SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO . A

- 4370

- 19 STATE OF NEW JERSEY, Plaintiff

- Respondent,

v. ANDRE L. HENDERSON, a/k/a ANDRE LYDELL HE N DERSON, Defendant

- Appellant.

_______________________

Submitted February 8, 2022

– Decided March 17 , 202 2 Before Judges Currier and Smith. On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 12

- 06

- 0488

. Joseph E. Krakora, Public Defender, attorney for appellant (Steven M. Gilson, Designated Counsel, on the brief).
William A. Daniel , Union County Prosecutor, attorney for respondent (Albert Cernadas, Jr., Assistant Prose cutor, of counsel and on the brief).
PER CURIAM NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court

. " A lthough 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

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Defendant appeals from the order denying his petition for post

- conviction relief (PCR). We affirm. Defendant was charged in an indictment with first

- degree attempted murder, N.J.S.A. 2C :5

- 1 and 2C:11

- 3; second

- degree aggravated assault, 2C:12

- 1(b)(1); and third

- degree aggravated assault, N.J.S.A. 2C:12

- 1(b)(5) arising out
of his assault on a police officer. A jury convicted him on the aggravated assault charges. We affirmed the convictions and sentence. State v. Henderson , No. A

4019

- 14 (App. Div. May 17, 2018) (slip op. at 2). After defendant filed his petition for PCR i n which he asserted his counsel
did not properly inform him about his r ight to testify at trial, 1 the court granted

an evidentiary hearing. D efe nd ant was also given more time to file an a d dit i onal certifi c ati o n in support of his claim. During the hearing, defendant testified that he met with his trial attorney several times and that "at the beginning, [counsel] said that he wanted me to testify, that it was

. . . important to the case." Defendant stated he "wanted to testify because [he] felt that the jury wanted to hear [his] side of the story."

1 Defendant raised numerous other arguments in his PCR petition and during the evidentiary hearing regarding his claims of ineffective assistance of counsel. On appeal, he only raises one argument: that trial counsel never told him it was his decision wheth er to testify or not

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Defendant explained that at the end of the trial he had a conversation wi th trial counsel who told him "that the case looked good, that [counsel did not ] feel that [defendant] needed to testify, that it ' s okay, that we ' ll be okay." Defendant said counsel did not tell him it was his right to testify or that it was his decision to make. He reiterated that when they discussed the issue at the end of the trial , counsel said "you ' re good, you don ' t need to testify. It looked good."
D efendant conceded during the PCR hearing that he had a good relationship with his trial counsel. He thought his attorney was a good lawyer and did well during the trial. He said trial counsel discussed strategy with him.
He also recalled the trial judge asking defendant whether he wanted to testify or not and responding to the judge that he had decided on his own volition not to
t es tify. Defe n d a nt told the trial judge he did not ha v e any questions of th e court or his trial counsel

. He also signed a document attesting that he understood the right to testify , and he had chosen to remain silent. Defe n dant told the PCR judge that trial counsel never told him he could not testify , he just advised defendant h e did not need to do so. And defe ndan t conceded that he agreed with trial counse l ' s advice. Defendant further explained to the PCR court that while his testimony would have been the same as the4 A

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witnesses who testified at trial, he "would have been the one presenting it because it happened to [him ]

. " In a comprehensive written opinion, the PCR judge rejected defe n d a nt ' s argument. T h e court found defe n d a nt clearly waived his right to te s tify , finding defendant told the trial judge he had discussed t es tifying with his a ttorney and
chose not to do so. Defe ndan t did not specify to the PCR court as to what his testimony might have be en and what impact it might have had on the outcome of th e trial. H e only said h e felt the jury wanted to hear from him. However, he conceded he had nothin g new to say ap a rt from what other witnesses had
t e stif i ed to. The standard for determining whether counsel ' s performance was ineffective for purposes of the Sixth Amendment to the United States Constitution was formulated in Strickland v. Washington , 466 U.S . 668 (1984 ), and adopted by our Supreme Court in State v. Fritz , 1 05 N.J. 42 (l987). T o prevail on a claim of ineffective assistance of counsel, defendant must meet the
two

- prong test of 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; and (2) the defect in performance prejudiced defendant ' s right to a fair trial such that there exists a5 A

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"reasonable probability that, but for counsel ' s unprofessional errors, the result of the proceeding would have been different." Id

. at 52, 60

- 61 (quoting Strickland , 466 U.S. at 687, 694 )

. To establish a prima facie case of ineffective assistance of counsel, a defendant must present legally competent evidence rather than "bald assertions."
See St at e v. Cummings , 321 N.J. Super. 154, 170 (App. Div. 1999). Defendant has not met that standard. It is clear the trial judge engaged in a lengthy conversation with defendant during trial to ensure he understood his right to testify as well as the risks associated with testifying and to confirm defendant wished to waive his right to testify. Moreover, defendant stated he discussed testifying with his trial counsel and understood it wa s his decision to make. He also stated that he and counsel
d iscussed strategy. A trial strategy that proves unsuccessful " does not mean that counsel was ineffective. " State v. DiFrisco , 174 N.J. 195, 220 ( 2002) (quoting State v. Bey , 161 N.J. 233, 251 (1999)). Defe nd ant also did not establish that his testimony could hav e affected the outcome of the trial. He said he believed the jury wanted to hear from hi m , but he also stated his testimony would not have differed from what the previous lay and expert witnesses had said. Therefore, defendant failed t o demonstrate that6 A

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trial counsel ' s alleged error was "so serious as to undermine

. . . confidence in the . . . result reached ." State v. Chew , 179 N.J. 186, 204 (2004). In summary, defendant did not present a prima facie case of ineffective assistance

. The PCR judge ' s determination was supported by sufficient credible evidence and was reached after a hearing during which defendant testified. We

see no reason to disturb the trial court ' s order denying defendant ' s PCR petition. Affirmed.