SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3941-15T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

PAUL CIBELLI, JR.,

Defendant-Appellant.

_______________________________

Argued May 30, 2018 – Decided July 6, 2018

Before Judges Koblitz, Manahan and Suter.

On appeal from Superior Court of New Jersey, 

Law Division, Middlesex County, Indictment No. 

06-01-0106.

John V. Saykanic argued the cause for 

appellant.

Nancy A. Hulett, Assistant Prosecutor, argued 

the cause for respondent (Andrew C. Carey, 

Middlesex County Prosecutor, attorney; Nancy 

A. Hulett, of counsel and on the brief).

Appellant filed pro se supplemental briefs. 

PER CURIAM

Defendant Paul Cibelli, Jr., appeals from the denial of his 

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

NOT FOR PUBLICATION WITHOUT THE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-3941-15T4

hearing. Defendant also appeals from the ruling denying postconviction DNA testing. We affirm.

On January 20, 2006, a Middlesex County Grand Jury charged 

defendant with first-degree murder, N.J.S.A. 2C:11-3; third-degree 

hindering apprehension or prosecution, N.J.S.A. 2C:29-3(b); and 

third-degree possession of a weapon for an unlawful purpose, 

N.J.S.A. 2C:39-4(d). A jury convicted defendant of all counts. 

Defendant appealed. We reversed and remanded for a new trial. 

State v. Cibelli, No. A-6422-06 (App. Div. June 12, 2009), certif. 

denied, 200 N.J. 371 (2009). 

In October 2010, after trial, defendant was found guilty of 

all charges. On January 5, 2011, defendant was sentenced to a 

fifty-five year prison term, subject to an eighty-five percent 

parole ineligibility period pursuant to the No Early Release Act 

(NERA), N.J.S.A. 2C:43-7.2; and a consecutive five-year prison 

term for the hindering apprehension charge. The possession of a 

weapon charge was merged with the murder charge. Defendant 

appealed. We affirmed. State v. Cibelli, No. A-2454-10 (App. 

Div. July 15, 2013) (Cibelli II), certif. denied, 217 N.J. 293 

(2014). 

We derive the salient facts from Cibelli II:

Silva and defendant moved in with 

defendant's father in the spring of 2005 after 

defendant was laid off from his job.
3 A-3941-15T4

On October 6, 2005, having decided to 

leave defendant, Silva rented an apartment 

where she planned to move the next day. That 

evening she went with defendant to rent a UHaul truck and arranged to pick it up the 

following morning at 8 a.m.

Defendant and Silva returned home to 

pack. Defendant's father woke up around 6:30 

a.m. the next morning and went out. Upon 

returning, he noticed that both defendant's 

and Silva's cars were in the driveway. Silva 

was not home and defendant said that he did 

not know where she was.

Silva's two friends who had agreed to 

help her move tried calling her, but she did 

not answer her cellphone. When they called 

again later, defendant answered and informed 

them that he was unsure of her whereabouts.

They drove to defendant's house and Silva was 

not there. Soon two other friends came to 

defendant's home to look for Silva after she 

failed to answer their phone calls. Defendant 

approached their vehicle and explained that 

he did not know where she was.

Silva's four friends converged on the 

police station to report her missing. The 

police drove to defendant's home where he 

informed them that he last saw Silva at [1]

a.m., did not know where she was, and that her 

cellphone and purse were still upstairs.

Later, the police saw Silva's clothes hanging 

in the closet, dirty clothes in the corner of 

the room and an open purse with a cellphone 

on top, which they took.

Two days later, on October 9, 2005, 

defendant's father called the police to report 

him missing. That same day, the New Paltz, 

New York Police Department responded to a call 

at a motel, where they found defendant in an 

incoherent state. A backpack was recovered 

that contained suicide notes and a document 
4 A-3941-15T4

entitled last will and testament. Defendant 

agreed to go to the hospital.

Three days later, Silva's body was found 

by an employee of a paper company who was 

sorting trash from recyclable papers at a 

plant in Philadelphia, Pennsylvania. The 

plant receives garbage from various pick-up 

locations in the region. The body was found 

in trash bags that also contained a yellow 

short-sleeve T-shirt with the words "Corona 

Extra Cancun" on it, yellow and blue bath 

towels, a Bostitch stapler and a green dowel.

The State presented evidence that it takes 

approximately one hour and eighteen minutes 

to drive from defendant's house to the plant's 

pick-up location.

Dr. Edward Chmara performed the autopsy 

and determined that the cause of death was 

asphyxiation by manual strangulation. The 

body also had a fractured left collarbone, a 

blunt force injury below the right eye, and 

multiple bruises about the head, thorax and 

extremities. The body also had multiple 

defensive abrasions on the back of the hands 

and a two-inch laceration on the crown of the 

head, likely caused by being struck with a 

firm, hard item. Dr. Chmara believed the head 

would have bled profusely.

The Chief Medical Examiner of the State 

of Delaware testified on defendant's behalf 

and offered testimony consistent with Dr. 

Chmara about the cause of death. He believed 

there would have been blood found in the area 

where the head injury took place.

After the body was found, the FBI's 

Evidence Response Team searched defendant's 

home and the two cars. Several items were 

seized, including a blue-colored Bathroom 

Basics brand bath towel, which was similar in 

style, size and fiber content to the towel 

recovered with Silva's body. Photos on the 
5 A-3941-15T4

hard drive of a computer in the home showed 

defendant wearing a yellow T-shirt that said 

"Corona Extra Cancun," and a photo of 

construction work being done on the house 

showed a green handled tool and hammer like 

the Bostitch stapler. These three items 

resembled the ones found with the body and 

were not found in defendant's house. Police 

seized a tool belt with a sheath labeled 

Bostitch. The Bostitch stapler recovered with 

the body fit into the sheath.

Laura Cannon, an expert on mitochondrial 

DNA, performed tests on a pubic hair that was 

recovered from the yellow towel found with the 

body. She was on maternity leave at the time 

of trial. Accordingly, Colleen Kumar, an 

expert on mitochondrial DNA, testified without 

objection, based on a review of Cannon's work 

and her own independent analysis. 

Kumar agreed with the analysis done by Cannon 

and another done by the FBI. The hair did not 

belong to Silva. According to the 

mitochondrial DNA testing, it was consistent 

with defendant's hair.

A defense forensic scientist testified 

that blood tends to stick and get absorbed 

under floor tiles and wood flooring, which 

makes it difficult to remove. Even when 

invisible to the naked eye, crime scene 

officers can detect blood and evidence of 

attempts to clean it up. No trace blood 

evidence was found in the house or in the cars.

[Slip op. at 2-6.]

On October 26, 2015, defendant filed a petition for PCR 

arguing that he received ineffective assistance of trial and 

appellate counsel. Defendant also moved to compel post-conviction 

DNA testing of a head hair found under Silva's nail. After oral 
6 A-3941-15T4

argument, but without an evidentiary hearing, Judge James F. 

Mulvihill denied the PCR in a forty-three page written decision. 

This appeal followed.

On appeal, defendant raises the following arguments:

POINT I

THE CONVICTIONS SHOULD BE VACATED AS DEFENDANT 

WAS DEPRIVED OF HIS SIXTH AMENDMENT AND NEW 

JERSEY STATE CONSTITUTIONAL RIGHT TO EFFECTIVE 

ASSISTANCE OF COUNSEL AND TO HIS FOURTEENTH 

AMENDMENT RIGHT TO DUE PROCESS DUE TO THE 

FAILURE OF TRIAL COUNSEL TO ENSURE THE COURT 

COMPLIED WITH N.J.S.A. 2B:20-8(B) AND 2B:20-

8(C).

[A.] THE PCR COURT'S DECISION.

[B.] THE LAW REGARDING [PCR].

[C.] THE LAW REGARDING INEFFECTIVE 

COUNSEL (AND DUE PROCESS).

[D.] THE LAW CONCERNING JURY 

SELECTION.

[E.] THE LAW REGARDING "STRUCTURAL 

ERROR."

POINT II

THE CONVICTIONS SHOULD BE VACATED SINCE TRIAL 

COUNSEL INTENTIONALLY AND AGAINST DEFENDANT'S 

WILL ABSENTED HIMSELF FROM THE FIRST FOUR DAYS 

OF JURY SELECTION; U.S. CONST. AMENDS. VI AND 

XIV; N.J. CONST. (1947) ART. 1, PAR. 10.

[A.] THE PCR COURT'S DECISION.
7 A-3941-15T4

POINT III

THE CONVICTIONS SHOULD BE VACATED DUE TO THE 

FAILURE OF COUNSEL TO PROPERLY LITIGATE AT 

TRIAL AND RAISE ON APPEAL THE SLEEPING JUROR 

ISSUE; U.S. CONST. AMENDS. VI AND XIV; N.J. 

CONST. (1947) ART. 1, PAR. 10.

[A.] THE PCR COURT'S DECISION.

POINT IV

THE CONVICTIONS SHOULD BE VACATED DUE TO THE 

FAILURE OF COUNSEL (AT TRIAL AND ON APPEAL) 

TO PROPERLY LITIGATE THE ISSUE OF JUROR NO. 

2'S DISMISSAL; U.S. CONST. AMENDS. VI AND XIV; 

N.J. CONST. (1947) ART. 1, PAR. 10.

[A.] THE PCR COURT'S DECISION.

POINT V

THE CONVICTIONS SHOULD BE VACATED DUE TO THE 

FAILURE OF TRIAL COUNSEL TO ENSURE THAT THE 

JURORS WERE ABLE TO HEAR THE EVIDENCE ADDUCED 

AND FAILURE TO MOVE TO QUESTION THEM AS TO 

SUCH (OR TO INQUIRE AS TO THE NEED FOR 

READBACKS); U.S. CONST. AMENDS. VI AND XIV; 

N.J. CONST. (1947) ART. 1, PAR. 10.

[A.] THE PCR COURT'S DECISION.

POINT VI

THE CONVICTIONS SHOULD BE VACATED DUE TO THE 

FAILURE OF COUNSEL TO RAISE AND PROPERLY 

LITIGATE (AT TRIAL AND ON APPEAL) THE IMPACT 

OF THE PROSECUTOR'S PRESS CONFERENCE RELATED 

TO THE DEFENDANT'S MID-TRIAL ARREST ON THE 

JURY; U.S. CONST. AMENDS. VI AND XIV; N.J. 

CONST. (1947) ART. 1, PAR. 10.

[A.] THE PCR COURT'S DECISION.
8 A-3941-15T4

POINT VII

THE CONVICTIONS SHOULD BE VACATED DUE TO THE 

FAILURE OF COUNSEL TO PROPERLY LITIGATE AT 

TRIAL AND RAISE ON APPEAL THE ALTERNATE JUROR 

SELECTION PROCESS; U.S. CONST. AMENDS. VI AND 

XIV; N.J. CONST. (1947) ART. 1, PAR. 10.

[A.] THE PCR COURT'S DECISION.

POINT VIII

THE PCR COURT'S ORDER DENYING DNA TESTING 

SHOULD BE REVERSED AND THE COURT SHOULD ORDER 

DNA TESTING ON THE BIOLOGICAL EVIDENCE FOUND 

UNDER SILVA'S FINGERNAIL TO POSITIVELY 

ELMINATE [SIC] [DEFENDANT] AS THE OFFENDER 

AND, MORE IMPORTANTLY, TO REVEAL THE IDENTITY 

OF THE INDIVIDUAL WHO LEFT THIS HEAD HAIR. 

[A.] THE PCR COURT'S DECISION ON THE 

DNA MOTION.

[B.] THE CARTER[1] FIRST AND THIRD 

PRONGS – THE MATERIALITY OF THE DNA 

EVIDENCE[,] WHICH WOULD PROBABLY 

CHANGE THE JURY'S VERDICT.

[C.] THE SECOND PRONG OF THE CARTER

TEST (THE EVIDENCE WAS DISCOVERED 

SINCE THE TRIAL AND WAS NOT 

DISCOVERABLE BY REASONABLE 

DILIGENCE).

[D.] THE NUMEROUS DNA EXONERATIONS.

POINT IX

THE BRADY[2] VIOLATION CONCERNING THE HEAD HAIR 

MANDATES REVERSAL OF DEFENDANT'S CONVICTIONS.

 

1 State v. Carter, 85 N.J. 300 (1981).

2 Brady v. Maryland, 373 U.S. 83 (1963).
9 A-3941-15T4

[A.] RECONSTRUCTION OF FACTS 

RELATIVE TO THE DNA BRADY VIOLATION.

POINT X

THE PCR COURT MUST BE REVERSED AND DEFENDANT'S 

CONVICTIONS VACATED AS THE NUMEROUS INSTANCES 

OF PROSECUTORIAL MISCONDUCT, ALONG WITH THE 

NUMEROUS LEGAL ERRORS COMMITTED BY COUNSEL AND 

THE COURT, DEPRIVED DEFENDANT OF HIS FIFTH, 

SIXTH AND FOURTEENTH AMENDMENT DUE PROCESS AND 

NEW JERSEY CONSTITUTIONAL RIGHT TO A FAIR 

TRIAL U.S. CONST. AMEND. VI AND XIV; N.J. 

CONST. ART. 1, PAR. 10.

[A.] THE PCR COURT'S DECISION.

Defendant raises the following arguments in his supplemental 

pro se brief: 

POINT I

THE CONVICTIONS SHOULD BE VACATED DUE TO THE 

FAILURE OF COUNSEL TO CONDUCT A PRE-TRIAL 

INVESTIGATION AND FAILURE TO RETAIN A PRIVATE 

INVESTIGATOR DESPITE DEFENDANT'S REQUESTS; 

U.S. CONST. AMENDS. VI AND XIV; N.J. CONST.

(1947) ART. I, PAR. 10. 

[A.] THE PCR COURT'S DECISION.

POINT II

THE CONVICTIONS SHOULD BE VACATED DUE TO THE 

FAILURE OF COUNSEL TO DEVELOP THE ALLEGED 

CRIME SCENE AND FAILURE TO MOVE THE COURT, 

DESPITE THE DEFENDANT'S REPEATED REQUESTS, TO 

BRING THE JURY TO THE CIBELLI HOME IN 

VIOLATION OF THE SIXTH AMENDMENT AND DUE 

PROCESS CLAUSE; U.S. CONST. AMENDS. VI AND 

XIV; N.J. CONST. (1947) ART. I, PAR. 10.

[A.] THE PCR COURT'S DECISION.
10 A-3941-15T4

POINT III

THE CONVICTIONS SHOULD BE VACATED DUE TO: I) 

THE FAILURE OF COUNSEL TO SUBJECT THE STATE'S 

ALLEGED TIME-OF-DEATH (T.O.D.) OF THE VICTIM 

TO ANY MEANINGFUL ADVERSARIAL TESTING AND II) 

THE FAILURE TO EFFECTIVELY UTILIZE RETAINED 

PATHOLOGIST DR. RICHARD CALLERY TO REFUTE THE 

STATE'S T.O.D. IN VIOLATION OF THE SIXTH 

AMENDMENT AND DUE PROCESS CLAUSE; U.S. CONST.

AMENDS. VI AND XIV; N.J. CONST. (1947) ART. 

I, PAR. 10.

[A.] THE FAILURE TO SUBJECT THE 

STATE'S T.O.D. TO ADVERSARIAL 

TESTING.

[B.] THE FAILURE TO EFFECTIVELY 

UTILIZE DR. CALLERY.

[C.] THE PCR COURT'S DECISION.

POINT IV

PROSECUTORIAL MISCONDUCT WARRANTS VACATION OF 

DEFENDANT'S CONVICTIONS DUE TO THE STATE'S 

SUMMATION IN THE FIRST CIBELLI TRIAL WHICH 

CONTRIBUTED TO THE REVERSAL OF DEFENDANT'S 

CONVICTIONS IN VIOLATION OF UNITED STATES 

CONSTITUTIONAL AMENDMENTS SIX AND FOURTEEN AND 

ARTICLE I, PARAGRAPH 10 OF THE NEW JERSEY 

CONSTITUTION.

[A.] THE PCR COURT'S DECISION.

[B.] THE LAW REGARDING 

PROCEDUTORIAL [SIC] MISCONDUCT.

POINT V

PROSECUTORIAL MISCONDUCT WARRANTS VACATION OF 

DEFENDANT'S CONVICTIONS DUE TO THE FAILURE TO 

PROVIDE FULL AND PROPER DISCOVERY (THE 

UNDISCLOSED THIRD-PARTY OPINION OF DR. LES 

MCCURDY AS TO MTDNA RESULTS); U.S. CONST.
11 A-3941-15T4

AMENDS. VI, XIV; N.J. CONST. (1947), ART. 1, 

PAR. 10.

[A.] THE PCR COURT'S DECISION.

POINT VI

PROSECUTORIAL MISCONDUCT WARRANTS A VACATION 

OF DEFENDANT'S CONVICTIONS DUE TO THE FAILURE 

BY THE STATE TO PROVIDE AN UPDATED EXPERT 

WITNESS LIST; U.S. CONST. AMENDS. VI, XIV; 

N.J. CONST. (1947), ART. 1, PAR. 10.

POINT VII

PROSECUTORIAL MISCONDUCT WARRANTS VACATION OF 

DEFENDANT'S CONVICTIONS DUE TO THE FAILURE TO 

PROVIDE A PROPER CHAIN OF CUSTODY AS TO THE 

PUBIC HAIR; U.S. CONST. AMENDS. VI, XIV; N.J. 

CONST. (1947), ART. 1, PAR. 10.

[A.] THE PCR COURT'S DECISION.

POINT VIII

PROSECUTORIAL MISCONDUCT WARRANTS VACATION OF 

DEFENDANT'S CONVICTIONS DUE TO THE 

PROSECUTOR'S REPORTING TO THE MEDIA OF THE

DEFENDANT'S MIDTRIAL ARREST; U.S. CONST.

AMENDS. VI, XIV; N.J. CONST. (1947), ART. 1, 

PAR. 10.

[A.] THE PCR COURT'S RULING.

POINT IX

PROSECUTORIAL MISCONDUCT MANDATES VACATION OF 

DEFENDANT'S CONVICTIONS DUE TO THE STATE'S 

CONCOCTING A NEW LOCATION OF THE CRIME SCENE 

FOR THE FIRST TIME DURING THE SECOND TRIAL 

SUMMATION; U.S. CONST. AMENDS. V, VI, XIV; 

N.J. CONST. (1947), ART. 1, PAR. 10.

[A.] THE PCR COURT'S DECISION.
12 A-3941-15T4

POINT X

PROSECUTORIAL MISCONDUCT WARRANTS VACATION OF 

DEFENDANT'S CONVICTIONS DUE TO THE STATE'S 

CHANGING THEORIES (ON FIVE OCCASIONS) AS TO 

THE CRIME SCENE WHEN THE STATE NEVER 

ESTABLISHED A CRIME SCENE; U.S. CONST. AMENDS. 

VI, XIV; N.J. CONST. (1947), ART. 1, PAR. 10.

[A.] THE STATE'S FIRST THEORY AS TO 

WHERE THE HOMICIDE OCCURRED – (SILVA 

ASLEEP ON SOFA IN HER BEDROOM WHEN 

STRUCK WITH STAPLER; STAPLER CAUSED 

INDENTATION TO CEILING).

[B.] THE STATE'S SECOND THEORY AS TO 

WHERE THE HOMICIDE OCCURRED – THE 

HALLWAY JUST OUTSIDE SILVA'S 

BEDROOM.

[C.] THE STATE'S THIRD THEORY – THE 

HOMICIDE OCCURRED ON THE SECOND 

FLOOR DECK.

[D.] THE STATE'S FOURTH THEORY – THE 

HOMICIDE OCCURRED NOT FAR FROM THE 

CIBELLI HOME.

[E.] THE STATE'S FIFTH THEORY – THE 

HOMICIDE OCCURRED ON THE SECOND 

FLOOR DECK OF THE CIBELLI HOME.

[F.] THE PCR COURT'S DECISION.

POINT XI

PROSECUTORIAL MISCONDUCT WARRANTS VACATION OF 

DEFENDANT'S CONVICTIONS DUE TO THE STATE'S 

OBTAINING THE INDICTMENT ON A PROVEN FALSE 

THEORY; U.S. CONST. AMENDS. V, VI, XIV; N.J. 

CONST. (1947), ART. 1, PAR. 10.

[A.] THE PCR COURT'S DECISION.
13 A-3941-15T4

POINT XII

PROSECUTORIAL MISCONDUCT WARRANTS VACATION OF 

DEFENDANT'S CONVICTIONS DUE TO THE STATE 

PROSECUTING THE CASE WITHOUT JURISDICTION; 

U.S. CONST. AMENDS. VI, XIV; N.J. CONST.

(1947), ART. 1, PAR. 10.

[A.] THE PCR COURT'S DECISION.

Defendant raised the following arguments in his reply brief:

POINT I

THE TRIAL COURT ERRED IN DENYING THE 

DEFENDANT'S PCR PETITION WITHOUT AN 

EVIDENTIARY HEARING.

POINT II

JUDGE MULVIHILL IMPROPERLY DENIED DEFENDANT'S 

MOTION FOR POST-CONVICTION DNA TESTING.

Defendant further raises the following arguments in his pro 

se supplemental reply brief:

POINT I

THE PCR COURT ERRED BY FAILING TO VACATE 

DEFENDANT'S CONVICTIONS OR IN THE ALTERNATIVE 

BY DENYING THE DEFENDANT'S PCR PETITION 

WITHOUT AN EVIDENTIARY HEARING.

POINT II

THE DEFENDANT SHOULD BE GRANTED A NEW PCR ORAL 

ARGUMENT IN A DIFFERENT COUNTY OR, IN THE 

ALTERNATIVE, AN EVIDENTIARY HEARING IN A 

DIFFERENT COUNTY (NOT RAISED BELOW).

We have considered defendant's arguments in light of the

record and the applicable legal principles and conclude they are
14 A-3941-15T4

without sufficient merit to warrant extended discussion in a

written opinion. R. 2:22-3(e)(2). We affirm substantially for

the reasons set forth in the comprehensive, well-reasoned written

opinion of Judge Mulvihill. We add only the following.

I.

We commence with the judge's determination that some of 

defendant's claims were procedurally barred. The judge held that 

some of defendant's claims were barred per Rule 3:22-4 or Rule

3:22-5 as they either were substantially similar to the issues 

previously raised on appeal in Cibelli II or could have been raised 

on direct appeal. 

"[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." State v. Preciose, 129 N.J. 451, 476 

(1992) (citing R. 3:22-5). Additionally, a defendant is precluded 

from raising an issue on PCR that could have been raised on direct 

appeal. State v. McQuaid, 147 N.J. 464, 483 (1997). As explained 

by our Supreme Court in McQuaid:

A defendant ordinarily must pursue relief 

by direct appeal, see [Rule] 3:22-3, and may 

not use post-conviction relief to assert a new 

claim that could have been raised on direct 

appeal. See R. 3:22-4. Additionally, a 

defendant may not use a petition for postconviction relief as an opportunity to 

relitigate a claim already decided on the 

merits. See R. 3:22-5.
15 A-3941-15T4

[Ibid.]

The application of these standards requires the "[p]reclusion 

of consideration of an argument presented in post-conviction 

relief proceedings . . . if the issue raised is identical or 

substantially equivalent to that adjudicated previously on direct 

appeal." State v. Marshall, 173 N.J. 343, 351 (2002) (quoting 

State v. Marshall, 148 N.J. 89, 150 (1997)). A PCR claim is based 

upon the "same ground" as a claim already raised by direct appeal 

when "'the issue is identical or substantially equivalent' to 

[the] issue previously adjudicated on its merits." McQuaid, 147 

N.J. at 484 (quoting Picard v. Connor, 404 U.S. 270, 276-77 

(1971)). However, a procedural rule otherwise barring postconviction relief may be overlooked to avoid a fundamental 

injustice where the deficient representation of counsel affected 

"a determination of guilt or otherwise wrought a miscarriage of 

justice." State v. Nash, 212 N.J. 518, 546 (2013) (quoting State 

v. Mitchell, 126 N.J. 565, 587 (1992)).

Defendant raised the argument regarding the jury selection 

process on the second direct appeal. In our decision, we noted:

We are troubled by the ad hoc method of 

accumulating jurors used here. Jurors are 

administratively excused based on physical or 

medical incapacity, prior criminal 

conviction, age or inability to read or 

understand English. See N.J.S.A. 2B:20-1. 

They may also defer service or seek a hardship 
16 A-3941-15T4

excuse. N.J.S.A. 2B:20-10(c). We are unaware 

of any precedent, however, for asking jurors 

to volunteer for service on a murder trial at 

a later date. Such a process could skew the 

jury pool by obtaining a disproportionate 

number of retired people, people who are paid 

by their employer to serve on jury duty, or 

people eager to serve on a murder case. 

Whether these categories of jurors are 

inclined to favor the defense or the State is 

unknown. But a pool should be a random 

selection of eligible jurors. N.J.S.A. 2B:20-

2. Arguably, this process might interfere 

with that random selection. Defendant cannot 

demonstrate, however, that he was prejudiced 

in any way by this unorthodox method of prescreening and therefore we do not order a 

third trial.

[Cibelli II, slip op. at 20-21.]

In comparing the arguments raised by defendant on direct appeal,

the judge found "that the three arguments utilize diverse language, 

but focus on the same underlying substantive issue[.]" As such, 

Rule 3:22-5 barred the argument on the PCR. 

 II.

Although defendant's petition includes claims that were 

procedurally barred, we briefly discuss defendant's claims of 

ineffective assistance of trial and appellate counsel.

Defendant argues he received ineffective assistance of trial 

and appellate counsel for various reasons, including their failure 

to raise the issue of a sleeping juror; to raise the issue of 

juror number two's dismissal; to ensure all jurors could hear the 
17 A-3941-15T4

proceedings; to raise the issue of the prosecutor's press 

conference; and to raise the issue of the alternate juror selection 

process. In his supplemental pro se brief, defendant also argues 

he received ineffective assistance due to the failure of trial 

counsel to properly investigate; to develop the alleged crime 

scene; and to challenge the State's time-of-death theory.

We recite those legal precepts that inform our review. "Postconviction relief is New Jersey's analogue to the federal writ of

habeas corpus." Preciose, 129 N.J. at 459. Under Rule 3:22-2(a), 

a criminal defendant is entitled to post-conviction relief if 

there was a "[s]ubstantial 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[.]" "A 

petitioner must establish the right to such relief by a 

preponderance of the credible evidence." Preciose, 129 N.J. at 459 

(citations omitted). "To sustain that burden, specific facts" 

that "provide the court with an adequate basis on which to rest 

its decision" must be articulated. Mitchell, 126 N.J. at 579.

Claims of constitutionally ineffective assistance of counsel 

are well suited for post-conviction review. See R. 3:22-4(a)(2); 

Preciose, 129 N.J. at 460. In determining whether a defendant is 

entitled to relief on the basis of ineffective assistance of 

counsel, New Jersey courts apply the two-prong test articulated 
18 A-3941-15T4

by the United States Supreme Court in Strickland v. Washington, 

466 U.S. 668, 687 (1984), and United States v. Cronic, 466 U.S. 

648, 658-60 (1984). Preciose, 129 N.J. at 463; see State v. Fritz, 

105 N.J. 42, 49-50 (1987).

Under the first prong of the Strickland test, a "defendant 

must show that [defense] counsel's performance was deficient." 

466 U.S. at 687. Under the second prong, a defendant must 

demonstrate "a reasonable probability that, but for counsel's 

unprofessional errors, the result of the proceeding would have 

been different." Id. at 694.

In representing a defendant in a criminal matter, a trial 

attorney "has a duty to make reasonable investigations or to make 

a reasonable decision that makes particular investigations 

unnecessary." State v. Porter, 216 N.J. 343, 353 

(2013) (quoting State v. Chew, 179 N.J. 186, 217 (2004)). To 

support a claim of ineffective assistance of counsel based on an 

alleged failure to investigate, a defendant "must do more than 

make bald assertions . . . ." Id. at 355 (quoting State v. 

Cummings, 321 N.J. Super. 154, 170 (App. Div. 1999)). The 

defendant must "assert the facts that an investigation would have 

revealed, supported by affidavits or certifications based upon the 

personal knowledge of the affiant or the person making the 
19 A-3941-15T4

certification." Id. at 353 (quoting Cummings, 321 N.J. Super. at 

170).

Here, as the judge held, and we agree, defendant's bald 

unsupported allegations of ineffective assistance are wholly 

without merit. 

III.

The judge also held that appellate counsel's performance did 

not fall below an objective standard of reasonableness. 

[R]easonable appellate counsel might have 

focused on the [arguments raised on direct 

appeal] and ignored other potentially valid 

arguments, such as those that [defendant] 

identifies in the instant PCR, because he or 

she believed that the selected arguments had 

a higher likelihood of success. A review of 

the Appellate Division's 2013 opinion affirms 

this finding[.]

Although defendant is entitled to the effective assistance 

of appellate counsel, "appellate counsel does not have a 

constitutional duty to raise every non[-]frivolous issue requested 

by the defendant." State v. Morrison, 215 N.J. Super. 540, 549 

(App. Div. 1987) (citing Jones v. Barnes, 463 U.S. 745, 754 

(1983)); see also State v. Gaither, 396 N.J. Super. 508, 516 (App. 

Div. 2007) (holding that appellate counsel is not "required to 

advance every claim insisted upon by a client on appeal.").

Upon consideration of the record, we conclude that defendant 

has failed to demonstrate that appellate counsel's representation 
20 A-3941-15T4

"fell below an objective standard of reasonableness," Strickland, 

466 U.S. at 687-88, and that but for appellate counsel's failure 

to raise that argument on direct appeal the outcome of his appeal 

of his conviction would have been different. State v. Allegro, 

193 N.J. 352, 367 (2008). Because defendant failed to establish 

both prongs of the Strickland standard, the judge properly rejected 

defendant's claim that his appellate counsel was constitutionally 

ineffective. See Strickland, 466 U.S. at 700.

In numerous opinions addressing the standard for effective 

assistance of counsel, the courts have held that effective

representation is not synonymous with errorless 

representation. Both trial and appellate counsel may make

decisions in the lens of hindsight that were debatable or even

erroneous. For any error by counsel to be constitutionally

significant, it must undermine the fundamental fairness of the

proceeding. Strickland, 466 U.S. at 693. The competency standard

enunciated by Strickland is both broad and flexible. Ibid. The 

proper test is whether counsel's advice and decisions were within 

the range of competence required of attorneys in criminal cases. 

While criminal attorneys are expected to fulfill their duty of 

competent representation, a conviction should not be overturned 

unless there was a breach of that duty that mattered.
21 A-3941-15T4

IV.

We next address defendant's motion for post-conviction 

testing. Defendant argues the head hair found under Silva's broken 

left-hand fingernail should be DNA tested. Defendant argues that 

a favorable result would provide the basis for a new trial. We 

disagree. 

In his analysis, the judge noted there were ample biological 

samples taken from Silva's body that were analyzed. The judge 

stated that "[n]one of the[] experts testified that they could 

link the biological samples to [defendant] with a reasonable degree 

of medical certainty." This included the head hair defendant 

argues should have been tested. The judge provided that

"[c]learly, the jury knew that a microscopic analysis of the 

disputed head hair failed to identify [defendant] or Ms. Silva as 

the hair's source and the jury knew that no nuclear DNA evidence 

identified him as Ms. Silva's killer." As such, the judge 

concluded that "even if the requested DNA testing demonstrated 

that the head hair came from a third-party, such results would be 

redundant." Thus, the judge denied defendant's request to have 

the head hair tested for DNA, finding the testing would produce 

"repetitive and insignificant" evidence, thus failing to satisfy 

the requirements set forth in N.J.S.A. 2A:84A-32a(d)(1)-(8).
22 A-3941-15T4

N.J.S.A. 2A:84A-32a "permits '[a]ny person who was convicted 

of a crime and is currently serving a term of imprisonment' to 

make a motion for DNA testing." State v. Hogue, 175 N.J. 578, 584 

(2003) (alteration in original) (quoting N.J.S.A. 2A:84A-32a(a)).

However, the court "shall not grant the motion for DNA testing 

unless" the defendant has established eight requirements. Under 

N.J.S.A. 2A:84A-32a(d), the eight requirements are that:

(1) the evidence to be tested is available and 

in a condition that would permit the DNA 

testing that is requested in the motion;

(2) the evidence to be tested has been subject 

to a chain of custody sufficient to establish 

it has not been substituted, tampered with, 

replaced or altered in any material aspect;

(3) the identity of the defendant was a 

significant issue in the case;

(4) the eligible person has made a prima facie 

showing that the evidence sought to be tested 

is material to the issue of the eligible 

person's identity as the offender;

(5) the requested DNA testing result would 

raise a reasonable probability that if the 

results were favorable to the defendant, a 

motion for a new trial based upon newly 

discovered evidence would be granted. The 

court in its discretion may consider any 

evidence whether or not it was introduced at 

trial;

(6) the evidence sought to be tested meets 

either of the following conditions: (a) it was 

not tested previously; (b) it was tested 

previously, but the requested DNA test would 

provide results that are reasonably more 
23 A-3941-15T4

discriminating and probative of the identity 

of the offender or have a reasonable 

probability of contradicting prior test 

results;

(7) the testing requested employs a method 

generally accepted within the relevant 

scientific community; and

(8) the motion is not made solely for the 

purpose of delay. 

One of the key requirements to be satisfied is whether there 

is a "reasonable probability" that a motion for a new trial would 

be granted if the DNA results proved favorable to the defendant. 

N.J.S.A. 2A:84A-32a(d)(5); State v. Armour, 446 N.J. Super. 295, 

311-12 (App. Div. 2016). It is well-settled that to obtain a new 

trial based on newly-discovered evidence, the defendant must 

establish the new "evidence is 1) material, and not 'merely' 

cumulative, impeaching, or contradictory; 2) that the evidence was 

discovered after completion of the trial and was 'not discoverable 

by reasonable diligence beforehand'; and 3) that the evidence 

'would probably change the jury's verdict if a new trial [was] 

granted.'" State v. Ways, 180 N.J. 171, 187 (2004)

(quoting Carter, 85 N.J. at 314).

Here, there was substantial evidence of defendant's guilt 

introduced at trial. In Cibelli II, slip op. at 13-14, we noted,

"[T]he State presented sufficient evidence to allow a jury to 

find, beyond a reasonable doubt, that defendant killed Silva." 
24 A-3941-15T4

Given the proposed new evidence's cumulative nature, we are 

satisfied that the jury's verdict would not be altered. During 

trial, the jury heard testimony that the head hair was neither 

from defendant nor from Silva — yet that testimony was not 

sufficient to produce a reasonable doubt in the jurors' minds.

Finally, even if resubmitting the hair for further testing 

produced a favorable result, it would not constitute grounds for 

a new trial as, standing alone, it would neither exculpate 

defendant nor inculpate another person. Therefore, as in Armour, 

446 N.J. Super. at 314-15, we conclude that defendant failed to 

satisfy the factors set forth in N.J.S.A. 2A:84A-32a(d) and the 

test in Carter, 85 N.J. at 314. 

Affirmed.