NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4965-13T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

EDWARD PEOPLES, a/k/a

RASHAWN WHITE, EDWARD D. 

WHITE,

Defendant-Appellant.

__________________________

Submitted September 21, 2015 – Decided

Before Judges Messano, Simonelli and 

Carroll. 

On appeal from the Superior Court of New 

Jersey, Law Division, Essex County, 

Indictment No. 06-08-2643.

Joseph E. Krakora, Public Defender, attorney 

for appellant (William Welaj, Designated 

Counsel, on the brief).

Carolyn A. Murray, Acting Essex County 

Prosecutor, attorney for respondent (Sara A. 

Friedman, Special Deputy Attorney General/

Acting Assistant Prosecutor, of counsel and 

on the briefs).

Appellant filed a pro se supplemental brief.

The opinion of the Court was delivered by

SIMONELLI, J.A.D.

APPROVED FOR PUBLICATION

July 6, 2016

APPELLATE DIVISION

July 6, 2016
2 A-4965-13T1

Defendant Edward Peoples appeals from the April 9, 2014 Law 

Division order, which denied his petition for post-conviction 

relief (PCR) without an evidentiary hearing. For the following 

reasons, we affirm.

I.

In August 2006, a grand jury indicted defendant for 

conspiracy to commit murder, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:11-

3(a)(1) (count one); first-degree murder, N.J.S.A. 2C:11-3(a)(1) 

and (2) (count two); first-degree attempted murder, N.J.S.A.

2C:11-3 (count three); second-degree aggravated assault, 

N.J.S.A. 2C:12-1(b)(1) (count four); third-degree unlawful 

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

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

N.J.S.A. 2C:39-4(a) (count six). The charges stemmed from the 

shooting death of Rahman Jenkins in the parking lot of the 

Baxter Terrace apartment complex in Newark. Defendant was 

represented by Paul W. Bergrin, who, after defendant's 

conviction and sentence, was suspended from the practice of law 

in this State, convicted of federal criminal offenses, and 

incarcerated in a federal prison for life. 

Marquis Grimsley, defendant's girlfriend, Anyea Williams, 

and co-defendant Joseph Richardson had given statements to the 

police inculpating defendant in Jenkins's murder and were 
3 A-4965-13T1

witnesses for the State. In August 2007, the Essex County 

Prosecutor's Office (ECPO) began an investigation of alleged 

witness tampering in defendant's case. During the 

investigation, defendant's prison cellmate reported to the ECPO

that defendant asked him to assist in preparing affidavits to 

send to witnesses saying that they lied, and provided 

information on witness intimidation tactics defendant was using. 

The cellmate also indicated that another inmate, Brandon Stokes,

had agreed to be a defense witness in exchange for Bergrin 

representing him on his criminal appeal at a discounted fee even 

though Stokes was not present at the shooting and had no 

knowledge of Baxter Terrace. 

Stokes was listed as a defense witness who defendant

proffered would testify that defendant was not in possession of 

the gun and did not shoot Jenkins; however, Stokes told the ECPO

that he was not present at and did not witness the shooting. 

Defendant concedes in his pro se supplemental merits brief that 

Stokes did not implicate Bergrin in any unethical or criminal 

conduct.

Another inmate, Gregory Smith, told the ECPO that defendant 

was coaching him to be a defense witness. Smith also gave the

ECPO a map/diagram and prepared script that defendant gave him 
4 A-4965-13T1

to tailor his testimony. Smith did not implicate Bergrin in any 

unethical or criminal conduct.

Grimsley told the ECPO that defendant threatened him to 

change his testimony and sent him an affidavit that said he lied 

to the police. The ECPO also received a letter written by 

defendant that contained threats to Richardson. Neither 

Grimsley nor the letter implicated Bergrin in any unethical or 

criminal conduct. 

Williams was under subpoena and expected to testify for the 

State that she saw defendant obtain a handgun just prior to the 

shooting and walk towards the parking lot area where Jenkins was 

killed and heard shots fired, following which defendant told her 

that he shot Jenkins. On September 25, 2007, she told the ECPO

that defendant, his mother and his sister threatened her and

told her not to appear in court. She later provided a letter 

she received from defendant, dated September 2, 2007, which 

stated as follows:

I'm really about to come home I talked to 

Paul today everything lookin[g] alright, he 

said to make sure you come to court the 

first day of my trial but just don't come 

after that because if you don't come the 

first day they just [going to] try to postpone my trial[] but if you come they [are 

going to] think they got you and they [are 

going to] start trial and once they start 

they can[']t stop.
5 A-4965-13T1

Relying solely on this letter, the State filed a motion to 

disqualify Bergrin based on a conflict of interest. The State 

argued that defendant advised Williams to evade the State's

subpoena and not appear at trial at Bergrin's instruction, and 

thus, both defendant and Bergrin attempted to tamper with 

witnesses in violation of N.J.S.A. 2C:28-5(a)(2) and (4), and 

Bergrin violated Rule of Professional Conduct 1.2(d). The State 

submitted a certification from Williams in support of the 

motion, which confirmed her receipt of the letter from defendant 

and also stated that defendant threatened her with physical harm 

if she testified against him. Williams did not say she had any 

contact with Bergrin or that Bergrin had any direct or indirect 

involvement with the letter or threats.

Defendant was assigned special counsel to represent him on

the motion. Bergrin filed opposition, but the record does not 

reveal that defendant filed opposition. However, the record 

reveals that defendant advised the court he wanted Bergrin to 

continue representing him. The judge denied the motion, finding 

there was no evidence of an organized plan that directly 

connected Bergrin to instructing defendant to tamper with 

Williams, and defendant wanted Bergrin to continue representing 

him. The judge determined that defendant knowingly attempted to 

induce Williams not to testify by instructing her not to appear, 
6 A-4965-13T1

thus denying the State evidence. Accordingly, the judge ruled 

the letter would be admissible at trial as evidence of 

defendant's guilt. 

The evidence of defendant's guilt was overwhelming. In

addition to Williams, at the trial, three eyewitnesses 

identified defendant as the shooter. On April 15, 2008, a jury 

found defendant guilty of murder (count two), attempted murder

(count three), unlawful possession of a weapon (count five), and 

possession of a weapon for an unlawful purpose (count six), and 

not guilty of conspiracy to commit murder (count one). The 

State voluntarily dismissed count four charging defendant with 

aggravated assault. 

At sentencing on August 5, 2008, the trial judge merged 

count six with count two and sentenced defendant to a sixtyfive-year term of imprisonment with an eighty-five-percent 

period of parole ineligibility pursuant to the No Early Release 

Act, N.J.S.A. 2C:43-7.2. The judge also sentenced defendant to 

a concurrent twenty-year term of imprisonment with seventeen 

years of parole ineligibility on count three, a concurrent fiveyear term of imprisonment on count five, and imposed the 

appropriate assessments and penalties. 

Nearly a year after defendant's conviction, on June 16, 

2009, Bergrin was suspended from the practice of law in New 
7 A-4965-13T1

Jersey. See In re Bergrin, 199 N.J. 309 (2009). On November 

10, 2009, a federal grand jury returned a superseding indictment 

charging Bergrin and several co-defendants with numerous 

offenses relating, in part, to the murder of an informant and 

witness tampering in a drug-trafficking case. See United States 

v. Bergrin, 650 F.3d 257 (3d Cir. 2011).

Defendant appealed his conviction and sentence. We 

affirmed, but remanded for a hearing on potential juror taint. 

State v. Peoples, No. A-5793-08 (App. Div. May 23, 2012) (slip 

op. at 16-17), certif. denied, 212 N.J. 462 (2012). In our 

opinion, we noted that defendant had tampered with Williams and 

other witnesses. Id. at 8-11. We declined to address 

defendant's ineffective assistance of counsel (IAC) argument

that Bergrin had a conflict of interest because of the federal 

indictment. Id. at 14. Over two years after defendant's 

sentencing, Bergrin was convicted in federal court and sentenced 

to life imprisonment. See United States v. Bergrin, 599 F. 

App'x 439 (3d Cir. 2014), cert. denied, ___ U.S. ___, 135 S. Ct.

2370, 192 L. Ed. 2d 159 (2015). 

Following a remand hearing in this matter, the trial judge

found no juror taint had occurred. Defendant did not appeal. 

Instead, he filed a PCR petition, arguing that Bergrin rendered 

IAC by failing to investigate and prepare a defense and instead, 
8 A-4965-13T1

engaged in witness tampering. Defendant admitted there was 

overwhelming evidence of his involvement in Jenkins's murder and

ample evidence he was involved with attempting to tamper with 

the State's witnesses, but argued that the tampering was 

conducted under Bergrin's guidance.1 

In a pro se supplemental brief, defendant added that the 

judge erred by allowing the jury unfettered access to videotaped

statements during deliberations; Bergrin was ineffective for 

failing to object to this procedure; and Bergrin gave him

illegal and unethical advice to tamper with witnesses and

recruit false alibi witnesses. Lastly, defendant argued that 

appellate counsel was ineffective during the remand hearing for 

failing to raise specific questions regarding alleged juror 

taint. In another supplemental brief, defendant added that 

Bergrin failed to challenge both the State's selective

prosecution of defendant and the police coercion of Richardson. 

Defendant did not raise any conflict of interest argument. 

In an April 9, 2014 written opinion, the judge denied the

petition without an evidentiary hearing. The judge first found 

 

1 Defendant also argued that he declined a plea offer of twenty 

years as the result of Bergrin's assurances that "after all the 

witnesses disappeared, or refused to cooperate, or witnesses 

were manufactured as alibi witnesses, the State would be unable 

to convict" defendant. However, there was no evidence that the 

State made any plea offer. 
9 A-4965-13T1

that defendant's claim of trial court error was procedurally 

barred by Rule 3:22-4(a). Addressing the merits, the judge 

found there was no evidence that the jury had unfettered access 

to the videotaped statements; the law in effect at the time did 

not preclude such access; and defendant failed to show how the 

outcome would have been different. 

The judge next determined there was no evidence implicating 

Bergrin in witness tampering or that Bergrin gave defendant 

illegal advice to tamper with witnesses. The judge found that

none of the witnesses with whom defendant tampered said that 

Bergrin directly communicated with them or indirectly 

communicated with them through defendant. The judge also found 

that even if Bergrin's performance was deficient, defendant 

failed to show that the outcome would have been different; 

rather, defendant conceded there was overwhelming evidence of 

his involvement in Jenkins's murder. Lastly, the judge found 

there was no evidence supporting defendant's remaining IAC 

claims against Bergrin and no merit to or evidence supporting 

defendant's IAC claims against appellate counsel. This appeal 

followed.

On appeal, defendant raises the following contentions in 

assigned counsel's brief:

POINT I: THE TRIAL COURT ERRED IN DENYING 

THE DEFENDANT'S PETITION FOR 
10 A-4965-13T1

[PCR] WITHOUT AFFORDING HIM AN 

EVIDENTIARY HEARING TO FULLY 

ADDRESS HIS CONTENTION THAT HE 

FAILED TO RECEIVE ADEQUATE LEGAL 

REPRESENTATION AT THE TRIAL 

LEVEL.

A. THE PREVAILING LEGAL 

PRINCIPLES REGARDING CLAIMS OF 

[IAC], EVIDENTIARY HEARINGS AND

PETITIONS FOR [PCR].

 B. TRIAL COUNSEL DID NOT PROVIDE 

ADEQUATE LEGAL REPRESENTATION TO 

THE DEFENDANT AS A RESULT OF 

COUNSEL'S FAILURE TO OBJECT TO 

THE MANNER IN WHICH THE JURY WAS 

GIVEN UNFETTERED ACCESS TO TWO 

VIDEOTAPED STATEMENTS IN THE JURY 

ROOM DURING DELIBERATIONS.

C. THE DEFENDANT DID NOT RECEIVE 

ADEQUATE LEGAL REPRESENTATION 

FROM TRIAL COUNSEL AS A RESULT OF 

COUNSEL'S FAILURE TO CONDUCT ANY 

REASONABLE PRE[-]TRIAL 

PREPARATION OR INVESTIGATION, 

INSTEAD CONVINCING THE DEFENDANT 

TO ASSIST HIM IN ENGAGING IN 

CRIMINAL CONDUCT DESIGNED TO 

TAMPER WITH WITNESSES AND 

FABRICATE TRIAL TESTIMONY.

 D. THE DEFENDANT FAILED TO 

RECEIVE ADEQUATE LEGAL

REPRESENTATION FROM TRIAL COUNSEL 

SINCE, AS A RESULT OF COUNSEL'S 

CONDUCT ASSURING THE DEFENDANT HE 

WOULD NOT BE CONVICTED AT TRIAL 

AS LONG AS HE FOLLOWED HIS 

INSTRUCTIONS AND ADVICE, HE 

REJECTED THE STATE'S PLEA 

RECOMMENDATION AND INSTEAD 

PROCEEDED TO TRIAL, SUBSEQUENTLY 

RECEIVING A [SIXTY-FIVE] YEAR 

TERM WITH AN [EIGHTY-FIVE] 
11 A-4965-13T1

PERCENT PAROLE DISQUALIFIER AT 

SENTENCING, MORE THAN THREE TIMES 

GREATER THAN THE STATE'S PLEA 

OFFER.

In a pro se supplemental brief, defendant raises the 

following contentions:

POINT I: [IAC] DUE TO TRIAL COUNSEL'S 

ILLEGAL ADVICE, CRIMINAL CONDUCT, 

AND LACK OF PREPARATION.

 POINT II: [IAC] DUE TO TRIAL COUNSEL'S 

MULTIPLE CONFLICTS.

POINT III: COUNSEL ASSIGNED TO THE APPELLATE 

REMAND HEARING CONDUCTED ON 

SEPTEMBER 28, 2012 WAS 

INEFFECTIVE FOR FAILURE TO RAISE 

SPECIFIC QUESTIONS FOR THE COURT 

TO ASK THE ALLEGED TAINTED JUROR 

THAT WERE PERTINENT TO THE ISSUE 

AT HAND.

POINT IV: INEFFECTIVE ASSISTANCE OF DIRECT 

APPEAL APPELLATE COUNSEL.

POINT V: THE CUMULATIVE EFFECT OF THE 

ERRORS COMPLAINED OF RENDERED THE 

TRIAL UNFAIR.

To establish an IAC claim, a defendant must satisfy the 

two-pronged test formulated in Strickland v. Washington, 466 

U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 

(1984), and adopted by our Supreme Court in State v. Fritz, 105 

N.J. 42, 58 (1987). First, a defendant must show "that counsel 

made errors so serious that counsel was not functioning as the 

counsel guaranteed . . . by the Sixth Amendment." Fritz, supra, 
12 A-4965-13T1

105 N.J. at 52 (quoting Strickland, supra, 466 U.S. at 687, 104 

S. Ct. at 2064, 80 L. Ed. 2d at 693). 

Second, a defendant must prove that he suffered prejudice 

due to counsel's deficient performance. Strickland, supra, 466 

U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. A 

defendant must show by a "reasonable probability" that the 

deficient performance affected the outcome. Fritz, supra, 105 

N.J. at 58. "If [a] defendant establishes one prong of the 

Strickland-Fritz standard, but not the other, his claim will be 

unsuccessful." State v. Parker, 212 N.J. 269, 280 (2012).

The mere raising of a claim of IAC does not entitle the

defendant to an evidentiary hearing. State v. Cummings, 321 

N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 

(1999). "A defendant shall be entitled to an evidentiary 

hearing only upon the establishment of a prima facie case in 

support of post-conviction relief . . . ." R. 3:22-10(b). A 

"prima facie case" requires that a defendant "demonstrate a 

reasonable likelihood that his or her claim, viewing the facts 

alleged in the light most favorable to the defendant, will 

ultimately succeed on the merits[,]" ibid., and must be 

supported by "specific facts and evidence supporting his 

allegations." State v. Porter, 216 N.J. 343, 355 (2013); see

also Cummings, supra, 321 N.J. Super. at 170 (holding that "a
13 A-4965-13T1

petitioner must do more than make bald assertions that he was 

denied the effective assistance of counsel"). "Because postconviction relief is not a substitute for direct appeal and 

because of the public policy 'to promote finality in judicial 

proceedings,' our rules provide various procedural bars." State 

v. Echols, 199 N.J. 344, 357 (2009) (citations omitted) (quoting 

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

"[A] petitioner may be barred from relief if the petitioner 

could have raised the issue on direct appeal but failed to do 

so, Rule 3:22-4[, or] the issue was previously decided on direct 

appeal, Rule 3:22-5[.]" Ibid. The effect of Rule 3:22-4 is 

that PCR will be precluded if any ground for relief could have 

been raised at trial or on appeal. State v. Afanador, 151 N.J.

41, 50 (1997). We review a judge's decision to deny a PCR 

petition without an evidentiary hearing for abuse of discretion. 

State v. Preciose, 129 N.J. 451, 462 (1992). 

We have considered defendant's contentions in Point I.B. of 

assigned counsel's brief and in Points III, IV and V of 

defendant's pro se supplemental brief in light of the record and 

applicable legal principles and conclude they are without 

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

2:11-3(e)(2). We affirm substantially for the reasons expressed 

by the judge in his written opinion. 
14 A-4965-13T1

We reject defendant's contention in Point I.D. of assigned 

counsel's brief regarding defendant's alleged rejection of a 

plea offer. We reiterate there is no evidence the State made 

any plea offer to defendant. 

We also reject defendant's contention in Point II of his 

pro se supplemental brief, raised for the first time on appeal, 

that Bergrin had a conflict of interest because the ECPO was 

actively investigating him for witness tampering. We decline to 

consider questions or issues not presented to the trial court 

when an opportunity for such a presentation was available unless 

the matter involves the trial court's jurisdiction or is of 

public importance. State v. Robinson, 200 N.J. 1, 20 (2009). 

No exception applies here. In any event, for the following 

reasons, the argument lacks merit. 

Our Supreme Court has "adhered to a two-tiered approach in 

analyzing whether a conflict of interest has deprived a 

defendant of his state constitutional right to the effective 

assistance of counsel." State v. Cottle, 194 N.J. 449, 467 

(2008). "In those cases in which [the Court has] found a per se 

conflict, prejudice is presumed in the absence of a valid 

waiver, and the reversal of a conviction is mandated." Ibid.

However, the Court has limited findings of a conflict to cases 

in which an attorney is "contemporaneously under indictment in 
15 A-4965-13T1

the same county as his client, and being prosecuted by the same 

prosecutor's office . . . absent a valid waiver by the client." 

Id. at 473. 

Defendant waived any conflict of interest when he advised 

the court that he wanted Bergrin to continue representing him. 

In addition, the ECPO investigation report reveals that 

defendant was the focus of witness tampering, not Bergrin, and

none of the witnesses the ECPO interviewed implicated Bergrin in 

defendant's witness tampering scheme. Moreover, the State did 

not rely on the ECPO investigation to disqualify Bergrin, and 

there never was any determination that Bergrin was involved in

defendant's witness tampering.

Insofar as defendant argues, as he did on direct appeal, 

that Bergrin's conflict of interest stemmed from his federal 

indictment, we reject that argument as well. A federal grand 

jury returned an indictment in November 2009, two years after 

defendant's conviction. There was no evidence as to when 

federal authorities were investigating Bergrin and no evidence 

that the ECPO participated in that investigation. Unlike in 

Cottle, supra, where the defense attorney "was under indictment 

and subject to prosecution during the entire period of his 

representation," 194 N.J. at 466, there was no evidence that 

Bergrin was contemporaneously under indictment at the same time 
16 A-4965-13T1

as defendant, and Bergrin was not being prosecuted by the same 

prosecutor's office. Accordingly, there was no conflict of 

interest mandating reversal of defendant's conviction.

II.

We next address defendant's contention in Point I.C. of 

assigned counsel's brief and Point I of defendant's pro se 

supplemental brief that he is entitled to IAC relief based on 

Bergrin's illegal and unethical advice to tamper with witnesses. 

There is no doubt that defendant tampered with witnesses, 

but there is no competent evidence that Bergrin was directly or 

indirectly involved. Even if Bergrin was involved, defendant is 

not entitled to IAC relief when he participated in the illegal

conduct or acquiesced in that conduct. 

The notion that a defendant could successfully raise an IAC 

claim when he engaged in illegal conduct in collusion with his 

attorney or acquiesced in the attorney's illegal conduct has not 

been squarely addressed by our courts. By way of analogy, our 

Supreme Court has denied IAC relief to a defendant who claimed 

that but for trial counsel's deficient advice concerning 

sentencing consequences, and even though he was not guilty, he 

would have pled guilty rather than go to trial. State v. 

Taccetta, 200 N.J. 183, 192 (2009). The Court noted that "an 

attorney would be engaged in professional misconduct if he or 
17 A-4965-13T1

she knowingly assisted a client to perpetrate a fraud on the 

court by assisting or encouraging a client to lie under oath." 

Id. at 196. In denying IAC relief, the Court concluded as 

follows:

If a trial court cannot accept a guilty 

plea that is known to be false, then it 

would be strange indeed for a PCR court to 

vacate a jury verdict following a fair trial 

on the ground that [the] defendant would 

have taken an advantageous plea offer with a 

limited sentence exposure if only he had 

been given the opportunity to lie under 

oath. A court cannot give its imprimatur to 

perjury or in any way suggest that the 

requirement of a truthful factual basis at a 

plea colloquy is an empty formality.

[Id. at 197.]

As the Court further noted, "[j]ust because we are powerless to 

control or eliminate every negative practice in our criminal 

justice system does not mean that we must condone those 

practices." Id. at 198. 

Other jurisdictions have addressed the issue of a defendant 

engaging or acquiescing in illegal conduct and afforded the 

defendant no IAC relief. For example, in Arnett v. State, 938 

P.2d 1079 (Alaska Ct. App. 1997), the defendant claimed that 

trial counsel rendered ineffective assistance by illegally 

advising him to abscond from trial and assisting him in 

absconding. Id. at 1082. The Court of Appeals of Alaska held 
18 A-4965-13T1

the defendant was not entitled to IAC relief, reasoning as 

follows:

We have no doubt that a lawyer who counsels 

a client to commit a crime for tactical gain 

acts incompetently. But by the same token, 

this form of advice falls so far beyond the 

pale of anything that could conceivably be 

considered legitimate legal assistance that 

a defendant's voluntary reliance on it is 

tantamount to a willing abandonment of 

competent representation. A defendant who 

voluntarily commits a crime on advice of 

counsel ought not to be allowed to impute 

blame to the attorney or to claim prejudice 

stemming from the attorney's incompetence; 

for in almost all such cases, the 

defendant's own voluntary acts will be a 

superseding cause of any resulting 

misfortune. 

[Id. at 1083.]

The court concluded that, even assuming there was attorneyclient collusion, "[t]o grant relief in this case would permit 

[the defendant] to reap a windfall new trial on account of his 

own [crime]. We cannot allow this tempting gambit for counsel 

and client. In the circumstances alleged by [the defendant], 

[the defendant] must remain responsible for his own misconduct." 

Ibid. (third alteration in original) (citations omitted).

In DeHaven v. State, 618 So.2d 337 (Fla. Dist. Ct. App. 

1993), the defendant claimed that he presented differing 

versions of the victim's shooting to trial counsel and counsel 

said he preferred to use the version more favorable to the 
19 A-4965-13T1

defendant. Id. at 339. The Florida District Court of Appeals

stated that whether or not the defendant's IAC claim was true, 

[t]his motion does not present the picture 

of a hapless defendant whose lawyer 

knowingly or negligently ignored available 

evidence in favor of a less viable defense, 

nor of an unsophisticated individual 

deceived by an overzealous or unscrupulous 

advocate. It is an admission of having 

knowingly perpetrated a fraud upon the 

court. Even if it were true that counsel 

joined in or encouraged such misconduct -

and we have only [the defendant's]

allegation this occurred - this might be a 

matter for the Florida Bar, but would not 

require vacation of [the defendant's]

conviction.

[Id. at 339-340.]

In Commonwealth v. McNeil, 487 A.2d 802, 807 (Pa. 1985), 

the defendant claimed that trial counsel advised him to render 

perjured testimony. Id. at 616-17. Finding the defendant 

freely and deliberately chose to offer false testimony, the 

Supreme Court of Pennsylvania held that IAC relief is not 

available to a defendant who "attempts to reap a windfall new 

trial on account of his own perjury". Id. at 618. The court 

reasoned as follows:

[t]he criminal justice system cannot and 

will not tolerate such an obvious and 

flagrant affront to the integrity of the 

truth determining process thinly disguised 

under the rubric of ineffective assistance. 

. . . [T]o hold otherwise would create a 

situation wherein a defendant, by design, 

could build into his case ineffective 
20 A-4965-13T1

assistance of counsel claims, thus 

guaranteeing himself a basis for a new trial 

if the verdict were adverse to him.

[Id. at 618-19 (citation omitted).]

In Kelley v. State, 644 S.W. 2d 571, 573 (Tex. Ct. App. 

1982), defense counsel attempted to dispose of evidence. 

Though describing counsel's action as "reprehensible," the Court 

of Appeals of Texas denied IAC relief to the defendant, finding 

that he acquiesced in the tactic. Id. at 574.

Guided by the above principles, we hold that a defendant 

who participates in illegal conduct in collusion with his 

attorney or acquiesces in the attorney's illegal or unethical 

conduct is not entitled IAC relief. We will not tolerate what 

amounts to a fraud on the court, and will not permit a defendant 

who participates or acquiesces in his attorney's illegal or 

unethical conduct to reap any benefit of IAC relief. To hold 

otherwise would impermissibly permit a defendant to build an IAC

claim into his case, thus guaranteeing him a basis for reversal 

of an adverse verdict. 

Affirmed.