SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1653-20

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

QUAMEIR T. WATERS,

a/k/a COO COO, and

QUAMEIER WATERS,

Defendant-Appellant.

_______________________

Submitted June 9, 2022 — Decided June 24, 2022

Before Judges Mawla and Alvarez. 

On appeal from the Superior Court of New Jersey, Law 

Division, Cumberland County, Indictment No. 13-07-

0595.

Joseph E. Krakora, Public Defender, attorney for 

appellant (Anderson D. Harkov, Designated Counsel, 

on the brief).

Jennifer Webb-McRae, Cumberland County 

Prosecutor, attorney for respondent (Kaila L. Diodati, 

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NOT FOR PUBLICATION WITHOUT THE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.
2

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Appellant filed a pro se supplemental brief. 

PER CURIAM

Defendant Quameir T. Waters appeals from a July 15, 2020 order denying 

his petition for post-conviction relief (PCR) without an evidentiary hearing.1 

We affirm.

We previously recounted the facts of defendant's case when we affirmed 

his convictions and sentence. State v. Waters, No. A-5382-14 (App. Div. Sept. 

21, 2017) (slip op. at 1-4). To summarize, on November 13, 2012, defendant, 

Octavis Spence, and others went to a gathering at Anthony and Thomas Nieves'2

apartment. The next morning, Spence and defendant got into a heated argument, 

which led to defendant firing two shots at Spence, hitting him once in the back 

and paralyzing him from the waist down. Defendant fled and the gun was never 

recovered. 

Spence identified defendant as the shooter and described the weapon as a 

dark, semiautomatic handgun. Anthony also gave police a statement identifying 

defendant. Police recovered one bullet lodged in a wall and two empty casings 

1

 The order is dated July 15, 2020, but it was filed on July 22, 2020. 

2

 We refer to Anthony by his first name because he shares a surname with 

Thomas. We intend no disrespect.
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fired from a semiautomatic weapon. When police arrested defendant, he denied

being at the Nieves' apartment the morning of the shooting claiming he was 

fishing; however, he later admitted he was present. Defendant explained he and 

Spence were arguing over a woman and conceded he wanted to fight Spence but 

denied shooting him. Defendant claimed another man shot the victim but could 

not identify or describe him. 

In a search, incident to defendant's arrest, police recovered two cell

phones. Pursuant to a warrant, police recovered a text sent by defendant to a 

woman named Marianna on November 14, 2012, at 1:01 p.m., stating: "I got 

into some deep shit, bae." Police also retrieved roughly 2,000 images from the 

phones, including 200 deleted images. One deleted image showed defendant 

holding a black handgun pointing at the camera and another showed a 

semiautomatic handgun next to a magazine. Police could not determine the 

gun's caliber or where the images were taken. 

Defendant was indicted on one count of attempted murder, three counts of

aggravated assault, and three weapons charges. Prior to trial, the State made a 

plea offer, which it withdrew, but then re-instated. Defense counsel filed various 

pre-trial motions, including a motion to reduce bail, which was denied on August 

18, 2014. At this appearance, defense counsel argued the victim was "nowhere 
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to be found" and Anthony had given police "different stories" about what he saw 

the day of the shooting. The State disagreed and argued its case had "got[ten] 

stronger" with the passage of time because it had 1) eyewitnesses, including 

Spence, who it had no reason to believe would not attend trial, 2) the cell phone 

evidence, and 3) defendant's statement. The judge also reviewed the status of 

the plea negotiations and the State's plea offer with defendant because the plea 

offer was expiring that day.

Under oath, defendant confirmed he understood the magnitude of the 

pretrial conference, the finality of the State's plea offer, and that he would be 

unable to control the outcome of a jury trial. The following colloquy ensued:

[The court]: All right. Now, according to the 

information that has been provided to me here, and a 

copy of which . . . you went over with your attorney, 

you understand that you are facing a potential life 

sentence if you're convicted in this case . . . ?

[Defendant]: Yes. 

[The court]: All right. And one of the things I note 

here . . . is that you are [subject to] a discretionary 

extended term and I've already been informed by the 

State that if you are convicted, they will be seeking an 

extended term. 

[The defendant]: Yes. 

[The court]: . . . You should proceed with the 

understanding that there is a high likelihood that I 
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would issue an extended term if you're convicted. You 

understand that? 

[The defendant]: Yes.

The judge then asked the State to reiterate its "last, best offer." The State

previously offered defendant an open plea to second-degree aggravated assault, 

a cap of ten years' incarceration subject to the No Early Release Act (NERA),

N.J.S.A. 2C:43-7.2, and no extended term. However, after negotiations with 

defendant and defense counsel, "who rather convincingly represented his client's 

position, the State removed uncertainty and offered an alternative of eight years[ 

subject to] NERA . . . . So[,] the offer is either plead open or take a known eight, 

NERA, and that is the State's absolute final offer." 

The prosecutor explained if the matter were tried and defendant convicted,

the State would seek an extended term because defendant was a persistent 

offender due to "previous convictions . . . involv[ing] weapons and assaultive 

behavior, not to mention [twenty-three] other arrests, [and] a lengthy rap sheet." 

As a result, if defendant were convicted of the attempted murder offense "instead 

of ten to [twenty years], he would face a mandatory . . . [twenty-five] to life," 

subject to NERA. "On the second[-]degree . . . [a]ggravated assault, which is 

NERA, instead of five to ten, . . . that would be a ten to [twenty.] The weapons 
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offenses, instead of being a second[-]degree five to ten, they would be . . . into 

the ten to [twenty] range . . . ." 

The judge noted if defendant accepted the State's offer, his eight year 

NERA sentence "would be a six year, nine month and [twenty-two] day period 

of parole ineligibility[,]" further reduced by the nearly two-year time period 

defendant spent in jail awaiting trial. If defendant proceeded to trial and was 

convicted, the judge calculated his NERA sentence to sixty-three years, nine 

months, and three days. 

Defendant responded as follows: "No disrespect to you, [y]our [h]onor, 

but I don't care." Nonetheless, the judge offered defendant more time to think 

about the offer. Defendant responded he wanted to use the time to talk to the 

judge and did not need to talk to his lawyer. Defendant then stated 

I offered [the prosecutor] . . . .

. . . seven [years subject to NERA]. He said no. Why 

not? Why not . . . seven [years subject to NERA]? You 

want a[n] eight. I want a seven. You want a conviction. 

I want to go home earlier than eight years. 

. . . I'm [twenty-nine] years old. I'll be [thirty] this year. 

I got kids to go home to, just like you all got kids to go 

home to every night. 

If he don't want to give me what I want, we go to 

trial and I risk losing everything. That's just how I feel.
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Notwithstanding defendant's statement, the judge stepped off the bench to 

give him time to consider his position and discuss the matter with counsel. 

When the judge returned, eighteen minutes later, defendant told him he wished 

to proceed to trial.

The matter was tried before a jury and a different judge. Defendant moved 

in limine to bar, among other things, photos of the gun, arguing they were 

inadmissible under N.J.R.E. 403 and 404(b). He argued neither Spence nor 

Anthony could identify the gun's specifics, and the pictures did not show where 

or when they were taken, whether it was the gun used in the shooting, or if it 

was a gun at all. 

The trial judge held an evidentiary hearing. Cumberland County 

Prosecutor's Office Detective Raymond Cavagnaro testified and explained the 

process of retrieving the data, including the deleted gun photos from defendant's 

cell phones. He said a picture of defendant was taken around November 7, 2012,

at 5:01 p.m. The image of the gun was taken around November 10, 2012, at 

2:59 p.m., a photo of the gun and the bullets was taken November 13, 2012, at 

5:59 p.m., and a picture of defendant holding the gun was taken around 

November 13, 2012, at 7:58 p.m. Defendant sent the text to Marianna around
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November 14, 2012, at 1:01 p.m. The images showing a gun were deleted 

around November 14, 2012, at 12:01 a.m. 

Defendant argued the images were not evidential because their creation 

and deletion took place outside the time frame of the crime. Therefore, they

were inadmissible, as evidence of prior bad acts. The State argued the images 

were admissible to establish consciousness of guilt, were contemporaneous with 

the crime, and the best evidence of the gun defendant used since one was not 

found, considering Spence and Anthony indicated the gun was like the one in 

the pictures and the shell casings and projectile found at the scene. The State 

noted the images were not prior bad act evidence because gun possession in the 

home is legal and they were taken inside a private residence. 

The trial judge analyzed the evidence pursuant to the four-prong test 

articulated in State v. Cofield, 127 N.J. 328, 338 (1992). He concluded the first 

prong was met because the photos of defendant holding a gun were relevant to 

whether he used it to commit the offenses. The second prong was met because 

the State showed the photos were contemporaneous with the shooting. The third 

prong, requiring the evidence be clear and convincing, was proven through

Cavagnaro's testimony authenticating the extraction of the photos from 

defendant's phone and when the photos were taken and deleted. The fourth 
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Cofield prong was met because the probative value of the photos was not 

outweighed by the prejudice because the jury would ultimately determine the 

weight accorded to this evidence. The judge denied the motion.

At trial, Spence testified and identified defendant as the shooter and the 

type of gun he used. However, Spence could not say whether a gun defendant 

was holding in a picture was the same one used to shoot him. Anthony also 

testified and identified defendant as the shooter. He was shown pictures of 

defendant with a gun and confirmed defendant used a black nine-millimeter 

automatic like the one in the pictures. State Police Detective Edward Brita

testified and identified the projectile and casings from the crime scene as coming 

from a nine-millimeter semiautomatic gun. 

State Police Detective Arthur Barilotti testified he was the lead detective. 

He conducted about a dozen interviews, and defendant emerged as the only 

suspect. After Barilotti concluded his testimony, defense counsel recalled him 

to ask whether he took a statement from defendant in which he denied 

involvement in the shooting. Barilotti testified defendant denied shooting 

Spence, claiming he was fishing the day of the incident, but then admitted he 

was in the apartment and claimed there was another shooter whom he could not 

identify. Defendant then told Barilotti he was in the apartment, had a "beef" 
10 A-1653-20

with and was fighting Spence over a woman. Barilotti testified it is not 

uncommon for people to initially lie before telling police what happened. 

Following summations, the judge charged the jury, including that it could 

consider the deleted photos as consciousness of guilt evidence. We reproduced 

the charge in our prior opinion and incorporate it here by reference. See Waters,

slip op. at 15-16. Defendant was convicted on all counts and received an 

aggregate fifty-eight-year NERA sentence. 

Defendant filed a PCR petition, raising several arguments, including that 

pursuant to Lafler v. Cooper, 566 U.S. 156 (2012), the State should give him its 

original plea offer, or an opportunity to renegotiate the plea, because trial 

counsel was ineffective for failing to advise defendant to take the plea or tell 

him the plea would expire. Defendant argued he received ineffective counsel 

because trial counsel recalled Barilotti back to the stand and questioned him 

regarding his statement to police. He also claimed appellate counsel was 

ineffective for not challenging the court's decision to admit the photos. 

Defendant sought an evidentiary hearing to explore the disputed facts, including

his communications with trial counsel regarding the plea. 

The PCR judge rejected defendant's arguments noting the plea was 

discussed on the record, defendant received "several continuances to get the plea 
11 A-1653-20

offers lowered," and the judge discussed "what the plea offer would be, or what 

the potential sentence could be" if defendant was found guilty. The judge noted 

even after defendant rejected the plea, the judge gave him additional time "to 

talk to his attorney again and . . . [defendant] was aware that the offer would 

expire and that his attorney made multiple attempts to get [defendant] to accept 

the offer." The PCR judge dismissed defendant's argument as without merit and 

found his claims regarding counsel's performance contradicted by the record. 

He also rejected the argument appellate counsel was ineffective for not 

challenging the trial judge's evidentiary ruling admitting the photos into 

evidence. 

Defendant raises the following points on appeal:

POINT ONE — THE PCR COURT ERRED WHEN IT 

FAILED TO GRANT DEFENDANT'S REQUEST 

FOR AN EVIDENTIARY HEARING BECAUSE THE 

FAILURE OF TRIAL COUNSEL TO EXPLAIN TO 

DEFENDANT THE RISKS AND CONSEQUENCES 

OF TAKING THIS CASE TO TRIAL AND 

EXPOSING HIMSELF TO A SENTENCE OF LIFE IN 

PRISON, AS OPPOSED TO ACCEPTING THE 

STATE'S PLEA OFFER OF AN EIGHT YEAR NERA 

SENTENCE, COULD ONLY BE EXPLORED IN AN 

EVIDENTIARY HEARING IN THE ABSENCE OF 

ANY STATEMENT BY TRIAL COUNSEL TO 

DEFENDANT ON THE RECORD THAT HE 

ADVISED DEFENDANT TO ACCEPT THE PLEA 

OFFER AND THAT SAID PLEA OFFER WOULD 
12 A-1653-20

NO LONGER BE AVAILABLE AFTER THE 

PRETRIAL CONFERENCE. 

POINT TWO — THE FAILURE OF TRIAL 

COUNSEL TO ADVISE DEFENDANT TO ACCEPT 

THE STATE'S PLEA OFFER OF AN EIGHT YEAR 

NERA SENTENCE CAME AS A DIRECT RESULT 

OF HIS DERELICTION OF HIS DUTY TO EXPLAIN 

THE RISK AND CONSEQUENCES OF GOING TO 

TRIAL AND THE EXTENT AND IMPACT OF THE 

EVIDENCE AGAINST DEFENDANT, RESULTING 

IN DEFENDANT BEING SENTENCE[D] TO FIFTYEIGHT YEARS IN PRISON, THUS DEPRIVING 

DEFENDANT OF HIS CONSTITUTIONAL RIGHT 

TO THE EFFECTIVE ASSISTANCE OF COUNSEL. 

POINT THREE — THE DECISION BY TRIAL 

COUNSEL TO CALL THE LEAD DETECTIVE AS A 

DEFENSE WITNESS KNOWING THIS WOULD 

OPEN THE DOOR TO THE STATE HAVING THE 

DETECTIVE INFORM THE JURY DEFENDANT 

INITIALLY LIED TO THE POLICE ABOUT HIS 

WHEREABOUTS AT THE TIME OF THE 

SHOOTING, LATER ADMITTED TO BEING 

PRESENT WHEN THE SHOOTING OCCURRED, 

AND ARGUED WITH THE VICTIM BEFOREHAND, 

WAS SO ASTONISHINGLY MISINFORMED AS TO 

CONSTITUTE INEFFECTIVE ASSISTANCE OF 

COUNSEL IN AND OF ITSELF. 

POINT FOUR — THE FAILURE OF APPELLATE 

COUNSEL TO CHALLENGE ON DIRECT APPEAL 

THE TRIAL COURT'S ADMISSION OF PHOTO[]S 

EXTRACTED FROM DEFENDANT'S CELL PHONE, 

ALLEGEDLY DEPICTING HIM HOLDING A GUN 

AT LEAST ONE DAY PRIOR TO THE INCIDENT 

THAT LED TO THE VICTIM'S SHOOTING, BY 

ARGUING THEIR ADMISSION VIOLATED 
13 A-1653-20

N.J.R.E. [404(b)], DEPRIVED DEFENDANT OF HIS 

CONSTITUTIONAL RIGHT TO THE EFFECTIVE 

ASSISTANCE OF APPELLATE COUNSEL. 

In his pro se brief, defendant argues:3 

POINT ONE — DEFENDANT . . . WAS DEPRIVED 

OF DUE PROCESS AND OF A FAIR TRIAL WHERE 

DEFENDANT WOULD SHOW THAT THE VICTIM 

HAD PROVIDED FALSE TESTIMONY AGAINST 

DEFENDANT. DEFENDANT WILL SHOW THAT 

THERE IS EVIDENCE OF THE RECORD OF THIRD 

PARTY GUILT.

POINT TWO — . . . DEFENDANT . . . MOVES 

BEFORE THIS COURT TO PRESENT NEWLY 

PRESENTED EVIDENCE THAT WAS 

PREVIOUSLY UNAVAILABLE TO DEFENDANT. 

I.

We review a judge's denial of PCR without an evidentiary hearing de 

novo. State v. Jackson, 454 N.J. Super. 284, 291 (App. Div. 2018). To succeed 

on a claim for ineffective assistance of counsel, a defendant must establish both 

prongs of the Strickland v. Washington4test. State v. Parker, 212 N.J. 269, 279-

80 (2012). Under the first prong, counsel's representation must be objectively 

unreasonable. State v. Pierre, 223 N.J. 560, 578 (2015). Under the second 

3

 We granted defendant's motion to file a pro se supplemental brief and a pro se 

reply brief after the initial briefing schedule elapsed. 

4 466 U.S. 668, 687 (1984).
14 A-1653-20

prong, a "reasonable probability [must exist] that, but for counsel's 

unprofessional errors, the result of the proceeding would have been different." 

Id. at 583 (quoting Strickland, 466 U.S. at 694).

In reviewing ineffective assistance of counsel claims, we apply a strong 

presumption that defense counsel "rendered adequate assistance and made all 

significant decisions in the exercise of reasonable professional judgment." 

Strickland, 466 U.S. at 690. "[C]omplaints 'merely of matters of trial strategy' 

will not serve to ground a constitutional claim of inadequacy of representation 

by counsel." State v. Fritz, 105 N.J. 42, 54 (1987) (quoting State v. Williams, 

39 N.J. 471, 489 (1963)); see also State v. Nash, 212 N.J. 518, 543 (2013) ("The 

test is not whether defense counsel could have done better, but whether he [or 

she] met the constitutional threshold for effectiveness.").

The standard of review for assessing ineffective assistance of appellate

counsel is the same Strickland two-prong test. State v. Gaither, 396 N.J. Super. 

508, 513 (App. Div. 2007). Appellate counsel is not required to bring all nonfrivolous claims or claims that are "legally unworthy of pursuit." State v. 

Webster, 187 N.J. 254, 256 (2006).

We reject the arguments raised by defendant in points one and two of his 

brief related to the need for an evidentiary hearing to explore what plea advice 
15 A-1653-20

counsel gave defendant for the same reasons expressed by the PCR judge. These 

arguments lack sufficient merit to warrant discussion in a written opinion. R.

2:11-3(e)(2).

In point three, defendant argues trial counsel was ineffective for recalling 

Barilotti, who testified defendant provided police with a false alibi before

admitting he was in the apartment and in an altercation with Spence. Defendant 

claims this error "compounded the mistake" of going to trial and further 

demonstrates how counsel's performance prejudiced the outcome. 

Trial strategy is a matter left to the discretion of competent trial counsel. 

State v. Coruzzi, 189 N.J. Super. 273, 321 (App. Div. 1983). Informed strategic 

choices "are virtually unchallengeable[.]" Strickland, 466 U.S. at 690. Strategic 

choices made after limited investigation are given great deference and assessed 

for reasonableness. State v. Petrozelli, 351 N.J. Super. 14, 22 (App. Div. 2002). 

"[S]trategic miscalculations or trial mistakes are insufficient to warrant reversal 

'except in those rare instances where they are of such magnitude as to thwart the 

fundamental guarantee of [a] fair trial.'" State v. Castagna, 187 N.J. 293, 315

(2006) (second alteration in original) (quoting State v. Buonadonna, 122 N.J. 

22, 42 (1991)). 
16 A-1653-20

The fact that a strategy fails does not amount to ineffective assistance of 

counsel. State v. Bey, 161 N.J. 233, 251 (1999). "[A] defense attorney's 

decision concerning which witnesses to call to the stand is 'an art,' and a court's 

review of such a decision should be 'highly deferential[.]'" State v. Arthur, 184 

N.J. 307, 321 (2005) (quoting Strickland, 466 U.S. at 689, 693). 

Counsel's decision to recall Barilotti was to bolster the claim that 

defendant told Barilotti there were other people present in the apartment at the 

time of the shooting. Counsel's strategy was not thoughtless because, in both 

the defense's opening and summation, trial counsel told the jury Barilotti knew 

other people were in the apartment but failed to investigate who these people 

were. Pursuant to our de novo review, and given the deference owed to trial 

counsel's strategic decision making, we discern no reversible error.

Finally, we affirm the evidentiary decisions made by a trial court if they 

are supported by sufficient, credible evidence in the record and are not clearly 

mistaken. State v. Hathaway, 222 N.J. 453, 467 (2015). We cannot conclude 

appellate counsel was ineffective for failing to challenge the photographic 

evidence adduced at trial. The trial judge's careful analysis of the Cofield factors 

before admitting the photo evidence was not clearly mistaken and would be 

entitled to our deference had it been raised on the direct appeal. Further, we 
17 A-1653-20

previously held the jury was properly instructed that the photo evidence was 

limited to the consciousness of guilt. Waters, slip op. at 18. Given this, and the 

other evidence implicating defendant, including his statements, the text

message, and eyewitness testimony, we are unconvinced appellate counsel's

decision not to challenge the photo evidence constituted ineffective assistance. 

Appellate counsel was not obliged to make arguments that lacked merit. 

Webster, 187 N.J. at 256-57. 

To the extent we have not addressed an argument raised by defendant it is 

because it lacks sufficient merit to warrant discussion in a written opinion. See

R. 2:11-3(e)(2). 

Affirmed.