SUPERIOR COURT OF NEW JERSEY 

 APPELLATE DIVISION 

 DOCKET NO. A-0323-22 

STATE OF NEW JERSEY, 

 Plaintiff-Respondent, 

v.

ROSENDO S. GOMEZ-SERPAS, 

 a/k/a SALOMON GOMEZ, 

ROSENDO S. GOMEZ-SERPAS, 

SALOMON GOMEZSERPAS, 

SALOMON GOMEZ-SEEPAS, 

SALOMON G. SERPAS, 

SALOMON SERPAS, and 

SALOMON G. SEEPAS, 

 Defendant-Appellant. 

___________________________ 

Submitted April 10, 2024 – Decided April 24, 2024 

Before Judges Firko and Susswein. 

On appeal from the Superior Court of New Jersey, Law 

Division, Union County, Indictment No. 16-08-0548.

Jennifer Nicole Sellitti, Public Defender, attorney for 

appellant (Richard Sparaco, Designated Counsel, 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NOT FOR PUBLICATION WITHOUT THE 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.
2 A-0323-22

William A. Daniel, Union County Prosecutor, attorney 

for respondent (Michele C. Buckley, Assistant 

Prosecutor, of counsel and on the brief). 

PER CURIAM 

Defendant Rosendo Gomez-Serpas appeals from an August 1, 2022 order 

and written opinion issued by Judge John M. Deitch denying defendant's petition 

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

convicted at trial for murder and related weapons offenses. He claims his trial 

attorney rendered ineffective assistance by failing to file a notice of self-defense. 

After carefully reviewing the record in light of the governing legal principles, 

we affirm. 

I.

 We need only briefly summarize the pertinent facts, which are recounted 

in detail in our direct-appeal opinion, State v. Gomez-Serpas, No. A-4250-17 

(App. Div. Feb. 26, 2020). In the early morning hours of April 9, 2016, 

defendant went to a bar in Elizabeth to pick up his girlfriend, Dinora Rodriguez 

from work. At some point Rodriguez told Mario Ortiz

1

 a patron at the bar, that 

she would leave with him, even though she did not intend to do so. Rodriguez 

1

 Ortiz is the victim in this case. 
3 A-0323-22

explained she did this to induce Ortiz to stay and buy drinks because she was 

paid for each drink a patron purchased. 

At the end of Rodriguez's shift, she left the bar to meet defendant, who 

was picking her up. Surveillance footage shows defendant waiting for 

Rodriguez in the vestibule. She exited the bar through the vestibule area with 

Gloria Rivera, her co-worker. Rivera testified Ortiz was "grabbing [Rodriguez] 

from her jacket because he wanted to take her with him to his house . . . [s]o at 

that point she was telling him that she didn't want to go with him because her 

boyfriend had come to pick her up and she was going to go with him." 

Defendant confronted Ortiz and told him he was taking Rodriguez home. 

An altercation ensued. This initial confrontation was not captured on video. 

Rodriguez testified Ortiz "went after [defendant] to hit him with a belt." 

Defendant testified in his own defense that Ortiz took his belt off and "wrapped 

it around his hand and threw it at [defendant] and whipped it." Defendant 

testified that after Ortiz hit him with the belt, defendant went to his car to 

retrieve a knife. 

Outside surveillance video shows defendant enter the parking lot and walk 

toward the driver's side door of his car, look behind, then walk toward the 

passenger side of the car. Ortiz followed defendant toward defendant's car. 
4 A-0323-22

Defendant approached Ortiz—with a knife in hand—and the two began pushing 

each other. Other persons in the parking lot positioned themselves between 

defendant and Ortiz to separate them. Defendant maneuvered around a person 

standing between the antagonists and lunged at Ortiz with the knife. Ortiz then 

hit defendant with a belt and the two went back and forth. Defendant stabbed 

Ortiz. Ortiz fell to the ground, got up momentarily, and fell again, this time 

lying motionless. 

Ortiz was pronounced dead. Defendant was arrested at his home 

approximately ten hours later. 

In August 2016, defendant was charged by indictment with first-degree 

murder, contrary to N.J.S.A. 2C:11-3(a)(1) and/or (a)(2) (count one); seconddegree kidnapping, contrary to N.J.S.A. 2C:13-1(b)(1) (count two); fourthdegree unlawful possession of a weapon, N.J.S.A. 2C:39-5(d) (count three); and 

possession of a weapon for an unlawful purpose, contrary to N.J.S.A. 2C:39-

4(d) (count four). The State dismissed count two prior to trial. 

In January and February 2018, Judge Deitch presided over a jury trial, 

after which defendant was found guilty on all counts. At the sentencing hearing, 

Judge Deitch merged the possession of a weapon for an unlawful purpose count 

into the conviction for murder. He imposed a fifty-two-year prison term subject 
5 A-0323-22

to the No Early Release Act, N.J.S.A. 2C:43-7.2. Judge Deitch also imposed an 

eighteen-month prison term on the unlawful possession of a weapon count, to 

run concurrent with the sentence imposed on the murder conviction. 

In February 2020, we affirmed defendant's conviction and sentence. In 

October 2020, the New Jersey Supreme Court denied defendant's petition for 

certification. State v. Gomez-Serpas, 244 N.J. 300 (2020). 

On October 4, 2021, defendant filed a pro se petition for PCR. On April 

18, 2022, counsel filed a supplemental petition. 

On July 26, 2022, Judge Deitch convened a PCR hearing. On August 1, 

2022, he issued a twenty-two-page written opinion, denying defendant's PCR 

without an evidentiary hearing. This appeal follows. Defendant raises the 

following sole contention for our consideration: 

DEFENDANT PRESENTED A PRIMA FACIE CASE 

OF INEFFECTIVE ASSISTANCE OF TRIAL 

COUNSEL BECAUSE COUNSEL FAILED TO FILE 

A NOTICE OF SELF-DEFENSE, DEPRIVING . . . 

DEFENDANT OF A JURY INSTRUCTION THAT 

WOULD HAVE COMPLETELY EXONERATED 

HIM FROM CRIMINAL LIABILITY, AND 

DEFENDANT WAS THEREFORE ENTITLED TO 

AN EVIDENTIARY HEARING. 
6 A-0323-22

II. 

We begin our analysis by acknowledging the legal principles governing 

this appeal. PCR serves the same function as a federal writ of habeas corpus. 

State v. Preciose, 129 N.J. 451, 459 (1992). When petitioning for PCR, a 

defendant must establish, by a preponderance of the credible evidence, that he 

is entitled to the requested relief. Ibid. To sustain this burden, the petitioner 

must allege and articulate specific facts, "which, if believed, would provide the 

court with an adequate basis on which to rest its decision." State v. Mitchell, 

126 N.J. 565, 579 (1992). 

In addressing an ineffective assistance of counsel claim, New Jersey 

courts follow the two-part test articulated by the United States Supreme Court 

in Strickland v. Washington. 466 U.S. 668, 687 (1984). See State v. Fritz, 105 

N.J. 42, 58 (1987). "First, the defendant must show that counsel's performance 

was deficient." State v. Gideon, 244 N.J. 538, 550 (2021) (quoting Strickland, 

466 U.S. at 687). "Second, the defendant must have been prejudiced by 

counsel's deficient performance." Ibid. (quoting Strickland, 466 U.S. at 687). 

To meet the first prong of the Strickland/Fritz test, a defendant must show 

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

'counsel' guaranteed the defendant by the Sixth Amendment." Strickland, 466 
7 A-0323-22

U.S. at 687. Reviewing courts indulge in "a strong presumption that counsel's 

conduct falls within the wide range of reasonable professional assistance. . . ." 

Id. at 689. "A court evaluating a claim of ineffective assistance of counsel must 

avoid second-guessing defense counsel's tactical decisions and viewing those 

decisions under the 'distorting effects of hindsight.'" State v. Marshall, 148 N.J. 

89, 157 (1997) (quoting Strickland, 466 U.S. at 689). 

The second Strickland prong is especially demanding. It requires the 

defendant show "that counsel's errors were so serious as to deprive the defendant 

of a fair trial, a trial whose result is reliable." Strickland, 466 U.S. at 687. Put 

differently, counsel's errors must create a "reasonable probability" that the 

outcome of the proceedings would have been different if counsel had not made 

the errors. Id. at 694. This "is an exacting standard." Gideon, 244 N.J. at 551

(quoting State v. Allegro, 193 N.J. 352, 367 (2008)). "Prejudice is not to be 

presumed," but must be affirmatively proven by the defendant. Ibid. (citing 

Fritz, 105 N.J. at 52, and Strickland, 466 U.S. at 693). 

Short of obtaining immediate relief, a defendant may show that an 

evidentiary hearing is warranted to develop the factual record in connection with 

an ineffective assistance claim. Preciose, 129 N.J. at 462-63. However, "[i]f 

the court perceives that holding an evidentiary hearing will not aid the court's 
8 A-0323-22

analysis of whether the defendant is entitled to [PCR], . . . then an evidentiary 

hearing need not be granted." Marshall, 148 N.J. at 158, 690 (1997) (citations 

omitted). A PCR court's decision to proceed without an evidentiary hearing is 

reviewed for an abuse of discretion. State v. Vanness, 474 N.J. Super. 609, 623 

(App. Div. 2023) (citing State v. Brewster, 429 N.J. Super. 387, 401 (App. Div. 

2013)). 

Furthermore, 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). The PCR court should grant an evidentiary hearing only 

when "(1) the defendant establishes a prima facie case in support of PCR; (2) 

the court determines that there are disputed issues of material fact that cannot 

be resolved by review of the existing record; and (3) the court determines that 

an evidentiary hearing is required to resolve the claims asserted." Vanness, 474 

N.J. Super. at 623 (citing State v. Porter, 216 N.J. 343, 354 (2013)). 

With respect to the first of these three requirements, "[a] prima facie case 

is established when a defendant demonstrates 'a reasonable likelihood that his 

or her claim, viewing the facts alleged in the light most favorable to the 

defendant, will ultimately succeed on the merits.'" Porter, 216 N.J. at 355 

(quoting R. 3:22-10(b)). "[V]ague, conclusory, or speculative" allegations are 
9 A-0323-22

insufficient to warrant an evidentiary hearing. Ibid. (quoting Marshall, 148 N.J. 

at 158). 

III. 

Defendant contends his trial counsel rendered constitutionally deficient 

assistance because he failed to file a notice of self-defense, depriving the jury 

of an instruction that would have exonerated him. Defendant argues 

"[c]ompetent counsel would have immediately recognized that the video footage 

clearly showed Ortiz was the aggressor and the defendant armed himself in selfdefense." Judge Deitch carefully reviewed the video and reached a contrary 

conclusion. We too have reviewed the video and agree completely with Judge 

Deitch's findings. 

Under Rule 3:12-1:

A defendant shall serve written notice on the prosecutor 

if the defendant intends to rely on any of the following 

sections of the Code of Criminal Justice: . . . [including] 

General Principles of Justification, [N.J.S.A.] 2C:3-1 to 

2C:3-11. . . . 

No later than seven days before the Initial Case 

Disposition Conference that is scheduled pursuant to R.

3:9-1(e) the defendant shall serve on the prosecutor a

notice of intention to claim any of the defenses listed 

herein; and if the defendant requests or has received 

discovery pursuant to R[ule] 3:13-3(b)(1), the 

defendant shall, pursuant to R[ule] 3:13-3(b)(2), 

furnish the prosecutor with discovery pertaining to such 
10 A-0323-22

defenses at the time the notice is served. The prosecutor 

shall, within 14 days after receipt of such discovery, 

comply with R[ule] 3:13-3(b)(1) and (f) with respect to 

any defense for which the prosecutor has received 

notice. 

In defendant's brief before the PCR court, he cited to the following 

exchange that occurred during trial counsel's opening statement: 

[Defense counsel]: [I]n real life a homicide can lack 

some of the elements that rise to the level of a murder. 

It can be an aggravated manslaughter or a manslaughter 

or even self-defense. I ask you to pay careful— 

The COURT: Sidebar. 

The COURT: [Defense counsel], I didn't see a [Rule] 

3:12 notice on self-defense. My understanding is selfdefense is not in the case. 

[Defense counsel]: I think we discussed this from the 

beginning that it was. 

[Prosecutor]: Passion/provocation and you're talking 

he might have a gun and defending against a gun. 

The COURT: The only discussion I was party to was 

in chambers and it was a fair warning to the State that 

the defendant might argue for passion/provocation.2 

There was no reference to self-defense. Self-defense is 

a complete defense and requires a notice. There's been 

no notice, formal or informal. 

2

 As Judge Deitch noted in his opinion, the defense trial strategy was to argue 

for the downgraded offense of passion-provocation manslaughter, not selfdefense. 
11 A-0323-22

Defendant's PCR brief does not mention the judge's ruling immediately 

following the above-quoted exchange: 

The COURT: Okay. I'm going to strike the reference

to self-defense at this point. That's without prejudice 

to the defense making an application for that defense if 

the facts bear it out. But at this point there's nothing in 

the case that would even warrant my consideration of 

an application to open up that defense. 

It is well-settled under New Jersey law "[a] trial judge must sua sponte 

charge self-defense in the absence of a request . . . 'if there exists evidence in 

either the State's or the defendant's case sufficient to provide a "rational basis" 

for its applicability.'" State v. Galicia, 210 N.J. 364, 390 (2012) (quoting State 

v. O'Carroll, 385 N.J. Super. 211, 236 (App. Div. 2006)). Here, Judge Deitch 

stated in his PCR opinion, "[t]he [trial] court's ruling is significant in connection 

with the issue of prejudice caused by the failure to file the notice. In the first 

instance, the defense was not precluded from presenting evidence to support 

self-defense. Indeed, [defendant] testified as to his version of events." 

Judge Deitch concluded the facts did not support a self-defense charge, 

reasoning: 

PCR counsel relies heavily upon the testimony of Ms. 

Rivera who told the jury that she initially told the police 

that Mr. Ortiz was waiving his belt at the [defendant] 

prior to [defendant] getting the knife. However, her 

testimony was belied by the clear video evidence in the 
12 A-0323-22

case. The video shows Mr. Ortiz putting on his jacket 

when walking to the parking lot, not taking off his belt. 

[Defendant's] testimony to the effect that he was being 

attacked by Mr. Ortiz and another man who were both

using their belts to whip him while in the parking lot is 

also completely controverted by the video evidence. 

The video evidence shows that Mr. Ortiz did not take 

off his belt until he was approached by the knifewielding [defendant]. 

We agree there was no rational basis upon which to charge the jury on 

self-defense. N.J.S.A. 2C:3-4 provides "[t]he use of force upon or toward 

another person is justifiable when the actor reasonably believes that such force 

is immediately necessary for the purpose of protecting himself against the use 

of unlawful force by such other person on the present occasion." The statute 

further provides: 

The use of deadly force is not justifiable under 

this section unless the actor reasonably believes that 

such force is necessary to protect himself against death 

or serious bodily harm; nor is it justifiable if: 

(a) The actor, with the purpose of causing death or

serious bodily harm, provoked the use of force against 

himself in the same encounter; or 

(b) The actor knows that he can avoid the necessity of 

using such force with complete safety by retreating or 

by surrendering possession of a thing to a person 

asserting a claim of right thereto or by complying with 

a demand that he abstain from any action which he has 

no duty to take. . . . 
13 A-0323-22

[N.J.S.A. 2C:3-4(b)(2).] 

Judge Deitch carefully reviewed the video evidence and concluded there 

was an insufficient basis to charge the jury on self-defense. We reproduce 

verbatim Judge Deitch's precise account of the video surveillance recording: 

5:403 – [Defendant] enters the parking lot alone and 

heads straight for his car. Mr. Ortiz is over forty feet 

away from him. 

 

5:51 – Mr. Ortiz follows the [defendant] to his car. 

[Defendant] is on the passenger side retrieving his

knife. 

5:54 – [Defendant] closes the passenger door and 

charges Mr. Ortiz, pushing him backwards. 

6:06 – [Defendant] and Mr. Ortiz begin to push each 

other back and forth while bystanders attempt to 

separate the two of them. 

6:23 – [Defendant] and Mr. Ortiz are still yelling at 

each other and gesticulating with bystanders keeping 

them apart. Each time the [defendant] approaches Mr. 

Ortiz, Mr. Ortiz backs away. 

6:43 – While separated by a distance of approximately 

fifteen feet, the [defendant] runs around a male 

attempting to keep the parties separate and charges Mr. 

Ortiz, lunging at him with the knife. Mr. Ortiz swings 

his belt at . . . [defendant]. [Defendant] then presses his 

attack, stabbing Mr. Ortiz in the chest, knocking him to 

3

 These numbers denote the minutes and seconds elapsed in the video recording, 

not the time of day. 
14 A-0323-22

the ground. [Defendant] runs away to his car. Mr. Ortiz 

gets up, walks a few paces, then collapses and expires. 

Applying these facts to governing legal principles, Judge Deitch concluded 

"[defendant] was the aggressor. [Defendant] was the only party armed. 

[Defendant] had consistent and ongoing opportunities to retreat in complete 

safety. [Defendant] was not entitled to the defense of self-defense." Judge 

Deitch added, "[b]ecause of the overwhelming video evidence, [defendant] is 

unable to demonstrate that he was prejudiced as a result of counsel's failure to 

file the notice." 

We agree with Judge's Deitch's fact-sensitive analysis. We add that far 

from retreating—despite ample opportunity to do so safely—defendant 

essentially charged at the victim after having retrieved a knife from his car. In 

these circumstances, defendant cannot establish the first prong of the 

Strickland/Fritz test because there was nothing ineffective in counsel's strategic 

election to eschew a meritless self-defense theory in favor of a passionprovocation defense.4

 Nor can defendant establish the second Strickland/Fritz 

prong; any such defense would likely have been unavailing given that defendant 

4

 As Judge Deitch noted in his written PCR opinion, a passion/provocation jury 

charge was given, but the jury declined to convict on the downgraded 

manslaughter offense, instead returning a guilty verdict on the first-degree 

murder charge. 
15 A-0323-22

was the aggressor and failed to satisfy the duty to retreat before employing 

deadly force. In these circumstances, defendant has not established a prima 

facie case warranting an evidentiary hearing, much less a new trial. See 

Cummings, 321 N.J. at 170. 

Affirmed.