SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2829-19

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DESMOND D. GRIER,

Defendant-Appellant.

________________________

Submitted October 18, 2021 – Decided December 3, 2021

Before Judges Rothstadt and Natali.

On appeal from the Superior Court of New Jersey, Law 

Division, Salem County, Indictment No. 15-10-0493.

Joseph E. Krakora, Public Defender, attorney for 

appellant (Karen A. Lodeserto, Designated Counsel, on 

the brief).

Kristin J. Telsey, Acting Salem County Prosecutor, 

attorney for respondent (David Galemba, Assistant 

Prosecutor, 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NOT FOR PUBLICATION WITHOUT THE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.
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A-2829-19

Defendant Desmond D. Grier appeals from the December 9, 2019 denial 

of his petition for post-conviction relief (PCR) without an evidentiary hearing. 

We affirm.

In 2016, defendant was convicted by a jury of having committed thirddegree possession of a controlled dangerous substance, N.J.S.A. 2C:35-10(a)(1). 

He was sentenced in the extended term to eight-years. Defendant appealed his 

conviction and sentence, arguing the following two points:

POINT I 

THE TRIAL COURT VIOLATED [DEFENDANT'S] 

SIXTH AMENDMENT RIGHT TO COUNSEL BY 

FAILING TO HOLD A HEARING ON WHETHER 

[DEFENDANT] WAS COMPET[E]NT TO SERVE AS 

HIS OWN ATTORNEY. ACCORDINGLY, 

[DEFENDANT'S] CONVICTION MUST BE 

REVERSED AND THE MATTER REMANDED FOR 

A NEW TRIAL. U.S. CONST., AMENDS. VI AND 

[XIV]; [N.J.] CONST., ART. 1, ¶10. (NOT RAISED 

BELOW) 

POINT II 

[DEFENDANT'S] SENTENCE MUST BE VACATED 

AND THE CASE REMANDED FOR 

RESENTENCING BECAUSE THE TRIAL COURT 

ENGAGED IN IMPERMISSIBLE JUDICIAL FACTFINDING WHEN IT IMPOSED AN EXTENDED 

TERM SENTENCE ON [DEFENDANT'S] 

CONVICTION FOR POSSESSION OF COCAINE IN 

VIOLATION OF THE SIXTH AMENDMENT OF 
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A-2829-19

THE UNITED STATES CONST[ITUTION]. (NOT 

RAISED BELOW)

[State v. Grier, A-2408-16 (App. Div. Mar. 6, 2018) 

(slip op. at 4).]

We affirmed in an unpublished opinion. Id. slip op. at 2. The Supreme 

Court denied defendant's petition for certification. State v. Grier, 235 N.J. 312 

(2018).

For our purpose, the facts leading to defendant's conviction need not be 

repeated here.

On February 7, 2019, defendant filed his first PCR pro se petition in which 

he raised the same arguments he raised on direct appeal and added that his

sentence should be vacated because of trial counsel's ineffective assistance as 

demonstrated by "counsel['s] fail[ure] to raise an argument for a mistrial after 

[the] jury failed to reach a unanimous decision on two accords." In a 

supplemental brief filed by counsel that incorporated defendant's earlier 

contentions, defendant also argued that trial counsel failed to file a motion to 

suppress "because any bench warrant issued was issued without jurisdiction and 

because police officers did not . . . have probable cause to arrest and search." 

On December 9, 2019, the PCR judge denied defendant's petition, setting 

forth her reasons in a comprehensive, eleven-page written decision.
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A-2829-19

On appeal, defendant raises only the following argument:

POINT I

THIS MATTER MUST BE REMANDED FOR THE 

APPOINTMENT OF NEW PCR COUNSEL AS 

SUPPORT WAS NOT PROVIDED FOR ANY OF 

THE ARGUMENTS RAISED BY [DEFENDANT] IN 

HIS PRO SE PETITION, LEAVING THE PCR 

COURT UNABLE TO PROPERLY ADDRESS 

THOSE ISSUES.

According to defendant, the PCR judge "could not grant an evidentiary 

hearing or even properly render an opinion . . . because PCR counsel failed to"

address and supplement defendant's pro se arguments and "simply threw a line 

in his brief" stating that defendant seeks relief from his judgment of conviction 

"'for the reasons enumerated in his previously filed pro se petition.'" He also 

contends that he did not have the opportunity to supplement his pro se arguments 

at oral argument because his PCR counsel waived his appearance at the hearing. 

Also, he asserts that PCR counsel "failed to subject the prosecution's case to 

meaningful adversarial testing" and that his representation "amount[ed] to no 

representation at all." As an example, defendant points to PCR counsel's alleged 

incorrect assertions regarding the validity of the warrant that led to defendant's 

arrest and subsequent search. 
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A-2829-19

In addition, defendant cites to State v. Hicks, 411 N.J. Super. 370, 377 

(App. Div. 2010) and argues that the lack of certification by the PCR counsel 

requires a presumption that "counsel did not make a meaningful effort to comply 

with the requirements of [Rule] 3:22-6[d]." In support, defendant suggests that 

PCR counsel did not communicate with him to "develop arguments and provide 

details" to support the PCR application. As a result, defendant concludes, the 

PCR judge "penalized" him by denying his petition because "his PCR counsel 

failed to properly argue his pro se issues with supporting evidence."

We conclude from our review that defendant's arguments on appeal do not 

challenge the PCR judge's determination of his petition, other than to raise issues 

about PCR counsel's failure to represent him adequately. Moreover, it appears

that some if not all of defendant's contentions rely upon "allegations and 

evidence that lie outside the . . . record." State v. Preciose, 129 N.J. 451, 460 

(1992). Such claims are not amenable to review by us and, as provided in Rule

3:22-4(b)(2)(c), they are best considered in the first instance in a second PCR 

petition. For that reason, we will not consider them now. 

Affirmed.