SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4514-18T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

BENJAMIN CAPERS a/k/a

BENJAMIN COOPER,

Defendant-Appellant.

________________________

Submitted September 14, 2020 – Decided

Before Judges Suter and Smith.

On appeal from the Superior Court of New Jersey, Law 

Division, Union County, Indictment Nos. 09-04-0384 

and 09-04-0385.

Joseph E. Krakora, Public Defender, attorney for 

appellant (Steven M. Gilson, Designated Counsel, on 

the brief).

Lyndsay V. Ruotolo, Acting Union County Prosecutor, 

attorney for respondent (Milton S. Leibowitz, Special 

Deputy Attorney General/Acting Assistant Prosecutor, 

of counsel and 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NOT FOR PUBLICATION WITHOUT THE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.

November 20, 2020
2

A-4514-18T4

PER CURIAM

Defendant Benjamin Capers appeals from a denial of his second petition 

for post-conviction relief (PCR). For the reasons that follow, we affirm.

Defendant was convicted of two counts of robbery, N.J.S.A. 2C:15-1; one 

count of certain persons not to possess weapons, N.J.S.A. 2C:39-7; and various 

lesser charges. On October 21, 2010, defendant was sentenced by a judge to 

serve forty-five years in prison. 

The defendant filed a PCR on December 9, 2013. On June 26, 2015, a 

judge who did not try the case denied the petition without an evidentiary hearing. 

On July 31, 2017, we affirmed. 

The defendant filed a second PCR petition on July 27, 2018. A second 

PCR judge denied it on May 23, 2019. Defendant appealed. 

I.

On January 12, 2009, while working at his store, Mayan Makim was 

robbed at gunpoint. Makim stated that he recognized the gunman as a recent 

shopper. The man grabbed a woman customer and told her that he was not going 

to hurt her. Defendant gave Makim a bag and demanded money. Makim gave 

the man money from the cash register as well as the cigarettes the man requested. 

Both Makim and the customer identified defendant in a photo array and at trial. 
3

A-4514-18T4

On January 28, 2009, Anil Patel was sweeping his store when a man 

wearing a green jumpsuit and black hat entered the store. The man jumped over 

the counter, displayed a silver handgun and a laundry bag, then demanded 

money from Patel. After Patel put the money in the laundry bag, he observed

the man leave the store. He saw a brown minivan pull away from the store,

called 9-1-1, and reported the license plate number of the minivan. The police 

pursued the brown minivan based on Patel's description. The minivan 

eventually crashed into a cement divider. Defendant exited the minivan and 

fled, but he was apprehended by police. When the police caught defendant, he 

was wearing a green jumpsuit. In the minivan, the police found a silver handgun, 

hat, black gloves, and laundry bag containing $4.66 in change. After his arrest,

defendant was processed, and he had $418.00. 

The police brought Patel to the scene of the arrest where he identified the 

minivan and defendant, and again at trial. Patel testified he was one-hundred 

percent sure that defendant was the person who robbed him. 

Defendant testified that he was not in Linden, the location of Makim's 

store, on January 12, 2009, nor was he at Patel's store on January 28, 2009. He 

testified that at around 4:00 p.m., on January 28, 2009, he and Monica Way 

discussed buying a dog for their daughter. Monica Way testified at trial and 
4

A-4514-18T4

corroborated defendant's testimony. Further, defendant testified he borrowed 

Tynesha Moore's minivan on January 28. While driving the minivan, a man in 

a green jumpsuit knocked on the van's window with a handgun and demanded 

that defendant open the door. Defendant testified the man in the green jumpsuit 

forced defendant to help him evade the police or else the man would shoot 

defendant. He drove the van until it lost control and crashed. He also testified 

that he tried to tell the police about the carjacking by the man in the green 

jumpsuit. 

At trial, the defendant was convicted on the two robbery counts and all 

the remaining counts. Defendant appealed, and we affirmed his convictions and 

sentence in an unpublished opinion. State v. Capers (Capers I), No. A-4369-10 

(App. Div. Apr. 19, 2013).

On December 9, 2013, defendant filed his first petition for PCR. In that 

petition, defendant argued three grounds for ineffective assistance of counsel, 

alleging that his trial counsel failed to pursue a Wade1 hearing, failed to present 

a DNA expert to counter the State's expert, and failed to act in a timely manner 

to preserve Patel's 9-1-1 call. 

1 U.S. v. Wade, 388 U.S. 218 (1967).
5

A-4514-18T4

A judge who did not preside over the trial or the sentence heard argument 

on the first PCR, denying an evidentiary hearing and the petition. Prior to 

argument, PCR counsel raised an unbriefed issue, alleging trial counsel's failure 

to investigate and present alibi testimony regarding the January 12 robbery. 

PCR counsel presented the court with an investigative report, a handwritten note 

from the alibi witness, Ambi Parrish, and a copy of an email authored by Parrish 

("the Parrish alibi papers"). Parrish claimed to be with the defendant on January 

12, 2009, from 5:14 p.m. until 1:26 a.m. the next day. In addition to the Parrish 

alibi papers, PCR counsel presented a certification2from the investigator. 

Parrish's handwritten letter and email were unsworn. The judge addressed the 

unsworn Parrish alibi papers on the merits and found them not reliable. He noted 

that, even if the alibi papers were certified, he would still deny the PCR on the 

2

 Rule 3:22-10(c) states that "[a]ny factual assertion that provides the predicate 

for a claim of relief [in a petition for PCR] must be made by an affidavit or 

certification . . . and based upon personal knowledge of the declarant before the 

court may grant an evidentiary hearing." Under this rule, a defendant asserting 

a claim of ineffective assistance of counsel in a petition for PCR based on his 

counsel's failure to produce a witness at trial must present a certification by that 

witness concerning the testimony the witness would have been prepared to give. 

See State v. Petrozelli, 351 N.J. Super. 14, 23 (App. Div. 2002); State v.

Cummings, 321 N.J. Super. 154, 170-71 (App. Div. 1999).
6

A-4514-18T4

merits, because defendant had the chance to present the alibi evidence at his trial

and failed to do so.

Defendant appealed the PCR denial on August 20, 2015. On July 31, 

2017, we affirmed denial in an unpublished opinion, finding that the Parrish 

alibi papers defendant submitted in support of his PCR did not conform with the 

requirements of Rule 3:22-10(c), and defendant failed to show prima facie 

evidence of ineffective assistance of counsel. State v. Capers (Capers II), No. 

A-5645-14 (App. Div. July 31, 2017).

On July 27, 2018, defendant filed a second PCR. In his second petition, 

defendant argued ineffective assistance of trial counsel grounded in the same 

three allegations he used in his first PCR, as well as ineffective assistance by

the first PCR counsel for failing to have the Parrish alibi papers certified 

pursuant to Rule 3:22-10(c). 

A judge who did not hear the first PCR motion denied defendant's petition.

The second PCR judge found it untimely under the twelve-month time limitation 

established in Rule 3:22-12(a)(2). The judge noted that defendant's factual 

predicate for the second petition derived from the first petition, which was 

denied on June 26, 2015. The judge found that the second PCR should have 

been filed no later than June 27, 2016. This finding rendered defendant's second 
7

A-4514-18T4

PCR time barred. The judge consequently dismissed the defendant’s second 

PCR without an evidentiary hearing.

Nevertheless, the judge addressed the merits of the second petition. The 

judge noted that the second petition was grounded in the actions of defendant's 

trial counsel and defendant's first PCR counsel. The judge noted that defendant

understood his right to present alibi testimony for the January 28 robbery, and 

in fact did so. The judge noted that on three occasions defendant did not raise 

the Parrish alibi. The defendant did not raise the Parrish alibi defense in his

January 12, 2009 robbery trial, in the appeal of his conviction (where he filed a 

supplemental pro-se brief), nor did he raise it in his pro-se PCR application. The 

judge found that the first-time defendant raised the alibi witness issue was on 

October 30, 2014, in a letter to his counsel. In the letter, defendant stated he 

told his trial counsel about the alibi. However, the judge found nothing in the 

record which revealed any communication between the investigator and trial 

counsel. The judge found defendant's assertion that trial counsel was aware of 

the Parrish alibi unsupported by the record. As a result, the judge concluded

that defendant's first PCR failed the first prong of Strickland3, because defendant 

3

 Strickland v. Washington, 466 U.S. 668 (1984).
8

A-4514-18T4

failed to demonstrate trial counsel was aware of the alibi or failed to investigate 

it. 

The judge noted that we affirmed the first PCR, finding that defendant 

failed to make out a prima facie case. Relying on our affirmance as well as his 

analysis of the merits of the first PCR, the judge found that even if the second 

petition were timely, defendant failed to present a prima facie case for 

ineffective assistance of counsel. 

Defendant raises following two issues on appeal:

POINT I - DEFENDANT'S SECOND PCR PETITION 

SHOULD NOT HAVE BEEN TIME-BARRED.

POINT II - THIS MATTER MUST BE REMANDED 

FOR AN EVIDENTIARY HEARING BECAUSE 

DEFENDANT ESTABLISHED A PRIMA FACIE 

CASE OF TRIAL COUNSEL'S AND FIRST PCR 

COUNSEL'S INEFFECTIVENESS FOR FAILING TO 

ADEQUATELY PURSUE A PROSPECTIVE ALIBI 

WITNESS. 

II.

We conduct a de novo review where the PCR court denies an evidentiary 

hearing. State v. Jackson, 454 N.J. Super. 284, 291 (App. Div. 2018) (citing 

State v. Harris, 181 N.J. 391, 421 (2004)). "The Sixth Amendment of the United 

States Constitution and Article I, paragraph 10 of the New Jersey Constitution 

require that a defendant receive 'the effective assistance of counsel' during a 
9

A-4514-18T4

criminal proceeding." State v. Porter, 216 N.J. 343, 352 (2013) (citing 

Strickland, 466 U.S. at 685-86; State v. Fritz, 105 N.J. 42, 58 (1987)). To 

establish an ineffective assistance of counsel claim, the claimant must prove 

counsel's performance was deficient and that counsel's "deficient performance 

prejudiced the defense." State v. Pierre, 223 N.J. 560, 578 (2015) (quoting 

Strickland, 466 U.S. at 687). To prove a counsel's performance was deficient 

requires a showing that counsel made errors so serious that counsel was not 

functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. 

Ibid. (quoting Strickland, 466 U.S. at 687). Next, to prove the counsel's 

deficient performance prejudiced the defense, the defendant must show that 

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

whose result is reliable. Pierre, 223 N.J. at 578.

Our court rules impose time limitations for filing first and subsequent PCR 

petitions.

Rule 3:22-4(b) reads as follows: 

A second or subsequent petition for post-conviction 

relief shall be dismissed unless:

(1) it is timely under R. 3:22-12(a)(2); and

(2) it alleges on its face either:
10 A-4514-18T4

(A) that the petition relies on a new rule of 

constitutional law, made retroactive to 

defendant's petition by the United States 

Supreme Court or the Supreme Court of 

New Jersey, that was unavailable during 

the pendency of any prior proceedings; or

(B) that the factual predicate for the relief 

sought could not have been discovered 

earlier through the exercise of reasonable 

diligence, and the facts underlying the 

ground for relief, if proven and viewed in 

light of the evidence as a whole, would 

raise a reasonable probability that the relief 

sought would be granted; or

(C) that the petition alleges a prima facie 

case of ineffective assistance of counsel 

that represented the defendant on the first 

or subsequent application for postconviction relief.

[R. 3:22-4 (b)]

The threshold condition, listed in subsection 4(b)(1), requires the second 

or subsequent petition to be filed "timely" under Rule 3:22-12(a)(2).

Rule 3:22-12(a)(2) reads as follows:

Notwithstanding any other provision in this rule, no 

second or subsequent petition shall be filed more than 

one year after the latest of:

(A) the date on which the constitutional 

right asserted was initially recognized by 

the United States Supreme Court or the 

Supreme Court of New Jersey, if that right 
11 A-4514-18T4

has been newly recognized by either of 

those Courts and made retroactive by either 

of those Courts to cases on collateral 

review; or

(B) the date on which the factual predicate 

for the relief sought was discovered, if that 

factual predicate could not have been 

discovered earlier through the exercise of 

reasonable diligence; or

(C) the date of the denial of the first or 

subsequent application for post-conviction 

relief where ineffective assistance of 

counsel that represented the defendant on 

the first or subsequent application for postconviction relief is being alleged.

[Ibid.]

Rule 1:3-4(c) expressly prohibits enlargement of the time specified for 

filing petitions for post-conviction relief under Rule 3:22-12. Additionally, we 

have held that enlargement of the one-year time limit under Rule 3:22-12 is 

prohibited. Jackson, 454 N.J. Super. at 292 (App. Div. 2018) (citing Aujero v. 

Cirelli, 110 N.J. 566, 577 (1988)). An untimely subsequent or second filing of 

a PCR petition cannot "be excused in the same manner as the late filing of a first 

PCR petition." Id. at 293.
12 A-4514-18T4

III.

Defendant claims no newly recognized constitutional right, therefore we 

find that Rule 3:22-12(a)(2)(A) does not apply to the facts of this case.

Defendant’s claim is not based on evidence or information that could not have 

been discovered earlier through the exercise of reasonable diligence. Defendant

grounded his first three PCR claims for ineffective assistance of counsel on 

events which took place at his 2010 trial. None of those claims can be 

characterized as arising from evidence or information that could not have been 

discovered earlier. His fourth claim, raised late before the first PCR court,

alleged that his trial counsel failed to investigate and present the Parrish alibi 

witness in the January 12, 2009 robbery trial. Those claims were rejected by the 

first PCR court on June 26, 2015. On that date, the defendant discovered or 

should have discovered that the Parrish alibi statements were unsworn and 

uncertified. Even if the defendant did not discover the Parrish alibi papers' 

unsworn nature on June 26, he knew of it no later than August 20, 2015, when 

he filed a notice of appeal. The defendant has shown no factual predicate which 

"could not have been discovered earlier through the exercise of reasonable 

diligence," consequently Rule 3:22-12(a)(2)(B) does not apply to the facts of 

this case. 
13 A-4514-18T4

Defendant is time barred by Rule 3:22-12(a)(2)(C). Over three years 

elapsed between the denial of the first petition and the filing of defendant's 

second petition. Defendant argues that the one-year time limitation should 

commence with our affirmance of the first PCR denial, on July 31, 2017. We 

disagree. Such an interpretation of the rule would result in an impermissible 

enlargement of the one-year time limitation. See R. 1:3-4(c); see also Jackson, 

454 N.J. Super. at 292.

This court need not reach the merits of defendant's second PCR petition. 

We disposed of the identical PCR trial arguments in defendant’s first petition.

We found that the January 12, 2009 alibi statements submitted, which did not 

comply with the requirements of Rule 3:22-10(c), failed to present prima facie 

evidence of ineffective assistance of counsel, obviating the need for an 

evidentiary hearing. 

The second PCR judge properly rejected the argument that PCR counsel 

was ineffective in failing to obtain proper certification for the Parrish alibi 

papers under Rule 3:22-10(c), citing our unpublished affirmance in Capers II. 

Ibid. The judge found that, had the second petition been timely, the alleged error 

was not enough to establish a prima facie case of ineffective assistance of 

counsel. 
14 A-4514-18T4

The second PCR was untimely pursuant to Rule 3:22-12(a)(2). It was 

correctly dismissed by the judge without an evidentiary hearing under Rule

3:22-4(b)(1). 

Affirmed.