### RECORD IMPOUNDED

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-0389- 22 STATE OF NEW JERSEY, Plaintiff-Respondent,

v. K.H., Defendant-Appellant.

___________ _________ ___

Submitted February 6, 2024

– Decided March 25, 202 4 Before Judges Whipple and Enright. On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 17

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- 0529. Helmer, Conley & Kasselman, PA, attorneys for appellant (Jack J. Lipari, of counsel and on the br ief). William A. Daniel, Union County Prosecutor, attorne y for respondent (Milton Samuel Leibowitz, Assistant Prosecutor, 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PER CURIAM NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court. " Although it is posted on the internet, this opinion is binding only on the parti es in the case and its use in other cases is limite d. R. 1:36- 3.2 A- 0389

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Defendant K.H. 1 appeals from the August 31, 2022 order denying his motion to withdraw his guilty plea as well as his petition for post-conviction relief (PCR) following an evidentiary hearing. We affirm, substantially for the reasons set forth in Judge Robert A. Kirsch's compr ehensive written opinion.
I. The circumstances of this matter are fully detailed in Judge Kirsch's fiftytwo -page opinion . Therefore, we summarize only the salient facts. In November 2013, a Union County Grand Jury indicted d efendant on the following charges: first-degree aggravated sexual assault, N.J.S.A. 2C:14- 2(a)(4); first-degree aggravated sexual assault, N. J.S.A. 2C:14-2(a)(3); seconddegree sexual assault, N.J.S.A. 2C:14-2(c)(1); firs t-degree kidnapping, N.J.S.A. 2C:13-1(b)(1); first-degree kidnaping, N.J.S.A. 2C: 13-1(b)(2); second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1); third-d egree aggravated assault, N.J.S.A. 2C:12-1(b)(12); third-degree aggravated as sault, N.J.S.A. 2C:12- 1(b)(7); second-degree possession of a weapon for a n unlawful purpose, N.J.S.A. 2C:39-4(a)(1); fourth-degree possession of a defaced firearm, N.J.S.A. 2C:39-3(d); fourth-degree aggravated assault, N.J.S .A. 2C:12-1(b)(4); and

1 We refer to defendant by initials to maintain the c onfidentiality of records that were sealed under Rule 1:38

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.3 A- 0389

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third-degree terroristic threats, N.J.S.A. 2C:12-3( b)

. On May 15, 2018, defendant entered a negotiated gui lty plea t o firstdegree kidnapping , an amended charge of fourth-degree criminal sexual contact, N.J.S.A. 2C:14-3(b) , and contempt of a domestic violence restraining ord er , N.J.S.A. 2C:29-9(b)(2). In exchange for his guilty pleas, the State agreed to recommend that defendant serve an aggregate thirtee n-year prison term and that his remaining charges be dismissed.
At the plea hearing, defendant testified he understood th e terms of his plea agreement and was aware if he was convicted at tria l on the three charges to which he pled guilty, he would serve up to thirty y ears on the kidnapping charge, a maximum of eighteen mont hs for the criminal sexual contact charge, and between six months and a year if convicted on the d isorderly persons contempt charge. 2 He denied being under the influence of any substanc es or suffering from any mental health conditions and stated he had "[m]ore than enough" of "an opportunity to . . . speak about []his case wit h" plea counsel, and was

2 During the plea hearing, the judge and counsel disc ussed whether the maximum exposure on the contempt charge was six mon ths or a year, with the judge stating he understood the maximum term was si x months. Thus, without objection of counsel, the judge asked defendant whe ther he understood he would serve a maximum sentence of between "six months to a year" if convicted of contempt. Defendant answered, "Yes."4 A- 0389

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satisfied with her representation. Moreover, he testified he was "taking responsibility for a crime . . . [he] committed," a nd no one "pressured or threatened [him] with regard to []his plea[s]." After defendant stated he reviewed discovery and di scussed with plea counsel the "possible pre-trial motions" and "possible defense s" he could raise if he went to trial , as well as the consequences of pleading guilty, ple a counsel represented she would withdraw defendant's pending "Miranda [3] [m]otion" once the judge accepted his guilty pleas. When the judge asked defendant if he also understood by pleading guilty, he was "giving up al l of the constitutional rights . . . [e]mbedded in [a] jury trial," includi ng "the right to call [his] own witnesses[ and] the right to testify on [his] own b ehalf," defendant answered, "I understand." Next, defendant provided a factual basis for his pl eas. He admitted that in "the early morning hours of May 13, 2017," he wa s with his former girlfriend, S.F., 4 and ki dnapped her by "unlawfully confin[ing] her for a su bstantial period of time . . . by taking her upstairs [to the wareho use] against her will and terrorizing her," and he "knew it was unlawful to" do so. When asked by plea

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

4 The victim's initials are used to protect her priva cy. R. 1:38

- 3( c )( 12 ).5 A- 0389

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counsel if S.F. left the warehouse, "not because [defendan t] . . . allowed her to," but "because . . . she, in fact, ran out of the [wa rehouse] and left to go to the hospital at that point," defendant answered, "Yes." He also admitted that when he held S.F. against her will, he "restricted her m ovements." Regarding the criminal sexual contact charge, defen dant admitt ed that during the same incident on May 13, 2017, he "grabb ed [S.F.'s] breast and then ripped her shirt[,] knowing that [it] was [a crimin al sexual contact] violation ." Finally, as to the contempt charge, defendant testified that even tho ugh he was served with a domestic violence restraining order after the inc ident, prohibiting him from contacting S.F., he "contacted a third par ty to . . . contact [S.F.] to have . . . communication with her through this thir d party." When asked if he "knew that it was unlawful to use a third party to contact [S.F.]," defendant answered, "Yes." Accordingly, the judge found defe ndant provided "an adequate factual basis" for his guilty pleas and that they were entered "knowingly, voluntarily[,] and intelligently." On July 12, 201 8, Judge Kirsch sentenced defendant on the kidnappi ng charge to an eleven-year prison term (versus the th irteen-year term set forth in the plea agreement ), subject to the No Early Release Act (NERA), N.J.S. A. 2C:43-7.2. The judge also imposed a concurrent one -year term on the criminal6 A- 0389

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sexual contact charge, and a concurrent time served sentence on the contempt charge. Defendant appealed from his sentence. We affirmed , State v. Hernandez , No. A- 0170 -18 (App. Div. June 3, 2019), and the Supreme Court later denied his petition for certification, State v. Hernandez, 240 N.J. 28 (2019). On February 3, 2022, defendant filed for PCR. He a lso moved to withdraw his plea and for dismissal of his indictme nt. In his PCR petition, defendant alleged plea counsel was ineffective beca use she pressured him into pleading guil ty

. Additionally, he asserted plea counsel was ineffect ive because she failed to: (1) secure records from the hospita l where he was treated after the incident; (2) forcefully pursue an intoxication def ense ; (3) move to dismiss the indictment; (4) advise defendant he could present c haracter witnesses at trial ; and (5) argue for defendant to be sentenced in the second-degree range on his kidnapping charge

. On June 30, 2022 , Judge Kirsch heard argument on defendant's applications. In response to defendant's claims ab out plea counsel's alleged ineffectiveness, the judge extensively recited port ions of defendant's Mirandized statement to the police, which, as the judge noted, was provided hours after the incident. The judge observed that defendant told t he police he "drag[ged S.F.]7 A- 0389

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by her hair," "took her clothes off," "really . . . hurt her," "pulled her hair," "assaulted her," "hit [S.F.,]" and "smacked her in . . . her face." Further, the judge recalled that before defendant entered his gu ilty pleas, the case "was so strenuously litigated from a defense standpoint, su ch that [he] remember[ed] it vividly ," and "the lawyering . . . on both sides" was "exc eptional." Addi tionally, the judge found defendant's claim that he was pressured by plea counsel into pleading guilty did not "comport with [defendant's ] extraordinary representations of embarrassment and shame" before the court , nor his request for "forgiveness" from S. F. The judge also found any claim that plea counsel pressured defendant into pleading guil ty was "belied by [defendant's] . . . demeanor and what he said" at t he plea hearing.
F ollowing argument , Judge Kirsch granted defendant an evidentiary hearing but stated the hearing would address only the "discre[te] issue" related

to defendant's contention that "he did not want to ple ad guilty but was pressured to do so." The judge stated plea counsel "should testify on this issue," and particularly address defendant's claim that one of the reasons he pled guilty was because plea counsel allegedly advised him Judge Ki rsch stated he would sentence defendant to life if defendant was convict ed at trial. The evidentiary hearing proceeded on July 11, 20 22

. At the outset of the8 A- 0389

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hearing, Judge Kirsch noted the May 13 incident was "memorialized, " in part,
in surveillance video from defendant's warehouse and that PCR "[c]ounsel cited this videotape over and [over] again in the PCR [pe tition] and in the

. . . submission regarding the petition to withdraw the g uilty plea." The judge also informed counsel that although he could not "be cer tain," he did not believe he viewed the videotape until the week before the evid entiary hearing. He explained that because "the videotape [was] referen ced so many times and described to [him] so many times before the guilty plea and the sentencing, . . . at some point, [he] came to believe erroneously tha t [he] actually saw it" before asking the State to provide a copy of the video aft er the June 30 hearing. The judge also stated the footage was "directly related to . . . [defendant]'s contention that there was no kidnapping." In response to the judge's comments, PCR counsel ob jected to the judge considering the warehouse footage. The judge asked how counsel could "object to something [PCR counsel] referenced over and [ove r] again." PCR counsel stated defendant previously informed him the judge "ha d seen the video in open court. That was [defendant's] recollection," to wh ich Judge Kirsch re plied, "[defendant] may be right." The judge also stated that whether he "saw [the videotape] three years ago or three minutes ago [wa ]s irrelevant" because PCR9 A- 0389

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counsel "joined the . . . issue." PCR counsel then asked if Judge Kirsch intended to have defendant testify. The judge stated he "would never force a [d]efendant . . . to take the witness stand," and having defendant testify would be PCR counsel's "choice." Further, the judge stated if defendant elected to t estif y, "the State c[ould] cross[- examine] . . . [d]efendant . . . to impeach his []c redibility." However, the judge added that he would "not issu[e] an advisory [opini on] in terms of circumscribing what . . . cross-examination [would] look[] like." Notably, the judge also advised counsel he was "certainly not co mpelling [defendant] to testify" nor "depriv[ing] him" of that opportunity. Once plea counsel took the stand, she testified the State's initial offer to defendant was to plead guilty to "one of the sexual assault[ ]" offenses and serve an eighteen-year term, subject to NERA. It later l owered its offer to fifteen years and was "ultimately . . . amenable to a [thir teen-]year sentence subject to
NERA." Plea counsel further testified the State's offer wo uld "not get[] any lower than [thirteen]." Next, plea counsel denied telling defendant that if he r efused the thirteenyear offer, Judge Kirsch told her he would sentence defendant t o a life term

. She stated, "I never said that. I would never use that type of terminology, "10 A- 0389

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adding, "Judge Kirsch never said that to me." On the other hand, plea counsel testified she and defendant discuss ed whether he should plead guilty or go to trial after she review ed the nature and number of defendant's charges, as well as the evidence agai nst him . She recalled the evidence included "photographs that were taken from the victim . . . at the hospital," and "most importantly[,] . . . the video that [she] . . . review[ed] on several occasi ons with [defendant] . . . as well as his family members." She testified "the evidenc e [against defendant], specifically the videotape [evidence], was very dam ning and damaging to the
case." Accordingly, she informed defendant if he were conv icted at trial, "his exposure would be what one may term to be life in p rison," and at any rate, "higher than what [the State] offered [defendant] a t the time of the plea. " Plea counsel further testified that if defendant "f ile[d] motions," any existing plea offer would be "off the table" due to the State's "elevating plea policies." Moreover, she denied pressuring defendant into plea ding guilty, stating the decision to plead guilty was ultimately his because he knew "if he wanted to go to trial," she "would have been happy to get him a trial." Next, plea counsel stated she consulted with experts to pursue a voluntary intoxication defense because shortly before the inc ident between defendant and S.F., "there w[ere] drinking activities." She conc luded th is defense was not11 A- 0389

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viable, due to the lack of medical records, a breat halyzer test, or other evidence to support it, and because the warehouse video and other video footage from the night of the incident did "not display[] any signs . . . to demonstrate that [defendant] was intoxicated" or that his level of i ntoxication supported "an intoxication defense that would negate the mens rea ." Plea counsel also testified that after she reviewed the video of defendant's Mi randized statement , "he did not seem intoxicated in that video either." On August 31, 2022, Judge Kirsch entered an order d enying defendant's PCR petition and his motion to withdraw his guilty plea and dismiss the indictment. In the judge's accompanying written opinion, he painstakingly analyzed the evidence submitted to the court, inclu ding the statements defendant and S.F. gave to the police on May 13, 2017, the wa rehouse video, the victim's medical records, and the transcript from the grand jury proceedings. Additionally, the judge referenced defendant's testimony from his plea hearing and the statements defendant made at sentencing , "express[ing] genuine horror and remorse for his actions." Judge Kirsch found "the record contain[ed] overwhel ming proof of [defendant]'s guilt" and that defendant's claim tha t plea counsel pressured him into entering guilty pleas lack ed merit. Judge Kirsch noted defendant12 A- 0389

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"testified . . . he understood that the decision to plead guilty was his" and "he was pleading guilty to the offenses because he[,]in fact[,] was guilty [] and . . . nobody . . . pressured or threatened him into plead ing guilty." Further, the judge credited plea counsel's testimony from the "evident iary hearing that she applied no pressure whatsoever on [defendant] regarding whe ther to plead or not, and that she was ready, willing, and able to vigorously defend [him] at trial." Next, the judge thoroughly analyzed and rejected de fendant's claims of ineffective assistance of counsel (IAC) under the two -pronged test set forth in Strickland v. Washington, 466 U.S. 668 , 687 (1984). Quoting State v. Gaitan , 209 N.J. 339, 350-51 (2012), the judge observed "th e Strickland standard applies with equal force to assertions of [IAC] associated with the entry of guilty pleas." Judge Kirsch also found defendant's claim that plea "counsel was ineffective for failing to file a motion to dismiss " was "without merit." The judge stated, "[t]he evidence adduced before the gr and jury was sufficient to establish a prima facie case that [defendant] commi tted the charged crimes" "and [defendant] . . . failed to demonstrate that a moti on to dismiss the indictment would have been successful." Regarding defendant's motion to withdraw his guilty pleas, the judge examined each of the four factors set forth in Stat e v. Slater, 198 N.J. 145, 15013 A- 0389

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(2009) 5 and found the factors militated against withdrawal . The judge also rejected defendant's claim that defendant provided an insufficient factual basis during his plea hearing "to support a first-degree kidnapping conviction," finding defendant "explicitly admitted guilt to the . . . elements of first-degree kidnapping" by testifying he "unlawfully confin[ed] S.F. for a substantial period of time," took "her upstairs [to the warehouse] aga inst her will and terroriz[ed] her," and "when he held S.F. against her will, he d id not let her leave and he restricted her movements." Additionally, the judge noted that, during this incident, defendant "admitted to grabbing S.F.'s br east and ripping her shirt for his own sexual gratification despite knowing that s he did[ not] want him to do
so."
II. On appeal, defendant raises the following argument s:

POINT I
THE [TRIAL] COURT ERRED IN DENYING THE PCR [PETITION] AND CONTEMPORANEOUS

5 The four factors a trial court must consider in eva luating a motion to withdraw a guilty plea are: "(1) whether the defendant has asserted a colorable claim of innocence; (2) the nature and strength of defendant 's reasons for withdrawal; (3) the existence of a plea bargain; and (4) whether wi thdrawal would result in unfair prejudice to the State or unfair advantage t o the accused." Slater, 198 N.J. at 150.14 A- 0389

- 22 MOTIONS TO PERMIT WITHDRAWAL FROM THE GUILTY PLEA AND TO DISMISS THE INDICTMENT.
A. DEFENDANT RECEIVED [IAC], IN VIOLATION OF THE SIXTH AMENDMENT OF THE UNITED STATES CONSTITUTION AND ARTICLE I, PARAGRAPH 10 OF THE NEW JERSEY STATE CONSTITUTION ON ACCOUNT OF COUNSEL'S FAILURE TO OBTAIN THE GRAND JURY TRANSCRIPT AND TO ADVANCE A MOTION TO DISMISS.
B. THE [TRIAL] COURT ERRED IN FAILING TO DISMISS THE INDICTMENT ON . . . DEFENDANT'S DIRECT CLAIM OF IMPROPRIETY IN THE GRAND JURY PRESENTATION.

C. THE [TRIAL] COURT ERRED IN DENYING DEFENDANT'S CLAIM THAT HE WAS PRESSURED INTO PLEADING GUI[]L[T]Y ESPECIALLY INASMUCH AS HIS ATTORNEY RENDERED ERRANT ADV[ICE] AS TO CONSEQUEN[C]ES, INCLUDING ADVICE THAT WAS INEFFECTIVE, IN VIOLATION OF THE SIXTH AMENDMENT OF THE UNITED STATES CONSTITUTION AND ARTICLE I PARAGRAPH 10 OF THE NEW JERSEY STATE CONSTITUTION.
D. [PLEA] COUNSEL WAS CONSTITUTIONALLY DEFICIENT IN VIOLATION OF THE [SIXTH] AMENDMENT OF THE UNITED STATES CONSTITUTION AND ARTICLE I, PARAGR [A ]PH 10 OF THE15 A- 0389

- 22 NEW JERSEY STATE CONSTITUTION, IN FAILING TO OBTAIN AND ULTILIZE DEFENDANT'S HOSPITAL RECORDS.

E. THE [T RIAL] COURT ERRED IN DENYING RELIEF ON . . . DEFENDANT'S SIXTH AMENDMENT AND ARTICLE I, PARAGRAPH 10 [IAC] CLAIMS INASMUCH AS THEY RELATED TO INTOXICATION AS A DEFENSE AND OTHER PROBLEMS IN THE STATE'S CASE.

F. THE [TRIAL] COURT ERRED IN DENYING RELIEF ON DEFENDANT'S SIXTH AMENDMENT AND ARTICLE I, PARAGRAPH 10 [IAC] CLAIMS INASMUCH AS THEY [R]ELATED TO CHARACTER WITNESSES.

G. THE FACTUAL BASIS FOR THE GUILTY PLEA WAS DEFICIENT AND DEFENDANT RECEIVED ERRANT ADVICE AS TO CONSEQUENCES.

H. THE [TRIAL] COURT ERRED IN THE WAY THAT IT HANDLED THE PCR PROCEEDING, INCLUDING, BUT NOT LIMITED TO, ITS EVIDENTIARY DETERMINATIONS AND ITS RESTRICTIVE AND COERCIVE HANDLING OF THE MATTER OF DEFENDANT TESTIFYING.

I. THE LOWER COURT ABUSED ITS DISCRETION IN ITS APPLICATION OF THE16 A- 0389

- 22 "SLATER" FACTORS AND IN DECLINING TO VACATE THE GUILTY PLEA. These arguments lack merit. R. 2:11 -3(e)(2). We add the following

comments. Applications to withdraw a plea and claims of IAC, although often related, are distinct and must be analyzed separately, not o nly because they are governed by different rules, but also because they are judge d under different standards and grounded in different clauses of the constitution. State v. O'Donnell, 435 N.J. Super. 351, 368-69 (App. Div. 2014). A motion to w ithdraw a plea is governed by the four-factor Slater test, while an IAC claim is governed by the two-prong test enunciated in Strickland. See ibid

. While a decision on a plea withdrawal motion is ordinarily r eviewed only for an abuse of discretion, State v. Simon, 161 N.J . 416, 444 (1999), a court's failure to have analyzed the claim under the correc t test will trigger de novo review, see Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995) (explaining the "trial court's interpret ation of the law and the legal consequences that flow from established facts are n ot entitled to any special deference"). Where a guilty plea is entered pursuant to plea neg otiations, a defendant's burden becomes significantly heavier. State v. Huntley, 129 N.J. Super. 13, 18 (App. Div. 1974). Although a motion to withdraw a guilty plea17 A- 0389

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"filed at or before the time of sentencing will be granted in the 'interest[] of justice,' . . . [a] post -sentencing motion[] must meet a higher standard of 'manifest injustice' to succeed." Slater, 198 N.J. at 156 (first quoting R. 3:9

- 3(e); then quoting R. 3:21 -1). We review the legal conclusions of a PCR court de n ovo, but generally defer to its factual findings when those findings a re "supported by adequate, substantial[,] and credible evidence." State v. Ha rris, 181 N.J. 391, 415 (2004) (quoting Toll Bros. Inc. v. Twp. of W. Windsor, 173 N.J. 502, 549 (2002)). We use a deferential standard when reviewing a trial c ourt's denial of a PCR petition following an evidentiary hearing. State v. Pierre, 223 N.J. 560, 576 (2015). Our review "is necessarily deferential to [the] PCR cou rt's factual findings based on its review of live witness testimony." State v. Nash, 212 N.J. 518, 540 (2013). As Judge Kirsch observed, to succeed on a claim of IAC, a defendant must satisfy the two-prong test set forth in Strickland by a preponderance of the evidence. Gaitan, 209 N.J. at 350. Under the first Strickland prong, defendant must show counsel's performance "fell below an obje ctive standard of reasonableness" and "counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defenda nt by the Sixth Amendment." Strickland , 466 U.S. at 687- 88.18 A- 0389

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Because a reviewing court "must indulge a strong pr esumption that counsel's conduct falls within the wide range of re asonable professional assistance," "the defendant must overcome the presu mption that, under the circumstances, the challenged action [by counsel] ' might be considered sound trial strategy.'" Id. at 689 (citation omitted). "The quality of counsel's performance cannot be fairly assessed by focusing o n a handful of issues while ignoring the totality of counsel's performance in t he context of the State's evidence of defendant's guilt." State v. Castagna, 187 N.J. 293, 314 (2006) (citing State v. Marshall, 123 N.J. 1, 165 (1991)). To satisfy the second prong of the Strickland stand ard, a defendant "must show that the deficient performance prejudiced the defense." 466 U.S. at 687. There must be a "reasonable probability that, but f or counsel's unprofessional errors, the result of the proceeding would have bee n different." Id. at 694. "An

er ror by counsel, even if professionally unreasonable , does not warrant setting aside the judgment of a criminal proceeding if [it] had no effect on the judgment." Id. at 691. In the context of a PCR petition challenging a guil ty plea based on a claim of counsel's ineffective assistance, the second pro ng is established when the defendant demonstrates a "reasonable probability th at, but for counsel's errors,19 A- 0389

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[the defendant] would not have pled guilty and woul d have insisted on going to trial." State v. Nuñez-Valdéz, 200 N.J. 129, 139 (2009) (alteration in original) (quoting State v. DiFrisco, 137 N.J. 434, 457 (1994 )); see also State v. McDonald, 211 N.J. 4, 30 (2012). But the defendant also is required to show a "decision to reject the plea bargain would have bee n rational under the circumstances." Padilla v. Kentucky, 559 U.S. 356, 372 (2010). A petitioner must establish both prongs of the Stri ckland standard to obtain a reversal of the challenged conviction. 46 6 U.S. at 687; Nash, 212 N.J.

at 542; State v. Fritz, 105 N.J. 42, 52 (1987). Therefore, failure to satisfy either prong of the Strickland standard requires the denia l of a petition for PCR. 466
U.S. at 700. Additionally, r elevant to defendant's argument under Point I(H) th at "the scope of the [PCR] hearing should have been broader " and "address[ed defendant's] numerous other claims," we recognize a defendant is not automatically entitled to an evidentiary hearing by simply raising a PCR claim. State v. Cummings, 321 N.J. Super. 154, 170 (App. D iv. 1999). To obtain an evidentiary hearing, a defendant must "demonstrate a re asonable likelihood that his or her claim, viewing the facts alleged in the light most favorable to the defendant, will ultimately succeed on the merits." State v. Peoples, 446 N.J.20 A- 0389

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Super. 245, 254 (App. Div. 2016) (quoting R. 3:22 -10(b)). The petitioner's claims "must be supported by 'specific facts and ev idence supporting his [or her] allegations.'" Ibid. (quoting State v. Porter, 216 N.J. 343, 355 (2013)). A defendant "must do more than make bald assertions that [they were ] was denied the effective assistance of counsel. [A defendant] must allege facts sufficient to demonstrate counsel's alleged substan dard performance." Porter , 216 N.J. at 355 (quoting Cummings, 321 N.J. Super. at 170). Governed by these standards, we have no reason to d isturb the August 31, 2022 order and affirm substantially for the reasons set forth in Judge Kirsch's thou ghtful written opinion. In reaching this determination, we reject defendant 's argument that Judge Kirsch improperly limited the s cope of the evidentiary hearing. In fact, as Judge Kirsch implicitly found during the June 30 hearing, de fendant was not entitled to an evidentiary hearing on most of his IAC claims (e.g., his claim plea counsel failed to inform him he could present character witnesses at trial) because he failed to establish a prima f acie case of IAC under Strickland

. Similarly, we reject defendant's argument that he w as coerced out of testifying at the evidentiary hearing. The record reflects the judge expressly told PCR counsel that he was "welcome to" "put [defendan t] on the stand," but if21 A- 0389

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defendant exercised his right to testify at the hea ring, he would be subject to cross-examination by the State

. Further, the judge stated he "would never force a [d]efendant . . . to take the witness stand," and it would be "up to" PCR counsel to decide if defendant testified. In short, the judge did not improperly pressure defendant to not testify, but instead, alerted PCR coun sel to the fact there might be consequences to defendant taking the stand. Finally, we reject defendant's argument that the ju dge committed harmful

error by ask ing the State to produce the warehouse video after the June 30 hearing and then referencing it in his decision. T he record reflects the judge asked the State to produce th is video believing he had seen it previously. Moreover, nothing in the record suggests PCR counse l objected to the judge considering this video until after the judge review ed it and discussed it on the record in advance of the evidentiary hearing. We a lso do not ignore the fact PCR counsel told Judge Kirsch that defendant recall ed the judge had seen the video previously, to which the judge responded, "he may be right." Further, the judge noted both PCR counsel and the State extensiv ely referenced the video in their PCR and Slater arguments, and that the conten t of the video went to the heart of defendant's contention that he was not gui lty of kidnapping.22 A- 0389

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Given that the video corroborated defendant's testi mony during the plea hearing and that Judge Kirsch's August 31, 2022 opinion reflects he considered other substantial evidence of defendant's gu ilt before entering the challenged order

— including statements defendant and S.F. made to the police , as well as photographs and medical records documenting S.F.'s injuries after the incident

— we decline to conclude the judge's consideration of the video constitutes harmful error. Affirmed.