SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1236-18T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

TARI D. TURPIN, a/k/a

TARID TURPIN, TARI TURRIN,

and TARI DEMOND TURPIN,

Defendant-Appellant.

______________________________

Submitted January 27, 2020 – Decided July 6, 2020

Before Judges Sumners and Geiger.

On appeal from the Superior Court of New Jersey, Law 

Division, Hudson County, Indictment No. 14-05-0885.

Joseph E. Krakora, Public Defender, attorney for 

appellant (David J. Reich, Designated Counsel, on the 

brief).

Esther Suarez, Hudson County Prosecutor, attorney for 

respondent (Erin M. Campbell, Assistant Prosecutor, 

on the brief).

PER CURIAM

NOT FOR PUBLICATION WITHOUT THE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-1236-18T3

In the early morning hours of August 25, 2013, defendant was a passenger 

on a Port Authority Trans-Hudson (PATH) train when he got into a verbal 

argument with two other passengers, D.D.1and A.M., and then shot them with 

a handgun loaded with hollow point bullets. 

In June 2015, a jury found defendant guilty of two counts of aggravated 

assault, possession of a gun for an improper purpose, possession of a gun 

without a permit, making terroristic threats, possession of hollow point bullets,

and creating a risk of widespread injury or damage. Defendant was later 

sentenced to a twenty-year prison term, subject to the No Early Release Act 

(NERA), N.J.S.A. 2C:43-7.2, for the aggravated assault of D.D., and a 

consecutive ten-year prison term, subject to NERA, for the aggravated assault 

of A.M. Defendant’s conviction and sentences were affirmed on direct appeal. 

State v. Turpin, No. A-1745-15T2 (App. Div. June 8, 2017), certif. denied, 231 

N.J. 539 (2017). 

On January 8, 2018, a self-represented defendant filed a petition for PCR2

claiming his trial counsel was ineffective for failing to: (1) appropriately advise

 

1

 We use the victims' initials to protect their privacy.

2

 As noted infra, defendant's petition was later supplemented by assigned PCR

counsel.
3

A-1236-18T3

him to testify in his own defense; (2) impeach D.D. with her most recent 

conviction; (3) review discovery with him; (4) defend against the charge of 

assault of A.M.; (5) investigate D.D.; and (6) interview witnesses. On 

September 17, the PCR judge, who did not preside over defendant's trial, issued 

an order and twelve-page written decision dismissing the petition without an 

evidentiary hearing. In denying relief, the judge determined defendant failed to 

establish a prima facie case of ineffective assistance of counsel under the twoprong test of Strickland v. Washington, 466 U.S. 668, 687, 694 (1984) and State 

v. Fritz, 105 N.J. 42, 58 (1987), that the performance of trial counsel was

deficient and that, but for the deficient performance, the result would have been 

different at trial.

Before us, defendant contends:

POINT I

THE PCR COURT ERRED IN NOT GRANTING

[DEFENDANT] AN EVIDENTIARY HEARING

REGARDING HIS CLAIM HIS COUNSEL WAS

INEFFECTIVE IN ADVISING HIM NOT TO

TESTIFY.

POINT II

THE PCR COURT ERRED IN NOT GRANTING

[DEFENDANT] AN EVIDENTIARY HEARING

REGARDING HIS CLAIM HIS COUNSEL WAS

INEFFECTIVE IN NOT IMPEACHING A KEY
4

A-1236-18T3

WITNESS AGAINST HIM WITH HER RECENT

CONVICTION FOR THIRD-DEGREE

AGGRAVATED ASSAULT.

POINT III

 

DEFENSE COUNSEL WAS INEFFECTIVE IN

FAILING TO TAILOR HIS SUMMATION TO THE

JURY CHARGE KNOWN TO BE FORTHCOMING

AND IN FAILING TO REQUEST A SEPARATE

JURY CHARGE CONCERNING CAUSATION.

Considering these arguments in light of the record and applicable legal 

standards, we affirm the PCR judge’s decision as to Points I and II for the 

reasons set forth in his written decision. However, as to Point III, although 

raised for the first time in this appeal, we conclude defendant established a prima 

facie claim and remand for an evidentiary hearing to avoid an unjust result as to 

the aggravated assault of A.M. The hearing shall address why counsel did not 

argue in summation that defendant's conduct of bringing a loaded handgun onto 

a PATH train was not reckless and why counsel failed to request a jury charge 

regarding causation. 

I.

Because the PCR judge did not conduct an evidentiary hearing on 

defendant's petition, we may review de novo the factual inferences the court has 
5

A-1236-18T3

drawn from the record. State v. O'Donnell, 435 N.J. Super. 351, 373 (App. Div. 

2014). 

The shooting is summarized as follows:

At about 4:30 a.m., while riding the PATH train from 

New York to Jersey City, defendant and his female 

companion got into an argument with another 

passenger, D.D. During the argument, defendant pulled 

out a gun [out of his pants (shorts) pocket], and then 

returned it to his pocket. He then began to pull the gun 

back out of his pocket, and D.D.'s friend, A.M, 

intervened. According to A.M., he put his left hand 

over the pocket containing the gun, and put his right 

hand on defendant's wrist in an effort to keep him from 

pulling out the gun. Defendant fired the gun, shooting 

off three fingers of A.M.'s left hand but also wounding 

himself in the leg. By this time the train had reached 

Jersey City, and defendant exited the train, still holding 

the gun. He paused, turned, and fired two shots at D.D., 

hitting her once in the leg and shattering her ankle.

Defendant fled through the PATH station, discarding 

the gun on a ledge, where it was later recovered by the 

police. Shortly after the incident, the police 

apprehended defendant a few blocks from the PATH 

station. The shooting set off a panic inside the PATH 

station and resulted in a shutdown of PATH train 

service.

Virtually the entire incident, including defendant 

committing the shootings and discarding the gun, was 

captured by the PATH system's security video cameras. 

The videos were played for the jury. The State also 

presented testimony from the individual from whom 

defendant obtained the gun, a Glock 9 model loaded 

with hollow point bullets.
6

A-1236-18T3

[Turpin, slip op. at 3-4 (footnote omitted) (internal 

citation omitted).]

II.

We address defendant's claims in the order presented to us.

A.

Counsel’s Advice to Defendant Not to Testify

In his PCR petition, defendant contended his decision not to testify at trial

was due to trial counsel's ineffective assistance in advising him not to testify. 

After considering the trial record and the parties' arguments, the PCR judge 

determined the contention was without merit. We agree. 

After the State rested and outside the jury's presence, defense counsel 

notified the court defendant was the only defense witness and asked the court to 

voir dire him regarding his decision to testify. Counsel stated: 

I've advised [defendant] so there's no

miscommunications that if he testifies[,] he will be 

subject to cross-examination, one, with regard to his 

three prior felony convictions which include, I want to 

say, burglaries or thefts in or about 1999. They will be 

sanitized. And he has a gun conviction in 2005 out of 

[the] State of New York. He received a three with a 

one. That the State would be able to ask him [to] say 

the degree of the crime and the sentence he received.

. . . .
7

A-1236-18T3

Also, I've advised him that he runs the risk and the State 

will, if they want, impeach him with his statement. 

Even though the [c]ourt has suppressed his statement to 

[police] . . . if he testifies[,] he could be impeached with 

that.

So, at this time, it's [defendant's] decision.

The following colloquy ensued:

THE COURT: Okay, . . . what you want to do? You 

want to be a witness or not?

[DEFENDANT]: Yes.

THE COURT: You want to testify? Okay. . . . I didn't 

hear.

[DEFENDANT]: Yes.

THE COURT: All right. And as [your counsel] 

explained to you, I suppressed [the] statement you 

made to the police based upon the law. But if you say 

something that's contradictory to what was said in the 

statement they have the right to impeach you . . . or 

present it to you and then . . . show the jury you said 

something different at a different time. That's what 

impeach means. You understand that?

[DEFENDANT]: Yes.

THE COURT: And you also understand that your prior 

convictions, they'll all be . . . sanitized. The jury will 

be made aware of your prior convictions, the date of the 

offense, and the sentence you received and the degree 

of the crime. You understand that?

[DEFENDANT]: Yes.
8

A-1236-18T3

THE COURT: Okay. All right.

Immediately after the colloquy, counsel's request for a five-minute break 

was granted by the court. When the proceedings resumed, counsel stated

defendant had changed his mind about testifying. The court then engaged 

defendant as follows:

THE COURT: Okay. . . . [I]t's your decision you do 

not want to testify?

[DEFENDANT]: Yes.

THE COURT: That's your decision? . . . [O]f course 

you've consulted with [trial counsel]. He's done a 

wonderful job representing you. But it's your decision 

not his, you understand that?

[DEFENDANT]: Yes.

THE COURT: And . . . you don't want to testify. You're 

sure?

[DEFENDANT]: Yes.

THE COURT: Okay. 

To offset his representations to the trial court, defendant's affidavit in 

support of PCR provides:

I wanted to testify at trial to explain to the jury how I 

was not the aggressor, yet it [was A.M.] who attacked 

me. We were surrounded by a large group of 

intoxicated individuals on the PATH train that night. 
9

A-1236-18T3

The actions that I took were justified to defend myself, 

[my female companion], and her two children. I 

explained this [to] my trial attorney, yet he advised 

against me taking the stand despite my insistence that I 

need to tell the jury what really happened that night 

from my perspective.

With this record in mind, the PCR judge found counsel was not ineffective 

in advising defendant regarding the ramifications of testifying. The judge 

reasoned:

The record is clearly indicative of two things: first, that 

defendant unequivocally decided to not take the stand 

when pressed, resolutely stood by his position. Second, 

this decision was a strategic one, made easier by the 

risk of impeachment of defendant with his extensive 

array of prior indelible offenses convictions and 

involvements with the criminal justice system. 

Considering this argument under the Strickland lens, 

defendant’s argument must fail because a strategic 

decision agreed-to and affirmed-by a defendant on-therecord of his choice in not taking the stand does not 

overcome the strong presumption that counsel's 

conduct fell outside the "wide range of professionally 

competent assistance[.]" 466 U.S. at 690; see also 

Pressler & Verniero, Current N.J. Court Rules, cmt. 1.1 

on R. 3-22-2(a) (2019).

The PCR judge explained that because defendant could not satisfy the first prong 

of Strickland, analysis of the second prong was not necessary.

We discern no basis to disturb the PCR judge's ruling on this issue. Our 

examination of defendant's claim and review of the record convinces us 
10 A-1236-18T3

defendant has not established by a preponderance of evidence a prima facie case 

of ineffective assistance of trial counsel when he chose not to testify at his trial

and, thus, there was no need for an evidentiary hearing. See State v. Nash, 212 

N.J. 518, 526 (2013) (holding defendant has the burden to establish his or her 

right to PCR "by a preponderance of the credible evidence") (quoting State v. 

Preciose, 129 N.J. 451, 459 (1992)); Preciose, 129 N.J. at 462 (ruling a court 

reviewing a PCR petition based on claims of ineffective assistance of counsel 

has the discretion to grant an evidentiary hearing if a defendant establishes a 

prima facie showing in support of the requested relief); see also State v. 

Cummings, 321 N.J. Super. 154, 170 (App. Div. 1999) (holding the mere raising 

of a claim for PCR does not entitle a defendant to an evidentiary hearing). There 

were no disputed issues of material facts regarding defendant's decision to 

exercise his right not to testify that prevented the PCR judge from resolving 

defendant's claim. See State v. Porter, 216 N.J. 343, 354 (2013). 

Defendant contends counsel gave him "extremely poor advice," and 

counsel's quick, last minute consultation with him was insufficient to adequately 

fulfill the minimal professional norms under our Rules of Professional Conduct. 

RPC 1.2(a) requires that "[i]n a criminal case, the lawyer shall consult with his 

client and, following consultation, shall abide by the client's decision on . . . 
11 A-1236-18T3

whether to testify." RPC 1.4(c) requires "[a] lawyer shall explain a matter to 

the extent reasonably necessary to make informed decisions . . . ." Yet, 

defendant failed to present any competent evidence, such as a certification, that 

these RPCs were violated. 

There was no indication counsel did not properly consult defendant, 

thereby rendering defendant's allegations as nothing more than "bald 

assertions," and falling short of establishing a prima facie claim of ineffective 

assistance. See Cummings, 321 N.J. Super. at 154. It is evident from the trial 

record that defendant's decision not to testify was ultimately his choice. The 

mere fact defendant chose not to testify and was found guilty is not a reflection 

that counsel's advice regarding the potential consequences of testifying 

constituted ineffective assistance.

We add further that even assuming counsel was ineffective in his advice 

to defendant regarding defendant's decision not to testify, there is no basis to 

conclude defendant was prejudiced under Strickland's second prong due to 

counsel's advice. Defendant's credibility would have been significantly 

questioned due to his criminal record, and there is no plausible basis to conclude 

his testimony would have altered the jury's verdict. 
12 A-1236-18T3

B.

Counsel’s Failure to Impeach D.D. 

Defendant's PCR petition contended trial counsel was ineffective for not 

seeking to impeach D.D.'s credibility by presenting evidence she was convicted 

of a third-degree aggravated assault just two weeks prior to the trial. Again, the 

PCR judge examined the trial record and determined the contention was without 

merit. We agree. 

In the midst of the argument with D.D., defendant pulled out a gun, and 

then returned it to his pocket. D.D. testified that after she attempted to 

deescalate the argument with defendant "[m]y friend [A.M.] he comes out of 

nowhere. Like, I didn't see which direction he comes from. And he swings at 

. . . defendant . . . and its instant[ly], like physical altercation. So, instant fight. 

And we hear a shot go off." The bullet shot off three of A.M.'s fingers and 

entered defendant's own leg. Surveillance video of the incident shows by this 

time the train had reached its Jersey City stop, and after a protracted struggle 

over the weapon with A.M., defendant exited the train, still holding the Glock 

9. Defendant paused, turned, and fired two shots at D.D., hitting her once in the 

leg and shattering her ankle. 

During D.D.'s direct examination, the State preemptively disclosed she 

was on probation at the time of the incident due to her conviction of a fourth-
13 A-1236-18T3

degree crime but had successfully completed her probation before trial. On 

cross-examination, trial counsel attempted to impeach D.D.'s credibility by 

pointing out the conviction was for "recklessly using a weapon, specifically, a 

knife, to commit an aggravated assault." However, counsel did not have D.D. 

reveal to the jury that two weeks prior to trial, she was convicted of third-degree 

aggravated assault.

The PCR judge rejected defendant's claim that counsel was ineffective for 

not bringing up D.D.'s two-week old conviction because defendant was not 

prejudiced. The judge reasoned:

[Defendant] fails to more strenuously consider the other 

evidence at trial . . . [D.D.'s] testimony as well as the 

PATH security video recording that captured "virtually 

the entire incident, including defendant committing the 

shooting and discarding the gun." (Turpin, slip op. at

2). Accordingly, not only is the [c]ourt unmoved that 

trial counsel's decision not to further impeach [D.D.] 

was based solely on a failure to investigate that [S]tate's 

witnesses record, but that further impeachment would 

not have had a modicum of effect in light of the other 

evidence presented to the jury.

Defendant reiterates his argument that trial counsel's failure to impeach 

D.D. using her most recent conviction of aggravated assault was ineffective 

assistance of counsel. He argues the conviction was for a higher degree and 

there was no reason for trial counsel not to confront D.D. about it, unless he was 
14 A-1236-18T3

not aware of it. He asserts D.D. depicted herself as a reformed person; having 

completed her probation and attending college to study criminal justice. That 

portrayal and being a shooting victim, according to defendant, enhanced her 

credibility before the jury, which could have been materially negated if the jury 

was aware of her most recent and more serious criminal offense. Defendant 

posits this would have shown that D.D. and A.M. were the initial aggressors, 

establishing his right to defend himself and the shooting of A.M. was an 

accident. We are unpersuaded. 

Generally, a criminal defense counsel should impeach an adversarial 

witness's credibility based upon the witness's criminal convictions, especially 

where, as here, the witness was convicted of a third-degree offense a mere two 

weeks prior to her testimony. However, defendant's reliance on State v. Holmes, 

290 N.J. Super. 302, 313 (App. Div. 1996) to support his assertion that trial 

counsel was ineffective for not seeking to impeach D.D. on her most recent 

conviction is unavailing. 

We take no umbrage with defendant's citation to Holmes, where we noted 

"[t]he cross-examination of government witnesses regarding prior convictions 

is extraordinarily dear to defense counsel. . . . [E]very effort must be made to 

make a jury aware of government witnesses' prior conviction." Id. at 312. We 
15 A-1236-18T3

also do not disagree with our further comment in Holmes, cited by defendant, 

that

[t]he failure of defense counsel to impeach the 

credibility of the State's principal witnesses by reason 

of their prior criminality as well as by reason of their 

hopes and fears as a result of their vulnerable status, is 

impossible to square with the concept of effective 

representation. Under no possible scenario could this 

be viewed as within the range of legitimate decisions as 

to how best to represent a criminal defendant.

[Id. at 314.]

In Holmes the failure to impeach the State's witness, who committed numerous 

violent crimes, was prejudicial because there was "a pitched credibility battle 

between defendant and the [eye-witnesses]. The outcome of the case depended 

on who the jury believed." Id. at 308-10, 312.

Defendant, however, has failed to show he was prejudiced, as Strickland's 

second prong requires, because counsel failed to impeach D.D.'s credibility by 

confronting her concerning her most recent conviction. Considering the 

surveillance video's depiction of the entire incident and D.D.'s testimony that 

her friend, A.M., was the instigator of the incident, we join with the PCR judge 

in concluding there has been no showing that impeaching D.D.'s credibility 

beyond the State's introduction of her fourth-degree conviction with her more 

recent third-degree conviction would have resulted in a different trial outcome. 
16 A-1236-18T3

While the recent conviction could have tarnished D.D.'s credibility, her 

testimony proved more helpful to defendant; noting she was drunk and had 

engaged defendant in a quarrel before attempting to deescalate the situation once 

defendant unveiled the gun, and that A.M.'s actions precipitated the shooting. 

And, unlike the defendant in Holmes, defendant did not testify or present 

witnesses, thus, he did not present any testimony contradicting D.D.'s testimony. 

Hence, the PCR judge fittingly denied defendant's request for an evidentiary 

hearing.

C.

Counsel’s Failure to Tailor His Summation to the Forthcoming Jury 

Charge Regarding Recklessness and Failure to Request a Jury Instruction 

on Causation.

Defendant's last PCR argument derives from the trial court's jury 

instruction and trial counsel's summation as they relate to the shooting of A.M. 

He contends trial counsel was ineffective for not tailoring his summation to the 

forthcoming jury charge regarding recklessness, and for not requesting a jury 

instruction on causation. Defendant acknowledges the PCR judge did not 

address contentions that trial counsel was ineffective for not arguing lack of 

recklessness in his summation and not seeking a jury instruction on causation. 

Defendant contends even though PCR counsel did not raise these contentions at 

oral argument, we can address them because "[t]he points raised . . . are derived 
17 A-1236-18T3

from statements by . . . defendant in his certifications and pro se brief" and 

"that there is sufficient information in the record for this court to address these 

points." 

Our review of defendant's self-represented verified PCR petition and 

certification, as well as the brief and the undated certification subsequently 

prepared by assigned PCR counsel, show neither contended trial counsel failed 

to argue to the jury that defendant lacked recklessness in the shooting or to seek 

a jury instruction on causation related to the aggravated assault charge against 

A.M. See R. 3:22-8 ("The petition shall be verified by defendant and shall set 

forth with specificity the facts upon which the claim for relief is based, the legal 

grounds of complaint asserted, and the particular relief sought."). Since the 

contentions were not raised before the PCR judge, defendant must show plain 

error, meaning trial counsel's alleged ineffectiveness was "clearly capable of 

producing an unjust result," R. 2:10-2., affecting his "substantial rights," State 

v. Chew, 150 N.J. 30, 82 (1997) (quoting United States v. Olano, 507 U.S. 725, 

734 (1993)). We therefore review the record relevant to defendant's contentions.

Prior to summation, counsel moved to dismiss the charge of aggravated 

assault of A.M., arguing the indictment only listed the requisite mental state of 

"purposely and knowingly" while D.D.'s testimony reflected the serious bodily 
18 A-1236-18T3

injury caused to A.M. was either reckless, inadvertent, or in self-defense.3 In 

denying the motion, the trial judge cited N.J.S.A. 2C:1-8(d)(3), which provides:

A defendant may be convicted of an offense included 

in an offense charged whether or not the included 

offense is an indictable offense. An offense is so 

included when:

 . . . . 

(3) It differs from the offense charged only in the 

respect that a less serious injury or risk of injury to the 

same person, property or public interest or a lesser kind 

of culpability suffices to establish its commission.

The judge found "that reckless is a lesser count of culpability." Counsel then 

advised the judge he objected to instructing the jury on recklessness.

During summation, trial counsel stated:

[T]he [j]udge is going to instruct you on the law. And 

I can only argue the facts that have been presented to 

you. I can't make them up. I can only tell you.

So, you're going to hear the [j]udge instruct you on 

aggravated assault. And [A.M.'s] own words, even if 

accepted by all of you as true, does not constitute an 

aggravated assault. It doesn't.

 

3

 N.J.S.A. 2C:12-1(b)(1) provides "[a] person is guilty of aggravated assault if 

the person . . . [a]ttempts to cause serious bodily injury to another, or causes 

injury purposely or knowingly or under circumstances manifesting extreme 

indifference to the value of human life recklessly causes such injury[.]" 

(Emphasis added).
19 A-1236-18T3

It's – you heard [A.M.] specifically say I grabbed it – I 

– well, he didn't say he punched him. [D.D.] said he 

punched him. He denied it, even though the video 

shows he did it. I grabbed his pocket. There was a 

struggle.

Gun went off. That's not purposefully. That's not 

knowingly. That's not aggravated assault which was 

charged in the indictment. 

While counsel argued A.M. grabbed the gun in defendant's pocket, he made no 

reference to defendant not being reckless. 

The prosecutor, in her summation argued:

Now, even if you don't believe that defendant shot him 

[A.M.] purposely and knowingly. The [j]udge will still 

tell you that you can find his conduct was so reckless 

that he is still guilty of aggravated assault. 

And I submit to you in determining recklessness. What 

is the conduct of a reasonable person? Did the 

defendant's conduct deviate so much from the standard 

of care by bringing a loaded Glock with hollow point 

bullets on to a PATH train, packed with people. His 

own two infant children. Was that a gross deviation 

that resulted in the serious bodily injury to [A.M.]? I 

submit to you it was.

After summation, the judge denied counsel's objection to the State's 

comments regarding recklessness. The judge thereafter charged the jury that to 

find defendant guilty of aggravated assault they must find he "acted purposely 

or knowingly or acted recklessly." The judge gave the jury extensive 
20 A-1236-18T3

instructions on recklessness. The judge did not include any instruction on 

causation, nor was it requested by either party.

It is apparent that because trial counsel did not argue to the jury 

defendant's actions were not reckless, the jury was left to consider the State's

argument that it could find defendant guilty of aggravated assault against A.M. 

if he was reckless, and the judge instructed the jury likewise. The State argued 

defendant was reckless by merely bringing a loaded gun on a crowded PATH 

train. Defendant now argues counsel's failure to address the mental state of 

recklessness left him defenseless to the State's summation argument. Defendant 

asserts this was compounded by counsel's failure to seek a causation charge4and 

 

4

 Defendant cites Model Jury Charges (Criminal), "CAUSATION (N.J.S.A. 

2C:2-3)" (approved June 2013), which provides when reckless or negligent 

conduct is involved:

Causation has a special meaning under the law. To 

establish causation, the State must prove two elements, 

each beyond a reasonable doubt:

First, but for the defendant's conduct, the result in 

question would not have happened. In other words, 

without defendant's actions the result would not have 

occurred.

. . . . 
21 A-1236-18T3

failure to argue A.M. was shot due to his superseding conduct in reaching inside 

defendant's pocket for the gun and causing it to fire. If the request had been 

made, defendant contends the trial court would have been obliged to grant it. 

See State v. Green, 86 N.J. 281, 289-90 (1981) (ruling requests involving 

essential and fundamental issues or substantially material matters should be 

honored); State v. Belliard, 415 N.J. Super. 51, 70 (App. Div. 2010) 

(determining the failure to tailor jury instructions to defense that volitional acts 

of others could break the causal chain was plain error).

While we can find no legal authority that a trial counsel's failure to request 

a jury instruction constituted ineffective assistance, our Supreme Court 

concluded in State v. O'Neil, 219 N.J. 598, 615-17 (2014) that appellate counsel 

can be found ineffective for failing to raise a jury instruction issue. Specifically, 

in O'Neil, the Court found the appellate counsel's failure to challenge the lack 

of a self-defense jury charge was deficient. Id. at 606, 612-13.

 

Second, [for reckless conduct] that the actual result 

must have been within the risk of which the defendant 

was aware. If not, it must involve the same kind of 

injury or harm as the probable result and must also not 

be too remote, too accidental in its occurrence or too 

dependent on another's volitional act to have a just 

bearing on the defendant's liability or on the gravity of 

his/her offense.
22 A-1236-18T3

Given A.M.'s conduct in placing himself into the quarrel between 

defendant, defendant's female companion, and D.D., by putting his hand inside 

defendant's pocket – after defendant put the gun back in his pocket – to take 

control of the gun, coupled with the State's argument that defendant was reckless 

for carrying a loaded gun onto a public train, the jury's consideration of A.M.'s 

conduct may have resulted in a different outcome on the conviction for 

aggravated assault of A.M. had counsel addressed defendant's reckless state of 

mind or lack thereof and requested a causation charge. Because we conclude 

there is no illuminating theory as to why counsel did not argue a defense to 

recklessness during summation and did not request a jury charge regarding 

causation, defendant has made a prima facie case of ineffective assistance of 

counsel. 

We therefore remand for an evidentiary hearing to determine whether trial

counsel considered arguing defendant was not reckless and why a causation 

charge was not requested. If at the hearing, the PCR judge determines defendant 

satisfies his claim that counsel's performance fell below professional norms, the 

judge should determine the probability of whether the jury's verdict on 

aggravated assault against A.M. might have been different. 
23 A-1236-18T3

Defendant shall be permitted to supplement the record with any 

documentation and legal argument that would have been provided in his PCR 

petition. Of course, the State shall have the right to respond. The PCR judge 

shall conduct a case management conference within thirty days of this decision 

to schedule the remand submissions and hearing. We express no view on the 

merits of defendant's contentions.

Affirmed in part, reversed in part, and remanded for proceedings

consistent with this opinion. We do not retain jurisdiction.