RECORD IMPOUNDED

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2741-16T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

L.L.M.,

Defendant-Appellant.

_____________________________

Submitted June 4, 2018 – Decided June 22, 2018

Before Judges Whipple and Rose.

On appeal from Superior Court of New Jersey, 

Law Division, Gloucester County, Indictment 

No. 08-03-0291.

Joseph E. Krakora, Public Defender, attorney 

for appellant (Richard Sparaco, Designated 

Counsel, on the brief).

Sean F. Dalton, Gloucester County Prosecutor, 

attorney for respondent (Margaret A. 

Cipparrone, Senior 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NOT FOR PUBLICATION WITHOUT THE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-2741-16T3

Defendant L.L.M.1 appeals from the January 23, 2017 denial of 

his petition for post-conviction relief ("PCR") without an 

evidentiary hearing. We affirm.

In his single-point merits brief, defendant raises the 

following argument for our consideration:

DEFENDANT WAS ENTITLED TO AN EVIDENTIARY 

HEARING WHERE HE WAS DENIED EFFECTIVE 

ASSISTANCE OF COUNSEL WHEN COUNSEL MOVED TO 

ADMIT DEFENDANT'S ENTIRE INTERROGATION, NONREDACTED, ALLOWING THE JURY TO CONSIDER THE 

UNDULY PREJUDICIAL ULTIMATE OPINIONS MADE BY 

THE INTERROGATOR.

We incorporate by reference the facts and procedural history 

set forth in our prior unpublished opinion. State v. L.L.M., No.

A-6274-10 (App. Div. Oct. 25, 2013). Pertinent to this appeal, 

defendant sexually assaulted his wife's cousin over the course of 

three years when the victim was between the ages of ten and 

thirteen. Defendant was ultimately arrested, waived his Miranda2

rights, and was questioned by the investigating officers for nearly 

four hours. Defendant maintained his innocence during the 

interrogation, which was video-recorded. 

At trial, defendant testified on his own behalf. On crossexamination, the prosecutor attempted to impeach defendant's 

 

1 We use initials to protect the privacy of the victim.

2 Miranda v. Arizona, 384 U.S. 436 (1966). 
3 A-2741-16T3

testimony with portions of his recorded statement, such as, the 

victim was "very mature for her age." Defense counsel objected, 

requesting the court play defendant's entire video-recorded 

statement to the jury so that the statements read by the prosecutor 

were not taken out of context. 

After a short recess to resolve technological issues, defense 

counsel, apparently reconsidering his initial request, moved to 

redact those portions of the recording where the officers expressed 

their belief that the victim's allegations were true. The trial 

judge accepted the prosecutor's argument that the doctrine of 

completeness warranted playing the video in full. The judge also 

was concerned that editing the video would delay the trial. 

After the entire video-recorded statement was played for the 

jury, the judge issued the following limiting instruction:

During the interview, you heard questions 

or statements by the detectives that included 

comments or opinions relating to the 

credibility of [the victim] and the 

credibility of the [d]efendant.

You're not to give those comments any 

weight. Determining the credibility of 

witnesses who have testified here and the 

weight to give to their testimony is for you 

and you alone to determine. You are the judges 

of the facts.

Thus, what has been said by others, as 

to the credibility of any witnesses here is 

to be disregarded by you, as it relates to the 
4 A-2741-16T3

credibility of those witnesses. That is 

solely your determination. 

Also, there were questions and statements 

asked by the detective and statements by the 

[d]efendant, which included certain 

statements or allegations of facts. The facts 

that are contained within questions do not 

prove the existence of those facts.

You only consider such facts which, in 

your judgment, have been proven by the 

testimony of witnesses and from the exhibits 

admitted into evidence by the [c]ourt.

Defendant was convicted of second-degree sexual assault, 

N.J.S.A. 2C:14-2(b), and third-degree endangering the welfare of 

a child, N.J.S.A. 2C:24-4(a). He was sentenced to an aggregate 

seven-year term of imprisonment, subject to an eighty-five percent 

period of parole ineligibility, pursuant to the No Early Release 

Act, N.J.S.A. 2C:43-7.2. 

Defendant raised several arguments on direct appeal. L.L.M., 

slip op. at 15-16. Relevant here, defendant claimed "the trial 

court erred in failing to excise prejudicial material from the 

interrogation video that was played to the jury." Id. at 16. 

"Although we agree[d] with defendant that it would have been 

preferable to have delayed the trial to edit out the officers' 

personal opinions from the videotape, we conclude[d] that the 

playing of the entire tape, along with the judge's extensive 

curative instruction, was not harmful error." Id. at 27-28. The 
5 A-2741-16T3

Supreme Court thereafter denied certification. State v. L.L.M., 

217 N.J. 588 (2014).

Defendant then filed a PCR petition, alleging ineffective 

assistance of his trial and appellate counsel on several grounds. 

In the alternative, defendant requested an evidentiary hearing. 

Relevant to this appeal, defendant claimed trial counsel advanced 

an "ill-advised trial strategy of requesting a showing to the 

jury, the full version of [his] statement to the police without 

any redactions." Specifically,

the inflection of [the officers'] voices, the 

language used by them, their forceful 

accusatory statements, along with their clear 

opinions that the alleged victim was telling 

the truth and the [d]efendant was not being 

forthright, is sufficient evidence in and of 

itself for the court to make a finding that 

trial counsel's decision to play the entire 

interrogation was unsound trial strategy. 

In a comprehensive twenty-six page written decision, the PCR 

judge denied each of defendant's claims. Regarding defendant's 

sole claim before us in this appeal, the PCR judge referenced our 

opinion on direct appeal, finding that because we determined 

admission of the entire statement was harmless error, "trial 

counsel cannot be held accountable for the court's decision to 

play the tape in full." 

The PCR judge also found trial counsel's decision in this 

regard was sound trial strategy. In particular, the judge noted 
6 A-2741-16T3

"trial counsel's decision to seek to play more of the defendant's 

statement was a response to his concerns that the limited portions 

of the statement that [were] being played were more harmful if 

left in their limited form or out of context." The judge thus 

found, "This is not an unreasonable approach." 

Further, the PCR judge determined defendant's claim was 

procedurally barred pursuant to Rule 3:22-5, because that claim 

was decided previously by us on the merits. Nevertheless, the PCR 

judge addressed the merits of defendant's argument, finding our 

determination of harmless error "means . . . [admission of the 

entire statement] did not prejudice [defendant's] substantial 

rights under R[ule] 1:7-5. Without any prejudice, [defendant's] 

argument cannot be said to satisfy the second prong of the 

Strickland/Fritz3 analysis and therefore warrants no further 

consideration."

"Post-conviction relief is New Jersey's analogue to the 

federal writ of habeas corpus." State v. Preciose, 129 N.J. 451, 

459 (1992). Pursuant to Rule 3:22-2(a), a criminal defendant is 

entitled to post-conviction relief if there was a "[s]ubstantial 

denial in the conviction proceedings of defendant's rights under 

 

3 Strickland v. Washington, 466 U.S. 668 (1984); State v. Fritz, 

105 N.J. 42 (1987) (adopting the Strickland two-part test in New 

Jersey). 
7 A-2741-16T3

the Constitution of the United States or the Constitution or laws 

of the State of New Jersey." 

 "[A] defendant asserting ineffective assistance of counsel 

on PCR bears the burden of proving his or her right to relief by 

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

350 (2012) (citations omitted). A defendant must prove counsel's 

performance was deficient; it must be demonstrated that counsel's 

handling of the matter "fell below an objective standard of 

reasonableness" and that "counsel made errors so serious that 

counsel was not functioning as the 'counsel' guaranteed the 

defendant by the Sixth Amendment." Strickland, 466 U.S. at 687-

88; Fritz, 105 N.J. at 52. 

 A defendant must also prove counsel's "deficient performance 

prejudiced the defense." Strickland, 466 U.S. at 687. Prejudice 

is established by showing a "reasonable probability that, but for 

counsel's unprofessional errors, the result of the proceeding 

would have been different." Id. at 694. Thus, petitioner must 

establish that counsel's performance was deficient and petitioner 

suffered prejudice in order to obtain a reversal of the challenged 

conviction. Id. at 687; Fritz, 105 N.J. at 52. 

Further, the mere raising of a claim for PCR does not entitle 

the defendant to an evidentiary hearing. State v. Cummings, 321 

N.J. Super. 154, 170 (App. Div. 1999). Rather, trial courts should 
8 A-2741-16T3

grant evidentiary hearings and make a determination on the merits 

only if the defendant has presented a prima facie claim of 

ineffective assistance, material issues of disputed facts lie 

outside the record, and resolution of the issues necessitates a 

hearing. R. 3:22-10(b); State v. Porter, 216 N.J. 343, 355 (2013). 

We review a judge's decision to deny a PCR petition without an 

evidentiary hearing for abuse of discretion. See Preciose, 129 

N.J. at 462. We review any legal conclusions of the trial court 

de novo. State v. Nash, 212 N.J. 518, 540-41 (2013); State v. 

Harris, 181 N.J. 391, 419 (2004).

While we disagree with the PCR court that defendant's claim 

was barred procedurally,4 the judge astutely rejected defendant's 

claims on the merits, giving due deference to trial counsel's 

trial strategy. Here, that strategy was specifically designed to 

rebut negative inferences suggested by the prosecutor on crossexamination with the introduction of a lengthy video-recorded 

statement, during which defendant maintained his innocence. 

Further, even if trial counsel's strategy were deemed deficient, 

 

4 On direct appeal, we only considered whether the trial court 

erred in admitting defendant's entire video-recorded statement; 

we did not consider whether counsel was ineffective in seeking to 

do so. Thus, defendant's ineffective assistance of counsel claim 

is not procedurally barred pursuant to Rule 3:22-5; see also State 

v. McQuaid, 147 N.J. 464, 484 (1997) (recognizing "claims that 

differ from those asserted below will be heard on PCR").
9 A-2741-16T3

because we found admission of the statement was "not harmful 

error," defendant fails to satisfy the prejudice prong. 

Strickland, 466 U.S. at 687.

We also reject defendant's suggestion that the officers' 

interrogation techniques were improper. In particular, defendant 

claims the video depicts one of the officers "sitting next to the 

defendant at the table, putting [the officer's] arms around him, 

holding the defendant's hand, and [an officer] telling the 

defendant that he knows what the defendant is going through, and 

that the defendant will feel better once it is off his chest." 

These investigative techniques were not inappropriate. See State 

v. DiFrisco, 118 N.J. 253, 257 (1990) (acknowledging "[t]he fact 

that an investigative officer is friendly, sympathetic, and 

encourages the trust of the defendant to give a statement 

ordinarily would not render the confession involuntary"). 

We are satisfied from our review of the record that defendant 

failed to demonstrate a prima facie showing of ineffectiveness of 

trial counsel under the Strickland/Fritz test. We, therefore, 

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

petition. The PCR judge correctly concluded an evidentiary hearing 

was not warranted. See Preciose, 129 N.J. at 462-63. 

Affirmed.