SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4314-17T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

EARNEST BATES, a/k/a 

DEMETRIUS BATES, and 

DARRYL JONES,

Defendant-Appellant.

________________________

Submitted November 12, 2019 – Decided 

Before Judges Rothstadt and Moynihan.

On appeal from the Superior Court of New Jersey, Law 

Division, Middlesex County, Indictment Nos. 09-06-

1075, 10-05-0270, 10-07-0983, and 10-07-0995.

Joseph E. Krakora, Public Defender, attorney for 

appellant (Thomas Gerard Hand, Designated Counsel, 

on the brief).

Christopher L.C. Kuberiet, Acting Middlesex County 

Prosecutor, attorney for respondent (Joie D. Piderit,

Special Deputy Attorney General/Acting 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NOT FOR PUBLICATION WITHOUT THE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.

February 28, 2020
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PER CURIAM

Defendant Ernest Bates appeals from the denial of his post-conviction 

relief (PCR) petition without an evidentiary hearing, arguing:

THE TRIAL COURT ERRED IN NOT HOLDING AN 

EVIDENTIARY HEARING WHEN IT ACCEPTED 

THE ASSERTIONS MADE IN TRIAL COUNSEL'S

CERTIFICATION AS TRUE WITHOUT 

SUBJECTING THESE ASSERTIONS TO BE 

TESTED IN THE CRUCIBLE OF CROSSEXAMINATION. 

Unpersuaded, we affirm.

Defendant was charged in two indictments that were later consolidated for 

trial. He was charged under Indictment No. 10-05-0270 with second-degree 

conspiracy to distribute one-half ounce of heroin or more, N.J.S.A. 2C:35-

5(a)(1), N.J.S.A. 2C:35-5(b)(2) and N.J.S.A. 2C:5-2 (count one); and under 

Indictment No. 10-07-0983—a thirty count indictment—with second-degree 

conspiracy to distribute heroin in a quantity of over five ounces, N.J.S.A. 2C:35-

5(a)(1), N.J.S.A. 2C:35-5(b)(1) and N.J.S.A. 2C:5-2 (count one); first-degree 

possession with intent to distribute five ounces or more of heroin, N.J.S.A. 

2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(1) (count three); first-degree distribution 

of five ounces or more of heroin, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-

5(b)(1) (count four); third-degree possession of a controlled dangerous 
3

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substance of heroin, N.J.S.A. 2C:35-10(a)(1) (count five); third-degree 

possession with intent to distribute less than one-half ounce of heroin, N.J.S.A. 

2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(3) (count twelve): third-degree 

possession of a controlled substance, heroin, N.J.S.A. 2C:35-10(a)(1) (count 

thirteen); and third-degree financial facilitation of criminal activity, N.J.S.A. 

2C:21-25 (count eighteen). Codefendants Johnel Dunlap and William Newbill 

were also charged with defendant in counts one, three, four, five and eighteen; 

Newbill was charged with defendant in counts twelve and thirteen. 

We set forth the salient facts of this case when we addressed all three 

codefendants' direct appeal, State v. Dunlap, Nos. A-4298-12, A-5606-12, A0329-13 (App. Div. Jan. 19, 2016), and will not repeat them here unless they are 

germane to this appeal. Suffice it to say, defendant joined in pretrial motions to 

suppress evidence, including "551 bricks of heroin in three separate bags" seized 

from a blue Infiniti, and to dismiss the indictment or counts thereof. Id. at 7-8.

 Over two months after the motions were denied, defendant accepted the 

State's plea offer, pleading guilty to second-degree conspiracy to distribute 

heroin in a quantity of one-half ounce or more (count one of Indictment No. 10-

05-0270), and to first-degree distribution of five ounces or more of heroin (count 

four of Indictment No. 10-07-0983). He was sentenced in accordance with the 
4

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plea agreement to eighteen years imprisonment with fifty months parole 

ineligibility on the first-degree drug distribution charge, concurrent to seven 

years imprisonment on the second-degree conspiracy charge.1 

Reviewing the factual inferences drawn from the record by the PCR court 

and its legal conclusions de novo, State v. Blake, 444 N.J. Super. 285, 294 (App. 

Div. 2016), we address defendant's contentions relating to his right to appeal the 

denial of the motion to dismiss the indictment, trial counsel's failure to 

investigate and reopen the motion to suppress evidence hearing, and failure of 

trial counsel to communicate with him. In so doing, we apply the familiar twopronged standard that requires a defendant seeking to establish a claim of

ineffective assistance of counsel to satisfy the test formulated in Strickland v. 

Washington, 466 U.S. 668, 687 (1984), and adopted by our Supreme Court in 

State v. Fritz, 105 N.J. 42, 58 (1987), first by "showing 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); then by proving he suffered prejudice due to counsel's deficient 

1

 Defendant was also sentenced to a consecutive six-month term of incarceration 

on a disorderly persons offense arising out of Indictment No. 09-06-1075. 

Defendant's petition for PCR does not involve the plea or sentence on that 

indictment.
5

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performance, Strickland, 466 U.S. at 687, 691-92. Defendant must show by a 

"reasonable probability" that the deficient performance affected the outcome.

Fritz, 105 N.J. at 58.

Although defendant affirmatively answered the question in the plea form 

asking if he understood "that by pleading guilty [he was] waiving [his] right to 

appeal the denial of all . . . pretrial motions," he also answered affirmatively his 

trial counsel's question during the plea colloquy asking if he understood "that 

by giving up [his] right to trial, [he was] not giving up [his] right to appeal [the] 

motion to suppress or the motion to dismiss that [he] was a part of[.]" He argues 

"[t]he PCR court had no basis to conclude that trial counsel 'simply misspoke'" 

when she advised defendant he could appeal, without hearing testimony at an 

evidentiary hearing from defendant, his trial counsel and the assistant prosecutor 

who submitted a certification in opposition to the PCR petition averring "[t]he 

State also would not have allowed any of the three . . . defendants to have entered

into a conditional plea of any kind[.]" 

In considering Dunlap's direct-appeal argument that the trial court erred 

in denying his motion to dismiss the indictment, we noted the tenets applicable 

to defendant's present argument:

"A plea of guilty amounts to a waiver of all issues, 

including constitutional claims, that were or could have 
6

A-4314-17T1

been raised in prior proceedings." State v. Marolda, 

394 N.J. Super. 430, 435 (App. Div. 2007). In State v. 

Knight, 183 N.J. 449 (2005) the Court reviewed the 

three exceptions to the general rule of waiver:

First, Rule 3:5-7(d) and Rule 7:5-2(c)(2) 

permit a defendant to appeal the denial of 

a Fourth Amendment-based motion to 

suppress evidence after a conviction 

whether based on a guilty plea or a 

conviction. . . .

Second, Rule 3:28(g), permits a 

defendant to appeal the denial of admission 

into a pretrial intervention program. . . . 

Third, . . . Rule 3:9-3(f), expressly 

authorizes a defendant to "enter a 

conditional plea of guilty reserving on the 

record the right to appeal from the adverse 

determination of any specified pretrial 

motion." 

[Id. at 471.]

[Dunlap, slip op. at 9-10.]

We agree with defendant that the PCR court should not have resolved the 

conflicting answers on the plea form and those made in open court by crediting 

the assistant prosecutor's certification that none of the codefendants' pleas were 

conditional. That statement was belied by the uncontradicted statement of 

defendant's trial counsel during the plea colloquy.
7

A-4314-17T1

But even if trial counsel "misspoke," defendant has not presented a prima 

facie case that he was prejudiced by her incorrect advice. We first note that 

defendant did not appeal from the denial of the dismissal motion. Moreover, he 

proffers no viable ground to support such an appeal. 

Alluding to N.J.S.A. 2C:35-5(c),2 defendant observes "[t]he PCR court 

determined trial counsel was not ineffective in failing to file a motion to dismiss

because [defendant] had notice of the aggregation of the individual drug sales" 

to support those counts in the indictment that relied on the aggregate weight of 

the drugs being in the first-degree range.3 Defendant argues the PCR court was 

2

 N.J.S.A. 2C:35-5(c) provides: 

Where the degree of the offense for violation of this

section depends on the quantity of the substance, the

quantity involved shall be determined by the trier of

fact. Where the indictment or accusation so provides,

the quantity involved in individual acts of

manufacturing, distribution, dispensing or possessing

with intent to distribute may be aggregated in

determining the grade of the offense, whether

distribution or dispensing is to the same person or

several persons, provided that each individual act of

manufacturing, distribution, dispensing or possession

with intent to distribute was committed within the

applicable statute of limitations.

3

 The indictment alleged five ounces or more of heroin were possessed with the 

intent to distribute and were distributed, crimes of the first-degree because of 

the weight of the heroin. See N.J.S.A. 2C:35-5(b)(1).
8

A-4314-17T1

required to hear trial counsel's testimony at an evidentiary hearing before 

making that determination. We disagree because defendant did not present a 

prima facie case to warrant an evidentiary hearing. See State v. Preciose, 129 

N.J. 451, 462-63 (1992); R. 3:22-10(b). 

An evidentiary hearing should only be granted if a defendant has

established a prima facie case of ineffective assistance of counsel. Preciose, 129

N.J. at 462. Rule 3:22-1 does not require that an evidentiary hearing be granted

in every PCR proceeding. Ibid. Where a "court perceives that holding an

evidentiary hearing will not aid the court's analysis of whether the defendant is

entitled to post-conviction relief, or that the defendant's allegations are too

vague, conclusory, or speculative to warrant an evidentiary hearing, then an

evidentiary hearing need not be granted." State v. Marshall, 148 N.J. 89, 158

(1997) (citations omitted). "[I]n order to establish a prima facie claim, a 

petitioner must do more than make bald assertions that he was denied the 

effective assistance of counsel." State v. Cummings, 321 N.J. Super. 154, 170 

(App. Div. 1999). And an evidentiary hearing cannot be used to explore PCR 

claims. See Marshall, 148 N.J. at 157-58. As such, an evidentiary hearing was 

properly denied.
9

A-4314-17T1

As we noted on direct appeal, count four of Indictment No. 10-07-0983, 

charging defendant with first-degree distribution of heroin—the count to which 

defendant pleaded guilty—"clearly charges defendants with multiple 

distributions on various dates in several locations and, by virtue of the degree of 

the offense, put them on notice as to the amount of heroin the State was required 

to establish to prove guilt." Dunlap, slip op. at 24. We further note 551 bricks 

were found in the Infiniti, providing sufficient notice of the drug-weight alleged 

by the State. Id. at 7. As such, any motion to dismiss the indictment for failure 

to provide in the indictment that the weight of the drugs was based on aggregated 

amounts, see N.J.S.A. 2C:35-5(c), would have failed, as would have an appeal 

based on that ground. Defendant failed to satisfy his burden to show that the 

proposed motion would have been successful if filed. See State v. Fisher, 156 

N.J. 494, 501 (1998).

We determine defendant's remaining arguments regarding trial counsel's 

failure to file independent pretrial motions, instead of joining those filed by 

codefendants, to be without sufficient merit to warrant discussion. R. 2:11-

3(e)(2). Defendant neither avers nor shows any resultant prejudice from 

counsel's choice. 
10 A-4314-17T1

Defendant also asserts "[t]he PCR court erred when it found [defendant] 

had not presented a prima facie case regarding the allegation that trial counsel 

was ineffective in failing to file a motion to re[]open the motion to suppress 

based on the observations of [R.F.] and [L.E.G.],"

4

reprising his argument that 

"the PCR court had no record upon which to decide the issue" without hearing 

testimony from trial counsel about the "investigation she performed regarding"

those witnesses' observations, as well as testimony from those witnesses.

Defendant also claims trial counsel's failure to independently investigate, obtain 

statements from and produce those witnesses was ineffective. 

The witnesses contradicted testimony heard during the suppression 

motion from the State's witnesses from the Middlesex County Prosecutor's 

Office. Investigator Felix de la Cruz testified he observed two vehicles, 

including the Infiniti, from the time they were delivered to a secured lot until he 

left with Investigator Jose Rodriguez to apply for search warrants for same at 

3:00 p.m., during which time the vehicles were not searched. After obtaining 

the search warrants, Rodriguez called Sergeant Steven Weitz to advise he was 

authorized to search the vehicles. Rodriguez testified that he picked up de la 

4

 As we did in our decision on direct appeal, we use the initials of these 

witnesses.
11 A-4314-17T1

Cruz from the lot and transported him to the judge to whom the search warrant 

applications were made. He also said that after the warrants were issued at

approximately 4:10 p.m., he called Weitz and notified him the judge had 

authorized the search of the vehicles. Weitz testified he instructed a detective 

to maintain watch on the vehicles until the search warrants were obtained; and

saw no one enter the vehicles until he received notice at approximately 4:15 p.m.

that the search warrants were issued.

After the suppression-hearing testimony on May 23, 2012 concluded, 

Dunlap's counsel told the court that his "office has, through various sources, 

contacted two witnesses" who provided information "contrary to the testimony 

of the [s]ergeant as to the search of the Chrysler"; the Chrysler was not one of 

the vehicle secured in the lot for which de la Cruz and Rodriguez applied for 

search warrants. Dunlap's counsel continued: 

For whatever reason, and I'm trying to find out, their 

story has changed. I believe[] on information and belief 

that they were approached and questioned by members 

-- I don't know if it was the [p]rosecutor, what they 

indicated, it was police people who questioned them. 

They are ducking my subpoena.

Dunlap's counsel later said that he got "confused with the cars [and was] 

getting this thirdhand from the investigators" that the "information was that the 

vehicles, plural, [were] searched prior to obtaining the search warrants"; he later 
12 A-4314-17T1

clarified he was referring to all vehicles that were searched. Dunlap's counsel 

requested time to investigate and personally question the witnesses. Dunlap's

counsel admitted his detective had not yet written a summary of what the 

witnesses said and that he could not "get the witnesses" and that the witnesses 

"ain't coming around here." 

As we noted on direct appeal:

During the lunch recess, trial counsel sent an 

investigator, who was able to speak to one of the 

witnesses. He reported to the court that the witness 

"was not very happy with cooperating" and was not 

subpoenaed; counsel requested an opportunity to speak 

to the witness himself and represented he could report 

back to the court in a week. Counsel advised that he 

had no contact with the second witness.

[Dunlap, slip op. at 21-22.]

The court denied Dunlap's counsel's request for additional time to 

investigate, but said it was inclined to reopen the suppression hearing for 

additional testimony if affidavits and certifications from the witnesses were 

obtained. 

When rendering its decision on July 12, 2012, the motion court held:

On May 23, 2012, defendant for the first time argued 

that he has evidence that the vehicles were searched 

prior to obtaining the search warrant. However, no 

other information was provided to the [c]ourt regarding 

details as to such evidence. Defendant was unable to 
13 A-4314-17T1

provide the [c]ourt with where this information came 

from, the reliability of the source and the information 

itself, and how defendant intended on proving that such 

evidence existed. At this time, the [c]ourt will not 

consider this argument within its decision regarding 

defendant's motion to suppress. With that said, the 

[c]ourt invites defendant to provide the [c]ourt with 

certified papers from all relevant parties containing 

specificity as to such evidence and information 

regarding witnesses' availability to testify.

In a written statement dated December 5, 2011, R.F. said he saw police 

"tearing apart two cars," one of which was the Infiniti. He claimed two 

detectives were removing items from the Infiniti between 11:00 a.m. and noon 

on March 26, 2010. In a written statement dated December 5, 2011, L.E.G. said 

Dunlap brought in the other car in the secured lot with the Infiniti—a Honda—

for repair on March 26, 2010. He stated police took the Honda from his shop,

and in what is obviously not his first language described the subsequent police 

action:

[L.E.G.:] He park the pick-up . . . have a one pick-up[.] 

The police park in the rear. But he not touch the car. 

He look at the car, but no touch, but no exactly. I don't 

know if he touch or not, but he stay inside, no outside. 

He look at the car maybe in [thirty] minute, [twenty] 

minute, he bring the sign, the police, he say give me the 

fucking keys. Ok. I take the key. He take the car. And 

inside there. I don't know exactly where he parked.

. . . . 
14 A-4314-17T1

[PRIVATE INVESTIGATOR:] Alright. At any time 

did you see them search a van?

[L.E.G.:] No.

[PRIVATE INVESTIGATOR:] Or, and did you see 

them search a um, a blue [I]nfiniti?

[L.E.G.:] The blue [I]nfiniti, yes.

[PRIVATE INVESTIGATOR:] Did you see them open 

the door and go into the vehicle?

[L.E.G.:] No.

[PRIVATE INVESTIGATOR:] What can you tell me 

about what you observed, what you saw in regard to the 

blue Infiniti?

[L.E.G.:] The blue Infiniti she passed there. I don't 

know who's drive it. They move the car there in the 

garage side, in the third street.

[PRIVATE INVESTIGATOR:] What you are trying to 

tell me and you are directing me with your hands as you

speak, they came up Park and made a right hand turn 

onto Third Street.

[L.E.G.:] Yes.

[PRIVATE INVESTIGATOR:] And which would be 

passed your place of business?

[L.E.G.:] Yeah.

[PRIVATE INVESTIGATOR:] Ok. And 

approximately what time was that?
15 A-4314-17T1

[L.E.G.:] Maybe one hour or two hour more there, he 

take the Honda. Maybe for twelve o'clock. Maybe 

yeah.

[PRIVATE INVESTIGATOR:] And at any time did 

you see them search the van?

[L.E.G.:] No.

[PRIVATE INVESTIGATOR:] Open the doors, open 

the trunk?

[L.E.G.:] Nothing. I know look at nothing.

[PRIVATE INVESTIGATOR:] Ok. Did you watch 

any of the other activity that was go[i]ng on down the 

street on that date?

[L.E.G.:] No exactly, no. I see one [p]olice dog, have 

one [p]olice dog. That was it. I know look at this 

exactly complete. 

In considering Dunlap's claim on direct appeal that his counsel was 

ineffective for failing to call R.F. and L.E.G. at the suppression hearing, we were 

satisfied on the record that included transcripts of the December 2011 statements 

that we have quoted, 

that [Dunlap's] proof of the first [Strickland-Fritz] 

prong fails, particularly in light of the strategic decision 

that faced trial counsel. "As a general rule, strategic 

miscalculations or trial mistakes are insufficient to 

warrant reversal except in those rare instances where 

they are of such magnitude as to thwart the fundamental 

guarantee of [a] fair trial." State v. Castagna, 187 N.J. 

293, 314-15 (2006) (citation omitted). To the extent 
16 A-4314-17T1

[Dunlap's] argument rests upon information outside the 

record, it is best reserved for a petition for [PCR]. 

[Dunlap, slip op. at 23-24.]

The same analysis compels rejection of defendant's claim that trial counsel 

was ineffective for failing to call the same witnesses. The witnesses did not 

respond to Dunlap's counsel's subpoenas, were disinclined to cooperate with 

defendant's investigator despite repeated entreaties, and L.E.G., taking his 

statement as a whole, denied seeing police search the vehicles. Moreover, the 

present record reveals that R.F.'s statement was not notarized until November 3, 

2014, and L.E.G.'s statement was not notarized until December 16, 2014, well 

after the close of the suppression-hearing testimony on May 23, 2012—and well 

after defendant was sentenced on April 30, 2013. 

Furthermore, defendant proffers nothing that an independent investigation 

would have revealed. The statements that were notarized in 2014 were identical 

to those given in 2011. There is no further information that was previously 

outside the record to warrant PCR. As the PCR court determined, defendant

"has not offered anything outside of what . . . Dunlap argued" to this court on

direct appeal.

When, as in this case, a defendant claims that his or her trial attorney 

"inadequately investigated his case, he must assert the facts that an investigation 
17 A-4314-17T1

would have revealed, supported by affidavits or certifications based upon the 

personal knowledge of the affiant or the person making the certification." 

Cummings, 321 N.J. Super. at 170. "[B]ald assertions" of deficient performance 

are insufficient to support a PCR application. Ibid.; see also State v. Porter, 216

N.J. 343, 356-57 (2013) (reaffirming these principles in evaluating which of a 

defendant's various PCR claims warranted an evidentiary hearing). In other

words, a defendant must identify what the investigation would have revealed

and demonstrate the way the evidence probably would have changed the result. 

Fritz, 105 N.J. at 64-65. Defendant has failed to meet that burden.

And, despite the notarization of the statements, defendant has made no

proffer that the witnesses would now be willing to testify so as to warrant

reopening the suppression hearing. As we found with regard to Dunlap's similar

claim on direct appeal, defendant's trial counsel was not ineffective in failing to

reopen the motion to suppress based on the witnesses' observations, or to 

independently investigate, obtain statements from and produce those witnesses.

A defendant's "complaints 'merely of matters of trial strategy' will not 

serve to ground a constitutional claim of inadequacy of representation by 

counsel." Fritz, 105 N.J. at 54 (quoting State v. Williams, 39 N.J. 471, 489 

(1963)). "Mere improvident strategy, bad tactics or mistake do not amount to 
18 A-4314-17T1

ineffective assistance of counsel unless, taken as a whole, the trial was a 

mockery of justice." State v. Bonet, 132 N.J. Super. 186, 191 (App. Div. 1975). 

The simple fact that a trial strategy fails does not necessarily mean that counsel

was ineffective. State v. Bey, 161 N.J 233, 251 (1999).

According the presumption that counsel's conduct fell within the range of 

reasonable professional assistance, State v. Arthur, 184 N.J. 307, 318-19 (2005),

and adhering to the tenet that "an otherwise valid conviction will not be 

overturned merely because the defendant is dissatisfied with his or her counsel's 

exercise of judgment during the trial," Castagna, 187 N.J. at 314, we determine 

defendant has not established his counsel's performance was deficient.

Finally, we determine defendant's contention that his trial counsel failed 

to consult and communicate with him to be without sufficient merit to warrant 

discussion in this opinion. R. 2:11-3(e)(2). Defendant concedes "[t]he PCR

court properly found the number of times trial counsel visited with [him] was

not indicative of her effectiveness" but states "the crucial finding that needed to

be made was the quality of communication between trial counsel and

[defendant]." Although we do not countenance the PCR court's reliance on the

assistant prosecutor's certification that trial counsel "secure[d] the best deal" for

defendant and reviewed the wiretap transcripts with the assistant prosecutor as
19 A-4314-17T1

countering defendant's failure-to-consult allegation, we agree that defendant has

made nothing more than a bald assertion. Defendant has not proffered what

should have been discussed with counsel and how the failure to do so caused

prejudice.

Inasmuch as counsel failed to establish a prima facie case of ineffective

assistance of counsel, his petition was properly denied without an evidentiary

hearing.

Affirmed.