SUPERIOR COURT OF NEW JERSEY 

 APPELLATE DIVISION 

 DOCKET NO. A-2429-21 

STATE OF NEW JERSEY, 

 Plaintiff-Respondent, 

v. 

JESUS DEJESUS, a/k/a 

JESUS T. FLORES, 

JESUS DE JESUS, 

JESUS FLORES, 

JESUS TORRES-FLORES, 

JESUS TORRES, and 

JAMES DEJESUS, 

 Defendant-Appellant. 

__________________________ 

Submitted January 10, 2024 – Decided January 31, 2024 

Before Judges Vernoia and Gummer. 

On appeal from the Superior Court of New Jersey, Law 

Division, Passaic County, Indictment No. 12-09-0693. 

Joseph E. Krakora, Public Defender, attorney for 

appellant (Amira Rahman Scurato, Designated 

Counsel, 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NOT FOR PUBLICATION WITHOUT THE 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 A-2429-21

Camelia M. Valdes, Passaic County Prosecutor, 

attorney for respondent (Ali Y. Ozbek, Assistant 

Prosecutor, of counsel and on the brief). 

Appellant filed pro se supplemental briefs. 

PER CURIAM 

Defendant Jesus DeJesus appeals from an order dismissing his postconviction relief (PCR) petition following an evidentiary hearing on claims his 

trial and appellate counsel provided ineffective assistance and the trial court 

committed errors resulting in a violation of his constitutional rights. 

Unpersuaded by defendant's arguments, we affirm. 

I.

A grand jury returned an indictment charging defendant with first-degree 

armed robbery, N.J.S.A. 2C:15-1(a)(1) and (2); second-degree possession of a 

firearm for an unlawful purpose, N.J.S.A. 2C:39-4(a); second-degree unlawful 

possession of a weapon, N.J.S.A. 2C:39-5(b); and second-degree possession of 

a weapon by a convicted person, N.J.S.A. 2C:39-7(b). A jury convicted 

defendant on all the charges and the court imposed an aggregate twenty-year 

sentence subject to the requirements of the No Early Release Act, N.J.S.A. 

2C:43-7.2. We affirmed defendant's conviction and sentence on his direct 

appeal, State v. DeJesus, No. A-4464-15 (App. Div. May 24, 2018) (slip op. at 
3 A-2429-21

11), and the Supreme Court denied defendant's petition for certification, State 

v. DeJesus, 236 N.J. 115 (2018). 

The evidence presented at defendant's trial established that on June 19, 

2012, the victim was seated on a bench on a Paterson street when an individual 

approached her from behind, held a gun to her face, and threatened to kill her if 

she did not hand over her purse. When the victim refused, the individual pulled 

her to the ground and attempted to wrestle the purse from her while dragging 

her approximately one hundred feet down the sidewalk. The individual pulled 

the bag off the victim's shoulder and began running. The victim testified she 

began feeling severe pain the night of the incident and continued to feel chronic 

pain at the time of trial. 

Two witnesses saw the altercation and chased the individual. They 

followed him as he ran down the street and through a Passaic County College 

building, eventually catching the individual as he attempted to scale a wall. The

witnesses pulled him from the wall and held him until police arrived. He was 

later identified as defendant. 

Police officers arrested defendant and retrieved the purse from where the 

witnesses held defendant. The victim testified at trial that when she had been 

asked during her police interview to make an identification, she had said, "I 
4 A-2429-21

didn't see him until the police came back and asked me if [the bag they had 

retrieved] was my purse and there was a man inside [the police car] and [t]he 

[officer said] was this the guy? I told him I think so" because "he has my purse, 

so it must have been him." 

The witnesses positively identified defendant as the perpetrator when the 

police arrived at the scene. A police officer returned to Passaic County College 

and retrieved a gun from a campus security officer who had placed it under a 

traffic cone after responding to a report an "item" was dropped and observing it 

on the floor outside the college's cafeteria. It was later determined to be a pellet 

gun. 

At the police station following defendant's arrest, Detective Robert 

Pleasant conducted separate recorded interviews with the victim and each of the 

witnesses. During their interviews, the witnesses identified defendant as the 

perpetrator in a single photograph shown to them by Detective Pleasant. The 

detective did not prepare a report following the interviews and, although the 

State had made contact with him prior to trial, Detective Pleasant reportedly had 

retired to Florida and refused to testify at trial.
5 A-2429-21

During the pretrial Wade1 hearing on defendant's motion to suppress the 

witnesses' out-of-court photo identifications of him, his counsel noted that 

recordings of the empty interview room during the minutes prior to one of the 

witness's entry into the room for his recorded interview included audio of what 

appeared to be a discussion by unidentified individuals.2 Trial counsel asserted 

that although the recording picked up, in part, statements made prior to the 

witness's entry into the room for his interview, the transcript of the recording 

did not include those statements and that failure should be a fact considered by 

the court in its determination of defendant's motion to suppress the out-of-court 

identifications made during the recorded interviews of the witnesses. 

The court granted defendant's Wade motion. The court analyzed the 

admissibility of the witnesses' recorded out-of-court identifications of defendant 

during their interviews with Detective Pleasant under the principles established

by the Supreme Court in State v. Henderson, 208 N.J. 208 (2011), and entered 

1

 United States v. Wade, 388 U.S. 218 (1967). 

2

 A third witness also made a pretrial out-of-court identification of defendant 

based on a presentation of a photograph of defendant by Detective Pleasant. It 

was unnecessary for the motion court to address the admissibility of that 

witness's out-of-court identification because he was unavailable to testify at 

trial. The parties also had agreed that the victim's identification of defendant 

was not at an issue at the Wade hearing, and, as a result, the motion court did 

not make any findings concerning the victim's identification of defendant. 
6 A-2429-21

an order suppressing the witnesses' identifications of defendant during those 

recorded interviews. 

Following our affirmance of defendant's convictions and sentence on his 

direct appeal, and the Supreme Court's denial of his petition for certification, 

defendant timely filed a pro se PCR petition. Defendant generally alleged trial 

counsel was ineffective by failing to: adequately confront the witnesses 

presented by the State at trial; call favorable witnesses; object to the admission 

in evidence of the victim's purse; call "a key witness," Detective Pleasant, and 

question him "about material facts in his incident report"; and obtain an audio 

expert to determine what, if anything, could be heard on the recording prior to 

one of the witness's entry into the interview room for his interview with 

Detective Pleasant. 

In a supplementary verified petition, defendant reprised the claims in his 

initial petition and further asserted trial and appellate counsel were ineffective 

by failing to: "review and attack substantial exculpatory evidence"; provide 

defendant with complete discovery materials; challenge the admissibility of 

evidence concerning the victim's alleged injuries; call certain witnesses

defendant claimed would have provided exculpatory testimony; and seek 
7 A-2429-21

vacatur of his sentence and a reversal of his conviction. After reviewing 

defendant's petitions, the court ordered an evidentiary hearing. 

Defendant testified at the hearing and called trial counsel as a witness. 

Defendant testified trial counsel was ineffective by failing to provide him with 

complete discovery and that, following his trial, he had obtained from the 

Paterson Police Department—through service of an Open Public Records Act 

(OPRA), N.J.S.A. 47:1A-1 to -13, request—documents he had not been provided 

prior to trial. Defendant did not describe the information contained in the newly 

obtained documents or offer any testimony, evidence, or arguments establishing 

a reasonable probability that had he been provided the documents prior to trial, 

the result of the trial would have been different. 

Defendant also testified counsel was ineffective by failing to object at trial 

to the victim's testimony concerning injuries she had suffered during the robbery 

and by failing to obtain records related to her injuries. Again, defendant neither 

provided testimony, nor presented any other evidence, explaining the content of 

the purported records or establishing that had he been provided the records prior 

to the trial, there is a reasonable probability they would have altered the outcome 

of the trial. 
8 A-2429-21

Defendant further testified that following trial, he had obtained a dispatch 

record from the Paterson Police Department that did not show a particular 

officer—whom defendant did not identify—had arrived at the scene of the 

robbery. Defendant testified the dispatch record therefore contradicted a State 

claim at trial that the officer was at the robbery scene. Defendant did not identify 

the officer, explain the significance of the officer's presence at the scene, or 

otherwise establish that had trial counsel obtained and provided him with the 

dispatch record prior to trial, the result of the proceeding would have been 

different. 

Defendant next testified trial counsel was ineffective by failing to obtain 

an audio expert to extract otherwise indecipherable statements from the portion 

of the recording of the empty interview room prior to the entry of one of the 

witnesses into the room for his interview. However, other than defendant's 

testimony that extraction of the otherwise indecipherable voices on the 

recording might have yielded exculpatory evidence, defendant offered no 

competent evidence the extraction was possible or would have been successful, 

or that if it had been successful, there is a reasonable probability it would have 

yielded evidence that would have changed the trial outcome. 
9 A-2429-21

During his testimony, defendant asserted trial counsel was ineffective by 

losing the Wade motion, but the record shows defendant won the Wade motion 

and the court had entered an order suppressing the challenged out-of-court 

identifications—those which were provided by the witnesses during their 

recorded interviews with Detective Pleasant. Defendant further generally 

testified trial counsel was ineffective by failing to: move to dismiss the 

indictment; challenge the witnesses' in-court identifications of him; and move 

to suppress the victim's purse and photos of the gun. Other than defendant's 

conclusory assertions trial counsel was ineffective based on those purported 

errors, defendant neither offered testimony nor any other evidence establishing 

trial counsel's alleged errors constituted a constitutionally deficient performance 

or demonstrating a reasonable probability that but for the alleged errors, the 

result of the trial would have been different. 

Following the evidentiary hearing, the court issued a written decision, 

detailing defendant's testimony supporting his ineffective assistance of counsel 

claims and concluding defendant had failed to sustain his burden of establishing 

his claims under the two-pronged standard established by the United States 

Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984), and adopted 

by our Supreme Court for application under the New Jersey Constitution in State 
10 A-2429-21

v. Fritz, 105 N.J. 42 (1987). The motion court entered an order denying 

defendant's PCR petition, and this appeal followed.

Defendant's counsel's brief presents the following arguments for our 

consideration: 

POINT I 

BECAUSE DEFENDANT RECEIVED 

INEFFECTIVE ASSISTANCE OF COUNSEL, THE 

PCR COURT ERRED IN DENYING DEFENDANT'S 

PETITION FOR PCR. 

A. LEGAL STANDARDS GOVERNING 

APPLICATIONS FOR [PCR]. 

B. TRIAL COUNSEL WAS INEFFECTIVE. 

C. APPELLATE COUNSEL WAS INEFFECTIVE. 

Defendant's pro se supplemental letter brief presents the following 

arguments3: 

3

 Defendant's pro se reply brief includes additional arguments not properly 

incorporated in point headings as required by Rule 2:6-2(a)(6), including claims 

concerning third-party guilt, chain-of-custody, fruit of the poisonous tree, 

prosecutorial misconduct, suggestive identification, and a lack of evidence 

supporting his convictions. Although we are not obligated to consider legal 

arguments that are not properly presented in accordance with Rule 2:6-2(a), 

Almog v. Isr. Travel Advisory Serv., Inc., 298 N.J. Super. 145, 155 (App. Div. 

1997), or that are improperly asserted for the first time on appeal in a reply brief, 

Bacon v. N.J. State Dep't of Educ., 443 N.J. Super. 24, 38 (App. Div. 2015), we 

nonetheless have considered all the arguments asserted in defendant's pro se 

briefs, as well as those in his counsel's brief. 
11 A-2429-21

POINT I 

JURY'S VERDICT AND [DEFENDANT'S] 

CONVICTION W[ERE] AGAINST THE WEIGHT OF 

THE EVIDENCE IN VIOLATION OF THE 

FOURTEENTH AMENDMENT TO THE UNITED 

STATES CONSTITUTION AND ALSO TO ARTICLE 

I PARA[S] 9, 10 OF THE NEW JERSEY 

CONSTITUTION AND [ARE] THE [RESULT] OF 

INEFFECTIVE ASSISTANCE OF COUNSEL. 

POINT II 

JUDGE FAILED [THEIR] DUTY AS [AN] 

IMPARTIAL TRIBUNAL VIOLATING 

DEFENDANT'S RIGHT TO DUE PROCESS AND A 

FAIR TRIAL BY GIVING ERRONEOUS JURY 

INSTRUCTIONS INCLUDING MISINSTRUCTION 

ON ELEMENTS OF [THE] OFFENSE AND TRIAL 

COUNSEL FAILED TO OBJECT TO THE ABSENCE 

OF PROPER JURY INSTRUCTIONS. 

POINT III 

JUDGE'S ERROR WAS CONTRARY TO APPRENDI 

V. NEW JERSEY, [530 U.S. 466 (2000)]. IN HIS 

IMPLEMENTING [OF] [DEFENDANT]'S JURY 

CHARGE, JURY INSTRUCTION ON FLIGHT 

WITHOUT THERE BEING ANY FORM OF 

INDICTMENT ON SUCH CHARGE WITH NO 

ADMISSION FROM [DEFENDANT] HIMSELF ON 

SAID CHARGE, TRIAL COUNSEL WAS 

INEFFECTIVE FOR FAILING TO OBJECT TO SAID 

ERRONEOUS JURY INSTRUCTION. 
12 A-2429-21

POINT IV 

DEFENSE COUNSEL FAILED DUTY AS 

UNTRAMMELED LITIGANT ON DEFENDANT'S 

BEHALF VIOLATING DEFENDANT'S RIGHT TO 

EFFECTIVE ASSISTANCE OF COUNSEL AS 

GUARANTEED BY THE SIXTH AMENDMENT TO 

THE U.S. CONSTITUTION. 

In defendant's pro se reply brief, he presents the following arguments: 

POINT I 

[DEFENDANT] SUBMITS THAT THE CHARGE TO 

HIS JURY WAS ILLEGAL AND FLAWED IN 

ADDRESSING THE POSSESSION CHARGE [] 

SUFFICIENT TO SUSTAIN A CONVICTION ON 

ALLEGED "POSSESSION OF A GUN" THUS HIS 

CONVICTION AND SENTENCE MUST BE 

REVERSED WITH PREJUDICE. THE ERRONEOUS 

JURY CHARGE DEPRIVED [DEFENDANT] AND 

HIS JURY OF A "PROXIMITY CHARGE" AS THE 

N.J. SUPREME CT. [H]AD DEALT WITH IN STATE 

V. PENA, [178 N.J. 297 (2004)]. 

POINT II 

NEW JERSEY STATE COURTS MUST BECOME IN 

COMPLIANCE WITH 5[TH] AMEND. 

COLLATERAL CONSEQUENCES RULE[—]IN 

ORDER TO PROTECT [DEFENDANT]'S STATE 

AND FEDERAL CONSTITUTIONAL RIGHTS TO A 

FUNDAMENTALLY FAIR JURY TRIAL AND TO 

BE LEGALLY ABLE TO ARTICULATE 

SUCCESSFUL MERITORIOUS ARGUMENT[S] 

SURROUNDING INEFFECTIVE ASSISTANCE OF 

COUNSEL CLAIMS. 
13 A-2429-21

POINT III 

[DEFENDANT] SUBMITS THAT THE PROFFER 

HEREIN VALIDATES HIS GROSS INEFFECTIVE 

ASSISTANCE OF COUNSEL CLAIMS FROM 

TRIAL COUNSEL, APPEAL COUNSEL AND PCR 

COUNSEL CONTRARY TO HIS 6[TH] AND 5[TH] 

AMEND. U.S. CONST. RIGHTS, AS 

ARTICULATED AS WELL IN N.J. CONST. ART. I, 

PARA[S]. 1, 8, 9 & 10 – WHERE [DEFENDANT] 

WAS ILLEGALLY DEPRIVED RECORDINGS OF 

THE CONVERSATIONS OUTSIDE THE 

INTERROGATION ROOM AS PART OF THE 

RECORDED RECORD ON THE [FOUR] DVD[]S 

THAT [WERE] PROVIDED WHERE COMMENTS 

OVERHEARD WERE VERY REVEALING OF 

OFFICERS ATTEMPTING TO ELICIT 

PREJUDICIAL COMMENTS FROM WITNESSES 

AND COERCING WITNESSES IN WHAT TO SAY, 

THIS WAS A VIOLATION OF [DEFENDANT]'S 

FUNDAMENTAL LIBERTY INTEREST TO 

PREPARE FOR A FAIR JURY TRIAL WITH 

UNHAMPERED INTERFERENCE SUFFICING A 

DEFENSE AGAINST RESPONDENT'S 

ALLEGATIONS CONTRARY TO THE U.S. CONST. 

14[TH] AMEND. 

A. [DEFENDANT] SUBMITS THAT CONTENT OF 

INTERNAL THE INTERNAL CONVERSATIONS & 

EXTERNAL CONVERSATIONS REPRESENT 

EFFICIENT, ACCURATE & RELIABLE DATA ON 

THE [FOUR] DVD[]S, AND DENIAL WAS A 

DEPRIVATION TO HIS DEFENSE—CONTRARY 

TO HIM BEING LEGALLY AND 

CONSTITUTIONALLY ENTITLED TO HAVE 

TRANSCRIPTION OF BOTH INTERNAL 

CONVERSATIONS [AND] EXTERNAL 

CONVERSATIONS PURSUANT TO HIS 5[TH] 
14 A-2429-21

AMEND. [AND] 14[TH] AMEND. U.S. CONST. AND 

N.J. CONST. ART. I, PARA[S]. 1, 8, 9 & 10. 

B. THE PUBLIC DEFENDER'S OFFICE (CENTRAL 

OFFICE/ APPELLATE SECTION) RENDERED 

GROSS INEFFECTIVE ASSISTANCE OF COUNSEL 

IN ALLOWING [DEFENDANT]'S COUNSEL [] TO 

START A JURY TRIAL WITH SIGNIFICANT 

INADEQUACIES IN THE TRIAL TRANSCRIPTS 

[AND] RECORDS CONTRARY TO 

[DEFENDANT]'S 14[TH] AMEND. U.S. CONST. 

RIGHTS VIOLATING DUE PROCESS CLAUSE, 

EQUAL PROTECTION CLAUSE AND 

FUNDAMENTAL PROTECTIONS OF THE N.J, 

CONST. ART. I, PARA[S]. 1, 8, 9 & 10. 

POINT IV 

THE PROSECUTOR[]S IN THE CASE AT BAR 

CREATED AN ATMOSPHERE OF MISCONDUCT 

IN VIOLATION OF [DEFENDANT]'S U.S. CONST. 

14[TH] AMEND. RIGHTS TO A FUNDAMENTAL 

FAIR JURY TRIAL, GRAVELY CONTRARY TO 

THE SEMINAL HOLDING IN MOONEY V. 

HOLOHAN, [294 U.S. 103 (1935)]. 

A. THE PROSECUTOR'S OFFICE COMMITTED 

GRAVE PROSECUTORIAL MISCONDUCT IN 

KNOWINGLY, INTELLIGENTLY [AND] WITH 

DELIBERATE ILL-INTENTION, ALLOW[ING] 

[DEFENDANT]'S TRIAL TO PROCEED WITH 

SIGNIFICANT INADEQUACIES IN THE TRIAL 

EVIDENCE, TRANSCRIPTS/RECORDS [AND] 

SAME WAS NEVER CORRECTED PRIOR TO THE 

START OF TRIAL. 
15 A-2429-21

II. 

 We review a PCR court's conclusions of law de novo. State v. Nash, 212

N.J. 518, 540-41 (2013). Where, as here, the court has conducted an evidentiary 

hearing on a PCR petition, we defer to the "court's factual findings based on its 

review of live witness testimony," id. at 540, because of its "'opportunity to hear 

and see the witnesses and to have the feel of the case, which a reviewing court 

cannot enjoy,'" State v. Nuñez-Valdéz, 200 N.J. 129, 141 (2009) (citations 

omitted). We must affirm the PCR court's factual findings unless they are not 

supported by "sufficient credible evidence in the record" and "'are so clearly 

mistaken "that the interests of justice demand intervention and correction."'" 

Ibid. (citations omitted). 

The Sixth Amendment to the United States Constitution and Article I,

Paragraph 10 of the New Jersey Constitution guarantee a defendant in a criminal 

proceeding the right to the assistance of counsel in their defense. The right to 

counsel requires "the right to the effective assistance of counsel." Nash, 212

N.J. at 541 (quoting Strickland, 466 U.S. at 686).

To establish a prima facie case of ineffective assistance of counsel, a 

defendant must show a "reasonable likelihood" of success under the two-prong 

test outlined in Strickland. State v. Preciose, 129 N.J. 451, 463 (1992); see also 
16 A-2429-21

Strickland, 466 U.S. at 694; Fritz, 105 N.J. at 58. The Strickland test requires 

that defendant show (1) "counsel made errors so serious that counsel was not 

functioning as the 'counsel' guaranteed . . . by the Sixth Amendment" and (2) 

counsel's "deficient performance prejudiced the defense." Fritz, 105 N.J. at 52 

(quoting Strickland, 466 U.S. at 687). "With respect to both prongs of the 

Strickland test, a defendant asserting ineffective assistance of counsel on PCR 

bears the burden of proving his or her right to relief by a preponderance of the 

evidence." State v. Gaitan, 209 N.J. 339, 350 (2012) (citations omitted). If a 

defendant fails to sustain his burden under either prong of the standard, a 

defendant's ineffective assistance of counsel claim fails. Strickland, 466 U.S. at 

687. 

Under the first prong, a defendant must show "counsel's acts or omissions 

fell outside the wide range of professionally competent assistance considered in 

light of all the circumstances of the case." State v. Allegro, 193 N.J. 352, 366 

(2008) (citation omitted). Our analysis under the first prong is highly deferential 

to counsel. State v. Arthur, 184 N.J. 307, 318-19 (2005) (citing Strickland, 466 

U.S. at 689). There is "'a strong presumption' that [counsel] provided reasonably 

effective assistance" and counsel's "decisions followed a sound strategic 

approach to the case[,]" State v. Pierre, 223 N.J. 560, 578-79 (2015) (quoting 
17 A-2429-21

Strickland, 466 U.S. at 689), even when a strategic decision turns out to be a 

mistake, State v. Buonadonna, 122 N.J. 22, 42 (1991). A defendant may rebut 

the presumption of effectiveness by proving trial counsel's actions were not 

"sound trial strategy." Arthur, 184 N.J. at 319 (quoting Strickland, 466 U.S. at 

689). 

Under the second Strickland prong, a defendant must "affirmatively 

prove" "a reasonable probability that, but for counsel's unprofessional errors, 

the result of the proceeding would have been different." State v. Gideon, 244 

N.J. 538, 551 (2021) (quoting Strickland, 466 U.S. at 693-94). "A reasonable 

probability is a probability sufficient to undermine confidence in the outcome." 

Id. (citations omitted). Proof of prejudice under Strickland's second prong "is 

an exacting standard." Id. at 551 (quoting Allegro, 193 N.J. at 367). A 

defendant "must affirmatively prove prejudice" in a PCR petition to satisfy the 

second prong of the Strickland standard. Ibid. (quoting Strickland, 466 U.S. at 

693). 

 Defendant's counseled and pro se briefs include numerous arguments, all 

of which we have carefully considered. For purposes of clarity, we consider 

them separately as claims of ineffective assistance of trial counsel and of alleged 

violations of his constitutional rights, including claims of ineffective assistance 
18 A-2429-21

of appellate counsel as they pertain to the alleged violations of constitutional 

rights. We consider the arguments included in each of those categories in turn. 

A.

 Defendant argues trial counsel was ineffective by failing to conduct a 

proper pretrial investigation. More particularly, defendant claims trial counsel 

failed to: consult with an audio or sound expert to determine if any 

communications that were otherwise inaudible or indecipherable on the 

recordings from the interview room could be recovered or extracted from the 

recordings; obtain reports from the Paterson Police Department that defendant 

procured following his trial pursuant to an OPRA request; investigate facts in 

the police officers' incident reports; challenge testimony regarding the victim's 

injuries; and investigate "third-party guilt."

 Where a defendant alleges trial counsel inadequately investigated a case, 

the defendant must present competent evidence establishing what an 

investigation would have revealed. State v. Porter, 216 N.J. 343, 355 (2013). 

And, as noted, a defendant must present evidence establishing an ineffective 

assistance of counsel claim by a preponderance of the evidence. See Gaitan, 

209 N.J. at 350.
19 A-2429-21

 Here, defendant did not present any evidence at the evidentiary hearing 

establishing what the claimed omitted investigations would have revealed. That 

is, defendant presented no evidence establishing that had his counsel consulted 

with an audio expert, pertinent information could have been, or would have 

been, extracted from the recordings. Similarly, defendant failed to demonstrate 

what investigations of "third-party guilt," the reports from the Paterson Police 

Department, and police incident reports would have revealed. And defendant's 

conclusory claims—in his testimony and briefs on appeal—that counsel should 

have conducted those investigations are insufficient to sustain his burden of 

proving by a preponderance of the evidence trial counsel's performance was 

deficient under Strickland's first prong. See State v. Cummings, 321 N.J. Super. 

154, 170 (App. Div. 1999) (explaining "bald assertions" are insufficient to 

support an ineffective assistance of counsel claim). Counsel's performance is 

not deficient by failing to conduct an investigation that would have not revealed 

anything that mattered. See, e.g., State v. O'Neal, 190 N.J. 601, 619 (2007) 

(holding "[i]t is not ineffective assistance of counsel for defense counsel not to 

file a meritless motion"). 

 Defendant's claims trial counsel was ineffective by failing to conduct the 

investigations and challenge the victim's testimony about her injuries also fail 
20 A-2429-21

because defendant did not affirmatively establish there is reasonable probability 

that but for counsel's alleged errors, the result of defendant's trial would have 

been different. Gideon, 244 N.J. at 551. Indeed, defendant did not present any 

evidence at the hearing, and points to no evidence in his briefs on appeal, 

establishing that he suffered prejudice under Strickland's second prong as a 

result of trial counsel's alleged failures to investigate any of the matters or issues 

he raised in his petition or the evidentiary hearing. For those reasons, we affirm 

the PCR court's rejection of defendant's claim his trial counsel was ineffective 

by failing to conduct proper pretrial investigations. 

 Defendant's other claims regarding trial counsel's ineffectiveness fail for 

similar reasons. Defendant argues the PCR court erred by rejecting his claim 

trial counsel had been ineffective by failing to object on chain-of-custody 

grounds to the admission of the purse the victim identified at trial as having been 

stolen from her during the robbery and the gun recovered from the building the 

witnesses testified they had chased defendant through, and by failing to object 

to the admissibility of the purse and gun on grounds they should have been 

suppressed as "fruits of the poisonous tree." We find the claims without 

sufficient merit to warrant discussion in a written opinion, R. 2:11-3(e)(2), 

beyond the following brief comments. 
21 A-2429-21

 The fruit of the poisonous tree doctrine requires the suppression of 

evidence seized as the result of a constitutional violation or based on evidence 

seized as the result of a constitutional violation. See, e.g., Wong Sun v. United 

States, 371 U.S. 471, 485 (1963); State v. Hemenway, 239 N.J. 111, 139 (2019). 

Defendant argues trial counsel should have moved to suppress the purse and gun 

as fruits of the poisonous tree because the court had determined at the Wade 

hearing that the witnesses' out-of-court identifications of defendant were 

inadmissible. The fruit of the poisonous tree doctrine, however, is inapplicable 

to the seizure of the gun and purse because they were recovered by the police 

prior to the witnesses' out-of-court identifications and, therefore, could not have 

been fruits of those improperly obtained identifications. 

 Lacking any factual or legal bases supporting a valid suppression motion 

under the fruit of the poisonous tree doctrine, trial counsel's failure to move to 

challenge the admissibility of the gun and purse on those grounds was not 

deficient performance under Strickland's first prong. O'Neal, 190 N.J. at 619; 

see also State v. Worlock, 117 N.J. 596, 625 (1990). Defendant therefore also 

could not, and did not, demonstrate prejudice under Strickland's second prong 

based on counsel's purported errors.
22 A-2429-21

 Similarly, defendant presented no evidence establishing a valid basis for 

an objection to the admission of the gun and purse on chain-of-custody grounds. 

"To satisfy the requirement of authenticating or identifying an item of evidence, 

the proponent of the evidence must present evidence sufficient to support a 

finding that the item is what its proponent claims." N.J.R.E. 901. The State 

bore that burden as to the gun and purse. 

 To establish a proper foundation for admission of gun and purse, the State 

was required to "show[ ]. . . an uninterrupted chain of possession" of each. State 

v. Brunson, 132 N.J. 377, 393 (1993). "[W]here the incriminating object has 

passed out of the possession of the original receiver and into the possession of 

others, the 'chain of possession' must be established to avoid any inference that 

there has been substitution or tampering." State v. Brown, 99 N.J. Super. 22, 27

(App. Div. 1968) (citation omitted). 

 The hearing record lacks any evidence establishing a valid basis 

supporting an objection to the admission of the gun and purse on chain-ofcustody grounds. The police maintained possession of the gun following its 

recovery after the robbery, and the victim retained the purse after it had been 

returned to her following the robbery. Again, trial counsel was not ineffective 

by failing to interpose a baseless objection to the admission of the evidence, 
23 A-2429-21

Cummings, 321 N.J. Super. at 170, and defendant did not present evidence 

establishing a reasonable probability that but for counsel's failure to interpose 

the objection, the result of his trial would have been different, Gideon, 244 N.J. 

at 551. 

 Defendant also failed to sustain his burden under Strickland on his 

conclusory claims counsel had been ineffective by failing to properly crossexamine witnesses and by failing to anticipate that the State would introduce 

evidence concerning the victim's injuries. Defendant does not point to any 

evidence establishing trial counsel did not properly cross-examine witnesses or 

did not anticipate the State would present evidence concerning the victim's 

injuries. But, even if he had, defendant did not affirmatively prove by a 

preponderance of the evidence that he suffered any prejudice under Strickland's 

second prong as a result of the purported errors. Ibid. 

 In sum, defendant's claims trial counsel was ineffective consist of nothing 

more than conclusory assertions. See Cummings, 321 N.J. Super. at 170. None 

of the claims is supported by evidence establishing trial counsel did not function 

"as the 'counsel' guaranteed . . . by the Sixth Amendment" or that counsel's 

alleged errors "prejudiced the defense." Fritz, 105 N.J. at 52 (quoting 

Strickland, 466 U.S. at 687). Defendant failed to establish by a preponderance 
24 A-2429-21

of the evidence that trial counsel had been ineffective under the Strickland 

paradigm. We therefore affirm the PCR court's rejection of those claims. 

B.

Defendant also vaguely argues he is entitled to PCR because he was 

denied his right to a fair trial due to prosecutorial misconduct, errors in the jury 

charge on the possessory weapons offenses, a lack of sufficient evidence 

supporting his convictions, and the absence of DNA or fingerprint evidence 

establishing he had possessed the gun that was recovered and introduced in 

evidence. We reject the claims for a number of separate but equally dipositive 

reasons. 

First, defendant's claim he was denied his right to a fair trial due to alleged 

prosecutorial misconduct—alleged inflammatory remarks by the State during 

closing arguments at trial—is barred under Rule 3:22-5, which provides that "[a] 

prior adjudication upon the merits of any ground for relief [in a PCR petition] is 

conclusive whether made in the proceedings resulting in the conviction or in any 

post-conviction proceedings brought pursuant to" Rule 3:22. Under the Rule, 

an argument is precluded from consideration "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) (citations omitted). 
25 A-2429-21

Defendant raised his prosecutorial misconduct claim on direct appeal. He 

argued that the prosecutor's inflammatory comments during summation, 

including "[i]t's your turn, get involved, convict on all charges, ladies and 

gentlemen" amounted to prosecutorial misconduct. DeJesus, slip op. at 6. We

"strongly condemn[ed]" the prosecutor's comments, id. at 8, but determined they 

had been fleeting and "not so egregious as to have deprived defendant of a fair 

trial[,]" id. at 9 (citing State v. Smith, 167 N.J. 158, 181 (2001)). Thus, because 

we considered and rejected the claim the comments had deprived defendant of 

a fair trial, he is precluded from relitigating the issue on his PCR petition. 

Marshall, 173 N.J. at 351; R. 3:22-5. 

We are unpersuaded by defendant's remaining claims that he was denied 

his right to a fair trial. We discern no error in the court's jury instructions on 

the possessory weapons offenses. The absence of DNA evidence or fingerprint 

evidence showing defendant possessed the gun presented a jury issue as to the 

strength of the State's evidence, but it did not deny defendant a fair trial. And, 

defendant makes no showing that any purported failure to provide him with 

discovery—certain police reports—prior to trial resulted in a violation of his 

right to a fair trial because defendant did not establish that the alleged failure to 

provide the reports deprived him of exculpatory evidence or prevented him from 
26 A-2429-21

presenting an available defense. Cf. State v. Szemple, 247 N.J. 82, 100-01 

(2021) (citation omitted) (finding "suppression by the prosecution of evidence 

favorable to an accused upon request violates due process where the evidence is 

material either to guilt or to punishment, irrespective of the good faith or bad 

faith of the prosecution"). 

We also reject defendant's claim he was deprived of a fair trial as result 

of the trial court's cumulative errors. Because we have determined defendant 

was not deprived of any rights affecting his entitlement to a fair trial, he is unable 

to establish there is any cumulative error that rendered either his trial or the 

jury's verdict unfair. State v. Jenewicz, 193 N.J. 440, 473 (2008). 

We note defendant also argues appellate counsel was ineffective by failing 

to assert on direct appeal the claims he now makes in support of his contention 

he was denied a fair trial. The argument fails because appellate counsel was not 

ineffective by failing to make meritless arguments on appeal, see, e.g., O'Neal, 

190 N.J. at 619, and, for the reasons we have explained, defendant's claims he 

was denied a fair trial lack support in the law and facts. 

 To the extent we have not expressly addressed any of defendant's 

remaining arguments, we find they are without sufficient merit to warrant 

discussion in a written opinion. R. 2:11-3(e)(2). 
27 A-2429-21

 Affirmed.