SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1276-17T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ALEXANDER ALFARO,

Defendant-Appellant.

_______________________________

Submitted November 19, 2019 – Decided

Before Judges Fisher and Accurso.

On appeal from the Superior Court of New Jersey, Law 

Division, Essex County, Indictment No. 08-09-2688.

Joseph E. Krakora, Public Defender, attorney for 

appellant (Andrew Robert Burroughs, Designated 

Counsel, on the brief).

Theodore N. Stephens II, Acting Essex County 

Prosecutor, attorney for respondent (Barbara A. 

Rosenkrans, Special Deputy Attorney General/Acting 

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NOT FOR PUBLICATION WITHOUT THE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.

December 10, 2019
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Defendant was convicted in 2011 of murder, felony murder, conspiracy to 

commit robbery, and armed robbery, for his participation – along with five codefendants – in the events on a Newark playground on the evening of August 4, 

2007, that left three dead and only one survivor. Defendant was sentenced to an 

aggregate prison term of 212 years. The evidence upon which defendant was 

convicted was outlined in our opinion disposing of defendant's direct appeal –

we rejected all the arguments he then raised – and need not be repeated here. 

State v. Alfaro, No. A-6163-10 (App. Div. Nov. 12, 2013), certif. denied, 217 

N.J. 623 (2014).

The judge who presided over the lengthy trial also ruled on defendant's 

post-conviction relief (PCR) petition. To assist in his determination of the issues 

raised, the judge conducted a two-day evidentiary hearing in January 2017, 

during which defendant's trial and appellate counsel both testified, as did the 

two assistant prosecutors who represented the State at trial; defendant did not 

testify. By way of his March 10, 2017 written decision, the judge rejected all 

defendant's ineffective-assistance-of-counsel arguments in denying the PCR 

petition.

Defendant appeals, arguing the judge erred in rejecting his claims that he 

was denied the effective assistance of counsel because his trial counsel: (1) 
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failed to convey the State's plea offer, and (2) failed to seek the removal of a 

juror. He argues the judge also erred in rejecting his ineffectiveness claim 

because his appellate counsel did not: (3) argue in the direct appeal that he was 

prejudiced by testimony about his tattoos; (4) argue in the direct appeal that the 

judge erred in precluding testimony about when defendant obtained a tattoo in 

light of the prosecution's suggestion that the dice tattoo1 memorialized the 

murders; and (5) failed to argue either in this court on direct appeal or in seeking 

certification in the Supreme Court that State ex rel. P.M.P., 200 N.J. 166 (2009),2

should be applied retroactively so as to be applicable in this case. We find 

insufficient merit in these arguments to warrant further discussion in a written 

opinion, R. 2:11-3(e)(2), and affirm substantially for the reasons set forth by 

1 The tattoo was described as a pair of dice in flames showing the numbers one 

and three. On cross-examination, defendant was asked what the numbers stood 

for and he said "13," but equivocated when asked whether it reflected his 

membership in the MS-13 gang. The prosecutor then asked whether it referred 

"to the victims . . . [t]hree dead, one alive"? Defendant denied this.

2 The Court held in P.M.P., 200 N.J. at 178, that the issuance of juvenile 

complaints and a judicially approved arrest warrant triggered the critical stage 

in the proceeding, and, therefore, questioning the juvenile in the absence of 

counsel requires suppression of his subsequent statements. Defendant was 

sixteen at the time of the crimes; his custodial statements, which were admitted 

in evidence, were made prior to the Court's P.M.P. decision. 
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Judge Michael L. Ravin in his thorough and well-reasoned written decision. We 

add only the following few comments.

In rejecting the first argument, the judge determined from the testimony 

provided by one of the assistant prosecutors that there were "no substantive plea 

negotiations," only "plea chatter." Moreover, the judge found "there was no 

realistic possibility of the parties reaching a plea agreement," because "the State 

would not accept a plea agreement that did not include [defendant] testifying 

against his codefendants," and, according to defense counsel, defendant "would 

not testify against his codefendant[s] for fear of repercussions." Also, because 

of the strength of the State's case, both assistant prosecutors testified at the PCR 

hearing that the State "had little interest in a plea agreement." We agree with 

the PCR judge, based on his findings derived from the testimony he found 

credible, that there was no evidence of trial counsel acting below professional 

norms in this regard.

Defendant's second argument concerns trial counsel's decision not to seek 

a juror's removal. The testimony revealed that this juror stated during jury 

selection that she had never been accused of an offense; this statement proved

untruthful because it was later learned that the juror had been so accused on 

three occasions. The PCR judge concluded that the reason for not seeking the 
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juror's removal represented a sound strategic approach to the situation. 

Strickland v. Washington, 466 U.S. 668, 689 (1984); State v. Pierre, 223 N.J. 

560, 579 (2015). The prior charges against the juror were revealed to be minor 

in nature and, in the view of defendant's trial attorney, the juror was "treated 

harshly by [the prosecution] when questioned about her criminal history" during 

voir dire. We have been presented with no principled reason for secondguessing the PCR judge's finding that defense counsel's strategy was objectively 

reasonable.

We also agree with Judge Ravin's analysis as to the third and fourth 

arguments. There is no doubt that the prosecution had a right to elicit testimony 

regarding defendant's tattoos – defendant does not dispute this – and there was 

no abuse of discretion in the rulings that precluded testimony about when 

defendant obtained the dice tattoo to rebut a suggestion that the tattoo was 

intended to memorialize the killings. Even if there was a legitimate argument 

to be made about the tattoo questioning, we agree with the judge that this 

evidence "played an insignificant role in [defendant's] conviction, particularly 

given the strength of the State's evidence," so that appellate counsel's decision 

not to pursue this on appeal could not be held to be ineffective.
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We lastly turn to the fifth argument, in which defendant contends appellate 

counsel was ineffective in failing to seek the Supreme Court's determination as 

to whether P.M.P. was correctly held inapplicable here because it represented a 

new rule that was only entitled to prospective application. In an interlocutory 

appeal pursued by both defendant and co-defendant Baskerville, we rejected 

defendant's arguments that P.M.P. should have been applied even though 

defendant's statement was given to police on August 10, 2007, and P.M.P. was 

decided by the Supreme Court nearly two years later, on July 29, 2009. State v. 

Baskerville, Nos. 4209-09 and 4410-09 (App. Div. Oct. 19, 2010) (slip op. at 

22-28). The Supreme Court thereafter denied defendant's motion for leave to 

appeal our ruling. Then, in defendant's direct appeal, we considered and rejected 

arguments that the statements should have been excluded for other reasons. 

Alfaro, slip op. at 12-15. The Court denied certification. 217 N.J. 286.

It may be true that appellate counsel did not argue in defendant's petition 

for certification of our decision on the direct appeal that P.M.P. should have 

been applied here. But that argument was presented to the Supreme Court in 

defendant's earlier motion for leave to appeal our 2010 interlocutory decision. 

The Supreme Court denied that motion, thereby declining the opportunity to 
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consider the very argument that defendant now claims his appellate counsel 

should have reasserted in the later certification petition.

We are also mindful that the Court had another opportunity to consider 

P.M.P.'s retroactivity after we held in an unrelated published decision that: "(1) 

P.M.P. announced a new rule; (2) its purpose is not furthered by retroactive 

application; (3) law enforcement officials, in good faith, have relied upon the 

old rule in conducting custodial interrogations of juveniles; and (4) without 

doubt, retroactive application would have a significant impact upon the 

administration of justice." State v. Hodge, 426 N.J. Super. 321, 325 (App. Div. 

2012). When Hodge was later convicted, he appealed and we affirmed by way 

of an unpublished opinion, State v. Hodge, No. A-1177-13 (App. Div. Apr. 29, 

2016), which was followed by the Supreme Court's denial of certification, 228 

N.J. 426 (2016).

As can be seen, the Supreme Court twice declined the opportunity to 

consider our holdings that P.M.P. should only apply prospectively. So, it seems 

highly likely that the Court would not have granted certification to consider that 

issue had appellate counsel included such an argument in defendant's petition 

for certification after we decided the direct appeal. We conclude – as did the 
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PCR judge – that appellate counsel was not ineffective for failing to urge – for 

the second time – his argument that P.M.P. should be given retroactive effect.

Affirmed.