SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4513-18

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

OMAR D. JACKSON,

Defendant-Appellant.

_______________________

Submitted March 22, 2021 – Decided April 20, 2021

Before Judges Fasciale and Rothstadt.

On appeal from the Superior Court of New Jersey, Law 

Division, Monmouth County, Indictment No. 13-11-

2053.

Joseph E. Krakora, Public Defender, attorney for 

appellant (Karen A. Lodeserto, Designated Counsel, on 

the brief).

Christopher J. Gramiccioni, Monmouth County 

Prosecutor, attorney for respondent (Lisa Sarnoff 

Gochman, 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NOT FOR PUBLICATION WITHOUT THE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-4513-18

Defendant Omar D. Jackson appeals from the January 18, 2019 order that 

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

hearing. In his petition, defendant maintained that his suppression hearing, trial, 

and remand attorneys each rendered ineffective assistance of counsel (IAC). 

After considering defendant's petition, Judge Dennis R. O'Brien entered the 

order under review after concluding that defendant's claims were procedurally 

barred and substantively without merit. We agree and affirm. 

In 2014, a jury convicted defendant of second-degree unlawful possession 

of a weapon, N.J.S.A. 2C:39-5(b), and third-degree possession of a controlled 

dangerous substance, N.J.S.A. 2C:35-10(a)(1). The sentencing court imposed a 

ten-year term subject to a five-year period of parole ineligibility. 

Defendant appealed, arguing that his motion to suppress should have been 

granted, the trial judge gave improper jury instructions, and the sentencing judge 

mistakenly believed the five-year period of parole ineligibility he imposed was 

mandatory. State v. Jackson, A-3697-14 (App. Div. Feb. 9, 2017) (slip op. at 2-

5) (Jackson I). In an unpublished opinion, we affirmed his conviction but 

remanded for resentencing. Id. at 17.

In affirming his conviction, we rejected defendant's argument that the 

motion to suppress should have been denied. We found that under the totality 
3

A-4513-18

of circumstances, a police officer's stop of defendant, which was prompted by a 

9-1-1 call, was legal. Id. at 10-11, 16-17. We remanded for resentencing 

"[b]ecause the [sentencing] court appeared to be misinformed as to its 

sentencing options." Id. at 17. 

After our remand, the resentencing judge imposed the same sentence. 

Defendant appealed from his sentence and an Excessive Sentence panel of this 

court affirmed. State v. Jackson, A-4479-16 (App. Div. Dec. 5, 2017) (Jackson 

II). Defendant never filed a petition for certification with the Supreme Court. 

Instead, he filed his petition for PCR. 

The facts underlying defendant's arrest and conviction are recounted in 

our prior opinion. Jackson I, slip op. at 2-4. We summarize the facts that are

pertinent to defendant's PCR petition. 

On May 28, 2013, defendant was stopped by a police officer after the 

Neptune Police Department received the 9-1-1 call from a caller who identified 

herself but was never located. Id. at 2. The caller explained that there was a 

black male wearing a purple jacket and black sneakers with red bottoms looking 

through the bushes. Id. at 3-4. 

The officer was dispatched to look for the individual and came across 

defendant in the middle of the street, matching the description provided in the 
4

A-4513-18

9-1-1 call. Id. at 2. The officer knew of defendant's gang affiliations, his 

criminal history, and that a shooting occurred in the area the night before. Id. at 

3. As the officer moved defendant out of the middle of the street onto the 

sidewalk so he could safely speak with defendant, he observed twigs in 

defendant's hair and defendant walking as if he was trying to conceal something 

and suspected that he had a gun. Id. at 2-3. A subsequent pat down of 

defendant's clothing revealed the gun, and a later search incident to arrest led to 

the discovery of the cocaine. Id. at 3. 

Before trial, defendant filed his unsuccessful suppression motion. Shortly 

before the suppression hearing, defendant was arrested on unrelated charges for 

attempted murder and weapons offenses. It was undisputed on PCR that about 

a week after his suppression hearing, defendant's counsel, an Assistant Public 

Defender, sought to withdraw from the case because the Office of the Public 

Defender also "represent[ed] the victim [in defendant's] attempted murder case," 

and the attorney had represented the victim "numerous times in the past." The 

attorney was allowed to withdraw, and defendant was assigned new counsel with 

whom he proceeded to trial.

After his conviction and unsuccessful appeals, in January 2018, defendant

initially filed a motion to reduce his sentence, without setting forth any grounds 
5

A-4513-18

for relief. In an amended submission filed by PCR counsel in August 2018, 

defendant alleged that trial counsel "failed to request a mistrial" or a "speedy 

trial," and "was ineffective on all aspects of the case." Defendant also contended 

that his sentence was excessive. 

In a supporting brief, defendant further argued: (1) his claims were not 

barred; (2) he was entitled to a hearing to establish his IAC claim as to his trial 

counsel and to "determine why the State destroyed key evidence"; (3) he was 

denied effective assistance of counsel; (4) his conviction must be overturned 

because the probable cause used to justify the Terry1stop was based on an 

anonymous tip; (5) he was entitled to a new trial because his suppression hearing 

counsel had a conflict of interest and failed to defend his Fourth Amendment 

rights; (6) he received IAC during his remand hearing on sentencing; and finally, 

(7) suppression counsel was ineffective in pursuing the motion to suppress. 

On January 18, 2019, Judge O'Brien heard oral argument before denying

defendant's petition and placing his reasons on the record that day. In his 

decision, the judge relied upon Rule 3:22-5, and explained that any issue about

the validity of the Terry stop was previously litigated and was therefore barred. 

In addition, he concluded that "[a]ll of [defendant's] constitutional claims, 

1

 Terry v. Ohio, 392 U.S. 1 (1968). 
6

A-4513-18

specifically his Sixth Amendment claims, could have been raised [before the 

trial court and] on direct appeal" and thus, defendant's claims for IAC were 

procedurally barred by Rule 3:22-4(a). Addressing the substance of defendant's 

claims, the judge applied the two-prong test under Strickland v. Washington, 

466 U.S. 668, 694 (1984), as adopted by our Court in State v. Fritz, 105 N.J. 42, 

58 (1987), and also determined that each of defendant's claims were without 

merit and did not entitle defendant to an evidentiary hearing. This appeal 

followed. 

On appeal, defendant raises the following arguments: 

POINT I

THE PCR COURT ERRED IN DENYING 

[DEFENDANT'S] PETITION FOR [PCR] WITHOUT 

AN EVIDENTIARY HEARING AS TESTIMONY IS 

NEEDED REGARDING SUPPRESSION 

COUNSEL'S FAILURE TO DISCLOSE HER 

CONFLICT OF INTEREST PRIOR TO THE START 

OF THE HEARING.

POINT II

THE PCR COURT ERRED IN DENYING 

[DEFENDANT'S] PETITION FOR [PCR] WITHOUT 

AN EVIDENTIARY HEARING AS TESTIMONY IS 

NEEDED FROM PRIOR SUPPRESSION AND 

TRIAL COUNSELS TO EXPLAIN WHY THEY 

FAILED TO OBTAIN THE 9-1-1 TAPE OR 

CONTACT [THE CALLER].
7

A-4513-18

POINT III

THE PCR COURT ERRED IN DENYING 

DEFENDANT'S PETITION FOR [PCR] AS 

TESTIMONY IS NEEDED FROM REMAND 

COUNSEL TO EXPLAIN WHY HE FAILED TO 

ARGUE VIGOROUSLY AT [DEFENDANT'S] 

RESENTENCING.

POINT IV

THIS MATTER SHOULD BE REMANDED TO THE 

PCR COURT FOR FURTHER CONSIDERATION 

AND DETERMINATION OF ALL THE ISSUES 

RAISED IN THE PCR PETITION. (NOT RAISED 

BELOW).

We are not persuaded by defendant's contentions. Applying our de novo 

standard of review, see State v. Blake, 444 N.J. Super. 285, 294 (App. Div. 

2016), we affirm the denial of defendant's petition without an evidentiary 

hearing substantially for the reasons stated by Judge O'Brien in his 

comprehensive oral decision. We add only the following comments.

At the outset, we observe that on appeal defendant does not challenge 

Judge O'Brien's holding that his IAC claims were procedurally barred. We 

therefore do not address that issue because "[a]n issue not briefed on appeal is 

deemed waived." Woodlands Cmty. Ass'n v. Mitchell, 450 N.J. Super. 310, 318-

19 (App. Div. 2017) (quoting Sklodowsky v. Lushis, 417 N.J. Super. 648, 657 

(App. Div. 2011)); see also Pressler & Verniero, Current N.J. Court Rules, cmt. 
8

A-4513-18

5 on R. 2:6-2 (2021). Even if he had raised that challenge, we would have 

concluded that under these circumstances, where each of defendant's arguments 

focused on events that were a matter of record and either occurred before 

defendant's trial or were previously addressed by this court on appeal, the PCR 

judge's finding was legally correct. See R. 3:22-3; R. 3:22-4; R. 3:22-5; State 

v. Marshall, 173 N.J. 343, 351 (2002); State v. Afanador, 151 N.J. 41, 49-50

(1997).

As to the merits of his barred claims, we conclude they were either belied 

by the record or unsupported by any evidence of how the outcome of defendant's 

trial or sentencing would have been different had any of his attorneys performed 

in accordance with his arguments on PCR. For example, here, as to counsel's 

revelation that she had a conflict after the suppression hearing, defendant did 

not demonstrate the requisite "great likelihood of prejudice [that] must be 

shown . . . to establish [he received] constitutionally defective representation of 

counsel" at his suppression hearing. State v. Cottle, 194 N.J. 449, 467-68 (2008) 

(emphasis added) (quoting State v. Norman, 151 N.J. 5, 25 (1997)).

Moreover, contrary to defendant's contentions about suppression counsel,

she did endeavor to locate the 9-1-1 caller but was unable to do so. In any event, 

defendant failed to demonstrate on PCR how his conviction could have been 
9

A-4513-18

prevented had the caller been located. He never explained how the 9-1-1 caller's 

information was unreliable, nor did he support his contentions with "affidavits 

or certifications based upon the personal knowledge of the affiant or the person 

making the certification." State v. Cummings, 321 N.J. Super. 154, 170 (App. 

Div. 1999). Defendant failed to "do more than make bald assertions that he was 

denied the effective assistance of counsel." Ibid. 

Defendant's claims about his resentencing, from which he never appealed, 

are, as Judge O'Brien found, clearly "excessive sentencing argument[s] in 

disguise," which Rule 3:22-4(a) precludes on PCR. See State v. Acevedo, 205 

N.J. 40, 44 (2011); State v. Flores, 228 N.J. Super. 586, 596-97 (App. Div. 

1988). Moreover, although defendant argues that counsel failed to file a new 

presentence memorandum, call witnesses on defendant's behalf, and argue that 

mitigating factors applied, he does not explain what new information would 

have affected the outcome of the sentencing hearing, nor does he provide any 

affidavits from proposed witnesses. Without such support, defendant has again 

merely advanced "bald assertions" that are insufficient to give rise to a prima 

facie claim of IAC. Cummings, 321 N.J. Super. at 170.

Also, his contention about remand counsel failing to note defendant's 

mental health issues, personalize defendant to the sentencing court, or to 
10 A-4513-18

"present any positive information" about him, is belied by the record. His 

attorney did stress at resentencing that defendant had made strides in prison, 

including getting his G.E.D. and that he wanted to move forward. Moreover, as 

the PCR judge explained, the resentencing judge was able to review the first presentencing report and in the two years between sentencings, there was no new 

information regarding defendant's mental health. 

Because we conclude that Judge O'Brien correctly determined defendant 

failed to demonstrate a prima facie claim of IAC, we agree that defendant was 

not entitled to an evidentiary hearing on his petition. State v. Marshall, 148 N.J. 

89, 158 (1997).

Affirmed.