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

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. Joseph E. Krakora, Public Defender, attorney for appellant (Andrew Robert Burroughs , Designated Counsel, on the briefs). William A. Daniel, Union County Prosecutor, attorne y 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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court.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 parti es in the case and its use in other cases is limite d. 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, 202 1 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 rel ated offenses. For the most part, defendant's current a ppeal raises issues that were already considered and rejected in his direct appea l and his appeal from the denial of his previous PCR petition. Defendant's o nly 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. Afte r carefully reviewing the record in light of the governing legal principles a nd 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 defen dant's present application is a second petition for post-conviction relief (PC R) 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 th e 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

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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 previ ously pled guilty to drug and weapons offenses. He had not be en sentenced when he testified against defendant. The trial judge instr ucted the jury that it could consider William's sentencing exposure "to determin e 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 d efendant's conviction, the sentencing court treated William's cooperation as a mitigating factor. It imposed a lower sentence than the sentence outlined in Will iam's plea agreement. In addition, the State introduced testimony from d efendant's girlfriend, B.L.E., 3 at defendant's second trial. Defendant met and be gan a relationship

2 Because defendant and his father share the same s urname, we use the father's first name to avoid confusion. We mean no disrespe ct in doing so.

3 We refer to the witness by initials because her med ical records are discussed. See R. 1:38 -3(a)(2).4 A- 0983

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with B.L.E. in North Carolina prior to his arrest. On the f irst day of defendant's second trial, detectives met with B.L.E. in North Carolin a. She was transported to New Jersey by police that night. Defendant obje cted 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 th eir opening arguments and allowed the defense to meet with B.L.E. to obtain i nformation. The defense uncovered information suggesting B.L.E. suffered from a psychological disorder. The trial court received h er medical records from a mental health clinic. Defense counsel met with B.L .E. in the presence of an investigator and reviewed the records. Subsequentl y, the trial court denied defendant's renewed request to exclude her testimon y 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 th e discovery requirements. The trial court ruled the defense could cross-exami ne B.L.E. on her psychiatric condition and "any other line of questioning that i s relevant and material." B.L.E. testified five days later. We next summarize the evidence adduced at trial, wh ich is more fully recounted in our opinion deciding defendant's direc t appeal. See State v. Baker ,5 A- 0983

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No. A- 5259 -01 (App. Div. Sept. 27, 2004). On the evening of September 23, 1999, William was walking towards an apartment buil ding in Elizabeth, New Jersey to purchase drugs. He was accompanied by Ca rol Ann Lamanno and David Estrada. William, Lamanno, and Estrada encou ntered defendant and another man at the intersection of Cherry and Orcha rd Streets. Defendant and the other man were on bicycles. After a brief but "friendly conversation," defenda nt said, "[h]ere comes
my man now." Together, he and his companion bicycled across the street toward a laundromat. Defendant testified he was selling d rugs and had over $1,000 on his person at the time. Defendant and the other ma n then spoke with a third man, Nelson Rodriguez. The three men entered an al leyway near the laundromat. Shortly thereafter, William and Lamanno heard "pop ping sounds" coming from the alley. After hearing the noise, William a nd 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 Rodrigue z's lifeless body. He suffered a fatal close-range gunshot wound to the head. Po lice responded to the scene after receiving reports of gunfire. Police u nsuccessfully searched the area for witnesses and shell casings.6 A- 0983

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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 sa id defendant "was out there to rob someone." Despite urging from defendant, Wi lliam refused to recant his statement to police. Cheronda Ingram, defendant's former girlfriend, als o spoke to police about the shooting. She claimed defendant told her he had "shot somebody." Defendant denied making any such statement to Ingra m. Two days after the shooting, detectives located def endant and brought him to a police station for questioning. He admitted h e 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 Sept ember 1999. Eventually, on March 9, 2000, he was apprehended in North Carolina. When detectives located B.L.E. in North Carolina, she in formed them that defendant told her he was "on the run for murder," and "he ro bbed 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 admitting7 A- 0983

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to the crime to B.L.E. The State introduced a corr espondence defendant sent B.L.E. explaining his belief that he could "beat" t he charges. The jury returned a guilty verdict on all counts. At sentencing, the trial court merged the manslaughter, robbery, and possess ion 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 ye ars of parole ineligibility for the unlawful possession of a weapon conviction. Defendant appealed his convictions and sentence, r aising eleven contentions in counseled and pro se briefs. In his direct appeal, defendant challenged William's testimony that he "neither rec eived nor expected favorable treatment from the State in exchange for his testim ony against defendant." Defendant also argued the trial court erred in allo wing B.L.E. to testify without granting an adjournment for defendant "to prepare f or the surprise witness." We rejected defendant's contentions. Regarding Wi lliam'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 qu id pro quo agreement." Regarding B.L.E.'s testimony, we stated "we are in complete agreement with the8 A- 0983

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trial judge on this issue. The witness was known t o defendant long before the State became aware of her." Although we affirmed t he convictions, we remanded to the trial court to amend the judgment o f conviction to reflect the unlawful possession of a weapon sentence was concur rent with the felony murder sentence. Defendant filed a PCR petition in March 2005, claim ing ineffective assistance of counsel, primarily because trial coun sel 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. T he newly discovered evidence claims pertained to the sentence William r eceived after defendant's trial, and to B.L.E.'s post-trial claim she was coe rced by police to inculpate defendant. The PCR court conducted an evidentiary hearing over seven nonconsecutive days between June and November 2006. T he PCR court carefully examined B.L.E.'s assertion that she was coerced in to inculpating defendant. She claimed she repeatedly told detectives that def endant never told her about the shooting. Instead, she only heard about his in volvement from William and defendant's sister. She said the detectives refuse d to believe her and she was afraid of one of them. Therefore, "she told them w hat they wanted to hear." She9 A- 0983

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also claimed she signed the pre-written statement i mplicating 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 con voluted." In contrast, the
PC R judge found the detectives' testimony credible. Based on those findings, the PCR judge rejected the claim that B.L.E. had be en coerced. The PCR judge also rejected defendant's newly disco vered evidence arguments pertaining to William's sentence. The PC R 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 i neffective 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

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In March 2019, defendant filed a motion for a new t rial based on the same "newly discovered" evidence raised in the initial P CR, 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 b y 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. A t the outset of the August 20, 2021 hearing, the motion court determined defendant 's application would be

tr eated as a motion for a new trial and not a second PCR petition. 4 The motion court determined defendant's newly disc overed evidence arguments pertaining to William and B.L.E. were pro cedurally barred because both claims had already been rejected by the Appell ate Division. The motion court nonetheless proceeded to rule on the merits, finding there was no evidence the State offered William an undisclosed deal for h is testimony. The motion court reasoned, "it is clear that the sentence redu ction [William] received was by judicial discretion and not by the State alterin g the terms of its agreement with [William]. And thus, this would not be then m aterial evidence."

4 The motion court noted the ineffective assistance c laim was "a PCR issue" and did not rule on that portion of defendant's motion.11 A- 0983

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As for defendant's contentions regarding B.L.E., th e motion court relied on the record developed in the PCR hearing. It fou nd "[B.L.E.] changed her testimony three times in the course of trial so tha t it was not believable and so that the mental health records would not have had a ny 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 d iscovered 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 followin g 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 contenti ons 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 I N 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 THE13 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. T he motion court ruled that defendant's newly discovered evidence claims were b arred because they were already adjudicated. However, it did not specify wh ether it was relying on Rule
3:22 -5

— which specifically bars relitigation in the PCR con text

— or general principles of collateral estoppel. Because the mot ion court stated, "this is not an application for [PCR]" we infer it was relying o n the collateral estoppel doctrine. In its brief, the State only discusses R ule 3:22-5. Defendant, meanwhile, broadly argues "the procedural bars in t his case should be relaxed," relying on notions of "basic fair play and fundamen tal fairness." The doctrine of collateral estoppel bars relitigati on 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 iss ue to be precluded by a prior determination, the party asserting the bar must sho w:14 A- 0983

- 21 (1) the issue to be precluded is identical to the i ssue 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 esse ntial to the prior judgment; and (5) the party against wh om the doctrine is asserted was a party to or in privi ty 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 reli ef is conclusive whether made in the proceedings resulting in the conviction or i n any post-conviction proceeding brought pursuant to this rule or prior t o the adoption thereof, or in any appeal taken from such proceedings." Under either theory, the basic prerequisites for pr ecluding defendant's renewed claims are clearly present. The gravamen o f defendant's present argument is that an exception should apply. Our Su preme 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 comma nd.'" State v. Nash, 212 N.J. 518, 547 (2013) (quoting State v. Frankl in , 184 N.J. 516, 528 (2005)). The Court specifically stated, "th[at] rule does not pr ohibit a claim for relief based on newly discovered evidence." Ibid. The Court continued, "our courts are not15 A- 0983

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powerless to correct a fundamental injustice." Ibi d. Wh ile 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 s ystem 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 'pla yed a role in the determination of guilt.'" Ibid. (quoting Mitchell, 126 N.J. at 5 87). In essence, the fundamental- injustice st andard described in Nash allows courts to vault procedural hurdles when a petitione r would have a meritorious claim but for the procedural bar. We are satisfied defendant has not been subjected to any fundamental injustice. However, i n an abundance of caution, we follow the motion court's lead and address defen dant's contentions on their merits.
III.16 A- 0983

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"Rule 3:20 -1 and -2 provide a mechanism for seeking a new tri al 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 contradictor y; (2) discovered since the trial and not discoverable by reasonable dilige nce 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 in tertwined." 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 cons idered merely cumulative, impeaching, or contradictory.'" Ibid. (quoting Sta te v. Ways, 180 N.J. 171, 189 (2004)). "'The power of the newly discovered evide nce to alter the verdict is the17 A- 0983

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central issue, not the label to be placed on that e vidence.'" Id. at 449-50 (quoting Ways, 180 N.J. at 191-92). The key disputed issues here turn on the materialit y of the evidence pertaining to William's eventual sentence and B.L.E .'s mental condition. The new evidence pertaining to William does not directl y contradict his testimony, but rather relates to a potential motive for testif ying 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 dir ect 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. Un ited States, 405 U.S. 150 (1972). In Giglio , a new trial was granted because the Government to ld 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 Will iam 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 t his time he's not yet sentenced and, therefore, the sam e cannot be used to challenge his credibility, be lievability, 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 mat erial to warrant a new trial. See Nash, 212 N.J. at 549. We turn next to the materiality of B.L.E.'s post-tr ial claim she had been coerced by police and the "newly discovered" eviden ce 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 wa s "conflicted. It is not supported by other evidence not in dispute. And, t herefore, 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 overtur n 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 asi de from the deference we19 A- 0983

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generally accord to a trial court's credibility fin dings, "[t]he Supreme Court has . . . counseled that [newly discovered] evidence 'm ust be reviewed with a certain degree of circumspection to ensure that it is not t he product of fabrication. . . .'" State v. Tormasi, 443 N.J. Super. 146, 151 (App. Di v. 2015) (quoting Ways, 180 N.J. at 187-88). We note that the psychologist who testifi ed at the PCR hearing on defendant's behalf also acknowledged B.L.E. "cou ld be easily coerced by people including loved ones or people she wants to impress." The record shows defendant was expressing his "ongoing love and affe ction for" B.L.E. when she made her claims of coercion.
IV. Finally, we turn to defendant's contention the att orney who handled the appeal from the denial of his 2009 PCR motion was i neffective. 5 Defendant makes two arguments in this regard: first, his coun sel 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 cou rt's findings regarding the

5 The motion court did not rule on this issue. See s upra 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 i neffective assistance contention does not provide a basis for PCR.20 A- 0983

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trial counsel's purported ineffectiveness in not ca lling 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 tes t, a defendant must show "that counsel made errors so serious that counsel w as not functioning as the 'counsel' guaranteed the defendant by the Sixth Ame ndment." Strickland, 466 U.S. at 687. Reviewing courts indulge in "a strong presumption that counsel's conduct falls within the wide range of reasonable p rofessional assistance." Id. at 689. The second prong of the Strickland/Fritz test requi res the defendant show "that counsel's errors were so serious as to depriv e the defendant of a fair trial, a trial whose result is reliable." Id. at 687. Pu t 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 err ors. Id. at 694.21 A- 0983

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The sam e Strickland/Fritz standard applies to the assessment of ineffective assistance of counsel claims asserted a gainst appellate counsel. See State v. Gaither, 396 N.J. Super. 508, 513 (App. Di v. 2007). Appellate counsel does not have an obligation to "advance every argum ent, 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 vin dicate [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 pr obability" 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 relie f 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 ineffect ive assistance of counsel that has been spread out fair ly fully in the briefs filed below and that has again been reviewed in summary form in [the PCR judge]'s prefa ce to addressing these claims. But even accepting that the first prong of the Stri ckland/Fritz test has been satisfied, defendant has not shown he was prejudice d by appellate counsel's22 A- 0983

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performance. See Fritz, 105 N.J. at 58. Even if c ounsel had fully briefed the issues, it would not have changed the ultimate resu lt. With respect to defendant's contentions concerning William's senten ce, better briefing could not have changed the result for the reasons we explaine d in the preceding section. So too, we need only briefly discuss defendant's cl aim appellate counsel failed to "correct the record" regarding the claime d 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 couns el "did not recall defendant insisting t hat 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 sub poena was sent to Kurzweil suggesting defendant "probably did" request her tes timony. Defendant argues the PCR court's findings are inconsistent with the evidence adduced at the hearing. Any such discrepancies, however, do not e stablish the PCR court erred by denying defendant's petition. Notably, the PCR court relied on trial counsel's te stimony that calling Kurzweil may have been more harmful to defendant th an helpful. It was trial23 A- 0983

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counsel's position that Kurzweil would be undermine d 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, 1 98 (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 deficie ncy by defendant's appellate PCR counsel was not prejudicial. Thus, defendant h as once again failed to establish a basis to vacate his convictions. See F ritz, 105 N.J. at 58. Affirmed.