SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4224-16T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MAURICE BRACK, a/k/a 

MAURICE BARRACK,

MAURICE BLACK, 

MAURICE BRACK,

MAURICE L. BRACK, 

SOCCA BOPUM, and

SOCKA BOPA,

Defendant-Appellant.

______________________________

Submitted November 14, 2018 – Decided

Before Judges Hoffman and Firko.

On appeal from Superior Court of New Jersey, Law 

Division, Union County, Indictment No. 08-10-0851.

Joseph E. Krakora, Public Defender, attorney for 

appellant (Michael J. Confusione, Designated Counsel; 

William P. Welaj, 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NOT FOR PUBLICATION WITHOUT THE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.

December 21, 2018
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Michael A. Monahan, Acting Union County 

Prosecutor, attorney for respondent (Michelle J. Ghali, 

Special Deputy Attorney General/Acting Assistant 

Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Maurice Brack appeals from the Law Division's denial of his 

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

petition, defendant argued he had ineffective assistance of counsel because a 

mistake of fact defense was not raised, and counsel failed to argue the jury's 

verdict was against the weight of the evidence. He also argued that he should 

not have been waived up to the Law Division because he was only fourteen years 

old at the time he fatally beat the victim on August 18, 2006, and that the new 

juvenile waiver statute, N.J.S.A. 2A:4A-26.1(c)(1), enacted on March 1, 2016, 

should apply to his case. The PCR court disagreed and denied his petition, 

concluding:

Inasmuch as there exists no grounds on which to grant 

petitioner post-conviction relief because his trial and/or 

appellate counsel was ineffective, petitioner's argument 

that P.L. 2015, c. 89 should be applied retroactively to 

his case must be rejected.

While this PCR was pending, State in the Interest of 

J.F., 446 N.J. Super. 39 (App. Div. 2016) was decided. 

Judge Koblitz, for the court, found that P.L. 2015, c. 89 

was an ameliorative statute requiring retroactive 

application. The J.F. court analyzed the recent 
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legislation under the well-known test announced by our 

Supreme Court in Gibbons v. Gibbons, 86 N.J. 515 

(1981).

The Gibbons court ruled that retroactivity should be 

given:

1. To statutes about which the legislature either 

expressly or impliedly expressed that the law be 

retroactive;

2. To statutes which are ameliorative or curative; or

3. "[I]n the absence of a clear expression of 

legislative intent that the statute is to be applied 

prospectively, such considerations as the 

expectations of the parties may warrant 

retroactive application."

[Gibbons, 86 N.J. at 522-23.]

Applying those factors to this case, it is clear that there 

is no legislative expression regarding retroactivity.

This appeal followed. On appeal, defendant maintains that the new 

juvenile waiver statute should be applied retroactively. We disagree and affirm.

On appeal, defendant specifically argues:

POINT I:

THE TRIAL COURT ERRED IN DENYING THE 

DEFENDANT'S PETITION FOR POSTCONVICTION RELIEF SINCE N.J.S.A. 2A:4A26.1(c)(1), WHICH PROVIDES THAT A JUVENILE 

CANNOT BE WAIVED TO THE LAW DIVISION 

UNLESS THE STATE CAN ESTABLISH THE 
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JUVENILE WAS 15 YEARS OF AGE OR OLDER AT 

THE TIME OF THE DELINQUENT ACT, APPLIED 

RETROACTIVELY TO THE DEFENDANT'S CASE, 

IN WHICH HE WAS 14 YEARS OLD AT THE TIME 

OF THE OFFENSE IN QUESTION.

A. N.J.S.A. 2A:4A-26.1(c)(1) APPLIES 

RETROACTIVELY TO THE PRESENT CASE 

PURSUANT TO PREVAILING CASE LAW.

B. THE DOCTRINES OF FUNDAMENTAL 

FAIRNESS AND MANIFEST INJUSTICE 

REQUIRE A RETROACTIVE APPLICATION 

OF N.J.S.A. 2A:4A-26.1(c)(1) TO THE 

PRESENT CASE.

POINT II:

THE TRIAL COURT ERRED IN DENYING THE 

DEFENDANT'S PETITION FOR POSTCONVICTION RELIEF WITHOUT AFFORDING 

HIM AN EVIDENTIARY HEARING TO FULLY 

ADDRESS HIS CONTENTION THAT HE FAILED 

TO RECEIVE ADEQUATE LEGAL 

REPRESENTATION FROM TRIAL COUNSEL AS A 

RESULT OF COUNSEL'S FAILURE TO ASSERT A 

MISTAKE OF FACT DEFENSE AT TRIAL.

I.

When defendant was fourteen years old, he was arrested and charged with 

first-degree murder, N.J.S.A. 2C:11-3(a)(1) or (2), in connection with the brutal, 

gang-related murder of Rhykime Richardson, after violently assaulting him and 

leaving him to die in a parking lot in Elizabeth. In addition, defendant was 
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charged with third-degree possession of a weapon for an unlawful purpose, 

N.J.S.A. 2C:39-4(d), and fourth-degree unlawful possession of a weapon, 

N.J.S.A. 2C:39-5(d), as a juvenile. Following a probable cause hearing on 

August 14, 2008, a prior judge waived jurisdiction from the Family Division to 

the Law Division.

A Miranda1 hearing was conducted before Judge Scott J. Moynihan, who 

found defendant's statement admissible. In October 2010, defendant was 

convicted after a jury trial of first-degree murder, and acquitted as to the 

weapons charges. He was sentenced to thirty-four years imprisonment with a 

thirty-year parole disqualifier. Defendant's conviction and sentence were 

affirmed. State v. Brack, No. A-5479-10 (App. Div. Oct. 22, 2014), certif. 

denied, 221 N.J. 287 (2015).

On July 15, 2015, defendant filed a PCR petition. Following argument, 

Judge Moynihan denied the petition as to the ineffective assistance of counsel 

claims, and reserved decision as to whether the new juvenile waiver statute 

applied retroactively in light of this court's decision in State in the Interest of 

J.F., 446 N.J. Super. 39 (App. Div. 2016). In a comprehensive written opinion, 

Judge Moynihan denied the petition without a hearing.

 

1

 Miranda v. Arizona, 384 U.S. 436 (1966).
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The record in this matter discloses that defendant, whose nickname was 

"No Bullshit," was a member of a junior gang, "LOX," and had aspirations of 

becoming a member of the Bloods. He hoped to be initiated into the gang within 

a few weeks of the crimes, and stated that murdering someone by stabbing them 

would have his status "am[p]ed" up, and would put him "up there towards the 

Big Homies." Lasheem Lee was one of the so-called "Big Homies." Earlier in 

the evening on the day of the murder, defendant attended Lee's birthday party, 

hosted by his girlfriend, "Snake." The victim entered the courtyard where the 

party was going on and punched Lee in the face, causing a bottle of wine to fall 

out of his hand. Lee shouted, "[h]e just hit me," and yelled, "catch his ass," and 

"go get that," referring to the victim as he fled.

A crowd of fifty or more people, including defendant, chased after the 

victim, who was running for his life. Leading the chase, defendant hopped over 

a fence with others and stole bicycles to aid their pursuit through residential 

backyards. The victim, being alarmed by the size of the crowd of fifty or sixty 

people, yelled to one of the property owners, "I'm getting out of your backyard 

but call the police please." After pursuing the victim, defendant ripped his pants 

and lacerated his hand and leg. The victim ran away and fell down in a nearby 

parking lot, where defendant prevented him from moving, while beating, 
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stabbing, and "stomping him out," along with others, who slammed him with a 

bike and told defendant, "he's all yours." The victim was "just curled up like a 

baby," and "being beat while he was unconscious," according to defendant.

The victim died from blunt force trauma to his head and from stab wounds 

that punctured his lung and caused a "torrential" amount of blood to fill his lung, 

according to the autopsy report. Following the victim's death, defendant 

referred to himself as "homicide," and he "took pride" in what he did.

II.

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

habeas corpus." State v. Goodwin, 173 N.J. 583, 593 (2002) (quoting State v. 

Preciose, 129 N.J. 451, 459 (1992)). The process affords an adjudged criminal 

defendant a "last chance to challenge the 'fairness and reliability of a criminal 

verdict . . . .'" State v. Nash, 212 N.J. 518, 540 (2013) (quoting State v. Feaster, 

184 N.J. 235, 249 (2005)); see also Rule 3:22-1. "Post-conviction relief is 

neither a substitute for direct appeal, [Rule] 3:22-3, nor an opportunity to 

relitigate cases already decided on the merits, [Rule] 3:22-5." Preciose, 129 N.J. 

at 459; see also State v. Echols, 199 N.J. 344, 357 (2009).

Merely raising a claim for PCR does not entitle the defendant to an 

evidentiary hearing. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div. 
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1999). Rather, trial courts should grant evidentiary hearings and make a 

determination on the merits only if the defendant has presented a prima facie 

claim of ineffective assistance of counsel, material issues of disputed fact lie 

outside the record, and resolution of the issues necessitates a hearing. R. 3:22-

10(b); State v. Porter, 216 N.J. 343, 354 (2013). A PCR court deciding whether 

to grant an evidentiary hearing "should view the facts in the light most favorable 

to a defendant to determine whether a defendant has established a prima facie 

claim," and we review a judge's decision to deny a PCR petition without an 

evidentiary hearing for abuse of discretion. Preciose, 129 N.J. at 463.

"[W]here the [PCR] court does not hold an evidentiary hearing, we may 

exercise de novo review over the factual inferences the trial court has drawn 

from the documentary record." State v. O'Donnell, 435 N.J. Super. 351, 373 

(App. Div. 2014) (citing State v. Harris, 181 N.J. 391, 420-21 (2004)). Thus, if 

warranted, we may "conduct a de novo review of both the factual findings and 

legal conclusions of the PCR court." Ibid. (citing Harris, 181 N.J. at 421).

A petition for PCR may be granted upon the following grounds:

(a) Substantial denial in the conviction proceedings of 

defendant's rights under the Constitution of the United 

States or the Constitution or laws of the State of New 

Jersey;
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(b) Lack of jurisdiction of the court to impose the 

judgment rendered upon defendant's conviction;

(c) Imposition of sentence in excess of or otherwise 

not in accordance with the sentence authorized by law 

if raised together with other grounds cognizable under 

paragraph (a), (b), or (d) of this rule. Otherwise a claim 

alleging the imposition of sentence in excess of or 

otherwise not in accordance with the sentence 

authorized by law shall be filed pursuant to [Rule] 3:21-

10(b)(5).

(d) Any ground heretofore available as a basis for 

collateral attack upon a conviction by habeas corpus or 

any other common-law or statutory remedy.

(e) A claim of ineffective assistance of counsel based 

on trial counsel's failure to file a direct appeal of the 

judgment of conviction and sentence upon defendant's 

timely request.

[R. 3:22-2.]

III.

Defendant argues the PCR judge erred in failing to apply N.J.S.A. 2A:4A26.1(c)(1) retroactively pursuant to J.F., and consequently, his conviction must 

be vacated and this matter should be remanded to the Family Court for an 

adjudication. We disagree.

In J.F., we undertook a detailed analysis of the revised waiver statute and 

affirmed the trial court's denial of a waiver request involving a murder allegedly 
10 A-4224-16T4

committed by a fourteen-year-old minor. 446 N.J. Super. at 41-42. The trial

court in J.F. found, "strong and compelling prospects for rehabilitation 

substantially outweigh[ed] the standard of the attenuated argument of deterrence 

in the case." Id. at 51. The trial judge made the waiver decision on August 13, 

2015, three days before the Governor signed the revised waiver statute into law. 

Id. at 52. The trial judge did not apply the new statute that became effective on

March 1, 2016. Id. at 52-53.

We noted "[u]nder the revised waiver statute, a juvenile cannot be waived 

to the Law Division unless the State can establish that 'the juvenile was [fifteen] 

years of age or older at the time of the delinquent act.'" Ibid. (citing N.J.S.A. 

2A:4A-26.1(c)(1)).

We concluded the revised statute applied to J.F. because the new statute:

ameliorate[d] the punitive sentencing previously meted 

out to adolescent offenders after waiver. The 

legislative action was also intended to address the 

treatment needs of children. The increase in the 

minimum waiver age is part of that emphasis on 

rehabilitation rather than punishment, a part of the 

effort to ensure that children do not become prey to 

adult inmates nor suffer the many societal 

consequences of an adult criminal record.

[Id. at 55 (footnotes omitted).]
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Furthermore, we noted "[t]he State ma[de] no argument that it would 

suffer an 'unconstitutional interference with a vested right or a manifest

injustice.'" Id. at 56 (quoting Ardan v. Board of Review, 444 N.J. Super. 576, 

589 (App. Div. 2016)). "Retroactively applying the age requirement of the 

revised waiver statute would impose no 'unfairness [or] inequity.'" Id. at 56-57 

(alteration in original) (quoting Oberhand v. Director, Div. of Taxation, 193 N.J. 

558, 572 (2008)).

Here, Judge Moynihan correctly found that: "The difference between this 

case and J.F. is that J.F's waiver hearing was decided on August 13, 2015, three 

days after the enactment of P.L. 2015, c.89. . . . [and that] J.F. had not been 

adjudicated, nor his disposition entered, prior to the passage of the new law." 

(footnote omitted).

Brack was sentenced prior to the enactment of the new law thus 

distinguishing his case from the holding in J.F. "Generally, newly enacted laws 

are applied prospectively." Johnson v. Roselle EZ Quick LLC, 226 N.J. 370, 

387 (2016). The presumption can only be overcome by showing the Legislature 

intended retroactive application.

In Ardan, our Court reiterated settled rules of statutory construction 

"based on our long-held notions of fairness and due process." 231 N.J. at 610 
12 A-4224-16T4

(quoting James v. N.J. Mfrs. Co., 216 N.J. 552, 563 (2014)). As instructed in 

Ardan, "[w]e consider (1) 'whether the Legislature intended to give the statute 

retroactive application' and (2) whether retroactive application 'will result in 

either an unconstitutional interference with vested rights or a manifest 

injustice.'" Ibid. (quoting James, 216 N.J. at 563). 

For these reasons we affirm Judge Moynihan's decision not to 

retroactively apply N.J.S.A. 2A:4A-26.1(c)(1). To the extent we have not 

addressed defendant's other arguments for the retroactive application of N.J.S.A. 

2A:4A-26.1(c)(1), it is because those arguments are without sufficient merit to 

warrant discussion in a written opinion. R. 2:11-3(e)(2).

IV.

Turning to defendant's ineffective assistance of counsel claim, a two-part 

test must be satisfied by demonstrating that: (1) counsel's performance was 

deficient, and (2) the deficient performance actually prejudiced the accused's 

defense. Strickland v. Washington, 466 U.S. 668, 682 (1984); see also State v. 

Fritz, 105 N.J. 42, 58 (1987).

In reviewing ineffective assistance claims, courts apply a strong 

presumption that a defendant's trial counsel "rendered adequate assistance and 

made all significant decisions in the exercise of reasonable professional 
13 A-4224-16T4

judgment." Strickland, 466 U.S. at 690. "[C]omplaints 'merely of matters of 

trial strategy' will not serve to ground a constitutional claim of inadequacy . . .

." Fritz, 105 N.J. at 54 (quoting State v. Williams, 39 N.J. 471, 489 (1963)). 

"To establish a prima facie claim of ineffective assistance of counsel, a 

defendant must demonstrate a reasonable likelihood of succeeding under" the 

Strickland/Fritz test. Preciose, 129 N.J. at 463. To demonstrate the likelihood 

of succeeding under the Strickland/Fritz test, a defendant "must do more than 

make bald assertions . . . . [and] must allege facts sufficient to demonstrate 

counsel's alleged substandard performance." Cummings, 321 N.J. Super. at 170.

Defendant contends that his trial counsel erred by failing "to raise [a] 

mistake of fact doctrine" defense and jury charge because defendant did not 

intend to kill the victim, but only to "rough him up." N.J.S.A. 2C:2-4 defines 

mistake of fact in relevant part as follows:

a. Ignorance or mistake as to a matter of fact or law is 

a defense if the defendant reasonably arrived at the 

conclusion underlying the mistake and:

(1) It negatives the culpable mental state required to 

establish the offense; or

(2) The law provides that the state of mind established 

by such ignorance or mistake constitutes a defense.

b. Although ignorance or mistake would otherwise 

afford a defense to the offense charged, the defense is 
14 A-4224-16T4

not available if the defendant would be guilty of another 

offense had the situation been as he supposed. In such 

case, however, the ignorance or mistake of the 

defendant shall reduce the grade and degree of the 

offense of which he may be convicted to those of the 

offense of which he would be guilty had the situation 

been as he supposed.

As noted by the judge, a mistake of fact defense is commonly used "when 

a defendant asserts self-defense, defense of others or defense of property." In 

this case, the facts are a far cry from the statutory intent because "no one could 

reasonably believe [defendant's] actions were necessary to protect Lee." The 

victim "posed no threat after he ran from the group." After fleeing, he was 

thrown to the ground, and "stabbed and beaten with deadly force."

Based on our review of the record, we are satisfied that defendant's claim 

of ineffective assistance of trial counsel does not fall below the requisite 

standard under either prong of the Strickland/Fritz test.

We also find no merit to defendant's claim that he was denied effective 

assistance of appellate counsel for failing to argue that the verdict was against 

the weight of the evidence. Procedurally, a motion for a new trial was not made 

as required by Rule 2:10-1, therefore, the argument could not have been raised 

on appeal.
15 A-4224-16T4

Here, we conclude that defendant failed to make a prima facie showing of 

ineffective assistance of counsel under the Strickland/Fritz test, and there was 

no abuse of discretion in the denial of his PCR petition without an evidentiary 

hearing.

Affirmed.