SUPERIOR COURT OF NEW JERSEY 

 APPELLATE DIVISION 

 DOCKET NO. A-0983-21 

STATE OF NEW JERSEY, 

 Plaintiff-Respondent, 

v.

JOSEPH A. BAKER, 

a/k/a JOE BAKER, 

ANTHONY BAKER, 

and SUTAN, 

 Defendant-Appellant. 

_______________________

Submitted November 9, 2023 – Decided January 4, 2024 

Before Judges Currier and Susswein. 

On appeal from the Superior Court of New Jersey, Law 

Division, Union County, Indictment No. 00-05-0556. 

Joseph E. Krakora, Public Defender, attorney for 

appellant (Andrew Robert Burroughs, Designated 

Counsel, on the briefs). 

William A. Daniel, Union County Prosecutor, attorney 

for respondent (Michele C. Buckley, Assistant 

Prosecutor, of counsel and on the brief). 

NOT FOR PUBLICATION WITHOUT THE 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.
2 A-0983-21

Appellant filed a pro se supplemental brief. 

PER CURIAM 

Defendant Joseph A. Baker appeals an August 24, 2021 Law Division 

order denying his request for a new trial based on what he claims is newly 

discovered evidence.1 In 2001, he was convicted for felony murder and related 

offenses. For the most part, defendant's current appeal raises issues that were 

already considered and rejected in his direct appeal and his appeal from the 

denial of his previous PCR petition. Defendant's only new argument, presented 

in his pro se brief, is that his current counsel on appeal from the denial of his 

PCR petition rendered ineffective assistance. After carefully reviewing the 

record in light of the governing legal principles and arguments of the parties, we 

affirm. 

I.

We briefly summarize the procedural history leading to this appeal. In 

May 2000, defendant was charged by indictment with first-degree murder, 

1

 The parties and motion court disagree whether defendant's present application 

is a second petition for post-conviction relief (PCR) or a motion for a new trial 

pursuant to Rule 3:20-1. The motion court treated defendant's application as a 

motion for a new trial. The question of whether the present application is 

properly characterized as a PCR petition or motion for a new trial is largely 

academic. Under either formulation, defendant has failed to establish a basis to 

vacate his trial convictions. 
3 A-0983-21

N.J.S.A. 2C:11-3(a)(1) and (2); first-degree armed robbery, N.J.S.A. 2C:15-1; 

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

a weapon (handgun) with an unlawful purpose, N.J.S.A. 2C:39-4(a); and thirddegree unlawful possession of a weapon (handgun), N.J.S.A. 2C:39-5(b). 

 Defendant's first trial ended in a hung jury. At his second trial, defendant's 

father, William,2 testified as a prosecution witness. William previously pled 

guilty to drug and weapons offenses. He had not been sentenced when he 

testified against defendant. The trial judge instructed the jury that it could 

consider William's sentencing exposure "to determine any possible bias or 

prejudice that [William] may have, specifically, is [William] testifying the way 

he will be testifying as a result of any promise he had or hope for leniency on 

those charges?" When William was sentenced after defendant's conviction, the 

sentencing court treated William's cooperation as a mitigating factor. It imposed 

a lower sentence than the sentence outlined in William's plea agreement. 

 In addition, the State introduced testimony from defendant's girlfriend, 

B.L.E.,3 at defendant's second trial. Defendant met and began a relationship 

2

 Because defendant and his father share the same surname, we use the father's 

first name to avoid confusion. We mean no disrespect in doing so. 

3

 We refer to the witness by initials because her medical records are discussed. 

See R. 1:38-3(a)(2). 
4 A-0983-21

with B.L.E. in North Carolina prior to his arrest. On the first day of defendant's 

second trial, detectives met with B.L.E. in North Carolina. She was transported 

to New Jersey by police that night. Defendant objected to her testimony, 

claiming surprise. He sought to bar her testimony or, in the alternative, be given 

time to conduct further discovery. The trial court initially reserved decision. It 

instructed the parties not to refer to B.L.E. in their opening arguments and 

allowed the defense to meet with B.L.E. to obtain information. 

The defense uncovered information suggesting B.L.E. suffered from a 

psychological disorder. The trial court received her medical records from a 

mental health clinic. Defense counsel met with B.L.E. in the presence of an 

investigator and reviewed the records. Subsequently, the trial court denied 

defendant's renewed request to exclude her testimony or adjourn the trial for 

further discovery. The trial court reasoned that B.L.E. was well known to 

defendant. Further, the State had complied with the discovery requirements. 

The trial court ruled the defense could cross-examine B.L.E. on her psychiatric 

condition and "any other line of questioning that is relevant and material." 

B.L.E. testified five days later. 

We next summarize the evidence adduced at trial, which is more fully 

recounted in our opinion deciding defendant's direct appeal. See State v. Baker, 
5 A-0983-21

No. A-5259-01 (App. Div. Sept. 27, 2004). On the evening of September 23, 

1999, William was walking towards an apartment building in Elizabeth, New 

Jersey to purchase drugs. He was accompanied by Carol Ann Lamanno and 

David Estrada. William, Lamanno, and Estrada encountered defendant and 

another man at the intersection of Cherry and Orchard Streets. Defendant and 

the other man were on bicycles. 

 After a brief but "friendly conversation," defendant said, "[h]ere comes 

my man now." Together, he and his companion bicycled across the street toward 

a laundromat. Defendant testified he was selling drugs and had over $1,000 on 

his person at the time. Defendant and the other man then spoke with a third 

man, Nelson Rodriguez. The three men entered an alleyway near the 

laundromat. 

 Shortly thereafter, William and Lamanno heard "popping sounds" coming 

from the alley. After hearing the noise, William and Lamanno saw defendant 

and the other man emerge from the alley and flee on their bicycles. William and 

Lamanno walked towards the alley and found Rodriguez's lifeless body. He 

suffered a fatal close-range gunshot wound to the head. Police responded to the 

scene after receiving reports of gunfire. Police unsuccessfully searched the area 

for witnesses and shell casings. 
6 A-0983-21

 The next day, William—who had served as a confidential informant for 

several Elizabeth police officers—reported to detectives what he knew about the 

shooting. William explained he felt "disrespected" that his son might have 

committed a crime in his presence. William also said defendant "was out there 

to rob someone." Despite urging from defendant, William refused to recant his 

statement to police. 

Cheronda Ingram, defendant's former girlfriend, also spoke to police 

about the shooting. She claimed defendant told her he had "shot somebody." 

Defendant denied making any such statement to Ingram. 

Two days after the shooting, detectives located defendant and brought him 

to a police station for questioning. He admitted he was at the corner of Cherry 

and Orchard Streets on the day of the shooting, but claimed he was alone. 

A warrant for defendant's arrest was issued in September 1999. 

Eventually, on March 9, 2000, he was apprehended in North Carolina. When 

detectives located B.L.E. in North Carolina, she informed them that defendant 

told her he was "on the run for murder," and "he robbed somebody for some 

dope and some money" in an alley. At trial, B.L.E. testified defendant told her 

he had held a gun to a boy's head and it went off. Defendant denied admitting 
7 A-0983-21

to the crime to B.L.E. The State introduced a correspondence defendant sent 

B.L.E. explaining his belief that he could "beat" the charges. 

The jury returned a guilty verdict on all counts. At sentencing, the trial 

court merged the manslaughter, robbery, and possession of a weapon for an 

unlawful purpose convictions with the felony murder conviction and imposed a 

life term with thirty years of parole ineligibility. The court also imposed a 

consecutive five-year term with two and one-half years of parole ineligibility 

for the unlawful possession of a weapon conviction. 

 Defendant appealed his convictions and sentence, raising eleven 

contentions in counseled and pro se briefs. In his direct appeal, defendant 

challenged William's testimony that he "neither received nor expected favorable 

treatment from the State in exchange for his testimony against defendant." 

Defendant also argued the trial court erred in allowing B.L.E. to testify without 

granting an adjournment for defendant "to prepare for the surprise witness." 

 We rejected defendant's contentions. Regarding William's testimony, we 

noted the prosecutor's "acquiescence to the court's application of the 

'cooperating with the State' mitigating factor [at William's sentencing] is not 

sufficient to infer the existence of a concealed quid pro quo agreement." 

Regarding B.L.E.'s testimony, we stated "we are in complete agreement with the 
8 A-0983-21

trial judge on this issue. The witness was known to defendant long before the 

State became aware of her." Although we affirmed the convictions, we 

remanded to the trial court to amend the judgment of conviction to reflect the 

unlawful possession of a weapon sentence was concurrent with the felony 

murder sentence. 

Defendant filed a PCR petition in March 2005, claiming ineffective 

assistance of counsel, primarily because trial counsel did not call certain 

witnesses at the second trial who testified at the first trial. He also claimed 

newly discovered evidence warranted a new trial. The newly discovered 

evidence claims pertained to the sentence William received after defendant's 

trial, and to B.L.E.'s post-trial claim she was coerced by police to inculpate 

defendant. 

The PCR court conducted an evidentiary hearing over seven nonconsecutive days between June and November 2006. The PCR court carefully 

examined B.L.E.'s assertion that she was coerced into inculpating defendant. 

She claimed she repeatedly told detectives that defendant never told her about 

the shooting. Instead, she only heard about his involvement from William and 

defendant's sister. She said the detectives refused to believe her and she was 

afraid of one of them. Therefore, "she told them what they wanted to hear." She 
9 A-0983-21

also claimed she signed the pre-written statement implicating defendant without 

reading it. A doctor who performed a psychological evaluation of B.L.E. 

testified she suffered from psychological disorders which could cause her to "be 

easily influenced and coerced by authority figures." The detective who 

allegedly coerced B.L.E. contradicted her claims. He testified she never 

expressed any hesitation or unwillingness to speak with the officers. The PCR 

judge found B.L.E.'s allegations "confusing and convoluted." In contrast, the 

PCR judge found the detectives' testimony credible. Based on those findings, 

the PCR judge rejected the claim that B.L.E. had been coerced. 

The PCR judge also rejected defendant's newly discovered evidence 

arguments pertaining to William's sentence. The PCR court concluded the 

testimony regarding William's expected sentence was truthful. Further, 

evidence that William was ultimately sentenced to a three-year prison term 

rather than the five-year term contemplated in his plea agreement did not impact 

the jury verdict. 

The PCR judge was also unpersuaded by defendant's ineffective assistance 

of counsel claims and, therefore, denied defendant's petition. On appeal, we 

affirmed the denial of defendant's petition for PCR. 
10 A-0983-21

In March 2019, defendant filed a motion for a new trial based on the same 

"newly discovered" evidence raised in the initial PCR, as well as the claimed 

ineffective assistance of his PCR appellate counsel. That is the motion now 

before us. As we have noted, there was confusion by both defendant's counsel 

and the State about whether defendant's application was a motion for a new trial 

or a second petition for PCR. See supra note 1. At the outset of the August 20, 

2021 hearing, the motion court determined defendant's application would be 

treated as a motion for a new trial and not a second PCR petition. 4 

 The motion court determined defendant's newly discovered evidence 

arguments pertaining to William and B.L.E. were procedurally barred because 

both claims had already been rejected by the Appellate Division. The motion 

court nonetheless proceeded to rule on the merits, finding there was no evidence 

the State offered William an undisclosed deal for his testimony. The motion 

court reasoned, "it is clear that the sentence reduction [William] received was 

by judicial discretion and not by the State altering the terms of its agreement 

with [William]. And thus, this would not be then material evidence." 

4

 The motion court noted the ineffective assistance claim was "a PCR issue" and 

did not rule on that portion of defendant's motion. 
11 A-0983-21

As for defendant's contentions regarding B.L.E., the motion court relied 

on the record developed in the PCR hearing. It found "[B.L.E.] changed her 

testimony three times in the course of trial so that it was not believable and so 

that the mental health records would not have had any material impact upon the 

jury verdict." The motion court concluded, "since the defendant failed to meet 

[the two materiality prongs of the test for newly discovered evidence], the two 

issues raised by the defendant do not justify a new trial and his motion for a new 

trial is denied." 

This appeal follows. Defendant raises the following contentions for our 

consideration in his counseled brief: 

POINT I 

DEFENDANT'S CLAIMS ARE NOT 

PROCEDURALLY BARRED. 

POINT II 

THE NEWLY DISCOVERED EVIDENCE 

PRESENTED BY DEFENDANT WAS MATERIAL 

AND HAD THE CHARACTER OF CHANGING THE 

VERDICT. 

(1) The fact that William Baker received a more 

favorable sentence than that conveyed to the jury 

was material evidence that would have further 

undermined his credibility. 
12 A-0983-21

(2) As [B.L.E.]'s mental health history was 

newly discovered material evidence of the 

character that could have influenced the outcome 

of the proceeding, a new trial is required. 

 Defendant raises the following additional contentions in his pro se brief: 

POINT I 

THE NEWLY DISCOVERED EVIDENCE THAT 

THE STATE[']S PRINCIPAL WITNESS RECEIVED 

A REDUCED SENTENCE AFTER TRIAL 

SPECIFICALLY FOR HIS COOPERATION WITH 

THE STATE WAS NOT MADE KNOWN TO THE 

JURY IS MATERIAL AND VIOLATED 

APPELLANT[']S CONSTITUTIONAL RIGHT TO 

DUE PROCESS AND A FAIR TRIAL PURSUANT 

TO THE HOLDING IN GIGLIO V. UNITED STATES, 

405 U.S. 150 (1972). 

POINT II 

A NEW TR[IA]L IS REQUIRED ACCORDING TO 

THE HOLDING IN STATE V. HENRIES, 306 N.J. 

SUPER[.] 512 (1997)[,] WHERE AFTER THE 

COMPLETION OF DEFENDANT'S TRIAL IT WAS 

LEARNED THAT THE STATE[']S SURPRISE 

WITNESS SUFFERED FROM MENTAL 

RETARDATION AND MULTIPLE 

PSYCHOLOGICAL DISORDERS NOT MADE THE 

JURY [SIC]. 

POINT III 

APPELLATE PCR COUNSEL WAS INEFFECTIVE 

IN FAILING TO PROPERLY ADVANCE ALL 

LEGAL ISSUES THAT W[ERE] RAISED IN THE 
13 A-0983-21

PCR COURT TO THE APPELLATE COURT OR 

SUPREME COURT. APPELLATE PCR COUNSEL 

SUBMITTED A DEFICIENT TWENTY[-]THREE 

PAGE LETTER BRIEF CONTAINING NO CASE 

LAW AND FAILED TO CORRECT THE RECORD 

BELOW AND PREJUDICE[D] THE DEFENDANT'S 

APPEAL FROM THE DENIAL OF PCR. 

II. 

We first address whether defendant is procedurally barred from raising 

issues that have already been decided on appeal. The motion court ruled that 

defendant's newly discovered evidence claims were barred because they were 

already adjudicated. However, it did not specify whether it was relying on Rule 

3:22-5—which specifically bars relitigation in the PCR context—or general 

principles of collateral estoppel. Because the motion court stated, "this is not 

an application for [PCR]" we infer it was relying on the collateral estoppel 

doctrine. In its brief, the State only discusses Rule 3:22-5. Defendant, 

meanwhile, broadly argues "the procedural bars in this case should be relaxed," 

relying on notions of "basic fair play and fundamental fairness." 

The doctrine of collateral estoppel bars relitigation of issues that have 

"been litigated and determined." State v. Kelly, 406 N.J. Super. 332, 344 (App. 

Div. 2009), aff'd, 201 N.J. 471 (2010). For an issue to be precluded by a prior 

determination, the party asserting the bar must show: 
14 A-0983-21

(1) the issue to be precluded is identical to the issue 

decided in the prior proceeding; (2) the issue was 

actually litigated in the prior proceeding; (3) the court 

in the prior proceeding issued a final judgment on the 

merits; (4) the determination of the issue was essential 

to the prior judgment; and (5) the party against whom 

the doctrine is asserted was a party to or in privity with 

a party to the earlier proceeding. 

[Id. at 345 (quoting State v. Brown, 394 N.J. Super. 

492, 502 (App. Div. 2007)).] 

Rule 3:22-5 likewise bars relitigation of issues, stating, "[a] prior 

adjudication upon the merits of any ground for relief is conclusive whether made 

in the proceedings resulting in the conviction or in any post-conviction 

proceeding brought pursuant to this rule or prior to the adoption thereof, or in 

any appeal taken from such proceedings." 

Under either theory, the basic prerequisites for precluding defendant's 

renewed claims are clearly present. The gravamen of defendant's present 

argument is that an exception should apply. Our Supreme Court has 

acknowledged in this regard, "Rule 3:22-5's bar to review of a prior claim 

litigated on the merits 'is not an inflexible command.'" State v. Nash, 212 N.J. 

518, 547 (2013) (quoting State v. Franklin, 184 N.J. 516, 528 (2005)). The 

Court specifically stated, "th[at] rule does not prohibit a claim for relief based 

on newly discovered evidence." Ibid. The Court continued, "our courts are not 
15 A-0983-21

powerless to correct a fundamental injustice." Ibid. While Nash's holding was 

in the context of PCR-specific procedural rules, we presume courts are not 

required to "acquiesce to a miscarriage of justice" when applying general 

preclusion principles. Id. at 546. 

A fundamental injustice exists "when the judicial system has denied a 

'defendant with fair proceedings leading to a just outcome' or when 'inadvertent 

errors mistakenly impacted a determination of guilt or otherwise wrought a 

miscarriage of justice.'" Ibid. (quoting State v. Mitchell, 126 N.J. 565, 587 

(1992)). "To succeed on a fundamental-injustice claim, the petitioner must 

make 'some showing' that an error or violation 'played a role in the determination 

of guilt.'" Ibid. (quoting Mitchell, 126 N.J. at 587). 

In essence, the fundamental-injustice standard described in Nash allows 

courts to vault procedural hurdles when a petitioner would have a meritorious 

claim but for the procedural bar. We are satisfied defendant has not been 

subjected to any fundamental injustice. However, in an abundance of caution, 

we follow the motion court's lead and address defendant's contentions on their 

merits. 

 III. 
16 A-0983-21

"Rule 3:20-1 and -2 provide a mechanism for seeking a new trial following 

a criminal conviction." State v. Armour, 446 N.J. Super. 295, 305 (App. Div. 

2016). "Rule 3:20-2 permits a defendant to do so 'on the ground of [newly 

discovered] evidence' at any time." Ibid. Appellate courts "review a motion for 

a new trial decision for an abuse of discretion." State v. Fortin, 464 N.J. Super. 

193, 216 (App. Div. 2020) (citing Armour, 446 N.J. Super. at 306). "Questions 

of law are reviewed de novo." Ibid. (citing State v. Miles, 229 N.J. 83, 90 

(2017)). 

 A new trial is only granted if the new evidence is "(1) material to the issue 

and not merely cumulative or impeaching or contradictory; (2) discovered since 

the trial and not discoverable by reasonable diligence beforehand; and (3) of the 

sort that would probably change the jury's verdict if a new trial were granted." 

Ibid. (quoting State v. Carter, 85 N.J. 300, 314 (1981)). 

 Our Supreme Court has recognized that "prongs one and three [of the 

newly discovered evidence test] are inextricably intertwined." Nash, 212 N.J. 

at 549. "'[E]vidence that would have the probable effect of raising a reasonable 

doubt as to the defendant's guilt would not be considered merely cumulative, 

impeaching, or contradictory.'" Ibid. (quoting State v. Ways, 180 N.J. 171, 189 

(2004)). "'The power of the newly discovered evidence to alter the verdict is the 
17 A-0983-21

central issue, not the label to be placed on that evidence.'" Id. at 449-50 (quoting 

Ways, 180 N.J. at 191-92). 

The key disputed issues here turn on the materiality of the evidence 

pertaining to William's eventual sentence and B.L.E.'s mental condition. The 

new evidence pertaining to William does not directly contradict his testimony, 

but rather relates to a potential motive for testifying against his son. The new 

evidence is the type of "impeaching" evidence that ordinarily does not warrant 

a new trial. See Nash, 212 N.J. at 549. 

Importantly, and as we previously determined on direct appeal, the jury 

was not misled regarding William's plea agreement. Instead, the jury heard 

about William's plea agreement as it was understood at the time of his testimony. 

That readily distinguishes the present matter from the case defendant relies upon 

in point one of his uncounseled brief, Giglio v. United States, 405 U.S. 150 

(1972). In Giglio, a new trial was granted because the Government told the jury 

a key witness had not been offered immunity for his testimony despite an 

affirmative promise to the contrary. Id. at 151-52, 154. 

We also deem it important that the possibility William might receive 

additional leniency based on his testimony was not concealed from the jury. The 

trial court specifically instructed the jury: 
18 A-0983-21

[Y]ou've heard some testimony that [William] has 

charges to which he is awaiting sentencing, as of this 

time he's not yet sentenced and, therefore, the same 

cannot be used to challenge his credibility, 

believability, but may only be used, by you, to 

determine any possible bias or prejudice that [William] 

may have, specifically, is [William] testifying the way 

he will be testifying as a result of any promise he had 

or hope for leniency on those charges? 

On these facts, we are convinced the "new" evidence concerning the sentence 

William eventually received is not sufficiently material to warrant a new trial. 

See Nash, 212 N.J. at 549. 

We turn next to the materiality of B.L.E.'s post-trial claim she had been 

coerced by police and the "newly discovered" evidence of her mental health 

issues. The PCR court, which heard testimony from B.L.E. as well as a 

psychologist who examined her, determined her claim of coercion was not 

credible. The PCR court concluded her testimony was "conflicted. It is not 

supported by other evidence not in dispute. And, therefore, the [c]ourt finds no 

merit to her testimony. And, therefore, as to that aspect[,] the application for a 

new trial is denied." 

 Once again, there is no basis upon which to overturn that finding. We see 

no reason why the motion court could not rely on it in denying defendant's latest 

attempt to vacate his convictions. We add that aside from the deference we 
19 A-0983-21

generally accord to a trial court's credibility findings, "[t]he Supreme Court has 

. . . counseled that [newly discovered] evidence 'must be reviewed with a certain 

degree of circumspection to ensure that it is not the product of fabrication. . . .'" 

State v. Tormasi, 443 N.J. Super. 146, 151 (App. Div. 2015) (quoting Ways, 180 

N.J. at 187-88). We note that the psychologist who testified at the PCR hearing 

on defendant's behalf also acknowledged B.L.E. "could be easily coerced by 

people including loved ones or people she wants to impress." The record shows 

defendant was expressing his "ongoing love and affection for" B.L.E. when she 

made her claims of coercion. 

IV. 

 Finally, we turn to defendant's contention the attorney who handled the 

appeal from the denial of his 2009 PCR motion was ineffective.5 Defendant 

makes two arguments in this regard: first, his counsel should have raised the 

issue of William's post-trial sentence; and second, his counsel should have 

"correct[ed] the record" as it pertained to the PCR court's findings regarding the 

5

 The motion court did not rule on this issue. See supra note 4. We see no point 

at this juncture in remanding for further findings by the motion court since the 

record before us clearly demonstrates defendant's ineffective assistance 

contention does not provide a basis for PCR. 
20 A-0983-21

trial counsel's purported ineffectiveness in not calling a particular witness, 

Pamela Kurzweil. 

In order to demonstrate ineffectiveness of counsel, "[f]irst, the defendant 

must show that counsel's performance was deficient . . . . Second, the defendant 

must show that the deficient performance prejudiced the defense." Strickland 

v. Washington, 466 U.S. 668, 687 (1984). In State v. Fritz, our Supreme Court 

adopted the two-part test articulated in Strickland. 105 N.J. 42, 58 (1987). 

To meet the first prong of the Strickland/Fritz test, a defendant must show 

"that counsel 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. Reviewing courts indulge in "a strong presumption that counsel's 

conduct falls within the wide range of reasonable professional assistance." Id. 

at 689. 

The second prong of the Strickland/Fritz test requires the defendant show 

"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. Put differently, counsel's errors must 

create a "reasonable probability" that the outcome of the proceedings would 

have been different if counsel had not made the errors. Id. at 694. 
21 A-0983-21

The same Strickland/Fritz standard applies to the assessment of 

ineffective assistance of counsel claims asserted against appellate counsel. See 

State v. Gaither, 396 N.J. Super. 508, 513 (App. Div. 2007). Appellate counsel 

does not have an obligation to "advance every argument, regardless of merit, 

urged by the appellant," Evitts v. Lucey, 469 U.S. 387, 394 (1985), but "should 

bring to the court's attention controlling law that will vindicate [the appellant]’s 

cause." State v. O'Neil, 219 N.J. 598, 612 (2014). Failure to do so constitutes 

ineffective assistance if there is a "reasonable probability" that the outcome of 

the appeal would have been different. Id. at 617. Thus, to prove ineffectiveness, 

a defendant must prove an underlying claim to relief is meritorious. State v. 

Morrison, 215 N.J. Super. 540, 547-51 (1987). 

As to the first prong, the brief filed by defendant's PCR appeal counsel 

appears inadequate on its face. The brief does not include a single legal citation, 

stating instead: 

There is no useful purpose in again setting out pages of 

boilerplate decisional law as to claims of ineffective 

assistance of counsel that has been spread out fairly 

fully in the briefs filed below and that has again been 

reviewed in summary form in [the PCR judge]'s preface 

to addressing these claims. 

But even accepting that the first prong of the Strickland/Fritz test has been 

satisfied, defendant has not shown he was prejudiced by appellate counsel's 
22 A-0983-21

performance. See Fritz, 105 N.J. at 58. Even if counsel had fully briefed the 

issues, it would not have changed the ultimate result. With respect to 

defendant's contentions concerning William's sentence, better briefing could not 

have changed the result for the reasons we explained in the preceding section. 

So too, we need only briefly discuss defendant's claim appellate counsel 

failed to "correct the record" regarding the claimed ineffectiveness of 

defendant's trial counsel with respect to Kurzweil's testimony. Defendant's pro 

se brief to the motion court, which he incorporates by reference in this appeal, 

challenges the initial PCR court's characterization of certain testimony. For 

example, the PCR court said defendant's trial counsel "did not recall defendant 

insisting that any of their witnesses be called to testify at the second trial . . . ." 

Although defendant's trial counsel did not specifically recall defendant 

requesting Kurzweil's testimony, he testified a subpoena was sent to Kurzweil 

suggesting defendant "probably did" request her testimony. Defendant argues 

the PCR court's findings are inconsistent with the evidence adduced at the 

hearing. Any such discrepancies, however, do not establish the PCR court erred 

by denying defendant's petition. 

Notably, the PCR court relied on trial counsel's testimony that calling 

Kurzweil may have been more harmful to defendant than helpful. It was trial 
23 A-0983-21

counsel's position that Kurzweil would be undermined on cross-examination and 

would "place defendant at the scene." 

We stress that the ineffective-assistance-of-counsel test is not whether 

counsel's strategy was the best choice. Reviewing courts "must be highly 

deferential" to counsel's judgment and engage in a "strong presumption that 

counsel exercised reasonable professional judgment and sound trial 

strategy . . . ." State v. Loftin, 191 N.J. 172, 198 (2007) (internal quotation 

marks and citations omitted). Here, as the initial PCR court found, defendant's 

trial counsel's "choices clearly were strategically defensible." Accordingly, 

defendant has not shown that better briefing by his appellate PCR counsel would 

have altered the final result. In sum, any deficiency by defendant's appellate 

PCR counsel was not prejudicial. Thus, defendant has once again failed to 

establish a basis to vacate his convictions. See Fritz, 105 N.J. at 58. 

Affirmed.