SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO . A

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STATE OF NEW JERSEY , Plaintiff

- Respondent ,

v. CANDIDO MAYAS , Defendant

- Appellant.

_________________________

Submitted December 19 , 2018

– Decided Before Judges Currier and Mayer.
On appeal from Superior Cou rt of New Jersey, Law Division , Cumberland County, Indictment No. 06

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. Joseph E. Krakora, Public Defender, attorney for appellant (Anthony J. Vecchio, Designated Counsel, on the brief). Jennifer Webb

- McRae, Cumberland Coun ty Prosecutor, attorney for respondent (Danielle Pennino, 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PER CURIAM NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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

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January 16, 20192 A

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Defendant appeals from a February 27, 2017 order denying his petition for post

- conviction relief (PCR) after an evidentiary hearing

. We affirm. The facts leading to defendant's conviction are straightforward. Defendant was a rear seat passenger in a car driven by co - defendant , Daniel Rivera. 1 The police stopped Rivera's car for having defective tail lights. T he police officers found three firearms in plain view in the car . Defendant, Rivera, and two other passengers were then arrested. Rivera pled guilty to possessing the guns and eluding the police. During the plea colloquy, River a stated he was driving a rented car, the g uns belonged to him , and defendant did not know the guns were in the car. Defendant elected to proceed to trial . Rivera was not called as a witness at defendant's trial. Instead, defense counsel presented a stipulation , advising the jury Rivera p led guilty to possessing the guns found in River a' s rental car . The jury convicted defendant of three counts of third

- degree possession of a weapon, N.J.S.A. 2C:39

- 5(b), and three counts of second

- degree certain persons not to have firearms, N.J.S.A. 2C: 39

- 7(b). The court sentenced defendant to an aggregate twenty

- year term of imprisonment with a ten

- year parole ineligibility period

.

1 Rivera is also defendant's cousin.3 A

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Defendant filed a direct appeal, and we affirmed the conviction but reversed and remanded the matter for resentencing. State v. Mayas , No. A

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- 07 (App. Div. July 29, 2011 ). The New Jersey Supreme Court denied defendant's petition for certification on January 13, 2012. State v. Mayas , 209
N.J. 97 (2012). Defendant filed a PCR petition on May 3 0 , 2012. On June 10, 2014,

w ithout conducting an evidentiary hearing, the PCR judge denied the petition , and d efendant appealed

. We reversed and remanded the matter for an evidentiary hearing before a different PCR judge. State v. Mayas , No. A

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- 14 (App. Div. June 22, 201 6).
A n evidentiary hearing on defendant's PCR application was held on December 19, 2016. Defendant's trial counsel and Rivera testified . Trial counsel testified he did not believe Rivera was a credible witnes s following Rivera's plea hearing. According to trial counsel, Rivera could not describe the
guns or explain how the guns operated

. D efendant's trial attorney found Rivera's testimony either contradicted , or was not contained in , the discovery related to defendant's charges

. According to defendant' s trial counsel, Rivera would have had to contradict his plea testimony to help defendant's case . In addition , counsel believed a jury was likely to find Rivera biased because he was4 A

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defendant's cousin and the two men had a close relationship. C ounsel to ld the PCR judge that interviewing Rivera prior to trial wou ld not have changed his opinion because the stipulation regarding Rivera's plea to possession of the weapons was preferable to calling a witness who lacked credibility. Defendant's
t rial counsel also believed the State failed to present sufficient evidence for the jury to find defendant knew the re were guns in the car

. Rivera was sequestered during the P CR evidentiary hearing and did not hear the testimony offered by defendant's trial counsel

. R ivera explained , while he is defendant's cousin, defendant is "like a brother" and Rivera would help defendant i n "any way

. " Rivera was unable to recall the statements he made during his plea colloquy. At the PCR evidentiary hearing, Rivera testified he purchased three
weapons one week prior to being arrested and none of the co

- defendants knew the guns were in the car . Rivera further explained t he guns were located in a bag in side the car. However, Rivera's PCR hearing testimony contradicted his ple a hearing testimony and the information in the arrest report

. I n denying defendant's PCR petition, t he trial judge cited Rivera's lack of credibility, conflicting testimony , and close relationship with defendant , concluding the decision against calling R ivera as a witness at defendant's trial5 A

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was a "reasonable strategic decision based on all of the information that trial counsel possessed and could have possessed as a result of an interview [of Rivera]

. " The judge determined it was not "reasonably probab le" the outcome of the trial would have been different due to Rivera's conflicting testimony and lack of credibility. On appeal, defendant argues his trial counsel was ineffective because he did not interview Rivera prior to trial or call him to testif y during trial. Specifically, d efendant raises the following arguments:

DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL BOTH BEFORE AND DURING HIS TRIAL.
A. Trial counsel failed to conduct an adequate pre

trial investigation.
B. Trial counsel was ineffective in failing to call Daniel Rivera to te stify at defendant's trial.
We defer to the trial court's factual findings made after an evidentiary hearing on a petition for PCR. State v. Nash , 212 N.J. 518, 540 (2013 ). We uphold the PCR court's fi ndings if they are "supported by sufficient credible evidence in the record." Ibid

. A PCR petitioner must establish the grounds for relief by a preponderance of the credible evidence. State v. Goodwin , 173 N.J. 583, 593 (2002).6 A

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To establish a prima fa cie claim of ineffective assistance of counsel, a convicted defendant must satisfy a two

- part test , demonstrating that: (1) counsel's performance was deficient, and (2) the deficient performance actually prejudiced the accused's defense. Strickland v. Washington , 466 U.S. 668, 682 (1984) ; see also
State v. Fritz , 105 N.J. 42, 58 (1987)

. In demonstrating the likelihood of succeeding under the Strickland/Fritz test, a defendant "must do more than make bald assertions[ ,] . . . [and] must allege facts sufficient to demonstrate counsel's alleged substandard performance." State v. Cummings , 321 N.J. Super. 154, 170 (App. Div. 1999). In reviewing ineffective assistance claims, courts apply a strong presumption that a defe ndant's trial counsel "rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Strickland , 466 U.S. at 690

. "[C]omplaints 'merely of matters of trial strategy' will not serve to ground a constitutional claim of inadequacy." Fritz , 105 N.J. at 54 (quoting State v. Williams , 39 N.J. 471, 489 (1963) ).
C ourts defer to a trial counsel ' s decisions regarding the call ing of witnesses to testify during trial

. State v. Arthur , 184 N.J. 307, 321 (2005); s ee also State v. Pierre , 223 N.J. 560, 579 (2015) (recognizing the difficulty of determining which witnesses to call and holding a court should defer to a defense7 A

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counsel's decision whether to call a witness). "Determining which wit nesses to call . . . is one of the most difficult strategic decisions that any trial attorney must confront . . . [t]herefore . . . a court's review of such a decision should be 'highly deferential.'" Arthur , 184 N.J. at 320

– 21 (quoting Strickland , 466 U. S. at 689) )

. Here, defendant's t rial counsel made appropriate strategy decisions and tactical jud gments in presenting a defense. T rial counsel's determination that Rivera lacked credibility is supported by the record. Rivera's familial and close relati onship with defendant also raised the issue of bias, which would likely have had a negative impact on defendant's case. T rial counsel further believed presenting a stipulation to the jury regarding Rivera's plea to possession of the
weapons was sufficien t to overcome the State's proofs against defendant

. Based on our review of the record, we are satisfied d efen dant's claim of ineffective assistance of counsel is without merit . T he decisions made by trial counsel were an exercise of sound judgment and reasonable trial strategy. See Arthur , 184 N.J. at 332

- 33. The mere fact that a trial strategy failed does not establish a constitutional claim of inadequacy. Fritz , 105 N.J. at 54. Affirmed.