SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5001-14T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MALIK R. SMITH, 

Defendant-Appellant.

__________________________

Submitted October 11, 2017 – Decided

Before Judges Fuentes and Koblitz.

On appeal from Superior Court of New Jersey, 

Law Division, Atlantic County, Indictment No. 

03-04-0824.

Joseph E. Krakora, Public Defender, attorney 

for appellant (David A. Gies, Designated 

Counsel, on the brief).

Damon G. Tyner, Atlantic County Prosecutor, 

attorney for respondent (John J. Santoliquido, 

Assistant Prosecutor, on the brief).

PER CURIAM

Defendant appeals from a May 21, 2015 order of the court 

denying his application for post-conviction relief (PCR) without 

NOT FOR PUBLICATION WITHOUT THE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.

November 16, 2017
2 A-5001-14T4

an evidentiary hearing. We affirm substantially for the reasons 

set forth by Judge Mark H. Sandson in his detailed written opinion.

A jury convicted defendant of a 2003 double-murder that 

occurred when defendant was in the process of committing an armed 

robbery in a bar. He shot and killed the bartender, who in turn 

shot and killed another robber. The murder weapon was found 

disassembled in defendant's girlfriend's residence. The 

girlfriend testified against defendant as part of her plea 

agreement. Defendant was sentenced to sixty-six and one-half 

years in prison, fifty-one of the years to be served without 

parole. We affirmed. State v. Smith, No. A-1539-06, (App. Div. 

Jan. 9, 2009). Our Supreme Court denied defendant's petition for 

certification, 205 N.J. 520 (2011). We granted the appeal of his 

timely PCR application because "his PCR counsel ignored 

defendant's arguments contained in his pro se PCR brief" and did 

not provide the PCR judge with the complete trial transcript. 

State v. Smith, No. A-4371-11 (App. Div. June 19, 2014). We 

remanded to the trial court, which denied relief after oral 

argument. 

Defendant now appeals, raising the following issues:

POINT I: THE PCR COURT ERRED WHERE IT FOUND 

THE DEFENDANT DID NOT ESTABLISH A PRIMA FACIE 

CASE THAT HE WAS DENIED A FAIR TRIAL DUE TO 

THE FAILURE OF TWO JURORS TO DISCLOSE DURING 

VOIR DIRE THEIR PRE-TRIAL KNOWLEDGE OF THE 
3 A-5001-14T4

DEFENDANT AND THE CRIME, THEREBY REQUIRING AN 

EVIDENTIARY HEARING.

POINT II: THE PCR COURT ERRED WHERE, WHEN 

DECIDING THAT THE TRIAL COURT'S EX PARTE POSTCONVICTION COMMUNICATION WITH THE JURY WAS 

PROCEDURALLY BARRED, IT DID NOT CONSIDER 

WHETHER A FUNDAMENTAL INJUSTICE RESULTED FROM 

THE FAILURE OF THE TWO JURORS TO DISCLOSE 

DURING VOIR DIRE THEIR PRETRIAL KNOWLEDGE OF 

THE DEFENDANT AND THE CRIME.

POINT III: THE DEFENDANT INCORPORATES HEREIN 

ALL OF HIS REMAINING ARGUMENTS FOR POSTCONVICTION RELIEF.

New Jersey courts follow the rule formulated by the United 

States Supreme Court in Strickland v. Washington, 466 U.S. 668, 

687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984). To 

show ineffective assistance a defendant must identify acts or 

omissions showing unreasonable professional judgment, and then 

must show that these errors had a prejudicial effect on the 

conviction. State v. Fritz, 105 N.J. 42, 58 (1987). The same 

standards are applied to ineffective assistance of appellate 

counsel claims. State v. Harris, 181 N.J. 391, 518 (2004).

In reviewing claims of ineffective assistance of counsel, 

courts apply a strong presumption that defense counsel "rendered 

adequate assistance and made all significant decisions in the 

exercise of reasonable professional judgment." Strickland, supra,

466 U.S. at 690, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695.

"[C]omplaints 'merely of matters of trial strategy' will not serve 
4 A-5001-14T4

to ground a constitutional claim of inadequacy . . . ." Fritz, 

supra, 105 N.J. at 54 (quoting State v. Williams, 39 N.J. 471, 

489, cert. denied, 374 U.S. 855, 83 S. Ct. 1924, 10 L. Ed. 2d 1075 

(1963), overruled in part on other grounds by, State v. Czachor, 

82 N.J. 392, 402 (1980)). "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." State v. Castagna, 

187 N.J. 293, 314 (2006). "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.'" Id. at 314-15 (quoting State v. Buonadonna, 122 N.J. 22, 

42 (1991)). "[A]n otherwise valid conviction will not be 

overturned merely because the defendant is dissatisfied with his 

or her counsel's exercise of judgment during the trial." State 

v. Allegro, 193 N.J. 352, 367 (2008) (quoting Castagna, supra, 187 

N.J. at 314).

Both PCR counsel, who submitted a brief, and defendant, via 

a pro se brief and an undated letter to the PCR court, set forth 

a wide variety of claims of ineffective assistance of trial and 

appellate counsel, as well as various alleged errors committed by 

the trial court. Defendant claimed he was given constitutionally 
5 A-5001-14T4

ineffective assistance of trial counsel because his lawyer failed 

to: 1) communicate the State's plea offer; 2) present key witnesses 

on behalf of defendant or adequately cross-examine the State's 

witnesses; 3) object to the absence of a Bible when the witnesses 

testified; and 4) request a mistrial after the first day of 

deliberations when the jury advised that it was "deadlocked."

Defendant claimed his appellate attorney was ineffective by 

failing to raise the following appellate issues: 1) the trial 

court allowed the State, over objection, to mischaracterize the 

evidence and introduce personal expression or beliefs; 2) the 

trial court should have charged the jury on the lesser included 

offense of attempted robbery; 3) the trial court should have 

permitted into evidence the entire transcript of the 911 call; 4) 

the trial court should have dismissed the indictment because it 

was based on perjured testimony; and 5) the trial court should 

have dismissed the conspiracy count because the State did not 

present evidence of an overt act.

Defendant repeated his claims of trial error in his undated 

letter to the PCR court. PCR counsel argued to the PCR court that 

the trial judge erred in: 1) having improper ex parte contact with 

the jury post-verdict; 2) denying defendant a fair trial based on

two jurors failing to disclose their pre-trial knowledge of 

defendant and details of the case; 3) providing erroneous jury 
6 A-5001-14T4

instructions, and 4) failing to provide proper curative 

instructions. 

Defendant argues before us on appeal that he was entitled to 

an evidentiary hearing regarding these same issues. Judge Sandson 

reviewed the issues raised in detail and discussed why no issue 

raised a prima facie showing meriting an evidentiary hearing. "If 

the court perceives that holding an evidentiary hearing will not 

aid the court's analysis of whether the defendant is entitled to 

post-conviction relief . . . or that the defendant's allegations 

are too vague, conclusory, or speculative to warrant an evidentiary 

hearing . . . then an evidentiary hearing need not be granted." 

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

The PCR judge, who was furnished with the entire trial 

transcript, reviewed in detail the most significant issues raised 

and we affirm on the basis of his thorough decision. With regard 

to the issues raised by defendant not addressed with specificity 

by the PCR judge, none had sufficient merit to require discussion 

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

Affirmed.