RECORD IMPOUNDED

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3306-18T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

M.Z.,

Defendant-Appellant.

_______________________

Submitted June 2, 2020 – Decided July 8, 2020

Before Judges Yannotti and Hoffman.

On appeal from the Superior Court of New Jersey, Law 

Division, Hudson County, Indictment No.14-06-1032.

Joseph E. Krakora, Public Defender, attorney for 

appellant (Karen A. Lodeserto, Designated Counsel, on 

the brief).

Esther Suarez, Hudson County Prosecutor, attorney for 

respondent (Lillian M. Kayed, Assistant Prosecutor, 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NOT FOR PUBLICATION WITHOUT THE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-3306-18T2

Defendant M.Z. appeals from the January 31, 2019 Law Division order 

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

hearing. We affirm.

On May 28, 2014, a Hudson County grand jury returned Indictment No. 

14-06-1032 charging defendant with third-degree aggravated assault of a child,

pursuant to N.J.S.A. 2C:12-1(b)(7) (count one); second-degree endangering the 

welfare of a child, pursuant to N.J.S.A. 2C:24-4(a)(2) (count two); fourth-degree 

abuse and neglect of a child, pursuant to N.J.S.A. 9:6-1 and 9:6-3 (count three); 

third-degree terroristic threats, pursuant to N.J.S.A. 2C:12-3(b) (count four);

and fourth-degree possession of a weapon (a shoe), for an unlawful purpose, 

pursuant to N.J.S.A. 2C:39-4(d) (count five). Prior to trial, the State dismissed 

count four. 

We derive the following facts from the trial record. At 12:55 a.m. on 

December 27, 2013, the Jersey City Police Department (JCPD) received a 9-1-

1 call. The caller told the 9-1-1 operator a violent domestic dispute just occurred 

between her child, her husband, and herself. When a JCPD officer responded to 

the specified address, the officer found Maysa1standing on the street, without 

1

 To preserve confidentiality, we refer to the victim using a pseudonym. R.

1:38-3(c)(9).
3

A-3306-18T2

shoes or a coat, cradling a child, in her arms. The child's left eye was swollen 

and red. The officer entered the residence and recovered a shoe from the 

premises. Police transported Maysa and the child to Jersey City Medical Center, 

where medical professionals diagnosed the child as suffering a head contusion. 

In 2015, the State presented its case against defendant before a jury. The 

State introduced evidence showing defendant injured the child, who was threeand-one-half-years old at the time. Specifically, the State presented evidence 

derived from a triage note taken from Jersey City Medical Center stating the 

child "was hit multiple times with a shoe. Bruising and swelling [was] noted to

the left side of [her] forehead. [Maysa] reporte[ed] one episode of vomiting." 

Additionally, Officer Adrienne Murrell testified the child was visibly injured 

with swelling and redness protruding from her face. The State also introduced 

photographs of the child's injuries that were admitted into evidence. 

During her opening statement, the assistant prosecutor stated the jury 

would see the swelling on the child's face, the "loss of blood vessels," and a welt 

on the child's face after explaining to the jury that defendant was charged with 

aggravated assault. While defense counsel objected on other grounds during the 

opening statement, the trial court provided a comprehensive curative instruction 

advising the jury "to disregard any statements . . . alleged to have been made 
4

A-3306-18T2

until and unless you hear . . . them as evidence. . . ." The court provided a similar 

instruction prior to summations. 

Defense counsel did not object when a police officer testified that he 

advised Maysa of her "domestic violence rights," which included her right to 

seek a temporary restraining order (TRO). The officer also stated he informed 

Maysa the Division of Youth and Family Services would provide her all 

necessary information if she wanted to go to a shelter for battered women. On 

cross-examination, defense counsel questioned the officer about Maysa's

domestic violence rights. Defense counsel elicited that Maysa did not file a 

domestic violence complaint against defendant on the night of the incident. 

The jury convicted defendant of abuse and neglect of a child (count 

three),2acquitted him of unlawful possession of a weapon (count five), but failed 

to reach a verdict on counts one and two, aggravated assault, and endangering 

the welfare of a child. 

On August 7, 2015, the court sentenced defendant to time served, which 

was 530 days. Defendant appealed from the judgment of conviction asserting 

2

 The jury had difficulty reaching a verdict on all charges. Following an Allen

charge, a partial verdict was rendered. See Allen v. United States, 164 U.S. 492 

(1896). 
5

A-3306-18T2

prosecutorial misconduct and evidential errors denied him a fair trial. He raised

the following arguments:

POINT I.

THE STATE'S INTRODUCTION INTO EVIDENCE 

OF INADMISSIBLE, UNDULY PREJUDICIAL 

EVIDENCE VIOLATED N.J.R.E. 404(B) AND 

DENIED DEFENDANT DUE PROCESS AND A 

FAIR TRIAL.

A. Throughout the course of the trial, the prosecutor 

engaged in a series of inappropriate remarks 

designed to suggest that [defendant] beat 

[Maysa] and that she did not appear at trial 

because she is hiding.

B. Witness statements at trial that [Maysa] was 

pregnant, had been beaten by [defendant], and 

had fled to a women's shelter, prejudiced 

[defendant] and deprived him of his right to a fair 

trial.

C. The prosecutor's use of inadmissible evidence in 

opening and summation was improper and 

deprived [defendant] of his right to a fair trial.

POINT II.

HEARSAY TESTIMONY OF [THE OFFICER] WITH 

RESPECT TO A CONVERSATION WITH [MAYSA] 

WAS ERRONEOUSLY ADMITTED INTO 

EVIDENCE AND RESULTED IN THE 

INTRODUCTION OF A SHOE ALLEGEDLY USED 

IN THE ASSAULT. 
6

A-3306-18T2

We rejected these arguments and affirmed, finding there was no 

prosecutorial misconduct or evidential errors that denied defendant a fair trial. 

State v. M.Z., No. A-0464-15 (App. Div. May 8, 2017), slip. op. at 14. We 

reviewed the assistant prosecutor's opening and closing remarks and the 

admission of certain testimony that defendant alleged was prejudicial. Id. at 13-

14. Notwithstanding the alleged errors, we found defendant received a fair trial 

and the "State's proofs on count three were strong. . . ." Id. at 14. We further 

ruled the "alleged errors were the sort that could be cured by . . . prompt 

instruction[s]" from the court. Id. at 10. Apparently as a result of defendant's 

conviction, the federal government commenced proceedings seeking his 

deportation in 2016. 

On July 9, 2018, defendant filed a pro se PCR petition, alleging he was 

denied the effective assistance of trial counsel. He was assigned PCR counsel 

who filed a supplemental brief dated December 12, 2018. On January 31, 2019, 

the PCR court heard oral argument on defendant's petition. 

Defendant asserted the assistant prosecutor's comments regarding the 

child's injuries were improper because the State did not intend to present any 

medical testimony regarding the injuries. Defendant further argued defense 

counsel was deficient for failing to object after a police officer testified he 
7

A-3306-18T2

advised Maysa of her "domestic violence rights," including her right to seek a 

TRO, and informed her that information was available if she wanted to go to a 

shelter for battered women. Defendant also claimed defense counsel was 

deficient when he opened the door to the admission of evidence that the child's 

mother had obtained a TRO and her last-known address was in a shelter for 

battered women. 

The PCR court rejected these arguments without a hearing, finding the 

trial court promptly addressed the alleged improper comments by instructing the 

jury that the prosecutor's statements were not evidence. The PCR court also 

found the police officer's comments about the shelter for battered women 

occurred outside the presence of the jury. The court further ruled that defense 

counsel's questioning of the police officer about a TRO during crossexamination constituted reasonable trial strategy because counsel wanted to 

establish Maysa did not seek a TRO on the night of the incident, which could 

undermine any claim of domestic violence. 

The PCR court ruled defendant failed to meet the first prong of 

Strickland.

3 The court found that even if defendant did meet the first prong, he

"absolutely does not make the second part . . . of Strickland." The court reasoned 

3

 Strickland v. Washington, 466 U.S. 668, 687 (1984).
8

A-3306-18T2

defendant's assertions were "mere conclusory allegations" and declined to grant 

an evidentiary hearing. The court explained, "Everything [] defendant is 

claiming in this matter . . . occur[ed] in the courtroom. On the record. There's 

absolutely no need for an evidentiary hearing . . . ."

On appeal, defendant raises the following argument:

POINT ONE.

THE PCR COURT ERRED IN DENYING 

DEFENDANT AN EVIDENTIARY HEARING 

BECAUSE TESTIMONY IS NEEDED REGARDING 

TRIAL COUNSEL'S FAILURE TO MAKE 

OBJECTIONS TO DAMAGING TESTIMONY 

REGARDING THE VICTIM'S INJURIES AND 

MANY REFERENCES TO DOMESTIC VIOLENCE.

 I

As noted, defendant contends his defense counsel provide him with

ineffective assistance. Specifically, he argues defense counsel failed to object 

to the assistant prosecutor's characterization of the child's injury in her opening 

statement. He also asserts defense counsel failed to object to witness testimony 

about Maysa entering a battered woman's shelter and opened the door to 

prejudicial references regarding domestic violence against her.

To prevail on a claim of ineffective assistance of counsel, a defendant 

must satisfy the two-prong test established in Strickland, 466 U.S. at 687, and 
9

A-3306-18T2

adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987). The 

defendant must show that: 1) counsel's performance was deficient; and 2) the 

deficient performance prejudiced the defendant. Strickland, 466 U.S. at 687. 

To satisfy the first prong of the Strickland test, a defendant must overcome 

a "strong presumption that counsel's conduct falls within the wide range of 

reasonable professional assistance . . . ." Id. at 689. A deficient performance 

means that "counsel made errors so serious that counsel was not functioning as 

the 'counsel' guaranteed the defendant by the Sixth Amendment." Id. at 687. 

To establish the second prong of the Strickland test, the defendant must 

establish "that there is a reasonable probability that, but for counsel's 

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

reasonable probability is a probability sufficient to undermine confidence in the 

outcome." Id. at 694. 

In this case we are not persuaded by defendant's arguments. The PCR

court reviewed our decision on direct appeal and agreed that the assistant 

prosecutor's comments regarding the description of the child's injuries were

addressed by the judge's curative instructions. The PCR court found defense 

counsel exercised trial strategy when he cross-examined the officer to establish

that Maysa did not seek a TRO. The PCR court pointed out that any comments 
10 A-3306-18T2

regarding the battered woman syndrome occurred outside the presence of the 

jury.

We agree with the PCR court's findings. The trial court provided adequate 

curative instructions after opening statements. Additionally, like the PCR court, 

we find defendant failed to overcome the "strong presumption" that his counsel 

executed trial strategy when he cross-examined the officer regarding the TRO. 

State v. Nash, 212 N.J. 518, 542 (2013). 

Accordingly, the PCR court reasonably concluded that even if defendant 

satisfied the first prong of the Strickland standard, he could not satisfy the 

second prong. We agree with the PCR court's finding that the errors could not 

satisfy prong two of the Strickland test. Therefore, there is not a reasonable 

probability the result would have been different if defense counsel's alleged 

errors never occurred. State v. Harris, 181 N.J. 391, 432 (2004).

 II

Defendant argues the PCR court abused its discretion in denying him an 

evidentiary hearing because "testimony is needed regarding [defense] counsel's 

failure to make objections to damaging testimony regarding the victim's injuries 

and many references to domestic violence."
11 A-3306-18T2

An evidentiary hearing is required on a PCR petition only if the defendant 

presents a prima facie case in support of PCR, the court determines there are 

material issues of dispute fact that cannot be resolved based on the existing 

record, and the court determines that an evidentiary hearing is necessary to 

resolve the claims for relief. R. 3:22-10(b). "A prima facie case is established 

when a defendant demonstrates ‘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. Porter, 216 N.J. 343, 355 (2013) 

(quoting R. 3:22-10(b)).

The record amply supports the PCR court's findings and conclusions. The 

PCR court determined it had all of the information before it and an evidentiary 

hearing would not aid it in ruling on defendant's petition. Defendant has not 

shown "there is a reasonable probability that, but for counsel's unprofessional 

errors, the result of the proceeding would have been different." Strickland, 466 

U.S. at 694. He was unable to demonstrate the required prejudice. Having failed 

to establish a prima facie case, defendant was not entitled to an evidentiary 

hearing. State v. Preciose, 129 N.J. 451, 462 (1992). Accordingly, the PCR 

court did not abuse its discretion in denying an evidentiary hearing.

Affirmed.