RECORD IMPOUNDED

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3853-19

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MICHAEL CAWLEY,

Defendant-Appellant.

________________________

Submitted May 3, 2021 – Decided August 23, 2021

Before Judges Messano and Hoffman.

On appeal from the Superior Court of New Jersey, Law 

Division, Bergen County, Indictment No. 08-12-2127.

Joseph E. Krakora, Public Defender, attorney for 

appellant (Steven M. Gilson, Designated Counsel, on 

the brief).

Mark Musella, Bergen County Prosecutor, attorney for 

respondent (William P. Miller, Assistant Prosecutor, of 

counsel; Catherine A. Foddai, Legal Assistant, on the 

brief).

Appellant filed a pro se supplemental 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NOT FOR PUBLICATION WITHOUT THE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-3853-19

PER CURIAM

Defendant Michael Cawley appeals from a December 12, 2019 Law 

Division order denying his petition for post-conviction relief (PCR) without an 

evidentiary hearing. We affirm.

I.

We glean the following facts from our prior opinion on defendant's direct 

appeal, State v. Cawley, No. A-0382-12 (App. Div. April 7, 2015) (slip op. 2-

8),

1

and from the record. 

On August 20, 2005, M.L. ("Maria") met with D.L. ("Dawn"), G.F. 

("Gia"), N.M. ("Noelle"), S.K. ("Sue"), and another friend for a bachelorette 

party celebrating the upcoming wedding of Dawn and Maria's brother. After a 

night of heavy drinking in Manhattan, the group returned to Hoboken by train, 

at approximately 3 a.m. Maria was extremely intoxicated, such that she was

almost incoherent and passed out on the train.

Upon returning to New Jersey, the group split up into two cabs. Maria, 

Noelle, and Gia shared a cab, intending to go to Noelle's apartment. Maria and 

Gia became sick during the trip, and their cab dropped them off on a street corner 

1

 For ease of reference, and to protect the privacy of the victim, we use the same 

initials and pseudonyms used in our prior opinion. See Rule 1:38-3(c)(12). 
3

A-3853-19

a short distance from the apartment. Maria and Gia fell to the sidewalk and 

refused to follow Noelle. Noelle left to get them some water from her apartment, 

and, on her way back, met Gia at the entrance to her building. Noelle returned 

to the street corner and found that Maria had disappeared. Noelle estimated that 

only five to seven minutes had elapsed since she left Maria.

Having reconnected with the friends in the other cab, the group searched 

the area for over an hour. Calls to Maria's cell phone went directly to her 

voicemail. Eventually, the group returned to Noelle's apartment, called Maria's 

brother, and fell asleep.

Maria could not remember how she left the street corner and did not know 

whether she had been abducted or left voluntarily. Her memories of that 

morning began with her standing in a strange house with two male strangers. 

She was naked but for a tank top and gripped her cellphone tightly in her left 

hand. She testified that the men forcefully pulled her out of the house and into 

the back door of a blue Eddie Bauer model Ford Expedition, which she 

recognized because her mother owned the same model with similar trim. One 

of the men entered the backseat and commanded Maria remove her tank top. 

The other man got in the driver's seat and drove the car away from the house.
4

A-3853-19

While driving around, the man in the backseat raped Maria two times. 

When she tried to look outside of the car to see where they were, he became 

angry and choked her. When she tried to use her cell phone, he took it and 

tossed it aside. Reaching to retrieve her cell phone, Maria discovered her bra 

near the front seat.

The two men began to converse in Spanish, which Maria did not 

understand. Eventually, Maria heard one of them say "let's get rid of her[,]" 

which Maria believed to mean they were going to kill her. After traveling a 

little while longer, the car came to a stop, and the man in the backseat shoved 

Maria out onto the pavement.

By that point, the sun had risen, and Maria observed railroad tracks, 

industrial buildings, and an apartment complex. Unable to rouse anyone at the 

apartment complex, she dropped to the ground at a street corner, and curled up 

in a fetal position. Eventually, a delivery man noticed Maria laying on the street 

corner and summoned the police.

Video surveillance from the apartment complex showed a blue Ford 

Expedition traveling in one direction at approximately 6:40 a.m., and then 

returning in the other direction about one minute later but did not reveal the car's 
5

A-3853-19

license plate number. A few moments later, the recording showed Maria, 

clothed in only a bra, running through the complex's parking lot.

Maria was transported to a hospital, where, beginning at approximately 

8:20 a.m. on August 21, 2005, she gave two statements, one to Detective Ronnie 

Petzinger, and one to Beryl Skog, a sexual assault nurse examiner. During both 

statements, Maria appeared fearful and extremely upset, and cried 

uncontrollably at times.

Nurse Skog then performed a forensic sexual assault medical examination 

at 8:50 a.m. and retrieved samples of semen. Testing also showed that Maria 

had a blood-alcohol reading of .105, and her urine tested positive for Vicodin, 

which was consistent with a prescription she had received following surgery 

earlier that week.

The police investigation stalled for more than one year until, in 2007, 

officials from the Jersey City Fire Department discovered Maria's driver's 

license in the center console of Bryon Chica's car while investigating a possible 

arson. Records indicated that Chica had owned a Ford Expedition in August 

2005. Police interviewed Chica, and took a buccal swab, but his DNA was not 

a match for the samples recovered from Maria.
6

A-3853-19

The police then showed a sketch of Maria's assailant to Chica's ex-wife, 

who directed the officers to defendant. Motor vehicle records showed that 

defendant had also owned a blue Ford Expedition in August 2005.

On April 18, 2007, police interviewed defendant. After detectives read 

defendant his Miranda2rights, he waived his right to an attorney. 

Approximately twenty-five minutes into the interview, detectives asked whether 

defendant would provide a DNA sample. Defendant replied, "[A]t this point, I 

think I want a lawyer." Nevertheless, the detectives continued with the 

interview, repeatedly requesting a DNA sample, while defendant continued to 

ask for an attorney. Eventually, defendant relented and agreed to provide a 

buccal swab. Subsequent analysis showed that defendant's DNA matched the 

semen obtained from Maria.

The police next obtained defendant's E-ZPass records, which showed that 

defendant had three E-ZPass transponders on his account, and that one of the 

vehicles registered to use the transponders was a Ford Expedition. One of the 

transponders exited the turnpike at 6:33 a.m. on August 21, 2005, at a toll booth 

about one and one-third miles from the spot where Maria was thrown from the 

car. Then, at 6:46 a.m., the same transponder entered the same toll booth 

2

 Miranda v. Arizona, 384 U.S. 436 (1966).
7

A-3853-19

traveling in the opposite direction. Police also determined that defendant had 

traded in his Ford Expedition on August 22, 2005, one day after the crimes under 

investigation.

On December 16, 2008, a Bergen County grand jury returned an 

indictment charging defendant and Chica with first-degree kidnapping, N.J.S.A. 

2C:2-6 and N.J.S.A. 2C:13-1(b) (count one); first-degree aggravated sexual 

assault during a kidnapping, N.J.S.A. 2C:2-6 and N.J.S.A. 2C:14-2(a)(3) (count 

two); first-degree aggravated sexual assault by physical force or coercion, 

N.J.S.A. 2C:2-6 and N.J.S.A. 2C:14-2(a)(5) (count three); first-degree 

aggravated sexual assault upon a helpless victim, N.J.S.A. 2C:2-6 and N.J.S.A. 

2C:14-2(a)(7) (count four); third-degree theft, N.J.S.A. 2C:2-6 and N.J.S.A. 20-

3(a) (count five); second-degree conspiracy to commit kidnapping, N.J.S.A. 

2C:5-2 and N.J.S.A. 2C:13-1(b) (count six); and second-degree conspiracy to 

commit aggravated assault, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:14-2(a) (count 

seven). The indictment also charged defendant alone with second-degree sexual 

assault, N.J.S.A. 2C:14-2(c)(1) (count eight).

In September 2011, the trial court conducted a multi-day hearing on the 

admissibility of defendant's statement and the DNA results obtained from the

buccal swab he provided. In an opinion and order filed on October 21, 2011, 
8

A-3853-19

the motion judge suppressed that portion of defendant's statement after he 

requested counsel; however, the judge concluded that DNA results were 

admissible under the inevitable discovery doctrine. 

Defendant and Chica were tried together before a jury in early 2012. 

Maria, Noelle, Dawn testified, as did various law enforcement and other 

witnesses, who provided the details of the investigation that led to defendant. 

Defendant testified. According to his testimony, he lived with Chica and 

one other roommate in August 2005. Defendant owned three vehicles, including 

a blue Eddie Bauer model Ford Expedition. He had three E-ZPass transponders,

which he kept in a bowl at the house for Chica and another roommate to use as 

needed.

Defendant further testified that on August 20, 2005, he, Chica, and their 

roommate went out to a nightclub in Hoboken, traveling in Chica's Expedition. 

While outside talking, they saw Maria walking down the block, and struck up a 

conversation with her. According to defendant, Maria "was not drunk at all," 

and voluntarily returned to defendant's house, where they had consensual sex. 

Defendant said that when he awoke at about 10 a.m., Maria was gone. He 

claimed that Chica later told him that Maria had wanted to go home, so Chica

and the roommate took her back to Hoboken.
9

A-3853-19

At the conclusion of the fifteen-day trial, the jury found defendant guilty 

on counts one, two, three, four, five, and eight. The jury acquitted Chica on all 

counts and in turn, acquitted defendant on the two conspiracy counts, counts six 

and seven. 

On July 26, 2012, the trial court sentenced defendant to consecutive prison 

sentences of thirty years on count one, twenty years on count four, and ten years 

on count eight, all subject to NERA parole disqualifiers for an aggregate

sentence of sixty years of incarceration with fifty-one years of parole 

ineligibility.3 Defendant appealed, and on April 7, 2015, we affirmed 

defendant's conviction but remanded for resentencing. See Cawley, slip op. at 

21-23. 

On October 5, 2015, our Supreme Court granted defendant's petition for 

certification, "limited to the issues of whether the DNA evidence was properly 

admitted under the inevitable discovery doctrine and whether it was permissible 

for the prosecutor to use for impeachment purposes defendant's prior statements 

that were secured in violation of defendant's constitutional rights." State v. 

Cawley, 223 N.J. 278 (2015); however, exactly one year later, on October 5, 

3

 The trial court imposed a prison sentence of twenty years on count two, twenty 

years on count three, and five years on count five, all to run concurrently to the 

other sentences.
10 A-3853-19

2016, the Court dismissed defendant's appeal, "having determined that 

certification was improvidently granted." State v. Cawley, 228 N.J. 21 (2016). 

On March 9, 2017, defendant was resentenced to the aggregate sixty-year 

term, subject to fifty-one years of NERA parole ineligibility. 

Defendant filed a pro se petition for PCR on June 29, 2017, listing twenty 

grounds for relief. He submitted certifications dated March 28, 2018 (first PCR 

certification) and November 7, 2018 (second PCR certification) in support of 

his petition. On July 17, 2019, with the help of counsel, defendant submitted an 

amended pro se petition, stating grounds of ineffective counsel and prosecutorial 

misconduct. The PCR judge heard oral argument on defendant's PCR petition 

on December 6, 2019. 

On December 12, 2019, the PCR judge denied defendant's petition for 

PCR and declined to grant an evidentiary hearing on any of defendant's claims. 

The judge issued an accompanying written opinion on that date in support of her 

order. 

This appeal followed, with defendant's counsel raising the following 

arguments: 

POINT I – THIS MATTER MUST BE REMANDED 

FOR AN EVIDENTIARY HEARING 

BECAUSE DEFENDANT 
11 A-3853-19

ESTABLISHED A PRIMA FACIE CASE 

OF COUNSELS' INEFFECTIVENESS. 

A. Trial Counsel Misinformed Defendant As To The 

Maximum Penal Consequences If He Proceeded 

To Trial.

B. Trial Counsel Failed To Pursue A Third-Party 

Guilt Defense.

C. Trial Counsel Failed To Investigate Potential 

Exculpatory Witnesses And/Or M.L.'s History.

D. Trial And Appellate Counsel Failed To Object To 

The Ambiguous "And/Or" Kidnapping Charge.

E. Trial Counsel Failed To Prepare Defendant To 

Testify.

POINT II – THIS MATTER MUST BE REMANDED 

FOR FINDINGS OF FACT AND 

CONCLUSIONS OF LAW REGARDING 

THE CLAIMS NOT ADDRESSED BY 

THE PCR COURT. 

Additionally, defendant filed a pro se supplemental brief in which he argues:

I. DEFENDANT RECEIVED INEFFECTIVE 

ASSISTANCE OF TRIAL COUNSEL.

II. SENTENCING INEFFECTIVENESS OF 

TRIAL COUNSEL, ALLOWED AN ILLEGAL 

SENTENCE BE IMPOSED BY THE TRIAL 

COURT REQUIRES THE CONVICTION BE 

OVERTURNED.
12 A-3853-19

III. APPELLATE COUNSEL WAS INEFFECTIVE 

BY FAILING TO RAISE COGNIZABLE 

CLAIMS OF TRIAL ERRORS.

IV. THE BERGEN COUNTY ASSISTANT 

PROSECUTORS DURING TRIAL ARE

LIABLE FOR PROSECUTORIAL 

MISCONDUCT CAUSING BOTH A

FUNDAMENTAL MISCARRIAGE OF

JUSTICE AND A WRONGFUL CONVICTION

WHICH REQUIRES TO BE VACATED AND 

DEFENDANT ACQUITTED DUE TO 

ACTUAL INNOCENCE.

V. A COURT REVIEWING A CLAIM OF 

ACTUAL INNOCENCE PROPERLY

CONSIDERS THE ENTIRE RECORD AS A 

WHOLE . . . WHICH ESTAB[L]ISHES THAT 

MR. CAWLEY, HAS BEEN WRONGFULLY

CONVICTED . . . BECAUSE HE IS 

ACTUAL[L]Y INNOCENT . . . THE COURT 

MUST "OVERTURN []THE CONVICTION," . . 

. AND REVERSE, DIRECTING A NEW 

ENTRY OF JUDGMENT OF ACQUITTAL.

VI. THE MANNER IN WHICH PHYSICAL 

HELPLESSNESS WAS PRESENTED TO THE 

JURY IN THE INSTRUCTION, DEPRIVED 

DEFENDANT OF DUE PROCESS AND A 

FAIR TRIAL. ACCORDINGLY THE TRIAL 

COURT TESTIMONY OF RECORD 

PROVIDES REBUT[T]AL EVIDENCE THAT 

M.L. WAS NOT PHYSICALLY HELPLESS.
13 A-3853-19

II.

To succeed on a petition for PCR, a defendant "must establish the right to 

such relief by a preponderance of the credible evidence." State v. Preciose, 129 

N.J. 451, 459 (1992). Grounds for PCR include the "[s]ubstantial denial in the 

conviction proceedings of defendant's rights under the Constitution of the 

United States or the Constitution or laws of the State of New Jersey . . . ." R.

3:22-2. Both the United States and New Jersey constitutions guarantee "the right 

to effective assistance of counsel[,]" and thus, the denial of that right may entitle 

a defendant to PCR. State v. Nash, 212 N.J. 518, 541-42 (2013) (quoting 

Strickland v. Washington, 466 U.S. 668, 686 (1984)). 

The standard for determining whether counsel's performance was 

constitutionally ineffective was formulated in Strickland, 466 U.S. at 687, and 

adopted by our Supreme Court in State v. Fritz, 105 N.J. 42 (1987). In order to 

prevail on an ineffective assistance of counsel claim, defendant must meet a twoprong test by establishing that: (l) counsel's performance was deficient and he 

or she made errors that were so egregious that counsel was not functioning 

effectively as guaranteed by the Sixth Amendment to the United States 

Constitution; and (2) the defect in performance prejudiced defendant's rights to 

a fair trial such that there exists "a reasonable probability that, but for counsel's 
14 A-3853-19

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

Strickland, 466 U.S. at 687, 694.

Defendant is entitled to an evidentiary hearing on a PCR petition if he or 

she establishes a prima facie case in support of PCR. R. 3:22-10. To establish 

a prima facie case of ineffective assistance of counsel, a defendant must 

demonstrate a "reasonable likelihood of succeeding under the test set forth in 

Strickland . . . ." Preciose, 129 N.J. at 463. 

Defendant asserts his PCR petition established a prima facie claim of 

ineffective assistance of counsel, and thus the PCR court erred by declining to 

grant an evidentiary hearing. In his PCR petition, defendant alleged his trial 

counsel's representation was deficient in a variety of ways. Below, we address 

the arguments in defendant's petition re-raised on appeal, employing a de novo 

standard of review. State v. O'Donnell, 435 N.J. Super. 351, 373 (App. Div. 

2014) (quoting State v. Harris, 181 N.J. 391, 421 (2004)) ("[I]t it is within our 

authority 'to conduct a de novo review of both the factual findings and legal 

conclusions of the PCR court."'). 

A.

Defendant first contends his trial counsel's representation was deficient 

and prejudicial because she failed to inform defendant of his maximum exposure 
15 A-3853-19

on the charges before trial, which influenced defendant's decision to reject a plea 

offer that recommended a mere ten-year sentence. In his second PCR 

certification, defendant alleged:

Sometime in May 2010, trial counsel presented me an 

offer from the State which recommended a sentence of 

[ten] years in prison with an 85% period of parole 

ineligibility in exchange for a guilty plea. I reviewed 

the offer with my attorney. My attorney, however, 

assured me the kidnapping charge would fail at trial and 

that I faced a maximum of twenty-years imprisonment 

but would likely receive significantly less given my 

lack of a prior criminal history. At no point did my 

attorney advise me that I faced a sixty-year sentence 

should I be convicted if I proceeded to trial. Nor did 

trial counsel inform me that I faced the risk of 

consecutive sentences. Based upon trial counsel's 

misrepresentation, I rejected the plea offer and 

proceeded to trial.

Correspondingly, defendant's amended PCR petition provided, "Trial counsel 

was ineffective [because] she misinformed defendant [about] his sentencing 

exposure. . . . Had he known he would have been subject to [sixty] years he 

would have agreed to plea offer of [ten] years . . . . "

Even if we assume trial counsel did misinform defendant of his maximum 

exposure, defendant cannot establish this error prejudiced him under the second 

Strickland prong. Consequently, this claim fails to set forth a prima facie case 

of ineffective counsel. In State v. Taccetta, 200 N.J. 183, 197-98 (2009), our 
16 A-3853-19

Supreme Court held that a defendant who asserts his innocence cannot claim he 

suffered prejudice from his trial attorney's deficient advice that caused him to 

reject a favorable plea offer. The Court reasoned, because in New Jersey, "a 

trial court cannot accept a guilty plea that is known to be false" as doing would 

amount to "[c]ourt-sanctioned perjury[,]" it is improper "for a PCR court to 

vacate a jury verdict following a fair trial on the ground that 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." Id. at 195, 197. 

Under oath at trial and in his PCR petition, defendant denied committing 

all the charged crimes. It follows that defendant could not have entered a plea 

of guilty to any of the charges without committing perjury. Because the trial 

court would not have accepted a perjured plea, any misadvice from trial counsel 

regarding potential exposure does not equate to prejudice here. Absent a 

showing of prejudice on this claim, defendant failed to set forth a prima facie 

case and was not entitled to an evidentiary hearing. 

B.

Next, defendant alleges trial counsel was ineffective by failing to 

investigate, interview, and call certain witnesses. He argues trial counsel 

inexplicably ignored his requests to pursue these witnesses, which prejudiced 
17 A-3853-19

him at trial because they would have corroborated defendant's testimony and/or 

established a third-party guilt defense.

"Determining which witnesses to call to the stand is one of the most 

difficult strategic decisions that any trial attorney must confront." State v. 

Arthur, 184 N.J. 307, 320 (2005). "[L]ike other aspects of trial representation

defense attorney's decision concerning which witnesses to call to the stand is 'an 

art,' and a court's review of such a decision should be 'highly deferential . . . . '" 

Id. at 321 (quoting Strickland, 466 U.S. at 693, 689) (internal citations omitted). 

Still, despite the deference accorded to trial counsel's strategic decisions, 

an ineffective assistance of counsel claim may occur when counsel fails to 

conduct an adequate pre-trial investigation. State v. Porter, 216 N.J. 343, 352-

53 (2013). Our Supreme Court has stated:

If counsel thoroughly investigates law and facts, 

considering all possible options, his or her trial strategy 

is virtually unchallengeable. But strategy decisions 

made after less than complete investigation are subject 

to closer scrutiny. Indeed, counsel has a duty to make 

reasonable investigations or to make a reasonable 

decision that makes particular investigations 

unnecessary. A failure to do so will render the lawyer's 

performance deficient.

[State v. Savage, 120 N.J. 594, 617-18 (1990) (citations 

and quotation marks omitted).]
18 A-3853-19

In such cases where a defendant claims his attorney failed to adequately 

investigate the case, "he must assert the facts that an investigation would have 

revealed, supported by affidavits or certifications based upon the personal 

knowledge of the affiant or the person making the certification." Porter, 216 

N.J. at 355 (quoting State v. Cummings, 321 N.J. Super. 154, 170 (App. Div. 

1999)).

In his first and second PCR certifications, defendant identified ten 

witnesses allegedly overlooked by trial counsel: Wilfred Perez, Louis Danny 

Geacoman,4Jamilla Aziz, Mike Mansel, Bob Williams, Jessica Larrea, Cora 

Taylor, Maria's brother, Gia, and Sue. Defendant provided, in varying detail, 

the import of these potential witnesses. 

According to the defendant, Geacoman and Perez had significant 

knowledge of or were involved in Maria's assault. Perez specifically was Chica's

cousin who was in defendant's apartment on the night of the assault. Aziz was 

Chica's wife who would have corroborated that Chica was staying at defendant's 

apartment on the night of the assault. She also initially identified Chica as the 

suspect depicted in the composite sketch but later changed her mind and decided 

4

 As defendant points in his brief, Geacoman's name is spelled inconsistently 

throughout the record. We opt for the spelling used by defendant in his brief. 
19 A-3853-19

it looked like defendant.5 Mansel was a police officer who elicited a statement 

from Chica where he recounted meeting Maria and driving her home. Williams 

worked with Chica and would have testified that Chica bragged about having 

sex with Maria. Larrea was defendant's girlfriend when the incident took place 

who would have corroborated that defendant's guests had access to his multiple 

E-ZPass transponders and that Chica lived with defendant then. Gia, Sue, and 

Maria's brother would have confirmed Maria was not intoxicated on the night of 

the incident. 

Despite defendant's contention that trial counsel ignored his request to 

investigate these witnesses, during defendant's trial, trial counsel stated on the 

record, "[defendant] gave me the name of potential witnesses. My investigator 

interviewed them, and I have determined, as trial strategy, not to use them." She 

later added, "My investigator did speak to all of them." 

Because defendant insisted his requested witnesses be called, trial counsel 

reiterated her trial strategy entailed not calling the witnesses "because they will 

not add anything to or are unavailable." Specifically, trial counsel explained 

Aziz did not want to testify and that her testimony would not be helpful to 

5

 Defendant's PCR petition names Taylor but does not explain why trial counsel 

should have investigated her. However, the trial transcript reveals Taylor was 

the detective who showed Aziz the composite sketch. 
20 A-3853-19

defendant because she identified defendant from the composite sketch. 

Testimony from Taylor, who showed Aziz the composite, would likewise be 

unhelpful. Geacoman had been deported and was thus unavailable. And Bob 

Williams had sustained a head injury and did not remember defendant or the 

other parties. Neither trial counsel nor defendant mentioned any other 

witnesses. 

The record does not support defendant's claim that trial counsel 

inadequately investigated the potential witnesses. Trial counsel explicitly stated 

on the record that her investigator interviewed all witnesses identified by 

defendant. Her decision, as a matter of trial strategy, not to call these witnesses 

was thus informed by adequate investigation. Our Supreme Court has 

recognized that "[d]etermining which witnesses to call to the stand is one of the

most difficult strategic decisions that any trial attorney must confront[,]" Arthur, 

184 N.J. at 320, and that decision is assessed by the court in the context of the 

State's case against defendant and the strengths and weaknesses of the evidence 

available to the defense. State v. Pierre, 223 N.J. 560, 579 (2015).

Regardless, even if trial counsel failed to investigate one, some, or all of 

the six other witnesses identified by defendant in his PCR petition but not 

mentioned by trial counsel or defendant at trial, we find no evidence that these 
21 A-3853-19

witnesses would have materially strengthened defendant's case. The testimony 

that defendant claims these witnesses would have offered would have done little 

to minimize the overwhelming evidence against defendant, which included 

defendant's semen obtained from the victim, defendant's admission that he had 

sex with the victim, and defendant's car and E-ZPass transponder being linked 

to the time and location where Maria was dumped after her assault. Defendant's 

claim of inadequate investigation therefore cannot establish prejudice under the 

second Strickland prong. 

Relatedly, defendant also claimed trial counsel's pretrial investigation was 

deficient because she failed to investigate Maria's substance use history and 

possible amnesia. This claim is baseless because these issues were explored 

during Maria's trial testimony, and in any event, defendant fails to demonstrate 

that more thorough investigation into these claims would have affected the 

outcome of his trial. 

Defendant's claims concerning the adequacy of trial counsel's pretrial 

investigation do not establish a prima facie case of ineffective assistance of 

counsel. Therefore, no evidentiary hearing was required to explore this issue. 

 
22 A-3853-19

C.

Defendant next argues his trial counsel was ineffective by failing to object 

to the jury instructions on kidnapping, and likewise appellate counsel was 

ineffective for failing to challenge the instructions on defendant's direct appeal. 

Relying on State v. Gonzalez, 444 N.J. Super. 62 (App. Div. 2016), defendant 

contends the jury instructions were ambiguous and erroneous because of their 

use of "and/or." 

Gonzalez involved a defendant who accompanied two co-defendants as 

they robbed and shot a drug dealer. Id. at 66-67. The issue was whether the 

defendant shared the co-defendants' intent to commit the crimes or whether his 

participation was the product of duress. On appeal, we found error in the trial 

court's jury charge on conspiracy and accomplice liability because the charge 

referred to "robbery 'and/or' aggravated assault" when referring to the 

substantive crimes the co-defendants were alleged to have committed for which 

the defendant was to be considered accountable. Id. at 73-75. We explained the 

critical flaw in the charge as follows:

[T]he nature of the indictment required that the jury 

decide whether defendant conspired in or was an 

accomplice in the commission of a robbery, or an 

aggravated assault, or both. By joining (or disjoining) 

those considerations with "and/or" the judge conveyed 

to the jury that it could find defendant guilty of either 
23 A-3853-19

substantive offense — which is accurate — but left 

open the possibility that some jurors could have found 

defendant conspired in or was an accomplice in the 

robbery but not the assault, while other jurors could 

have found he conspired in or was an accomplice in the 

assault but not the robbery. In short, these instructions 

did not necessarily require that the jury unanimously 

conclude that defendant conspired to commit or was an 

accomplice in the same crime. Such a verdict cannot 

stand.

The jury was also told that "to find the defendant 

guilty of committing the crimes of robbery and/or 

aggravated assault charges, the State must prove 

[among other things] that [the co-defendant] committed 

the crimes of robbery and/or aggravated assault." 

Assuming the "and/or" in this instruction was 

interpreted as being a disjunctive, it is entirely possible 

the jury could have convicted defendant of both robbery 

and aggravated assault even if it found [the codefendant] committed only one of those offenses, i.e., 

the jury was authorized, if it interpreted "and/or" in this 

instance as "or," to find defendant guilty of robbery 

because it was satisfied the State proved that [the codefendant] committed an aggravated assault.

[Id. at 75-77 (citations omitted).]

In denying certification of Gonzalez, the Supreme Court expressly limited 

the panel's holding "to the circumstances in which it was used in this case." 

State v. Gonzalez, 226 N.J. 209 (2016). The context of defendant's case here is 

starkly different to the circumstances in Gonzalez. 

N.J.S.A. 2C:13-1, which criminalizes kidnapping, provides: 
24 A-3853-19

A person is guilty of kidnapping if he unlawfully 

removes another from his place of residence or 

business, or a substantial distance from the vicinity 

where he is found, or if he unlawfully confines another 

for a substantial period, with any of the following 

purposes:

1) To facilitate commission of any crime or flight 

thereafter;

2) To inflict bodily injury on or to terrorize the 

victim or another;

3) To interfere with the performance of any 

governmental or political function; or

4) To permanently deprive a parent, guardian or 

other lawful custodian of custody of the victim.

[N.J.S.A. 2C:13-1(b).]

Thus, to convict a defendant under this section, the State must prove two 

elements: 1) the defendant unlawfully removed or unlawfully confined another; 

and 2) the defendant acted with any of the four delineated purposes. 

At defendant's trial, the trial court used "and/or" to distinguish between 

the two ways in which the first element may be satisfied, unlawful removal or 

unlawful confinement. It again used "and/or" to distinguish between the four 

purposes, one of which a defendant must have to satisfy the second element. 

These instructions are consistent with the model jury charge for kidnapping, 
25 A-3853-19

which too uses "and/or." See Model Jury Charge (Criminal), "Kidnapping 

(N.J.S.A. 2C:13-1(b),(1) to (3))" (rev. Oct. 6, 2014). 

We discern no error from this jury charge, and thus the failure of 

defendant's counsel to object to the charge cannot be viewed as deficient or 

prejudicial to defendant. Unlike in Gonzalez, there would be no difference 

between the jury finding defendant unlawfully removed and unlawfully confined 

versus it finding defendant only performed one of those acts. Likewise, there 

would be no difference between the jury finding defendant only acted with one 

of the four delineated purposes versus it finding defendant possessed two, three, 

or all four of those purposes. These elements are met whether one or all of their 

options are satisfied. 

Defendant also suggests a specific unanimity charge was required – in 

other words, that all jurors must agree that the first element was satisfied by 

removal or by confinement, and that all jurors must agree on the purpose held 

by defendant in order for the second element to be satisfied. He asserts counsel 

was ineffective for failing to assert this position. 

However, to provide effective assistance, an attorney is not obliged "to 

anticipate that an otherwise valid jury instruction would later be deemed 

improper . . . ." Funchess v. Wainwright, 772 F.2d 683, 691 (11th Cir. 1985). 
26 A-3853-19

Indeed, courts "have rejected ineffective assistance claims where a defendant 

'faults his former counsel not for failing to find existing law, but for failing to 

predict future law' and have warned 'that clairvoyance is not a required attribute 

of effective representation.'" Bullock v. Carver, 297 F.3d 1036, 1052 (10th Cir. 

2002) (quoting U.S. v. Gonzalez-Lerma, 71 F.3d 1537, 1542 (10th Cir. 1995)). 

See, e.g., Lilly v. Gilmore, 988 F.2d 783, 786 (7th Cir. 1993) ("The Sixth 

Amendment does not require counsel to forecast changes or advances in the law, 

or to press meritless arguments before a court."); Nelson v. Estelle, 642 F.2d 

903, 908 (5th Cir. 1981) ("[C]ounsel is normally not expected to foresee future 

new developments in the law"). 

We are aware of no case holding that a kidnapping conviction under 

N.J.S.A. 2C:13-1(b) requires the unanimity urged by defendant.

6 Thus, trial and 

appellate counsel's failure to raise the specific unanimity issue does not 

constitute ineffective assistance of counsel. A specific unanimity charge would 

have extended existing law and revised the model charge.

6

 Indeed, were unanimity required, our Supreme Court in State v. Jackson, 211

N.J. 394 (2012) arguably would have been unwilling to tolerate the uncertainty 

as to whether the jury in that case found asportation or confinement. See

Jackson, 211 N.J. at 414 (affirming conviction although the Court could not 

"discern whether the jury based its verdict on the victim's removal by a 

'substantial distance,' or his 'substantial confinement'").
27 A-3853-19

D.

Defendant also argues his trial counsel was ineffective because she failed 

to prepare defendant to testify. In his first PCR certification, defendant claimed, 

"Early in the proceedings I told [trial counsel] that I wanted to testify. However, 

not once did [trial counsel] prepare me for testimony." Of trial counsel, he also 

stated, "Often she would refuse to discuss the case with me, she failed to see me 

for weeks on end, failed to prepare me to testify at trial even though I told her 

at the very beginning I wanted to tell the jury my side . . . ." 

At trial, when asked if her client wanted to testify, trial counsel stated, 

"Your Honor, it changes." However, defendant insisted he wanted to testify. 

The trial court acknowledged that trial counsel advised defendant not to testify, 

and the court too attempted to explain "the down side of taking the stand" to 

defendant, i.e. exposing himself to cross-examination and impeachment.

Still, defendant elected to testify, as the trial court put it, "against the 

advice of counsel." However, when informed he would be called to the stand as 

the next witness, defendant protested that trial counsel had not yet prepared him 

to testify. The following exchange between defendant and the trial court ensued:

DEFENDANT: [My attorney] hasn't come – hasn't seen 

me in days. How can she go over any questions with 

me that I haven't been able to go -- you guys are just
28 A-3853-19

trying to throw me out there. You're trying to throw me 

to the wolves. 

THE COURT: Once again –

DEFENDANT: I need – I need [my attorney] to at least 

have a couple minutes. If we can do that at least in the 

afternoon. Give me the morning to go over some things 

with [trial counsel] –

THE COURT: We're going to proceed this morning 

because in the last four weeks I told you this was a 

distinct possibility.

. . . . 

DEFENDANT: At least allow me to go downstairs and 

speak to her for a little while.

Moments before his testimony, defendant objected further: "[my attorney] and 

me, we didn't go over enough – we haven't gone over anything."

Defendant's testimony did not benefit his defense. His direct testimony 

was unconvincing, and his credibility suffered significantly from crossexamination by the State and Chica's counsel. We fail to see how additional 

preparation by trial counsel would have made defendant's claims any more 

palatable or convincing. This is especially so in light of the overwhelming 

evidence against defendant that included the DNA extracted from the victim as 

well as the surveillance footage and E-ZPass records linking defendant's car to 

the time and location where Maria was dumped following her assault. 
29 A-3853-19

We note that trial counsel fulfilled her duty to advise and consult with 

defendant by wisely recommending defendant not to testify. But even if we 

were to accept defendant's claim that trial counsel should have spent more time 

preparing his testimony, we discern no prejudice from any under preparation. 

No amount of preparation would have changed the result of defendant's trial.

Moreover, defendant's claim that trial counsel failed to prepare him to

testify, is belied by his testimony, which shows a series of questions asked in a 

logical sequence so the jury could hear defendant's version of the events in 

question. The fact that Chica's counsel and the assistant prosecutor attacked 

defendant's testimony in their summations is irrelevant. At defendant's 

insistence, trial counsel afforded him the opportunity to contradict the victim's 

testimony, portray her as a willing participant in their sexual encounter, and 

blame Chica and Geocoman for any harm to Maria. Unfortunately for 

defendant, by their verdict, the jurors did not find defendant's testimony 

credible.

E.

Lastly, defendant urges this court to remand this matter back to the Law 

Division, asserting the PCR court failed to satisfy the mandate of Rule 3:22-11 

that "[i]n making a final determination upon a [PCR] petition, the court shall 
30 A-3853-19

state separately its findings of fact and conclusions of law . . . . " Although we

would have preferred a more detailed statement of reasons supporting the PCR 

court's determination that defendant's petition failed to set forth any viable 

claims for PCR, we conclude the trial court's failure to comply with the rule was 

harmless in this case. Our review of defendant's thirty-page amended verified 

PCR petition reveals no meritorious claims, because they are either barred by 

Rule 3:22-4(a) or Rule 3:22-5 (claims were either expressly adjudicated or could 

have been raised on direct appeal), or because the claims were bare assertions 

or conclusions, unsupported by specific facts, as required by Rule 3:22-8.

It is axiomatic that PCR relief is not a substitute for direct appeal. R.

3:22-3. Collectively, Rules 3:22-4(a) and 3:22-5 provide procedural bars such 

that "a defendant may not employ post-conviction relief to assert a new claim 

that could have been raised on direct appeal, . . . or to relitigate a claim already 

decided on the merits." State v. Goodwin, 173 N.J. 583, 593 (2002) (first citing 

R. 3:22-4; and then citing R. 3:22-5).

Any arguments not expressly addressed lack sufficient merit to warrant 

discussion in a written opinion. R. 2:11-3(e)(2).
31 A-3853-19

Affirmed.