### RECORD IMPOUNDED

SUPERIOR COURT OF NEW JERSE Y APPELLATE DIVISION DOCKET NO . A

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- 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

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- 1032. Joseph E. Krakora, Public Defe nder, 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PER CURIAM NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court." Althoug h 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

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Defendan t M.Z. appeals from the Jan uary 31, 201 9 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

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- 1032 charging defendant with third

- degree aggravate d 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 fou r. 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 , he r husband, and herself. When a JCPD officer responded to the specified address, the officer found Maysa 1 standing on the street, without

1 To preserve confidentiality, we refer to the victim using a pseudonym. R. 1 : 38

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shoes or a coat, cradling a child , i n her arms. The child 's left eye was swollen and red. The officer entered the re sidence 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 suff ering a head contusion.
In 2015 , the State presented its case against defendant before a j ury . The
State introduc ed evidence showing defendant injured the child, who was three

and

- one - half

- years old at the time. Specifically, the State present ed evidenc e derived from a triage note taken from Jer sey City Medical Center stating the ch ild "was hit multiple times with a shoe. Brui sing 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 "los s 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 cur ative instruction advising the jury "to disreg ard any statements . . . alleged to have been made4 A

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until and unless you hear . . . them as evidence. . .

. " The court provided a similar instruction prior to summations. Defense c ounsel did no t 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
M ay sa the Division of Youth and Family Services would provide her a ll 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 c ounse l elicited that Maysa did not file a domestic violence compla int against defendant on the night of the incident

. The jury convicted defendant of abuse and neglect of a child (count three), 2 acquitted him of unlawful possession of a weapon (count five), but failed to reach a verdict on counts one and two, aggravate d assault, and endangering the welfare of a child

. On August 7, 2015, t he court sentenced defendant to time served, which was 530 days. Defendant appealed from the judgment of conviction asse rting

2 Th e 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

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prosecutorial misconduct and evidential errors denied hi m 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 t rial, 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 sh e is hiding.
B. Witness statements at trial that [Maysa] was pregnant, had been beaten by [d efendant], 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 eviden ce in opening and summation was improper and deprived [defendant] of his right to a fair tria l.
POINT II. HEARSAY TESTIMONY OF [THE OFFICER] WITH RESPECT TO A CONVERSATION WITH [MAYSA] WAS ERRONEOUSLY ADMITTED INTO EVIDENCE AND RESULTED IN THE INTRODUCTI ON OF A SHOE ALLEGEDLY USED IN THE ASSAULT.6 A

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W e rejected these arguments and affirmed , findi ng there was no prosecutorial misconduct or evidential errors that denied defendant a fair trial

. State v. M.Z. , No. A

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- 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 tria l 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, defend ant 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 hear d oral argument on defendant's p etition. Defendant assert ed the assist ant 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 argue d defense counsel was deficien t for failing to object after a police of ficer testified he7 A

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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 claim ed defense counsel was deficien t 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 hea ring, finding the trial court promptly ad dressed 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 cross

examination constituted reasonable trial strategy because counsel wanted to establish Maysa did not seek a TRO on the night of the incident, which could

u ndermine any claim of domestic violence. The PCR court ruled defendant f ailed 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 t he second part . . . of Strickland ." T he court reasoned

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

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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 th e courtroom . On the record. There's

a bsolutely 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 REGARD ING 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 h is defense counsel provide him with ineffective assistance

. Speci fically, he argues defense counsel f ailed 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 open ed the door to
pre judicial 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 , and9 A

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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 fall s within the wide range of reasonable professional assistance . . . ." Id. at 689. A deficient performance means that "counsel made errors so serious that co unsel 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

u nprofessional 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 review ed our decision on direct appeal and agreed that the assistant prosecutor's comments regarding the description of the child's injuries were ad dressed by the judge's curative instructions

. The PCR court found defense counsel exercised trial st rategy when he cross - examined the officer to establish that Maysa did not seek a TRO

. T he PCR court pointed out that any comments10 A

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regarding the battered w oman syndrome occurred out side the presence of the jury. We agree with the PCR court ' s findings. The trial court provided adequate curative instructions after opening statements

. Additionally , li ke the PCR court , we find defendant failed to overcome the "strong presumption" that his co unsel executed trial strategy when he cross

- examined the officer rega rding 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 fin ding that the error s 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

error s 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 reg arding the victim's injuries and ma n y references to domestic violence."11 A

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A n 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 i s established when a defendant demonstrates ‘a reasonable likel ihood 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 fi ndings 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 unp rofessional 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 prim a facie case, defendant was not entitled to an evidentiary he aring. State v. Preciose , 129 N.J. 451, 462 (1992) . Accordingly, the PCR court did not abuse its discretion in denying an evidentiary hearing. Affirmed.