SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2466-17T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DYSHUN J. LEGETTE, a/k/a

DAY LEGETTE, DASHSEAN

LEGETTE, DAYSHAWN J. 

LEGETTE, DYSHAWN J. 

LEGETTE, and EDYSHUN 

LEGETTE, 

Defendant-Appellant.

_____________________________

Submitted June 4, 2019 – Decided June 14, 2019

Before Judges Hoffman and Geiger.

On appeal from Superior Court of New Jersey, Law 

Division, Union County, Indictment Nos. 10-06-0628 

and 10-06-0636.

Joseph E. Krakora, Public Defender, attorney for 

appellant (David Anthony Gies, Designated Counsel, 

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NOT FOR PUBLICATION WITHOUT THE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.
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Jennifer Davenport, Acting Union County Prosecutor, 

attorney for respondent (Kelsey Alina Ball, Special 

Deputy Attorney General/Acting Assistant Prosecutor, 

of counsel and on the brief).

PER CURIAM

Defendant Dyshun Legette appeals from the October 21, 2016 Law 

Division order denying his petition for post-conviction relief (PCR). We affirm.

We outlined the relevant facts, and the appellate issues defendant raised, 

in our prior opinion affirming defendant's convictions for second-degree 

unlawful possession of a weapon, N.J.S.A. 2C:39-5(f); fourth-degree possession 

of a large capacity ammunition magazine N.J.S.A. 2C:39-3(j); fourth-degree 

possession of hollow nose bullets, N.J.S.A. 2C:39-3(f); and second-degree 

certain persons not to have weapons, N.J.S.A. 2C:39-7. See State v. Legette, 

No. A-4050-11T1 (App. Div. July 21, 2014) (slip op. at 1-2). The certain 

persons charge arose from a second indictment. Id. at 1. The case followed the 

execution of a search warrant that produced a "9mm luger handgun with a large 

capacity magazine loaded with hollow nose bullets," and controlled dangerous 

substances. Id. at 4-5. The trial court imposed a sentence of twenty years in 

prison on the unlawful possession of a weapon charge, "concurrent eighteenmonth sentences on the remaining counts of the first indictment, and a 

concurrent five-year custodial term on the second indictment." Id. at 2.
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On defendant's direct appeal, we rejected his argument that the court failed 

to properly instruct the jury on cross-racial identification, and found his 

remaining points without sufficient merit to warrant discussion in a written 

opinion, Rule 2:11-3(e)(2). Id. at 4, 8.

Defendant filed a petition for PCR, which the trial court denied on October 

21, 2016. In denying defendant's petition, Judge Robert J. Mega filed a written 

opinion with his order.

Defendant then filed this appeal, raising the following arguments:

POINT ONE

THE FAILURE OF DEFENDANT'S TRIAL 

ATTORNEY TO CHALLENGE THE MANNER IN 

WHICH THE PROSECUTOR CHOSE TO PROCEED 

WITH THE PRESENTMENT OF THE CHARGES 

AMOUNTED TO THE INEFFECTIVENESS OF 

COUNSEL.

POINT TWO

THE PCR ATTORNEY'S FAILURE TO USE A COPY 

OF THE SEARCH WARRANT IN SUPPORT OF HIS 

ARGUMENT THAT THE TRIAL ATTORNEY'S 

INVESTIGATION OF THE FACTS OF THE CASE 

WAS CONSTITUTIONALLY INADEQUATE[,]

WAS ERRONEOUS[,] AND WARRANTS A 

REMAND.

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

these arguments lack sufficient merit to warrant extended discussion. R. 2:11-
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3(e)(2). We affirm substantially for the reasons stated by Judge Mega in his 

cogent written opinion. We add the following comments.

In order to establish a prima facie case of ineffective assistance of counsel, 

a defendant must satisfy the two-prong test articulated in Strickland v. 

Washington, 466 U.S. 668 (1984), and adopted by the New Jersey Supreme 

Court in State v. Fritz, 105 N.J. 42, 58 (1987). "First, the defendant must show 

. . . that counsel made errors so serious that counsel was not functioning as the 

'counsel' guaranteed . . . by the Sixth Amendment." Fritz, 105 N.J. at 52 (quoting 

Strickland, 466 U.S. at 687). The defendant must then show that counsel's 

deficient performance prejudiced the defense. Ibid. To show prejudice, the 

defendant must establish by "a reasonable probability" that the deficient 

performance "materially contributed to defendant's conviction . . . ." Id. at 58.

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

evidentiary hearing, and the defendant "must do more than make bald assertions 

that he [or she] was denied the effective assistance of counsel." State v. 

Cummings, 321 N.J. Super. 154, 170 (App. Div. 1999).

Defendant reiterates the same arguments raised before the PCR court. He 

asserts that his trial counsel was ineffective for failing to file a motion to dismiss 

the second indictment, claiming the State acted improperly when it presented 
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each indictment before the same grand jury. In rejecting the argument, the PCR 

judge found that defendant cited "no controlling or supportive case law even

acknowledging such a rule has been recognized by our courts." We observe the 

same fatal flaw in defendant's brief on appeal.

Defendant also raises two of the same arguments that he raised before the 

PCR court judge: first, his trial counsel was ineffective for failing to conduct an 

investigation of the scene of the executed search warrant; and second, his 

counsel was ineffective for failing to review with defendant any of the discovery 

materials in preparation for trial. Before the PCR judge and on appeal, 

defendant fails to present evidence of these allegations, articulate how the 

conduct amounted to "errors so serious that counsel was not functioning as the 

'counsel' guaranteed . . . by the Sixth Amendment," Fritz, 105 N.J. at 52, or set 

forth "a reasonable probability" that the deficient performance "materially 

contributed to defendant's conviction," id. at 58. The contentions that trial 

counsel was ineffective for these reasons amount to nothing more than bald 

assertions.

Lastly, defendant contends for the first time that his PCR counsel was 

ineffective for failing to use or obtain a copy of the search warrant that was 

executed when defendant's contraband was seized. Again, defendant fails to 
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articulate how this conduct constitutes an error, and allege that he was 

prejudiced as a result of the conduct. The argument clearly lacks merit.

Affirmed.