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, 2024 

Before Judges Whipple and Enright. 

On appeal from the Superior Court of New Jersey, Law 

Division, Union County, Indictment No. 17-07-0529.

Helmer, Conley & Kasselman, PA, attorneys for 

appellant (Jack J. Lipari, of counsel and on the brief). 

William A. Daniel, Union County Prosecutor, attorney 

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NOT FOR PUBLICATION WITHOUT THE 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 parties in the case and its use in other cases is limited. R. 1:36-3.
2 A-0389-22

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 comprehensive 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 defendant 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); first-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-degree aggravated assault, 

N.J.S.A. 2C:12-1(b)(12); third-degree aggravated assault, N.J.S.A. 2C:12-

1(b)(7); second-degree possession of a weapon for an 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 confidentiality of records that 

were sealed under Rule 1:38-11. 
3 A-0389-22

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

On May 15, 2018, defendant entered a negotiated guilty plea to 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 order, 

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 thirteen-year prison term and that 

his remaining charges be dismissed. 

At the plea hearing, defendant testified he understood the terms of his plea 

agreement and was aware if he was convicted at trial on the three charges to 

which he pled guilty, he would serve up to thirty years on the kidnapping charge, 

a maximum of eighteen months for the criminal sexual contact charge, and 

between six months and a year if convicted on the disorderly persons contempt 

charge.2 He denied being under the influence of any substances or suffering 

from any mental health conditions and stated he had "[m]ore than enough" of 

"an opportunity to . . . speak about []his case with" plea counsel, and was 

2

 During the plea hearing, the judge and counsel discussed whether the 

maximum exposure on the contempt charge was six months or a year, with the 

judge stating he understood the maximum term was six months. Thus, without 

objection of counsel, the judge asked defendant whether he understood he would 

serve a maximum sentence of between "six months to a year" if convicted of 

contempt. Defendant answered, "Yes." 
4 A-0389-22

satisfied with her representation. Moreover, he testified he was "taking 

responsibility for a crime . . . [he] committed," and no one "pressured or 

threatened [him] with regard to []his plea[s]." 

After defendant stated he reviewed discovery and discussed with plea 

counsel the "possible pre-trial motions" and "possible defenses" he could raise 

if he went to trial, as well as the consequences of pleading guilty, plea 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 all of the constitutional 

rights . . . [e]mbedded in [a] jury trial," including "the right to call [his] own 

witnesses[ and] the right to testify on [his] own behalf," defendant answered, "I 

understand." 

Next, defendant provided a factual basis for his pleas. He admitted that 

in "the early morning hours of May 13, 2017," he was with his former girlfriend, 

S.F.,4 and kidnapped her by "unlawfully confin[ing] her for a substantial period 

of time . . . by taking her upstairs [to the warehouse] 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 privacy. R. 1:38-3(c)(12). 
5 A-0389-22

counsel if S.F. left the warehouse, "not because [defendant] . . . allowed her to," 

but "because . . . she, in fact, ran out of the [warehouse] 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 movements." 

Regarding the criminal sexual contact charge, defendant admitted that 

during the same incident on May 13, 2017, he "grabbed [S.F.'s] breast and then 

ripped her shirt[,] knowing that [it] was [a criminal sexual contact] violation." 

Finally, as to the contempt charge, defendant testified that even though he was 

served with a domestic violence restraining order after the incident, prohibiting 

him from contacting S.F., he "contacted a third party to . . . contact [S.F.] to 

have . . . communication with her through this third 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 defendant provided "an 

adequate factual basis" for his guilty pleas and that they were entered 

"knowingly, voluntarily[,] and intelligently." 

On July 12, 2018, Judge Kirsch sentenced defendant on the kidnapping 

charge to an eleven-year prison term (versus the thirteen-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 criminal 
6 A-0389-22

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 also moved to 

withdraw his plea and for dismissal of his indictment. In his PCR petition, 

defendant alleged plea counsel was ineffective because she pressured him into 

pleading guilty. Additionally, he asserted plea counsel was ineffective because 

she failed to: (1) secure records from the hospital where he was treated after the 

incident; (2) forcefully pursue an intoxication defense; (3) move to dismiss the 

indictment; (4) advise defendant he could present character 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 about plea counsel's alleged 

ineffectiveness, the judge extensively recited portions 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 the police he "drag[ged S.F.] 
7 A-0389-22

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 guilty pleas, the case "was so 

strenuously litigated from a defense standpoint, such that [he] remember[ed] it 

vividly," and "the lawyering . . . on both sides" was "exceptional." 

Additionally, 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 guilty was "belied by 

[defendant's] . . . demeanor and what he said" at the plea hearing. 

Following 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 plead 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 Kirsch stated he would 

sentence defendant to life if defendant was convicted at trial. 

The evidentiary hearing proceeded on July 11, 2022. At the outset of the 
8 A-0389-22

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 [petition] and in the . . . 

submission regarding the petition to withdraw the guilty plea." The judge also 

informed counsel that although he could not "be certain," he did not believe he 

viewed the videotape until the week before the evidentiary hearing. He 

explained that because "the videotape [was] referenced 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 that [he] actually saw it" before 

asking the State to provide a copy of the video after 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 objected to the judge 

considering the warehouse footage. The judge asked how counsel could "object 

to something [PCR counsel] referenced over and [over] again." PCR counsel 

stated defendant previously informed him the judge "had seen the video in open 

court. That was [defendant's] recollection," to which Judge Kirsch replied, 

"[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 PCR 
9 A-0389-22

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 testify, "the State c[ould] cross[-

examine] . . . [d]efendant . . . to impeach his []credibility." However, the judge 

added that he would "not issu[e] an advisory [opinion] in terms of 

circumscribing what . . . cross-examination [would] look[] like." Notably, the 

judge also advised counsel he was "certainly not compelling [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 lowered its offer to fifteen 

years and was "ultimately . . . amenable to a [thirteen-]year sentence subject to 

NERA." Plea counsel further testified the State's offer would "not get[] any 

lower than [thirteen]." 

Next, plea counsel denied telling defendant that if he refused the thirteenyear offer, Judge Kirsch told her he would sentence defendant to a life term. 

She stated, "I never said that. I would never use that type of terminology," 
10 A-0389-22

adding, "Judge Kirsch never said that to me." On the other hand, plea counsel 

testified she and defendant discussed whether he should plead guilty or go to 

trial after she reviewed the nature and number of defendant's charges, as well as 

the evidence against 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 occasions with [defendant] . . . as well 

as his family members." She testified "the evidence [against defendant], 

specifically the videotape [evidence], was very damning and damaging to the 

case." Accordingly, she informed defendant if he were convicted at trial, "his 

exposure would be what one may term to be life in prison," and at any rate, 

"higher than what [the State] offered [defendant] at the time of the plea." 

Plea counsel further testified that if defendant "file[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 pleading 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 incident between defendant and 

S.F., "there w[ere] drinking activities." She concluded this defense was not 
11 A-0389-22

viable, due to the lack of medical records, a breathalyzer 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 intoxication supported "an 

intoxication defense that would negate the mens rea." Plea counsel also testified 

that after she reviewed the video of defendant's Mirandized statement, "he did 

not seem intoxicated in that video either." 

On August 31, 2022, Judge Kirsch entered an order denying 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, including the statements defendant 

and S.F. gave to the police on May 13, 2017, the warehouse 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] overwhelming proof of 

[defendant]'s guilt" and that defendant's claim that plea counsel pressured him 

into entering guilty pleas lacked merit. Judge Kirsch noted defendant 
12 A-0389-22

"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 pleading guilty." Further, the judge 

credited plea counsel's testimony from the "evidentiary hearing that she applied 

no pressure whatsoever on [defendant] regarding whether 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 defendant'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 "the 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 grand jury was sufficient to 

establish a prima facie case that [defendant] committed the charged crimes" "and 

[defendant] . . . failed to demonstrate that a motion 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 State v. Slater, 198 N.J. 145, 150 
13 A-0389-22

(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] against her will and terroriz[ed] 

her," and "when he held S.F. against her will, he did not let her leave and he 

restricted her movements." Additionally, the judge noted that, during this 

incident, defendant "admitted to grabbing S.F.'s breast and ripping her shirt for 

his own sexual gratification despite knowing that she did[ not] want him to do 

so." 

II. 

 On appeal, defendant raises the following arguments: 

POINT I 

THE [TRIAL] COURT ERRED IN DENYING THE 

PCR [PETITION] AND CONTEMPORANEOUS 

5

 The four factors a trial court must consider in evaluating 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 withdrawal would result in 

unfair prejudice to the State or unfair advantage to 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 THE 
15 A-0389-22

NEW JERSEY STATE CONSTITUTION, IN 

FAILING TO OBTAIN AND ULTILIZE 

DEFENDANT'S HOSPITAL RECORDS. 

E. THE [TRIAL] 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 THE 
16 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 only because they are governed 

by different rules, but also because they are judged 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 withdraw 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 reviewed 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 correct 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 interpretation of the law and the legal 

consequences that flow from established facts are not entitled to any special 

deference"). Where a guilty plea is entered pursuant to plea negotiations, 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 plea 
17 A-0389-22

"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 novo, but generally 

defer to its factual findings when those findings are "supported by adequate, 

substantial[,] and credible evidence." State v. Harris, 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 court'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 court'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 objective standard of 

reasonableness" and "counsel made errors so serious that counsel was not 

functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." 

Strickland, 466 U.S. at 687-88. 
18 A-0389-22

Because a reviewing court "must indulge a strong presumption that 

counsel's conduct falls within the wide range of reasonable professional 

assistance," "the defendant must overcome the presumption 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 on a handful of issues while 

ignoring the totality of counsel's performance in the 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 standard, a defendant "must 

show that the deficient performance prejudiced the defense." 466 U.S. at 687. 

There must be a "reasonable probability that, but for counsel's unprofessional 

errors, the result of the proceeding would have been different." Id. at 694. "An 

error 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 guilty plea based on a claim 

of counsel's ineffective assistance, the second prong is established when the 

defendant demonstrates a "reasonable probability that, but for counsel's errors, 
19 A-0389-22

[the defendant] would not have pled guilty and would 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 been rational under the 

circumstances." Padilla v. Kentucky, 559 U.S. 356, 372 (2010). 

A petitioner must establish both prongs of the Strickland standard to 

obtain a reversal of the challenged conviction. 466 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 denial of a petition for PCR. 466 

U.S. at 700. 

Additionally, relevant to defendant's argument under Point I(H) that "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. Div. 1999). To obtain an 

evidentiary hearing, a defendant must "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." State v. Peoples, 446 N.J. 
20 A-0389-22

Super. 245, 254 (App. Div. 2016) (quoting R. 3:22-10(b)). The petitioner's 

claims "must be supported by 'specific facts and evidence 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 substandard performance." Porter, 

216 N.J. at 355 (quoting Cummings, 321 N.J. Super. at 170). 

Governed by these standards, we have no reason to disturb the August 31, 

2022 order and affirm substantially for the reasons set forth in Judge Kirsch's 

thoughtful written opinion. In reaching this determination, we reject defendant's 

argument that Judge Kirsch improperly limited the scope of the evidentiary 

hearing. In fact, as Judge Kirsch implicitly found during the June 30 hearing, 

defendant 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 facie case of IAC under 

Strickland. 

Similarly, we reject defendant's argument that he was coerced out of 

testifying at the evidentiary hearing. The record reflects the judge expressly told 

PCR counsel that he was "welcome to" "put [defendant] on the stand," but if 
21 A-0389-22

defendant exercised his right to testify at the hearing, 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 counsel to the fact there might 

be consequences to defendant taking the stand. 

Finally, we reject defendant's argument that the judge committed harmful 

error by asking the State to produce the warehouse video after the June 30 

hearing and then referencing it in his decision. The record reflects the judge 

asked the State to produce this video believing he had seen it previously. 

Moreover, nothing in the record suggests PCR counsel objected to the judge 

considering this video until after the judge reviewed it and discussed it on the 

record in advance of the evidentiary hearing. We also do not ignore the fact 

PCR counsel told Judge Kirsch that defendant recalled 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 extensively referenced the video in 

their PCR and Slater arguments, and that the content of the video went to the 

heart of defendant's contention that he was not guilty of kidnapping. 
22 A-0389-22

Given that the video corroborated defendant's testimony during the plea 

hearing and that Judge Kirsch's August 31, 2022 opinion reflects he considered 

other substantial evidence of defendant's guilt 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.