SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4513-17T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

L.K.,

Defendant-Appellant.

_______________________

Submitted March 25, 2020 – Decided April 15, 2020

Before Judges Koblitz and Whipple.

On appeal from the Superior Court of New Jersey, Law 

Division, Union County, Indictment Nos. 11-05-0554 

and 11-03-0291.

Joseph E. Krakora, Public Defender, attorney for 

appellant (Monique D. Moyse, Designated Counsel, on 

the brief).

Lyndsay V. Ruotolo, Acting Union County Prosecutor, 

attorney for respondent (Michele C. Buckley, Special 

Deputy Attorney General/Acting 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NOT FOR PUBLICATION WITHOUT THE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.
2

A-4513-17T3

Defendant L.K.

1

appeals from a February 14, 2018 order denying his first 

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

Defendant raises the following issue on appeal:

POINT I: [L.K.] IS ENTITLED TO AN 

EVIDENTIARY HEARING ON HIS CLAIM THAT 

HIS ATTORNEY RENDERED INEFFECTIVE 

ASSISTANCE OF COUNSEL FOR FAILING TO 

INVESTIGATE.

 

We disagree and affirm.2

We incorporate herein the facts and procedural history set forth in State 

v. L.K., No. A-6001-12 (App. Div. Feb. 5, 2016) (slip op. at 2-5), certif. denied, 

225 N.J. 339 (2016), where we affirmed defendant's convictions following a jury 

trial and subsequent guilty pleas, as well as the imposition of an aggregate 

sixteen-year sentence, with an eighty-five percent parole ineligibility. 

Defendant was convicted after trial of various violent crimes against his wife: 

1) second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1); 2) third-degree 

 

1

 We use initials as we did in defendant's direct appeal to protect the identity of 

the victim of domestic violence. R. 1:38-3(c)(12).

2

 We are disappointed that the State's responsive letter brief prematurely ended 

the procedural history at defendant's 2013 direct appeal and mentioned a ground 

for relief not urged by defendant, referencing pages eight to fourteen of 

defendant's ten-page brief. We expect the State to devote more attention to its 

submissions.
3

A-4513-17T3

aggravated assault with a deadly weapon, N.J.S.A. 2C:12-1(b)(2); 3) seconddegree attempting to inflict bodily injury on another in the course of a burglary,

N.J.S.A. 2C:18-2; 4) third-degree possession of a knife with an unlawful

purpose to use it against a person, N.J.S.A. 2C:39-4(d); and 5) fourth-degree 

unlawful possession of a knife, N.J.S.A. 2C:39-5(d). After trial, defendant

entered a guilty plea to third-degree terroristic threats, N.J.S.A. 2C:12-3(b), and 

fourth-degree criminal contempt of a restraining order, N.J.S.A. 2C:29-9(b). 

Defendant's sole claim in this appeal is that his trial counsel was 

ineffective in not thoroughly investigating the facts. Defendant does not state 

what would have been discovered through further investigation. The PCR judge 

was also the trial judge. He reviewed the trial evidence before rejecting 

defendant's claim as speculative and non-specific. 

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). "[W]hen a petitioner 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." State v. Porter, 

216 N.J. 343, 353 (2013) (alteration in original) (quoting Cummings, 321 N.J. 
4

A-4513-17T3

Super. at 170). Trial courts should grant evidentiary hearings only if the 

defendant has presented a prima facie claim of ineffective assistance of counsel 

(IAC), material issues of disputed fact lie outside the record, and resolution of 

those issues necessitates a hearing. Id. at 355; R. 3:22-10(b). 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. 

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 

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." 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.'" 
5

A-4513-17T3

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). 

To establish a prima facie claim of IAC, a defendant must satisfy the twoprong Strickland3

test, and "bears the burden of proving" both prongs "by a 

preponderance of the evidence." State v. Gaitan, 209 N.J. 339, 350 (2012). A

defendant must show that l) "counsel's performance was deficient" and he or she

"made errors so serious that counsel was not functioning as the 'counsel' 

guaranteed . . . by the Sixth Amendment" to the United States 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 State v. Fritz, 105 N.J. 42, 52 (1987). A reasonable 

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

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

 

3

 Strickland v. Washington, 466 U.S. 668 (1984).
6

A-4513-17T3

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). Indeed, "counsel 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. "Judicial 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: '[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, after de novo review, we are satisfied 

defendant failed to make a prima facie showing of IAC under the Strickland test, 
7

A-4513-17T3

and we discern no abuse of discretion in the judge's denial of defendant's PCR 

petition without an evidentiary hearing. 

Affirmed.