial counsel failed to 

answer letters but did "speak" with his girlfriend, Angel Diggs. He asked trial 

counsel to speak to Aushakee, Broadus, and Jefferson, which he failed to do. 

On cross-examination, defendant admitted he was highly involved in the 

case and had prepared extensively for trial. He acknowledged he never 

contacted family members about becoming alibi witnesses, contending it was 

trial counsel's job to do so. When he wrote to family members, he refrained 

from talking about the details of the case on the advice of counsel. 

In January 2010, defendant wrote to trial counsel informing him that 

Aushakee did not recall meeting with him prior to her birthday. He further 

advised that although Aushakee remembered her gift, she did not remember 

the conversations with defendant regarding her birthday. The letter also 

named two additional alibi witnesses, Terry Adams and Antonin Smith, but 

goes on to say that Adams was shot and killed in January 2007, and Smith died 

of cancer in mid-2008. 

In February 2010, defendant again wrote to trial counsel advising that he 

no longer would be using Diggs as an alibi witness. Defendant testified that 
A-2358-18 13

his decision resulted from trial counsel telling him that Diggs would not 

support him. However, in a conversation with trial counsel, defendant 

acknowledged that Diggs "sounds a little bit confused and mixed up." 

As noted by the judge, "Diggs was actually called at trial by the State 

due to [d]efendant allegedly attempting to influence her memory and 

testimony." Defendant "attempt[ed] to feed information to Ms. Diggs 

concerning his alibi." The court found that Diggs' testimony at trial "did not 

comport with the alibi being advanced by [d]efendant." 

Trial counsel testified that at the time of the PCR hearing, he had been 

an assistant deputy public defender for almost twenty years and had handled 

thousands of cases and "well over" 100 trials. He described defendant as wellread, informed, intelligent, and actively involved in the defense of his case. 

Defendant and he had frequently discussed trial strategy. 

Trial counsel further testified that he investigated defendant's alibi, but it 

"wasn't working out." He spoke to defendant's mother and sent her a January 

6, 2010 letter regarding defendant's alibi. She was elderly and had problems 

with memory. Trial counsel's file contained a note that during his two or three 

conversations with defendant's mother, she said she would supply alibi names 

but never did so. In a March 31, 2010 letter, defendant asked trial counsel to 

remove his mother from the witness list. 
A-2358-18 14

Trial counsel also testified that he investigated other alibi witnesses and 

found that they did not recall the events described by defendant. He removed 

Diggs as a potential witness because she was unable to provide sufficient 

information due to memory issues, and her recollection of events did not match 

defendant's. He considered Aushakee but decided she was too young to act as 

an alibi witness. 

Trial counsel thought the alibi defense was a "bad idea." A December 

10, 2008 note in his file indicated defendant was unwilling to provide an alibi 

because his mother and niece had him at different locations. He believed the 

main alibi witnesses were "taking a dive" and "leading down [a] street that [he 

did not] want to go down at that point . . . because there is a question as to 

whether the alibi is legitimate or not." He reasoned that defendant's mother's

and girlfriend's "serious memory problems" was a "bad sign" that "cast[] a bad 

shadow on the story." 

Trial counsel testified that the agreed upon strategy was to attack the 

credibility of Mayes, who was the State's key eyewitness to the homicide. 

Trial counsel investigated Mayes' criminal history, concluding he was a career 

drug dealer who would sell out anyone to improve his own position. 

Defendant reviewed the discovery with counsel and pointed out 

inconsistencies in Mayes' statements. 
A-2358-18 15

The judge found that trial counsel "presented as an entirely credible 

witness" and "as a zealous advocate whose practice was to work closely with 

his client and advise his client based upon the facts of the case and his 

experience." Trial counsel was "unwavering in his position that [d]efendant 

consented to the defense presented and that an alibi defense would have been 

presented if [d]efendant demanded same." His testimony established that four 

of the key alibi witnesses, including defendant's mother, girlfriend, and close 

cousin, would not support an alibi. Additionally, that the letters defendant 

wrote to trial counsel "support[ed] [trial counsel's] recollection that the alibi 

defense was not the defense that was going to be advanced at trial." 

The PCR judge issued a comprehensive written decision that included 

extensive credibility findings and concluded "there was an appropriate 

informed consultation between [d]efendant and [trial counsel] on the issue of 

alibi" and that "[a]fter this consultation, [d]efendant agreed not to pursue an 

alibi at trial." Additionally, defendant's "position [was] one of convenience 

rather than merit," which he "rejected as incredible." The judge found no 

extrinsic evidence supported the alibi defense, which "was a poorly concocted 

sham that would not have been believed by a rational juror." 

Furthermore, there was no lack of investigation, as trial counsel's

investigation "was sufficient to establish that the alibi was not viable." As to 
A-2358-18 16

the potential alibi witnesses that trial counsel was unable to contact, the court 

considered those witnesses to be "ancillary to the defense as the testimony of 

[d]efendant's mother, girlfriend, and Aushakee would undermine their version 

of the alibi at trial – as was the case with the actual testimony of Angel Diggs." 

Based on these findings, the judge concluded trial counsel's performance 

did not fall below applicable standards and denied defendant's petition. This 

appeal followed. 

We granted defendant's motion to be represented by substituted counsel 

and to submit supplemental briefing. In his initial brief, defendant argues:

BECAUSE DEFENDANT RECEIVED 

INEFFECTIVE ASSISTANCE OF COUNSEL, THE 

PCR COURT ERRED IN DENYING DEFENDANT'S 

PETITION FOR PCR.

A. Legal Standards Governing Applications for 

Post-Conviction Relief.

B. Trial Counsel was ineffective When He 

Failed to Properly Prepare for this Case Pre-trial 

by Failing to Investigate the Case and Failing to 

Prepare and Litigate this Case During Trial and 

Through to Sentencing.2

In his supplemental brief, defendant raises the following additional points:

2

 Defendant did not argue his sentence was illegal or excessive on direct 

appeal. In this appeal, he did not brief any alleged ineffective assistance of 

counsel relating to sentencing. According, we deem this claim waived. See

Sklodowsky v. Lushis, 417 N.J. Super. 648, 657 (App. Div. 2011) ("An issue 

not briefed on appeal is deemed waived."). 
A-2358-18 17

POINT I

THE PCR COURT IMPROPERLY ASSESSED AND 

DISMISSED THE TESTIMONIES OF 

DEFENDANT'S ALIBI WITNESSES AS WELL AS 

IMPROPERLY DENIED DEFENDANT'S PCR 

MOTION.

POINT II

THE TRIAL COURT DENIED DEFENDANT DUE 

PROCESS BY FAILING TO PROPERLY CONDUCT 

AN EVIDENTIARY HEARING AS TO ALL OF 

DEFENDANT'S ISSUES RAISED IN HIS PCR 

PETITION AND BRIEF. 

A. The Trial Court Abused Its Discretion in 

Denying Defendant an Evidentiary Hearing as it 

Related to Lucy Cruz. 

B. PCR Court Should Have Granted an 

Evidentiary Hearing as it Related to Clara 

McNeil. 

Defendant's petition for PCR is premised upon his right to effective 

assistance of counsel in his criminal trial. He argues trial counsel was 

ineffective "because his viable alibi defense was not presented at trial due to 

the conduct of his attorney which fell below an objective standard of 

reasonableness." 

"In reviewing a PCR court's factual findings based on live testimony, an 

appellate court applies a deferential standard; it 'will uphold the PCR court's 

findings that are supported by sufficient credible evidence in the record.'" 
A-2358-18 18

State v. Pierre, 223 N.J. 560, 576 (2015) (quoting State v. Nash, 212 N.J. 518, 

540 (2013)). In particular, a reviewing court will grant deference to the PCR 

judge's firsthand assessment of witness credibility. Ibid. "However, a 'PCR 

court's interpretation of the law' is afforded no deference, and is 'reviewed de 

novo.'" Ibid. (quoting Nash, 212 N.J. at 540-41). 

In Strickland v. Washington, 466 U.S. 668 (1984), the United States 

Supreme Court established a two-pronged test for determining whether 

defendant was afforded effective assistance of counsel: 

First, the defendant must show that counsel's 

performance was deficient. This requires showing 

that counsel made errors so serious that counsel was

not functioning as the "counsel" guaranteed the 

defendant by the Sixth Amendment. Second, the

defendant must show that the deficient performance 

prejudiced the defense. This requires showing that

counsel's errors were so serious as to deprive the 

defendant of a fair trial, a trial whose result is reliable. 

[Id. at 687.]

The Strickland standard has been adopted for evaluating ineffective assistance 

of counsel claims under Article 1, Paragraph 10 of the New Jersey 

Constitution. State v. Fritz, 105 N.J. 42, 58 (1987). 

"Judicial scrutiny of counsel's performance must be highly deferential." 

Strickland, 466 U.S. at 689. "An attorney is entitled to 'a strong presumption'

that he or she provided reasonably effective assistance, and a 'defendant must 
A-2358-18 19

overcome the presumption that' the attorney's decisions followed a sound 

strategic approach to the case." Pierre, 223 N.J. at 578-79 (quoting Strickland, 

466 U.S. at 689). 

Generally, trial counsel should interview all alibi witnesses. Id. at 582. 

However, "[d]etermining which witnesses to call to the stand is one of the 

most difficult strategic decisions that any trial attorney must confront." State 

v. Arthur, 184 N.J. 307, 320 (2005). Trial counsel must consider the testimony 

a witness is expected to give, whether the witness's testimony can be 

effectively impeached, whether the witness is likely to contradict the testimony 

of other defense witnesses, whether the jury is likely to find the witness 

credible, and other factors. Id. at 320-21 (citation omitted). 

Our role in reviewing a decision not to call an alibi witness "is to fairly 

assess" that decision "in the context of the State's case against defendant and 

the strengths and weaknesses of the evidence available to the defense." Pierre, 

223 N.J. at 579. When undertaking that assessment, we defer to the PCR 

court's factual findings, including its findings as to the credibility of trial 

counsel's testimony at the PCR hearing regarding trial strategy. Ibid. 

Defendant must establish his right to PCR "by a preponderance of the 

credible evidence." Nash, 212 N.J. at 541 (quoting State v. Preciose, 129 N.J. 

451, 459 (1992)). Our review of a PCR court's factual findings following an 
A-2358-18 20

evidentiary hearing is deferential; "we will uphold the PCR court's findings 

that are supported by sufficient credible evidence in the record." Id. at 540. 

Applying these legal principles to the facts of this case, we affirm 

substantially for the reasons expressed by Judge John M. Deitch in his cogent 

written decision. We add the following comments. 

The judge heard extensive testimony. His factual findings and 

credibility determinations are amply supported by the credible evidence in the 

record. His conclusions of law are consonant with applicable precedent. 

Defendant argues that the credibility issues discussed by the judge are 

irrelevant under a Pierre analysis. We disagree. The credibility of the 

defendant, the potential alibi witnesses, and trial counsel was essential to 

analyzing both prongs of the Strickland/Fritz test. It directly affected the

strength or weakness of the alibi, whether trial counsel adequately investigated 

the defense, whether defendant agreed not to proceed with that defense, and 

whether the decision to not present an alibi defense prejudiced him. 

Defendant also argues that the judge erred by not permitting Cruz and 

McNeil to testify during the evidentiary hearing. We disagree. 

Cruz became ill and unavailable to testify, suffered from multiple 

illnesses and psychiatric conditions, and was uncooperative. Defendant claims 

counsel should have taken a sworn statement from her but did not offer any 
A-2358-18 21

basis for the admissibility of the statement. Judge Deitch found that this 

amounted to mere "piece[d-]together testimony to create a third[-]party guilt 

defense based on Ms. Cruz['s] assertion that the man she saw standing next to 

the victim was a Hispanic male." Notably, although defendant contends Cruz 

was an eyewitness who identified the shooter, she told police that she did not 

look outside until after the shots were fired. The judge found the "decision not 

to call Lucy Cruz, or obtain a statement from her, [did] not rise to the level of 

ineffective assistance of counsel." 

As to McNeil, defendant instructed trial counsel not to use his mother, 

girlfriend, and cousin Aushakee as alibi witnesses. Rather than proceeding 

with an alibi that was not panning out, trial counsel and defendant agreed that 

the better strategy was to attack the credibility of the State's primary witness, 

an admitted large-scale heroin dealer. 

While defendant claims her testimony would have "tied up" points made 

in trial counsel's closing argument, the judge found "[t]his vague assertion 

[was] not a basis for a claim of ineffectiveness of counsel." Additionally, her 

statement was not admissible and the decision not to call Ms. McNeil was a 

strategic decision as her testimony might easily have undermined his defense. 

We review trial counsel's strategic decisions for reasonableness 

"applying a heavy measure of deference to counsel's judgment[]." Strickland, 
A-2358-18 22

466 U.S. at 691. Viewed through that lens, trial counsel's strategy was 

reasonable under the circumstances. We also discern no abuse of discretion in 

not allowing McNeil and Cruz as witnesses during the evidentiary hearing. 

In sum, defendant did not satisfy either prong of the Strickland/Fritz test. 

His petition was properly denied. 

Defendant's remaining arguments lack sufficient merit to warrant further 

discussion. R. 2:11-3(e)(2).

Affirmed.