SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5611-16T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JORGE RODRIGUEZ, a/k/a

JORGE RODRIGUES,

Defendant-Appellant.

_____________________________

Submitted October 16, 2018 – Decided

Before Judges Hoffman and Geiger.

On appeal from Superior Court of New Jersey, Law 

Division, Union County, Indictment No. 11-01-0003.

Joseph E. Krakora, Public Defender, attorney for 

appellant (Steven M. Gilson, Designated Counsel, on 

the brief).

Gurbir S. Grewal, Attorney General, attorney for

respondent (Sarah E. Elsasser, 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NOT FOR PUBLICATION WITHOUT THE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.

October 23, 2018
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Defendant Jorge Rodriguez appeals from the denial of his petition for 

post-conviction relief (PCR) without an evidentiary hearing. We affirm.

Along with co-defendants Jhon Yebes and Pedro Dominguez, defendant 

was charged with two counts of armed robbery, possession of a knife for an 

unlawful purpose, and unlawful possession of a knife. The charges stemmed 

from an August 21, 2010 knifepoint robbery in Elizabeth. 

The victims of the robbery gave descriptions to the police of their 

assailants shortly after the incident. Based on the descriptions, police 

apprehended defendant, Yebes, and Dominguez in the area near the robbery, and 

the victims identified them on-site as three of their four attackers. At the time 

of their arrest, the three men were each carrying items that belonged to the 

victims.

Defendant, Yebes, and Dominguez were tried together, and were found 

guilty of all charges. The trial court sentenced defendant to two consecutive 

fifteen-year terms with eighty-five percent parole disqualification for the two 

armed robbery counts. The remaining counts merged. 

We affirmed defendant's conviction on direct appeal but remanded for 

resentencing. After the Supreme Court denied certification, the trial court 

resentenced defendant to a fifteen-year sentence for one robbery and a 
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consecutive term of eleven years for the other, both with eighty-five percent 

parole disqualification. 

After we affirmed defendant's sentence, defendant filed for PCR. In his 

petition, defendant alleged his trial counsel provided ineffective assistance by 

failing to 1) file a motion for severance; 2) object to statements by the 

prosecutor; 3) object to a lack of written jury instructions on identification; 4) 

argue mitigating factors at sentencing; and 5) discuss plea offers with him. 

The PCR judge denied defendant's petition. The judge found defendant's 

claims that counsel was ineffective for failing to object to the prosecutor's 

comments and to the lack of written instructions on identification were barred 

by Rule 3:22-5 and that defendant's claim that counsel failed to argue mitigating 

factors was barred by Rule 3:22-4. 

The PCR judge concluded that defendant failed to establish a prima facie 

case of ineffective assistance of counsel as to his remaining arguments. He 

found that his defense did not conflict with his co-defendants'. The judge also 

found defendant's claim that counsel never discussed plea offers with him was 

contradicted by the record.
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On appeal, defendant argues the PCR judge erred by not holding an 

evidentiary hearing on his claim that counsel was ineffective by failing to move 

for severance. Defendant's brief includes one point of argument:

THIS MATTER MUST BE REMANDED FOR AN 

EVIDENTIARY HEARING BECAUSE 

DEFENDANT ESTABLISHED A PRIMA FACIE

CASE OF TRIAL COUNSEL'S INEFFECTIVENESS 

FOR FAILING TO MOVE FOR A SEVERANCE 

FROM HIS CO-DEFENDANTS.

Based on our review of the record and the applicable law, we conclude

this argument lacks sufficient merit to warrant extended discussion. R. 2:11-

3(e)(2). We affirm substantially for the reasons set forth by Judge John M. 

Deitch in his cogent written opinion. We add the following comments.

An evidentiary hearing is required in a PCR matter only once a defendant 

establishes a prima facie case of ineffective assistance of counsel. State v. 

Preciose, 129 N.J. 451, 462-63 (1992). "To establish a prima facie case, 

defendant must demonstrate a reasonable likelihood that his or her claim, 

viewing the facts alleged in the light most favorable to the defendant, will 

ultimately succeed on the merits." R. 3:22-10(b).

To have succeeded on his claim of ineffective assistance of counsel, 

defendant needed to show that counsel's performance was deficient and that 

there was a "reasonable probability that, but for counsel's unprofessional errors, 
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the result of the proceeding would have been different." Strickland v. 

Washington, 466 U.S. 668, 694 (1984).

In general, "complaints 'merely of matters of trial strategy' will not serve 

to ground a constitutional claim of inadequacy of representation by counsel." 

State v. Fritz, 105 N.J. 42, 54 (1987) (quoting State v. Williams, 39 N.J. 471, 

489 (1963)). Defense counsel's failure to file a motion that lacks merit cannot 

support a finding of ineffective assistance. State v. Fisher, 156 N.J. 494, 501 

(1998). Here, a motion to sever would likely have been denied because 

defendant was charged with crimes arising from "the same series of acts" as his 

co-defendants, and "much of the same evidence [was] needed to prosecute each." 

State v. Brown, 118 N.J. 595, 605 (1990). There is also no evidence in the 

record that the joint trial prejudiced defendant because his defense was not 

mutually exclusive from his co-defendants'. Id. at 606. Because defendant 

failed to establish a prima facie case of ineffective assistance of counsel, an 

evidentiary hearing was not required.

Affirmed.