SUPERIOR COURT OF NEW JERSEY 

 APPELLATE DIVISION 

 DOCKET NO. A-0846-21 

STATE OF NEW JERSEY, 

 Plaintiff-Respondent, 

v.

WILFREDO SANCHEZ, a/k/a 

WILFREDO SAGASTUME, 

 Defendant-Appellant. 

_________________________

Submitted December 6, 2023 – Decided January 12, 2024 

Before Judges Currier and Firko. 

On appeal from the Superior Court of New Jersey, Law 

Division, Bergen County, Indictment No. 11-11-1892.

Joseph E. Krakora, Public Defender, attorney for 

appellant (Richard Sparaco, Designated Counsel, on the 

brief). 

Mark Musella, Bergen County Prosecutor, attorney for 

respondent (William P. Miller, Assistant Prosecutor, of

counsel and on the brief; John J. Scaliti, Legal 

Assistant, on the brief). 

Appellant filed a pro se supplemental 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NOT FOR PUBLICATION WITHOUT THE 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-0846-21

PER CURIAM 

 Defendant Wilfredo Sanchez appeals from a March 20, 2020 order 

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

hearing. Defendant raised various claims of ineffective assistance of his trial, 

appellate, and PCR counsel. For the reasons that follow, we affirm. 

I.

 The parties are familiar with the procedural history and facts of this case, 

and therefore, they will not be repeated in detail here.1 A Bergen County grand 

jury charged defendant in nine counts of a ten count indictment with first-degree 

murder, 2C:2-6 and 2C:11-3(a)(1) and (2); second-degree desecration of human 

remains, N.J.S.A. 2C:2-6 and 2C:21-1(a); second-degree disturbing, moving, or 

concealing human remains, N.J.S.A. 2C:2-6 and 2C:22-1(a); two counts of 

possession of a weapon, a knife, for an unlawful purpose, N.J.S.A. 2C:2-6 and 

2C:39-4(d); two counts of unlawful possession of a weapon, N.J.S.A. 2C:39-

5(d); and two counts of third-degree hindering apprehension, N.J.S.A. 2C:29-

3(b)(1) and -3(b)(4). A jury found defendant guilty on all counts. 

1

 The chronology is set forth in this court's unpublished decision affirming 

defendant's conviction and sentence. State v. Sanchez, No. A-5951-13 (App. 

Div. Aug. 19, 2016). We incorporate, by reference, the facts stated in our prior 

opinion.
3 A-0846-21

 After merging certain counts, the trial court sentenced defendant to life 

imprisonment on the first-degree murder charge subject to the No Early Release 

Act, N.J.S.A. 2C:43-7.21; a consecutive ten-year custodial term on the seconddegree desecration of human remains count; a concurrent ten-year custodial term 

on the second-degree disturbing human remains count; concurrent five-year 

custodial terms on the two third-degree counts of possession of a weapon for an 

unlawful purpose; a consecutive five-year custodial term on one count of thirddegree hindering apprehension; and a concurrent five-year custodial term on the 

other third-degree count of hindering apprehension.

 Defendant and co-defendant Pedro Garcia brutally murdered and 

dismembered the victim. Detectives obtained recorded surveillance videos from 

two businesses and a home near the victim's apartment depicting defendant and 

Garcia carrying garbage bags during the early morning of the homicide. 

Defendant and Garcia were tried separately. 

 Garcia testified against defendant at trial and placed him at the crime 

scene. Garcia explained how defendant grabbed the victim, pulled him, 

repeatedly hit him, and knocked him to the floor. The victim bled from his 

mouth and back. According to Garcia, defendant then grabbed the victim by the 

hand, escorted him into the bathroom, and started running water, which the 
4 A-0846-21

victim said was too hot. An argument ensued, Garcia became enraged and cut 

the victim's neck with a knife from the kitchen apartment. Garcia gave 

defendant the knife. The victim told defendant to call an ambulance, but instead, 

defendant cut the victim in the stomach with a different knife retrieved from the 

kitchen. 

 As the victim begged for his life, defendant and Garcia decided to "finish 

him off." Garcia stabbed the victim in the neck a second time. Defendant and 

Garcia proceeded to dismember the victim's body, placed the dismembered body 

parts into separate garbage bags, and dumped them at a church, a construction 

site, and a hardware store. The State presented considerable forensic and 

circumstantial evidence corroborating defendant's participation in the homicide. 

 Defendant, represented by counsel, filed a petition for PCR in 2019, 

claiming he was denied the right to effective assistance of counsel under the 

Sixth Amendment of the United States Constitution, and Article I, Paragraph 7 

of the New Jersey Constitution. In his first PCR petition, defendant alleged he 

received ineffective assistance of trial counsel based on the following errors: 

(1) failure to review discovery and discuss the case with defendant; (2) failure 

to investigate the facts of the case, interview, and call witnesses to testify at 

trial; and (3) failure to raise an intoxication defense. Defendant also claimed his 
5 A-0846-21

appellate counsel was ineffective for failing to raise "all applicable legal 

challenges on direct appeal." 

On September 2, 2019, a second PCR counsel filed a letter brief in support 

of defendant's first PCR petition asserting trial counsel was ineffective in not

adequately reviewing discovery with defendant, not discussing possible trial 

defenses, not discussing possible trial strategy that could have impacted his 

decision on whether or not to testify, and failing to investigate defense 

witnesses. 

PCR counsel further contended that trial counsel was ineffective in not 

interviewing and calling four "character" witnesses: Sonia Cruz, Gladys 

Carbonel, Gloria Gomez, and Melissa Gonzalez to testify at trial. The 

prosecution's theory was that defendant and the victim were in a homosexual 

relationship. These individuals submitted similar statements attesting to 

knowing defendant for many years, being familiar with his personal life, and his 

"kind, polite, and non-confrontational" character. The character witnesses also 

stated defendant told them he was "friendly" with the victim and Garcia. None 

of the witnesses believed defendant was a gay man. According to defendant, 

Gonzalez could have testified the victim told her several times prior to his death 

that he was involved in a romantic relationship with Garcia and that Garcia was 
6 A-0846-21

physically abusive. Gonzalez also stated the victim showed her a "purple bruise" 

he sustained when Garcia assaulted him one or two days earlier. 

PCR counsel averred that such testimony would have shown that Garcia 

was involved in a romantic relationship with the victim, which gave rise to the 

homicide, not a relationship between defendant and the victim. PCR counsel 

further posited that Gonzalez's testimony would have supported defendant's 

position that Garcia threatened defendant and his family if he did not help Garcia 

dismember the victim's body after the murder. 

On January 10, 2020, the PCR court heard oral argument on defendant's 

PCR petition and reserved decision. On March 20, 2020, the PCR court issued 

an order denying defendant's PCR application without a hearing, accompanied 

by a thorough written opinion. The PCR court found defendant's PCR petition 

was timely filed and not procedurally barred under Rule 3:22-12(a)(1). The PCR 

court noted defendant "did not expressly state in his verified petition that he 

would have elected to testify at trial" and "did not expressly allege [trial counsel] 

failed to call character witnesses." However, the PCR court addressed these 

specific allegations as briefed by superseding PCR counsel.2

2

 The PCR court highlighted that defendant's PCR petition alleged trial counsel 

did not discuss a defense of intoxication, but PCR counsel did not pursue it, and 

the PCR court deemed that claim abandoned. 
7 A-0846-21

Regarding the witnesses, the PCR court found defendant's arguments were 

contravened by the record. The PCR court noted only three people were present 

in the "studio" apartment when the crimes were committed—defendant, Garcia, 

and the deceased victim. Therefore, the PCR court reasoned that there were no 

defense witnesses who could have "personal knowledge" as to what occurred at 

the crime scene. The PCR court determined Gonzalez could not have testified 

the victim told her that he was in a romantic relationship with Garcia and Garcia 

was "physically abusive" under N.J.R.E. 803(c)(2), the "Excited Utterance" rule. 

The PCR court reasoned that Rule 803(c)(2) is an exception to the hearsay 

rule and allows a statement to be admissible if it relates " to a startling event . . . 

made while the declarant was under the stress of excitement caused by the event 

. . . without the opportunity to deliberate or fabricate." Since the purported 

statements were made by the victim to Gonzalez on different dates when he was 

not under duress, the PCR court determined her testimony would have been

deemed inadmissible under Rule 803(c)(2). 

Regarding the "purple bruise," the PCR court explained it would take a 

day or two for the skin to turn that color following an assault. Thus, the PCR 

court found when the victim made his statement about the purple bruise to 
8 A-0846-21

Gonzalez, he was no longer "under the stress of the event," would have had time 

to deliberate, and "this testimony would not have been admissible." 

The PCR court emphasized a State witness, Nelly Torres, one of the three 

tenants living in the same apartment building where the victim lived, testified 

she "actually saw" Garcia physically abuse the victim, and so the jury heard 

evidence similar to what defendant now sought to introduce. The PCR court 

noted Torres testified that the victim and Garcia were in a relationship. 

Therefore, the PCR court found Gonzalez's contemplated testimony that the 

victim told her he was romantically involved with Garcia would have been 

"cumulative," and defendant did not establish "a reasonable probability" the 

outcome of the trial would have been different had she testified. The PCR court 

also noted Dora Gonzalez, the victim's sister, testified she spoke to her brother 

daily, and he told her defendant was his partner, and that Sergeant Sean Mackay 

testified Garcia "admitted to him that he was the victim's boyfriend." 

The PCR court determined the four character-witness statements attesting 

to defendant being a homosexual had no bearing on the outcome of the case 

because the trial was about "murder and accomplice liability" and not "sexual 

preference." Thus, the PCR court rejected defendant's argument that 

establishing he was not a homosexual would have any bearing on the outcome 
9 A-0846-21

of the case. The PCR court explained that the evidence clearly showed trial 

counsel and defendant discussed his right to testify on the record, and the trial 

court afforded defendant a "brief recess" to discuss the issue further. 

In addition, the PCR court noted defendant had a three-day weekend to 

"reconsider whether he would testify or not." The PCR court emphasized that 

defendant's PCR petition did not represent that he would have testified or how 

his own testimony could be used "to create a trial strategy." The PCR court 

concluded defendant failed to make a prima facie showing under the first and 

second Strickland3 prongs. 

 On August 20, 2021, defendant filed a second PCR petition. On October 

28, 2021, the PCR court conducted a hearing. Defendant was present, 

represented by new counsel, and had the aid of a Spanish interpreter. Under 

oath, defendant testified he never received the PCR court's March 20, 2020 order 

and decision denying his first PCR and therefore, never appealed from that 

decision. The PCR court accepted the excuse and provided counsel the decision 

and order, advising defendant could appeal from the order. The second PCR 

petition was denied without prejudice subject to defendant filing an appeal from 

the March 20, 2020 order, which is the matter under review. 

3

 Strickland v. Washington, 466 U.S. 668, 687 (1984).
10 A-0846-21

 On appeal, defendant raises the following points for our consideration: 

POINT I 

THE PCR COURT ERRED IN NOT GRANTING 

DEFENDANT AN EVIDENTIARY HEARING ON 

HIS CLAIM THAT, DUE TO INEFFECTIVE 

ASSISTANCE OF COUNSEL, HE WAS DENIED 

THE RIGHT TO TESTIFY AT TRIAL.

POINT II

THE ORDER DENYING DEFENDANT'S FIRST PCR 

PETITION MUST BE REVERSED AND 

REMANDED BECAUSE THE PCR COURT DID 

NOT CONDUCT ORAL ARGUMENT AND FAILED 

TO STATE ANY REASON FOR NOT DOING SO. 

(Not Raised Below.) 

POINT III 

THE PCR COURT ERRED IN FAILING TO 

CONSIDER DEFENDANT'S CLAIM THAT HE WAS 

DENIED THE RIGHT TO EFFECTIVE 

ASSISTANCE OF COUNSEL BECAUSE OF 

COUNSEL'S FAILURE TO RAISE THE 

INTOXICATION DEFENSE. 

POINT IV 

THE CUMULATIVE EFFECT OF THE REMAINING 

ARGUMENTS DESERVE EX[PL]ORATION AT AN 

EVIDENTIARY HEARING. 

 In his self-authored supplemental brief, defendant raises the following two 

points:
11 A-0846-21

POINT I 

THE PCR COURT ERRED IN NOT CONDUCTING 

AN ORAL ARGUMENT IN WHICH DEFENDANT 

COULD ARGUE HIS LEGAL ISSUES SUCH AS 

INEFFECTIVE ASSISTANCE OF TRIAL AND 

DIRECT APPEAL COUNSELS (sic). 

POINT II 

THE TRIAL COURT ERRED WHEN IT DID NOT 

SUA SPONTE CHARGE THE JURY WITH LESSERINCLUDED OFFENSES BECAUSE THERE WAS 

MORE THAN AMPLE EVIDENCE TO SUPPORT 

THAT DEFENDANT DID NOT KILL [THE 

VICTIM]. 

We disagree with defendant's contentions and affirm. 

II. 

In the absence of an evidentiary hearing, we review de novo the factual 

inferences drawn from the record by the PCR judge as well as the judge's legal 

conclusions. State v. Harris, 181 N.J. 391, 421 (2004); see also State v. 

Aburoumi, 464 N.J. Super. 326, 338-39 (App. Div. 2020). We review a PCR 

judge's decision to deny a defendant's request for an evidentiary hearing under 

an abuse of discretion standard. See State v. L.G.- M., 462 N.J. Super. 357, 365 

(App. Div. 2020). 

A petitioner must establish entitlement to "PCR by a preponderance of the 

evidence." State v. O'Donnell, 435 N.J. Super. 351, 370 (App. Div. 2014). 
12 A-0846-21

Additionally, a petitioner is not automatically entitled to an evidentiary hearing 

by simply raising a PCR claim. State v. Cummings, 321 N.J. Super. 154, 170 

(App. Div. 1999). 

To succeed on a claim of ineffective assistance of counsel, a defendant 

must satisfy both prongs of the test set forth in Strickland, as adopted by State 

v. Fritz, 105 N.J. 42, 58 (1987), by a preponderance of the evidence. "First, the 

defendant must show that counsel's performance was deficient." Strickland, 466 

U.S. at 687. This requires demonstrating that "counsel made errors so serious 

that counsel was not functioning as the 'counsel' guaranteed the defendant by the 

Sixth Amendment." Ibid. The United States Constitution requires "reasonably

effective assistance." Ibid. An attorney's performance will not be deemed 

deficient if counsel acted "within the range of competence demanded of 

attorneys in criminal cases." Ibid. (quoting McMann v. Richardson, 397 U.S. 

759, 771 (1970)). Therefore, "[w]hen a convicted defendant complains of the 

ineffectiveness of counsel's assistance, the defendant must show that counsel's 

representation fell below an objective standard of reasonableness." Id. at 687-

88.

When assessing the first Strickland prong, "[j]udicial scrutiny of counsel's 

performance must be highly deferential," and "every effort [must] be made to 
13 A-0846-21

eliminate the distorting effects of hindsight." Id. at 689. "Merely because a trial 

strategy fails does not mean that counsel was ineffective." State v. Bey, 161 

N.J. 233, 251 (1999). Thus, a trial court "must indulge a strong presumption 

that counsel's conduct falls within the wide range of reasonable professional 

assistance," and "the defendant must overcome the presumption that, under the 

circumstances, the challenged action [by counsel] 'might be considered sound 

trial strategy.'" Strickland, 466 U.S. at 689 (quoting Michel v. Louisiana, 350 

U.S. 91, 101 (1955)). Further, the court must not focus on the defendant's 

dissatisfaction with counsel's "exercise of judgment during the trial . . . . while 

ignoring the totality of counsel's performance in the context of the State's 

evidence of [the] defendant's guilt." State v. Castagna, 187 N.J. 293, 314 (2006). 

Under the second prong of the Strickland test, the defendant must show 

"the deficient performance prejudiced the defense." 466 U.S. at 687. This 

means "counsel's errors were so serious as to deprive the defendant of a fair trial, 

a trial whose result is reliable." Ibid. It is insufficient for the defendant to show 

the errors "had some conceivable effect on the outcome." Id. at 693. Ultimately, 

"[a]n error by counsel, even if professionally unreasonable, does not warrant 

setting aside the judgment of a criminal proceeding if [it] had no effect on the 

judgment." Id. at 691. 
14 A-0846-21

A.

 Here, defendant contends his trial counsel was deficient in not properly 

advising him as to his right to testify. Defendant avers the trial court should not 

have focused on whether he and his trial counsel discussed the right to testify, 

but rather whether defendant understood his right. Defendant's claim is 

unsupported by the record.

 During the trial, the judge asked defendant if he had the opportunity to 

speak with his attorney about whether he was going to testify, and defendant 

responded, "yes." The trial judge then proceeded to ask defendant whether it 

was his decision to testify or not to testify after reviewing all of the discovery 

and applicable law, and defendant responded, "not to testify." The trial judge 

then proceeded to confirm that defendant's decision was voluntary, and he 

responded, "yes." Defendant was also questioned by the trial judge if he was 

satisfied with his trial counsel's explanation of the different consequences and 

implications of not testifying and defendant responded, "yes." 

 Defendant's claim is belied by the record, which clearly established trial 

counsel and defendant discussed his right to testify. Moreover, the trial judge 

allowed defendant a "brief recess" to discuss the issue further, and the PCR court 

correctly pointed out defendant had a three-day weekend to reconsider his 
15 A-0846-21

decision on whether to testify or not. We are unpersuaded by defendant's 

argument and are convinced the PCR court correctly determined defendant 

failed to sustain his burden on this issue under both prongs of the Strickland 

standard. 

 Because trial counsel discussed defendant's right to testify with him, there 

was no deficient performance. And, defendant did not state he wanted to testify 

in his petition. Garcia testified as to defendant's actions in killing and 

dismembering the victim. Moreover, there was overwhelming evidence of 

defendant's guilt including the surveillance video of defendant carrying garbage 

bags out of the apartment, which contained the victim's body parts. 

Consequently, the PCR court did not err in denying defendant PCR on this claim. 

B.

 Next, defendant argues the PCR court erred by not granting oral argument 

on his petition and the only hearing conducted was on October 28, 2021. 

Defendant is mistaken. On January 10, 2020, the PCR court heard oral argument 

on defendant's PCR petition during which PCR counsel presented argument. 

C.

 Next, defendant contends his PCR counsel was ineffective for not raising 

an intoxication defense in his supplemental PCR brief, which was raised in 
16 A-0846-21

defendant's pro se petition, causing the PCR court to deem the claim abandoned. 

Defendant is correct that he raised the intoxication issue in his pro se PCR 

petition, that his PCR counsel failed to argue the defense in his supplemental 

pro se brief, and the PCR court failed to expressly address this argument in 

denying PCR because the PCR court considered the claim abandoned. 

 The PCR court should have made findings of fact and conclusions of law 

with respect to the intoxication defense because the issue was raised before it. 

R. 1:7-4(a). However, in reviewing defendant's claims under the de novo 

standard of review, Harris, 181 N.J. at 419-20, and in light of the record, it is 

clear the intoxication claim is without merit, and it fails to establish a deficiency 

that would satisfy either of Strickland's two prongs. 

 Regarding the first Strickland prong, defendant has failed to show that his 

trial counsel's decision not to pursue an intoxication defense and his PCR 

counsel's failure to address this issue in his supplemental brief fell below the 

standard of a reasonably competent criminal defense attorneys. To successfully 

invoke the intoxication defense, an accused must show he or she is so intoxicated 

that he or she did not have the intent to commit an offense. State v. Cameron, 

104 N.J. 42, 54 (1986). 
17 A-0846-21

 Defendant has failed to present prima facie evidence of a viable 

intoxication defense. Thus, trial and PCR counsel were not ineffective for 

failing to raise the defense. See State v. Worlock, 117 N.J. 596, 625 (1990) 

(holding "the failure to raise unsuccessful legal arguments does not constitute 

ineffective assistance of counsel"). 

 Defendant also failed to satisfy the second Strickland prong because he 

did not offer any argument in either his PCR petition or in his merits brief on 

appeal, as to how the purported error would have changed the outcome of the 

trial. Defendant only stated the contention as an error. 

"The defendant 'must allege facts sufficient to demonstrate counsel's 

alleged substandard performance.'" State v. Jones, 219 N.J. 298, 311-12 (2014) 

(quoting State v. Porter, 216 N.J. 343, 355 (2013)). Defendant provided no facts 

or certification to support his claim. See Cummings, 321 N.J. Super. at 170 

(explaining a PCR petition claim of ineffective assistance of counsel must be 

"supported by affidavits or certifications based upon the personal knowledge of 

the affidavit or the person making the certification"). Defendant's bare assertion 

does not satisfy the existing standard required by Strickland's second prong. 
18 A-0846-21

D.

 Defendant argues the cumulative effect of trial counsel's ineffectiveness 

in failing to call certain witnesses to testify at trial; failure to review discovery 

or discuss the facts of the case with him; and failure to discuss the intoxication 

defense warrants an evidentiary hearing. Defendant also maintains appellate 

counsel was ineffective and his interpreters' services were deficient. We reject 

these arguments. 

As discussed, defendant has not established ineffective assistance of either 

trial or appellate counsel. The representation was not deficient, and defendant 

cannot demonstrate the outcome of the proceeding would have been any 

different. 

The State's case was strong: the victim knew defendant and Garcia; the 

murder took place in the victim's apartment; Garcia testified against defendant; 

and the surveillance video depicted defendant carrying garbage bags out of the 

apartment. 

Defendant failed to carry his burden of affirmatively proving prejudice. 

Therefore, the cumulative error doctrine is of no moment. See State v. Cotto, 

471 N.J. Super. 489, 547 (App. Div. 2022) (holding "even when an individual 

error or series of errors does not rise to reversible error, when considered in 
19 A-0846-21

combination, their cumulative effect can cost sufficient doubt on a verdict to 

require reversal"). 

Defendant's argument that appellate counsel was ineffective is unavailing 

because defendant has not articulated what arguments should have been briefed 

on appeal, but were not. Therefore, defendant cannot sustain this assertion. 

E.

 In his pro se supplemental brief, defendant argues the trial judge erred 

when she did not sua sponte charge the jury with lesser included offenses 

because he claims Garcia killed the victim. Defendant also asserts that his trial 

counsel was ineffective for not asking the trial judge to include lesser-included 

charges on the verdict sheet because the jury had no other option but to find 

him guilty of first-degree murder. 

 It is well established that PCR proceedings are not an opportunity to relitigate claims already decided on the merits in prior proceedings. State v. 

McQuaid, 147 N.J. 464, 483 (1997). Therefore, "[a] prior adjudication on the 

merits ordinarily constitutes a procedural bar to the reassertion of the same 

ground as a basis for post-conviction review." Preciose, 129 N.J. at 476. 

Similarly, Rule 3:22-5 also states, "[a] prior adjudication upon the merits of any 

ground for relief is conclusive whether made in the proceedings resulting in the 
20 A-0846-21

conviction or in any post-conviction proceeding brought pursuant to this rule or 

prior to the adoption thereof, or in any appeal taken from such proceedings." 

 In our opinion on the direct appeal, we addressed defendant's arguments 

as to whether the trial judge erred by omitting to instruct the jury on passionprovocation manslaughter, reckless manslaughter, and aggravated assault. We 

found the record lacked any evidence to support a charge on lesser-included 

offenses. Sanchez, slip op. at 7-15. Since defendant's claim does not fall under 

the limited purview of Rule 3:22-5, and the issue was raised and adjudicated on 

his direct appeal, he is procedurally barred from re-litigating this claim. 

F.

 Finally, a defendant bears the burden of establishing a prima facie claim 

prior to the grant of an evidentiary hearing. State v. Gaitan, 209 N.J. 339, 350 

(2012). A defendant is entitled to an evidentiary hearing if the facts viewed "in 

the light most favorable to defendant," would entitle him to PCR. State v. 

Marshall, 148 N.J. 89, 158 (1997) (quoting State v. Preciose, 129 N.J. 451, 462-

63 (1992)); R. 3:22-10(b). "If, with the facts so viewed, the PCR claim has a 

reasonable probability of being meritorious, then the defendant should 

ordinarily receive an evidentiary hearing in order to prove his entitlement to 

relief." Jones, 219 N.J. at 311. A defendant must "do more than make bald 
21 A-0846-21

assertions that he was denied the effective assistance of counsel" to establish a 

prima facie claim entitling him to an evidentiary hearing. Cummings, 321 N.J. 

Super. at 170. On this record, defendant has been unable to demonstrate a 

hearing is warranted. 

 Defendant's remaining arguments lack sufficient merit to warrant any 

further discussion in our opinion. R. 2:11-3(e)(2). 

Affirmed.