SUPERIOR COURT OF NEW JERSEY 

 APPELLATE DIVISION 

 DOCKET NO. A-1729-22 

STATE OF NEW JERSEY, 

 Plaintiff-Respondent, 

v.

TONY CANTY, a/k/a 

TONY R. CANTY, TONY

LEE CANTY, TONY L. 

CANTY REDDICK, 

TONY REDDING, TONY

RIDDICK, JASON JAMES, 

and TONY L. REDDICK, 

 Defendant-Appellant. 

_______________________

Submitted April 10, 2024 – Decided April 22, 2024 

Before Judges Firko and Vanek. 

On appeal from the Superior Court of New Jersey, Law 

Division, Union County, Indictment Nos. 07-12-1018 

and 07-12-1019.

Jennifer Nicole Sellitti, Public Defender, attorney for 

appellant (Mark Zavotsky, 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NOT FOR PUBLICATION WITHOUT THE 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.
2 A-1729-22

William C. Daniel, Union County Prosecutor, attorney 

for respondent (Michele C. Buckley, Assistant 

Prosecutor, of counsel and on the brief). 

PER CURIAM 

 Defendant Tony Canty appeals from the trial court's order denying his 

petition for post-conviction relief (PCR) based on ineffective assistance of trial 

and appellate counsel without an evidentiary hearing. Defendant collaterally 

challenges his conviction of multiple counts of first-degree robbery and weapons 

offenses. He was ultimately sentenced, after remand, to an aggregate thirtyfive-year term, subject to the No Early Release Act, N.J.S.A. 2C:43-7.2. 

 On appeal, defendant raises the following points for our consideration: 

POINT I 

DEFENDANT RECEIVED INEFFECTIVE 

ASSISTANCE OF COUNSEL FOR COUNSEL'S 

FAILURE TO ADEQUATELY INVESTIGATE HIS 

CASE PRIOR TO TRIAL. 

A. APPLICABLE LAW. 

B. TRIAL COUNSEL WAS INEFFECTIVE FOR 

FAILING TO PROPERLY INVESTIGATE 

DEFENDANT'S CASE WHICH RESULTED IN 

THE JURY BEING TAINTED BY EVIDENCE 

WRONGFULLY ENTERED AGAINST HIS 

INTEREST FOR THE MAJORITY OF THE 

TRIAL. 
3 A-1729-22

POINT II 

DEFENDANT WAS PREJUDICED BY APPELLATE 

COUNSEL'S FAILURE TO CHALLENGE THE 

WRONGFUL DENIAL OF HIS SEVERANCE 

MOTION BECAUSE A JOINT TRIAL PREDICATED 

ANY PLEA OFFER TO INCLUDE TESTIMONY 

AGAINST HIS CO-DEFENDANT RESULTING IN 

DEFENDANT BEING FORCED TO OFFER FALSE 

TESTIMONY (Not Raised Below). 

POINT III 

DEFENDANT'S PETITION FOR [PCR] SHOULD 

NOT BE TIME[-]BARRED BECAUSE 

DEFENDANT'S DELAY IN FILING WAS DUE TO 

EXCUSABLE NEGLECT AND THE INTERESTS OF 

JUSTICE REQUIRE HIS CLAIMS BE HEARD. 

We affirm. 

I.

 To resolve the issues raised in this PCR appeal, we need not discuss the 

trial evidence, which is detailed in our unpublished opinion on defendant's direct 

appeal. See State v. Canty, Nos. A-2842-10, A-3813-10 (App. Div. Aug. 12, 

2013). We briefly summarize the facts to give context to this appeal. The State 

presented evidence that one night, defendant, co-defendant Jaquan L. Lee, and 

a third individual robbed three groups of persons at gunpoint. One of Lee's 

former girlfriends testified that she drove defendant, Lee, and others from one 

robbery to another. A second former girlfriend of Lee's testified that she loaned 
4 A-1729-22

Lee the car, which matched the victims' description, including the license plate 

number. 

 Defendant was arrested when the vehicle was stopped, and the police 

approached. Inside the car were various items taken in the robberies along with 

two sawed-off shotguns armed with shells. Two of the victims identified 

defendant in court as one of the perpetrators with a sawed-off shotgun. 

Defendant matched the physical description the victims gave, including wearing 

a black hoodie and a knotted blue bandana, with a knot in the back of his neck 

and the cloth in front, where it could be pulled up to cover his face. 

 In addition to this evidence, the State disclosed prior to trial that 

defendant's DNA was found on one of the stolen cell phones and a Detroit Lions 

jacket that police seized from the vehicle. However, during trial, as the State 

was near the end of its case, it came to light that, as a result of a transposed 

number, the State's DNA report had mistakenly identified defendant as the DNA 

contributor when in fact, the DNA on the items belonged to Lee. Defendant was 

excluded as a DNA contributor on every item of evidence in which DNA was 

sampled. 

 Lee's trial counsel asked the trial court to exclude the DNA evidence, or 

declare a mistrial, arguing it prejudiced her defense. Defendant's counsel argued 
5 A-1729-22

the mistake is probative evidence and was helpful to defendant. Following 

argument, the trial court allowed the State's DNA expert to testify that buccal 

samples were taken from both defendants; the State tested items that were likely 

to yield good DNA samples; and defendant was excluded from the DNA samples 

taken from the cell phone and jacket found in the vehicle. The DNA expert did 

not testify as to whether the DNA samples matched Lee's DNA. 

 On July 22, 2021, defendant filed a pro se petition for PCR alleging 

ineffective assistance of trial counsel. Defendant claimed it "[c]ame to his 

attention from the Office of the Public Defender PCR unit that the State filed a 

Giglio/Brady1 letter regarding a witness in [his] case." Appointed PCR counsel 

1

 In Brady v. Maryland, the Supreme Court held that "the suppression by the 

prosecution of evidence favorable to an accused upon request violates 

[constitutional principles of] due process . . . ." 373 U.S. 83, 87 (1963). 

"[T]o determine whether a Brady violation has 

occurred: (1) the evidence at issue must be favorable to 

the accused, either as exculpatory or impeachment 

evidence; (2) the State must have suppressed the 

evidence, either purposely or inadvertently; and (3) the 

evidence must be material to the defendant's case." 

State v. Brown, 236 N.J. 497, 518 (2019). 

In Giglio v. United States, the Supreme Court extended Brady's scope to include 

material evidence that would bear upon the credibility of the State's witnesses. 

405 U.S. 150, 153-54 (1972). The Court cautioned, however, "[w]e do not . . . 

automatically require a new trial whenever 'a combing of the prosecutors' files 
6 A-1729-22

filed an amended PCR petition2 alleging trial counsel was ineffective for his 

failure to: (1) conduct an adequate investigation; (2) negotiate a plea that was 

not contingent on the cooperation of co-defendant Lee; and (3) secure a 

severance prior to trial. 

 After hearing argument, the PCR court rendered an oral opinion denying 

defendant's petition without an evidentiary hearing. The PCR court concluded 

defendant's petition was time-barred under Rule 3:22-12(a) because it was filed 

more than five years following entry of his judgment of conviction (JOC). The 

PCR court noted the Rule in part permits the filing of a PCR petition beyond the 

after the trial has disclosed evidence possibly useful to the defense but not likely 

to have changed the verdict . . . .'" Id. at 154 (quoting United States v. Keogh, 

391 F.2d 138, 148 (2d Cir. 1968)). Rule 3:13-3(b)(1) codifies the standards set 

forth in Brady and Giglio in our State: 

"[E]vidence is material if there is a 'reasonable 

probability' that timely production of the withheld

evidence would have led to a different result at trial." 

Brown, 236 N.J. at 520 (citing United States v. Bagley, 

473 U.S. 667, 682 (1985)). "In deciding materiality, 

'we examine the circumstances under which the 

nondisclosure arose' and '[t]he significance of a 

nondisclosure in the context of the entire record.'" Id. 

at 518-19 (alteration in original) (quoting State v. 

Marshall, 123 N.J. 1, 199-200 (1991)). 

2

 The amended PCR petition is not contained in the appendices, but its contents 

were summarized by the trial court in its decision.
7 A-1729-22

five-year deadline where a defendant demonstrates excusable neglect for the late 

filing but found defendant failed to assert any explanation to establish excusable 

neglect. The PCR court also determined the late filing of the petition would 

prejudice the State if the case were retried because crucial evidence and 

witnesses "are likely gone and the memories of the incident have almost 

certainly dimmed if they have not been completely forgotten," and adhering to 

the time-bar prevents uncertainty related to a re-litigation of the matter. 

Although the PCR court concluded defendant's petition was time-barred, 

it also addressed the merits of defendant's arguments in his pro se and amended 

petitions: (1) trial counsel's failure to investigate the claim was not supported 

by specified competent evidence that "would have or could have altered the 

verdict"; (2) the failure to negotiate a plea also failed because defendant did not 

present evidence that trial counsel impaired the plea negotiations; and (3) trial 

counsel's failure to file a severance motion should have been made on the direct 

appeal. 

 The PCR court also denied defendant's petition for a new trial based on 

newly discovered evidence, finding the evidence defendant referred to was not 

material to his defense, and therefore, would not have been considered as 

exculpatory. The PCR court reasoned that even if the proffered evidence was 
8 A-1729-22

used to strike the testimony of a State's witness, it would not have affected the 

outcome of the trial. A memorializing order was entered. This appeal followed. 

II. 

We begin our analysis by acknowledging the legal principles governing 

this appeal. PCR serves the same function as a federal writ of habeas corpus. 

State v. Preciose, 129 N.J. 451, 459 (1992). When petitioning for PCR, a 

defendant must establish, by a preponderance of the credible evidence, that he 

is entitled to the requested relief. Ibid. To sustain this burden, the petitioner 

must allege and articulate specific facts, "which, if believed, would provide the 

court with an adequate basis on which to rest its decision." State v. Mitchell, 

126 N.J. 565, 579 (1992). 

To establish an ineffective assistance of counsel claim, a defendant must 

demonstrate: (1) "counsel's performance was deficient"; and (2) "the deficient 

performance prejudiced the defense." Strickland v. Washington, 466 U.S. 668, 

687 (1984); see also State v. Fritz, 105 N.J. 42, 58 (1987) (adopting the 

Strickland two-pronged analysis in New Jersey). "That is, the defendant must 

establish, first, that 'counsel's representation fell below an objective standard of 

reasonableness' and, second, that 'there is a reasonable probability that, but for 

counsel's unprofessional errors, the result of the proceeding would have been 
9 A-1729-22

different.'" State v. Alvarez, 473 N.J. Super. 448, 455 (App. Div. 2022) (quoting 

Strickland, 466 U.S. at 688). 

When assessing Strickland's first prong, "[j]udicial scrutiny of counsel's 

performance must be highly deferential." 466 U.S. at 669. "Merely because a 

trial strategy fails does not mean that counsel was ineffective." State v. Bey, 

161 N.J. 233, 251 (1999). Thus, a trial court "must indulge a strong presumption 

that counsel's conduct falls within the wide range of reasonable professional 

assistance," and "the defendant must overcome the presumption that, under the 

circumstances, the challenged action [by counsel] 'might be considered sound 

trial strategy.'" Strickland, 466 U.S. at 689 (quoting Michel v. Louisiana, 350 

U.S. 91, 101 (1955)). 

Under Strickland's second prong, the defendant must show "the deficient 

performance prejudiced the defense." Id. at 687. That is, "counsel's errors were 

so serious as to deprive the defendant of a fair trial, a trial whose result is 

reliable." Ibid. It is insufficient for the defendant to show the errors "had some 

conceivable effect on the outcome." Id. at 693. Ultimately, "[a]n error by 

counsel, even if professionally unreasonable, does not warrant setting aside the 

judgment of a criminal proceeding if [it] had no effect on the judgment." Id. at 

691.
10 A-1729-22

Claims of ineffective assistance of appellate counsel must assert that 

errors existed at the trial level that could have been ascertained by appellate 

counsel's review of the record, but were never raised as issues on appeal. See 

State v. Echols, 199 N.J. 344, 359-61 (2009). To obtain a new trial based on 

ineffective assistance of appellate counsel, it must be established that appellate 

counsel failed to raise an issue that would have constituted reversible error on 

direct appeal. See id. at 361. Appellate counsel will not be found ineffective if 

counsel's failure to appeal the issue could not have prejudiced the defendant 

because the appellate court would have found either, that no error had occurred 

or that it was harmless. State v. Reyes, 140 N.J. 344, 365 (1995); see also State 

v. Harris, 181 N.J. 391, 499 (2004). 

Further, "[a]ny factual assertion that provides the predicate for a claim of 

relief must be made by an affidavit or certification pursuant to Rule 1:4-4 and 

based upon personal knowledge of the declarant before the court may grant an 

evidentiary hearing." R. 3:22-10(c); see State v. Cummings, 321 N.J. Super. 

154, 170 (App. Div. 1999). 

Short of obtaining immediate relief, a defendant may show that an 

evidentiary hearing is warranted to develop the factual record in connection with 

an ineffective assistance claim. Preciose, 129 N.J. at 462-63. The mere raising 
11 A-1729-22

of a claim for PCR does not entitle the defendant to an evidentiary hearing. 

Cummings, 321 N.J. Super. at 170. Rather, "[i]f the court perceives that holding 

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

is entitled to [PCR], . . . then an evidentiary hearing need not be granted." State 

v. Marshall, 148 N.J. 89, 158 (1997) (citations omitted). 

The PCR court should grant an evidentiary hearing only when: "(1) the 

defendant establishes a prima facie case in support of PCR; (2) the court 

determines that there are disputed issues of material fact that cannot be resolved 

by review of the existing record; and (3) the court determines that an evidentiary 

hearing is required to resolve the claims asserted." State v. Vanness, 474 N.J. 

Super. 609, 623 (App. Div. 2023) (citing State v. Porter, 216 N.J. 343, 354 

(2013)). 

"Where, as here, the PCR court has not conducted an evidentiary hearing, 

we review its legal and factual determinations de novo." State v. Aburoumi, 464 

N.J. Super. 326, 338 (App. Div. 2020); see also State v. Nash, 212 N.J. 518, 

540-41 (2013). However, "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) (citing Marshall, 148 N.J. 

at 157-58). 
12 A-1729-22

Rule 3:22-12 prescribes the time limitations for filing first petitions for 

PCR. Pertinent here, the Rule generally provides that "no petition shall be filed 

. . . more than [five] years after the date of the entry . . . of the judgment of 

conviction (JOC) that is being challenged." R. 3:22-12(a)(1).3

There are two exceptions to the five-year time limitation. First, the fiveyear time limitation does not apply where the PCR petition "alleges facts 

showing that the delay beyond said time was due to defendant's excusable 

neglect and that there is a reasonable probability that if . . . defendant's factual 

assertions were found to be true enforcement of the time-bar would result in a 

fundamental injustice." R. 3:22-12(a)(1)(A). Second, the five-year limitation 

does not apply where the PCR petition "alleges a claim for relief as set forth in 

[Rule 3:22-12(a)(2)(A) or (a)(2)(B)] and is filed within the one-year period set 

forth in [Rule 3:22-12(a)(2)]." R. 3:22-12(a)(1)(B). 

 Defendant filed his petition on July 22, 2021, more than five years after 

the JOC. He did not contend one of the exceptions applied. For the first time 

on appeal, defendant asserts his petition should not be time-barred because there 

3

 Defendant's original JOC was entered on September 7, 2010. The amended 

JOC was entered on September 20, 2013. In State v. Dugan, we held that a 

defendant must file his petition "within five years of whatever judicial action he 

is attacking." 289 N.J. Super. 15, 19-21 (App. Div. 1996). 
13 A-1729-22

is no record that he was advised of his PCR rights and applicable filing time 

limits, which he claims constitutes excusable neglect under the first Rule 3:22-

12 exception. 

"Excusable neglect provides the means for a court to address and correct 

a criminal judgment where 'adherence to it would result in an injustice.'" State 

v. Norman, 405 N.J. Super. 145, 159 (App. Div. 2009) (quoting State v. 

McQuaid, 147 N.J. 464, 485 (1997)). To establish "excusable neglect" under 

Rule 3:22-12(a)(1)(A), a defendant must demonstrate "more than simply 

providing a plausible explanation for a failure to file a timely PCR petition." 

Ibid. 

In assessing whether a defendant has demonstrated excusable neglect, a 

court must weigh "the extent of the delay," "the purposes advanced by the fiveyear rule," "the nature of defendant's claim[,] and the potential harm . . . 

realized" by defendant, State v. Murray, 162 N.J. 240, 251 (2000) (citing 

Mitchell, 126 N.J. at 580), as well as the "cause of the delay, the prejudice to 

the State, and the importance of the [defendant's] claim in determining whether 

there has been an 'injustice' sufficient to relax the time limits," Norman, 405 N.J. 

Super. at 159 (quoting State v. Afanador, 151 N.J. 41, 52 (1997)). 
14 A-1729-22

"Ignorance of the law and rules of court does not qualify as excusable 

neglect," State v. Merola, 365 N.J. Super. 203, 218 (Law Div. 2002), aff'd, 365 

N.J. Super. 82 (App. Div. 2003) (citing Murray, 162 N.J. at 246), and a 

defendant's decision to "remain intentionally ignorant of . . . legal consequences" 

does not support a finding of excusable neglect, State v. Brown, 455 N.J. Super. 

460, 471 (App. Div. 2018). 

Measured against these principles, defendant's petition and amended 

petition—filed eight years after his conviction—do not support a finding of 

excusable neglect. As we have explained, defendant failed to assert any 

explanation to establish excusable neglect under Rule 3:22-12(a)(1). Defendant 

makes a bald assertion that he was unaware and uninformed of his right to file a 

PCR petition, but as the PCR court aptly noted, defendant failed to submit a 

certification or affidavit in support of his claim. More than simply a "plausible 

explanation" is required, as determined by the PCR court. 

Moreover, even considering defendant's excusable neglect argument, 

which was not raised before the PCR court,4 there is still not a sufficient basis 

4

 It is well settled that we will not consider questions or issues not raised at trial 

unless the questions raised pertain to the trial court's jurisdiction or concern a 

matter of great public interest. State v. Robinson, 200 N.J. 1, 20 (2009). But 

this "limitation on the scope of appellate review is not absolute." Ibid. "[O]ur 
15 A-1729-22

shown to relax the time restraints because of the severe prejudice to the State. 

See Brewster, 429 N.J. Super. at 400 ("If excusable neglect for late filing of a 

petition is equated with incorrect or incomplete advice, long-convicted 

defendants might routinely claim they did not learn about the deficiencies in 

counsel's advice on a variety of topics until after the five-year limitation period 

had run."). The crimes occurred in 2007, almost seventeen years ago, and 

memories of witnesses, if they can even be located, have likely faded or are 

completely forgotten. The goal of Rule 3:22-12(a)(1) is achieved to ensure the 

finality of this matter and any uncertainty with regard to a potential re-trial. The 

PCR court was correct in its analysis. 

III. 

 Defendant next argues his trial counsel was ineffective for failing to 

investigate his case. In his PCR petitions, defendant did not specify any facts 

in support of this claim and only broadly claimed trial counsel was ineffective 

trial and appellate courts are empowered . . . to acknowledge and address trial 

error if it is 'of such a nature as to have been clearly capable of producing an 

unjust result.'" Ibid. (quoting R. 1:7-5). "Further, our appellate courts retain the 

inherent authority to 'notice plain error not brought to the attention of the trial 

court[,]' provided it is 'in the interests of justice' to do so." Ibid. (quoting R.

2:10-2). 
16 A-1729-22

for not investigating his case, and was "unprepared." Accordingly, the PCR 

court rejected this claim, finding defendant "failed to provide any specific and 

competent evidence that if an investigation was properly performed, it would 

have revealed evidence that would have or could have altered the verdict." 

Therefore, defendant's argument is flawed and procedurally barred. 

 On appeal, defendant presents the argument for the first time that trial 

counsel was ineffective for failing to investigate the State's proofs against him 

relative to the DNA evidence and "led to the erroneous belief" he had to defend 

the "erroneous evidence" linking him to the crimes. Defendant argues he was 

prejudiced by the incorrect DNA evidence, which his trial counsel "failed to 

uncover" before trial, and that trial counsel should not have relied on the expert 

DNA report as written. Defendant further avers that no curative instruction 

could have corrected the injustice that occurred late in the proceedings. 

 Defendant failed to raise this argument in his PCR petitions, and we 

therefore reject it. Robinson, 200 N.J. at 20. The DNA mix-up caused by the 

transposition of identifying numbers for defendant and Lee did not undermine 

the defense strategy. While the error was discovered nine days into trial, 

defendant presents no evidence that the error could have been found by his trial 

counsel before the trial started. Moreover, even though it was initially thought 
17 A-1729-22

that defendant's DNA was found inside the car, trial counsel effectively argued 

he was not connected to the robberies beyond merely standing near the legally 

parked car used in the crimes, and he did not have any proceeds on his person. 

And, it was always known that defendant's fingerprints were not discovered 

anywhere on the car or on any of the items inside the car. Thus, the defense 

strategy was not prejudiced by a failure to investigate the DNA evidence. 

 The theory of defendant's case did not have to be revisited as he contends. 

In fact, the State's DNA expert ultimately testified that defendant's DNA was 

not found in the car, which cured any potential prejudice because it corroborated 

trial counsel's claims that defendant was not forensically linked to the car. And, 

trial counsel's failure to seek a mistrial did not result in prejudice because codefendant Lee's attorney requested a mistrial, which was denied. We are 

convinced defendant was not denied his constitutional right to effective 

assistance of trial counsel under either Strickland/Fritz prong. 

IV. 

 Finally, defendant argues that his appellate counsel was ineffective for 

failing to challenge the wrongful denial of his severance motion because a joint 

trial predicated any plea offer to include testimony against co-defendant Lee 

resulting in defendant offering "false" testimony. Again, we disagree. 
18 A-1729-22

 Defendant raises this issue for the first time on appeal and is procedurally 

barred. Robinson, 200 N.J. at 20. However, we will address defendant's 

argument. 

"Two or more defendants may be tried jointly 'if they are alleged to have 

participated in the same act or transaction or in the same series of acts or 

transactions constituting an offense or offenses.'" State v. Brown, 170 N.J. 138, 

159-60 (2001) (quoting R. 3:7-7). Courts generally prefer to try co-defendants 

jointly, "particularly when 'much of the same evidence is needed to prosecute 

each defendant.'" Id. at 160 (quoting State v. Brown, 118 N.J. 595, 605 (1990)). 

"That preference is guided by a need for judicial efficiency, to accommodate 

witnesses and victims, to avoid inconsistent verdicts, and to facilitate a more 

accurate assessment of relative culpability." Ibid. 

A single joint trial, however, may not take place at the expense of a 

defendant's right to a fair trial. State v. Sanchez, 143 N.J. 273, 290 (1996). 

When considering a motion for severance, a trial court should "balance the 

potential prejudice to defendant's due process rights against the State's interest 

in judicial efficiency." Brown, 118 N.J. at 605 (quoting State v. Coleman, 46 

N.J. 16, 24 (1965)). Trial courts apply a rigorous test for granting severance. 

Brown, 170 N.J. at 160. A mere claim of prejudice is insufficient to support a 
19 A-1729-22

motion to sever. State v. Moore, 113 N.J. 239, 274 (1988). A defendant does 

not have the right to severance simply because he or she believes a separate trial 

"would offer defendant a better chance of acquittal." State v. Johnson, 274 N.J. 

Super. 137, 151 (App. Div. 1994) (quoting State v. Morales, 138 N.J. Super. 

225, 231 (App. Div. 1975)). 

 Our review of a motion to sever is limited. The decision to sever rests 

within the trial court's discretion. State v. Weaver, 219 N.J. 131, 149 (2014). 

We defer to the trial court's decision on a severance motion unless it constitutes 

an abuse of discretion. Ibid. 

Here, defendant moved to sever based on potential prejudice arising from 

gang affiliation. The trial court considered that argument in denying the motion 

to sever reasoning such a risk could be cured by a jury instruction. 

Subsequently, the trial court ruled that the witnesses would not be permitted to 

mention gang affiliation. On appeal, defendant is not claiming that the denial 

prejudiced defendant because of gang affiliation. Instead, defendant claims: (1) 

the motion to sever should have been granted because there the evidence did not 

tie him to the crimes; and (2) he was prejudiced by being tried with Lee. 

However, the record does tie defendant to the crimes because: (1) victims 

from the robberies had similar descriptions of defendant's appearance—wearing 
20 A-1729-22

a black hoodie, jeans, and a blue bandana; (2) Sade Ingram identified defendant 

as the person she picked up and who committed the robberies with Lee; and (3) 

the police observed defendant in a group with Lee and Ingram near the car 

shortly after the third robbery and apprehended him. Therefore, we are satisfied 

that the severance motion was properly denied because the record sufficiently 

tied defendant to the crimes, and he fails to establish the prima facie elements—

deficient performance and prejudice resulting from the deficiency—that his 

appellate counsel was ineffective for not raising this issue on appeal. 

 Moreover, defendant's claim that joinder prevented him from accepting 

the State's plea offer without having to testify against Lee and without the offer 

being contingent upon Lee's acceptance is also unsupported by the record. The 

plea offer was predicated on each party testifying against their respective codefendant, which we held Lee recognized as a continuing requirement of the 

pre-trial plea offer after the DNA mix-up. State v. Lee, No. 3209-17 (App. Div. 

June 1, 2020) (slip op. 6) ("[Lee] insisted he would have accepted the plea offer, 

including testifying against Canty, if necessary."). 

Given the plea offer was always contingent, we noted "[w]hen codefendant Lee rejected the offer, the State was under no obligation to extend a 

separate or different offer to defendant. In essence, because Lee did not want to 
21 A-1729-22

accept the terms of the plea agreement, it resulted in the plea not being available 

to . . . defendant." Further, defendant's claim that the plea offer required him to 

give "false" testimony is also negated by the record because, for the same 

reasons, the record tied defendant to the crimes, he was also tied to Lee and 

therefore could not claim to not know Lee, or have been near the car, or 

committed the robberies. 

Affirmed.