SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4616-15T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JAMES RIPPY,

Defendant-Appellant.

___________________________

Submitted October 26, 2017 – Decided

Before Judges Simonelli and Haas. 

On appeal from the Superior Court of New 

Jersey, Law Division, Middlesex County, 

Indictment Nos. 02-09-1179, 08-03-0493, 

08-06-1064 and 08-06-1065.

Joseph E. Krakora, Public Defender, attorney 

for appellant (William Welaj, Designated 

Counsel, on the brief).

Andrew C. Carey, Middlesex County Prosecutor, 

attorney for respondent (David M. Liston, 

Assistant Prosecutor, of counsel and on the 

brief). 

Defendant James Rippy appeals from the February 19, 2016 Law 

Division order, which denied his petition for post-conviction 

relief (PCR) without an evidentiary hearing. We affirm. 

NOT FOR PUBLICATION WITHOUT THE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.

November 20, 2017
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Defendant was charged under Indictment No. 02-09-1179 with 

second-degree burglary, N.J.S.A. 2C:18-2; first-degree robbery, 

N.J.S.A. 2C:15-1; second-degree aggravated assault, N.J.S.A.

2C:12-1(b)(2), second-degree possession of a weapon for an 

unlawful purpose, N.J.S.A. 2C:39-4(d); and fourth-degree unlawful 

possession of a weapon, N.J.S.A. 2C:39-5(d). The charges stemmed 

from defendant's and co-defendant David Rivera's assault and 

robbery of the victim in the victim's apartment. 

Defendant was tried in absentia and convicted on all charges. 

The trial court imposed a twenty-year term of imprisonment with 

an eighty-five percent period of parole ineligibility pursuant to 

the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Defendant 

appealed his conviction and sentence. We reversed and remanded 

for a new trial. State v. Rippy, No. A-6069-07 (App. Div. Dec. 

14, 2010). 

On remand, defendant pled guilty under Indictment No. 02-09-

1179 to first-degree robbery. He also pled guilty under Indictment 

No. 08-06-1064 to second-degree burglary, N.J.S.A. 2C:18-2; under 

Indictment No. 08-06-1065 to first-degree robbery, N.J.S.A. 2C:15-

1; and under Indictment No. 08-03-0493 to third-degree bail 

jumping, N.J.S.A. 2C:29-7. In accordance with the plea agreement, 

the court sentenced defendant to twenty-year terms of imprisonment 

for each of the two first-degree robberies subject to NERA, a ten-
3 A-4616-15T2

year term for second-degree burglary, and a four-year term for 

bail jumping. The sentences were to be served concurrently with 

one another.

Defendant appealed and the State cross-appealed. Both 

parties challenged the award of jail credits, and defendant also 

argued that his sentence was excessive. We affirmed in part and 

remanded for resentencing limited to the calculation of jail and 

gap time credits. State v. Rippy, 431 N.J. Super. 338, 356 (App. 

Div. 2013). Our Supreme Court denied defendant's petition for 

certification. State v. Rippy, 217 N.J. 284 (2014).

Defendant filed a PCR petition, arguing, in part, that trial 

counsel in all of the indictments rendered ineffective assistance

by not challenging his identification based on the failure of the 

police to follow newly issued guidelines regarding the 

administration of a photo array. Defendant also argued that 

counsel failed to file a motion to suppress a handgun found in a 

gym bag in a hotel room he was sharing with his uncle, and advise 

him of his right to return to New Jersey under the Interstate 

Agreement on Detainers (IAD), N.J.S.A. 2A:159A-1 to -15.

In a February 19, 2016 order and written opinion, the PCR 

judge denied the petition. The judge found there was no evidence 

the police ever conducted a photo array, and we never mentioned a 

photo array in either of our opinions in defendant's prior appeals. 
4 A-4616-15T2

The PCR judge determined a motion to suppress would have been 

futile. The judge found that defendant's uncle rented the hotel 

room they were sharing, the uncle consented to the search and 

signed a consent form, and the uncle never disclaimed ownership 

of the gym bag. Lastly, the judge found defendant failed to 

explain what right he had under the IAD or provide specific facts 

pertaining to those rights. The judge also found defendant failed 

to demonstrate he would have opted to continue to trial had he 

known of his IAD rights. This appeal followed.

On appeal, defendant raises the following contention:

 POINT I: THE TRIAL COURT ERRED IN DENYING 

THE DEFENDANT'S PETITION FOR [PCR] 

WITHOUT AFFORDING HIM AN 

EVIDENTIARY HEARING TO FULLY 

ADDRESS HIS CONTENTION THAT HE 

FAILED TO RECEIVE ADEQUATE LEGAL 

REPRESENTATION FROM TRIAL 

COUNSEL.

The mere raising of a claim for PCR does not entitle the 

defendant to an evidentiary hearing. State v. Cummings, 321 N.J. 

Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). 

Rather, 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, 354-55 (2013). We review a judge's decision to deny a PCR 
5 A-4616-15T2

petition without an evidentiary hearing for abuse of discretion. 

State v. Preciose, 129 N.J. 451, 462 (1992). 

To establish a prima facie claim of ineffective assistance 

of counsel, the defendant

must satisfy two prongs. First, he must 

demonstrate that counsel made errors "so 

serious that counsel was not functioning as 

the 'counsel' guaranteed the defendant by the 

Sixth Amendment. An attorney's representation 

is deficient when it "[falls] below an 

objective standard of reasonableness."

Second, a defendant "must show that the 

deficient performance prejudiced the 

defense." A defendant will be prejudiced when 

counsel's errors are sufficiently serious to 

deny him "a fair trial." The prejudice 

standard is met if there is "a reasonable 

probability that, but for counsel's 

unprofessional errors, the result of the 

proceeding would have been different." A 

"reasonable probability" simply means a 

"probability sufficient to undermine 

confidence in the outcome" of the proceeding.

[State v. O'Neil, 219 N.J. 598, 611 (quoting 

Strickland v. Washington, 466 U.S. 668, 687-

88, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 

693, 698 (1984)).]

When a guilty plea is involved,

[the Court has] explained that '[t]o set aside 

a guilty plea based on ineffective assistance 

of counsel, a defendant must show that (i) 

counsel's assistance was not "within the range 

of competence demanded of attorneys in 

criminal cases;" and (ii) "that there is a 

reasonable probability that, but for counsel's 

errors, [the defendant] would not have pled 

guilty and would have insisted on going to 

trial."'
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[State v. Nuñez-Valdéz, 200 N.J. 129, 139 

(2009) (last two alterations in original)

(quoting State v. DiFrisco, 137 N.J. 434, 457 

(1994)).]

"[I]n order to establish a prima facie claim, [the defendant] 

must do more that make bald assertions that he was denied the 

effective assistance of counsel. He must allege facts sufficient 

to demonstrate counsel's alleged substandard performance." 

Cummings, supra, 321 N.J. Super. at 170. The defendant must 

establish, by a preponderance of the credible evidence, that he 

is entitled to the required relief. State v. Nash, 212 N.J. 518, 

541 (2013). 

We have considered defendant's contention in light of the 

record and applicable legal principles and conclude it is without 

sufficient merit to warrant discussion in a written opinion. R.

2:11-3(e)(2). We discern no abuse of discretion in the denial of 

defendant's PCR petition without an evidentiary hearing, and 

affirm substantially for the reasons set forth in the PCR judge's 

written opinion. We are satisfied that defendant received the 

effective assistance of counsel on all indictments.

Affirmed.