SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0930-18T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

RICHY ARIAS,

Defendant-Appellant.

____________________________

Submitted April 22, 2020 – Decided May 28, 2020

Before Judges Koblitz and Gooden Brown.

On appeal from the Superior Court of New Jersey, Law 

Division, Passaic County, Indictment No. 10-03-0217.

Joseph E. Krakora, Public Defender, attorney for 

appellant (Steven M. Gilson, Designated Counsel, on 

the brief).

Camelia M. Valdes, Passaic County Prosecutor, 

attorney for respondent (Ali Y. Ozbek, 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NOT FOR PUBLICATION WITHOUT THE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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Defendant appeals from the January 23, 2018 Law Division order denying 

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

appeal, defendant raises the following single point for our consideration:

THIS MATTER MUST BE REMANDED FOR AN 

EVIDENTIARY HEARING BECAUSE 

DEFENDANT ESTABLISHED A PRIMA FACIE

CASE OF TRIAL COUNSEL'S INEFFECTIVENESS 

FOR FAILING TO PURSUE A VOICEIDENTIFICATION EXPERT AND/OR A GANGLANGUAGE EXPERT SO AS TO REBUT THE 

STATE'S KEY WITNESSES.

We reject defendant's contention and affirm substantially for the reasons 

expressed in Judge Miguel A. de la Carrera's well-reasoned written opinion.

We incorporate herein the facts set forth in State v. Arias, No. A-0621-12 

(App. Div. November 6, 2015) (slip op. at 1), certif. denied, 224 N.J. 282 (2016), 

wherein we affirmed defendant's 2012 conviction for "second-degree conspiracy 

to distribute cocaine," following a jury trial. We also affirmed the six-year 

sentence of imprisonment memorialized in a July 5, 2012 judgment of 

conviction. Ibid. To summarize, the conviction stemmed from a 2009 covert 

"police investigation of illegal gambling and narcotics distribution," resulting in 

the acquisition of incriminating evidence through "physical surveillance" and 

"wiretapped conversations" of the primary suspect's phone calls with coconspirators, such as defendant. Id. at 1-4. 
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At trial, "the lead detective, David Cruz," was "qualified . . . as an expert 

in the area of narcotics distribution," including the use of "coded language" in 

telephone conversations "'to impede law enforcement' in case of a wiretap." Id.

at 1-2. "Cruz testified that the majority of the wiretapped conversations that he 

monitored on the suspect's phone were drug-related, with people calling the 

suspect to order narcotics." Id. at 3. "Typically, the calls were very short. The 

caller would give the suspect a number or 'give a code word' . . . and the two 

would arrange to meet at a specified location." Ibid. 

One of the officers monitoring the intercepted conversations, Sergeant 

Edward Dehais, also testified at trial. He "had known defendant for at least 

twenty years," and "was able to identify defendant as one of the voices on a 

number of phone calls with the suspect." Ibid. "In Cruz's opinion, defendant . 

. . called the suspect for the purpose of ordering cocaine." Ibid. During "two 

surveillance operations . . . conducted with respect to defendant's dealings with 

the suspect," detectives observed the suspect and defendant meet and engage in 

a "quick" hand-to-hand "transaction." Id. at 4-5. "[A]t the conclusion of the 

wiretap investigation, Cruz obtained search warrants" which resulted in the 

seizure of "[m]ore than half an ounce of cocaine . . . , as well as considerable 
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paraphernalia for the distribution of drugs." Id. at 6. "No cocaine or 

paraphernalia was found on defendant when he was arrested." Ibid.

In his timely PCR petition, defendant asserted through his assigned PCR 

counsel that he received ineffective assistance of counsel (IAC) because trial 

counsel failed to retain and call an expert on criminal coded language and the 

reliability of voice identification to counter the testimony of Cruz and Dehais. 

Following oral argument, Judge de la Carrera denied defendant's petition. In his 

written decision, the judge reviewed the factual background and procedural 

history of the case, applied the applicable legal principles, and concluded 

defendant "failed to establish a prima facie" claim of IAC. 

The judge found defendant failed to show that either counsel's 

performance fell below the objective standard of reasonableness set forth in 

Strickland v. Washington, 466 U.S. 668, 687 (1984), and adopted by our 

Supreme Court in State v. Fritz, 105 N.J. 42, 49-53 (1987), or that the outcome 

would have been different without the purported deficient performance as 

required under the second prong of the Strickland/Fritz test. Additionally, in 

rejecting defendant's request for an evidentiary hearing, the judge concluded 

defendant failed to present any issues that could not be resolved by reference to 

the existing record.
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In addressing defendant's argument regarding the coded language expert, 

Judge de la Carrera pointed out that "Cruz testified that the investigation . . .

began as an illegal gambling investigation" and "became an illegal narcotics 

distribution investigation precisely because of the nature of the coded language

. . . employed by [defendant] and his co-[d]efendants." The judge reasoned:

The existence or availability of an expert in the 

use of coded language in criminal enterprises is not 

explained by [defendant]. That such an expert, if one 

had been available, could effectively do more than 

defense trial counsel did in challenging Det. Cruz's 

opinion through cross-examination is speculative. If 

PCR counsel had retained such an expert in order to 

provide a proffer as to how a defense expert in coded 

language could have persuasively painted a different 

picture, then perhaps this argument might be more than 

sheer conjecture, which it appears to be.

Likewise, according to the judge, 

[defendant's] argument regarding what a voice 

recognition expert (assuming the existence and 

availability of same for this trial, which has not been 

proffered, either) might have done to undermine . . . 

Dehais' . . . identification of [defendant's] recorded 

voice on the wiretaps, is also doomed by its sheer 

speculative nature.

Additionally, stressing that "Dehais was a fact witness, [and] not an expert 

witness," the judge noted that although PCR counsel "concede[d] that trial 

counsel 'was a vigorous advocate for his client,'" PCR counsel "simply 
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believe[d] that only expert testimony . . . could have sufficiently undermined 

Sergeant Dehais' identification of [defendant's] voice." 

However, according to the judge, for "an expert witness . . . to 'opine on 

the credibility of a particular eyewitness/(earwitness)[,'] which Sergeant Dehais 

was" would have "veer[ed] toward a prohibited area for . . . an expert witness." 

See State v. Jamerson, 153 N.J. 318, 339 (1998) (finding impropriety in expert's 

testimony that exceeded area of expertise and opined on credibility of other 

witnesses). The judge explained that, instead,

Defense counsel . . . argued, appropriately, that 

Sergeant Dehais' initial identification of [d]efendant's 

voice was less than certain initially and that he had not 

heard his voice in some ten years although he had 

personally known [defendant] for some twenty years. 

He vigorously challenged the witness's recollection and 

ability to identify [defendant] through his recorded 

voice. 

The judge entered a memorializing order and this appeal followed.

On appeal, defendant renews the arguments handily rejected by Judge de 

la Carrera, arguing that because the judge rejected his petition "exclusively upon 

the absence of any expert's proffer," "this matter must be 'remand[ed] . . . for an 

evidentiary hearing and a determination of defendant's claim.'" Merely raising 

a claim for PCR does not entitle a defendant to relief or an evidentiary hearing. 

See State v. Cummings, 321 N.J. Super. 154, 170 (App. Div. 1999). Rather, 
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trial courts should grant evidentiary hearings only if the defendant has presented 

a prima facie claim of IAC, material issues of disputed fact lie outside the record, 

and resolution of those issues necessitates a hearing. R. 3:22-10(b); State v. 

Porter, 216 N.J. 343, 355 (2013). 

A PCR court deciding whether to grant an evidentiary hearing "should 

view the facts in the light most favorable to a defendant." State v. Preciose, 129 

N.J. 451, 463 (1992). However, "[a] court shall not grant an evidentiary 

hearing" if "the defendant's allegations are too vague, conclusory or 

speculative." R. 3:22-10(e)(2). Indeed, the defendant "must do more than make 

bald assertions that he was denied the effective assistance of counsel. He must 

allege facts sufficient to demonstrate counsel's alleged substandard 

performance." Cummings, 321 N.J. Super. at 170. Further, "when a [defendant] 

claims his trial attorney inadequately investigated his case, he must assert the 

facts that an investigation 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.

In turn, "we review under the abuse of discretion standard the PCR court's 

determination to proceed without an evidentiary hearing." State v. Brewster, 

429 N.J. Super. 387, 401 (App. Div. 2013). "If the court perceives that holding 
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an evidentiary hearing will not aid the court's analysis of whether the defendant 

is entitled to post-conviction relief, . . . then an evidentiary hearing need not be 

granted." Ibid. (alteration in original) (quoting State v. Marshall, 148 N.J. 89, 

158 (1997)). We also typically review a PCR petition with "deference to the 

trial court's factual findings . . . 'when supported by adequate, substantial and 

credible evidence.'" State v. Harris, 181 N.J. 391, 415 (2004) (alteration in 

original) (quoting Toll Bros., Inc. v. Twp. of W. Windsor, 173 N.J. 502, 549 

(2002)). However, where, as here, "no evidentiary hearing has been held, we 

'may exercise de novo review over the factual inferences drawn from the 

documentary record by the [PCR judge].'" State v. Reevey, 417 N.J. Super. 134, 

146-47 (App. Div. 2010) (alteration in original) (quoting Harris, 181 N.J. at 

421). We also review de novo the legal conclusions of the PCR judge. Harris, 

181 N.J. at 415-16 (citing Toll Bros., 173 N.J. at 549).

To establish a prima facie claim of IAC, a defendant must satisfy the twoprong Strickland/Fritz test, and "bears the burden of proving" both prongs of an 

IAC claim "by a preponderance of the evidence." State v. Gaitan, 209 N.J. 339, 

350 (2012). Specifically, a defendant must show that (l) "counsel's performance 

was deficient" and he "made errors so serious that counsel was not functioning 

as the 'counsel' guaranteed . . . by the Sixth Amendment" to the United States 
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Constitution; and (2) "there is a reasonable probability that, but for counsel's 

unprofessional errors, the result of the proceeding would have been different." 

Strickland, 466 U.S. at 687, 694; see also Fritz, 105 N.J. at 52. A "reasonable 

probability" is defined as "a probability sufficient to undermine confidence in 

the outcome." Strickland, 466 U.S. at 694.

Under the first Strickland prong, "a defendant must overcome a 'strong 

presumption' that counsel exercised 'reasonable professional judgment' and 

'sound trial strategy' in fulfilling his responsibilities." State v. Hess, 207 N.J. 

123, 147 (2011) (quoting Strickland, 466 U.S. at 689-90). "[C]ounsel is strongly 

presumed to have rendered adequate assistance," Strickland, 466 U.S. at 690, as 

measured by a standard of "reasonable competence." Fritz, 105 N.J. at 53. 

However, "'[r]easonable competence' does not require the best of attorneys,"

State v. Davis, 116 N.J. 341, 351 (1989), and "[n]o particular set of detailed 

rules for counsel's conduct can satisfactorily take account of the variety of 

circumstances faced by defense counsel or the range of legitimate decisions 

regarding how best to represent a criminal defendant." Strickland, 466 U.S. at 

688-89.

For that reason,

an otherwise valid conviction will not be overturned 

merely because the defendant is dissatisfied with his or 
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her counsel's exercise of judgment during the trial. The 

quality of counsel's performance cannot be fairly 

assessed by focusing on a handful of issues while 

ignoring the totality of counsel's performance in the 

context of the State's evidence of defendant's guilt. 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) 

(citations, internal quotation marks, and brackets 

omitted).]

Thus, "[j]udicial scrutiny of counsel's performance must be highly deferential." 

Strickland, 466 U.S. at 689.

Under the second Strickland prong, defendant must prove prejudice. 

Fritz, 105 N.J. at 52. "An error by counsel, even if professionally unreasonable, 

does not warrant setting aside the judgment of a criminal proceeding if the error 

had no effect on the judgment." Strickland, 466 U.S. at 691. This prong "is an 

exacting standard" and "'[t]he error committed must be so serious as to 

undermine the court's confidence in the jury's verdict or the result reached.'" 

State v. Allegro, 193 N.J. 352, 367 (2008) (alteration in original) (quoting 

Castagna, 187 N.J. at 315).

Applying these principles, we are satisfied defendant failed to make a 

prima facie showing of IAC under the Strickland/Fritz test, and we discern no 
11 A-0930-18T4

abuse of discretion in the judge's denial of defendant's PCR petition without an 

evidentiary hearing. We agree with the judge that defendant's speculative 

allegations are unsupported "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. Contrary to defendant's contention, 

"[d]efendant must demonstrate a prima facie case for relief before an evidentiary 

hearing is required, and the court is not obligated to conduct an evidentiary 

hearing to allow defendant to establish a prima facie case not contained within 

the allegations in his PCR petition." State v. Bringhurst, 401 N.J. Super. 421, 

436-37 (App. Div. 2008).

Affirmed.