SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO . A

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- Respondent,

v. NICHOLAS A. BROWN, a/k/a NICHO LAS ANTHONY BROWN, ANTHONY BROWN, STRESS, and KNIT, Defendant

- Appellant.

________________________

Submitted September 23, 2019

– Decided Before Judges Sumners and Natali. On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 12

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- 0044. Joseph E. Krakora, Public Defender, attorney for appellant (Kisha M. S. Hebbon, Designated Counsel , on the brief). Christopher L. C. Kuberiet , Acting Middlesex County Prosecutor , attorney for respondent (Joie D. Piderit,

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court

. " A lthough 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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October 29, 20192 A

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- 17T4 Special Deputy Attorney General/ Acting Assistant Prosecutor, of co unsel and on the brief).
PER CURIAM
D efendant Nicholas A. Brown appeals from a September 11, 2017 order denying his petition for post

- conviction relief (PCR) without an evidentiary hearing

. Before us, h e presents the following argument s :

POINT I : THE T RIAL COURT ERRED IN DENYIN G DEFENDANT'S PETITION FOR POST CONVICTION RELIEF WITHOUT AFFORDING HIM AN EVIDENTIARY HEARING TO DETERMINE THE MERITS OF HIS CONTENTION THAT HE WAS DENIED THE RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL DUE TO TRIAL COUNSEL'S FA ILURE TO RAISE THE AFFIRMATIVE DEFENSE OF INSANITY
A. The Prevailing Legal Principles Regarding Claims Of Ineffective Assistance Of Counsel, Evidentiary Hearings And Petitions For Post Conviction Relief.
B. Trial Counsel Rendered Ineffective Legal Repres entation By Virtue Of Her Failure To Conduct A Thorough Pretrial Investigation Into The Potential Affirmative Defense Of Insanity And Her Failure To Call An Expert To Testify About Defendant's Mental Illness. (Da 35

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State v. Brown , No. A

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- 12 (App. Div. Jan. 8, 2016), certif. denied , 224 N.J. 529 (2016) , and in the PCR judge's written decision opinion dated October 31,
2014. A brief summary will suffice here.
O n September 22, 2011, at approximately 11: 30 p.m., Woodbridge Police Officers Thomas Ganci and Joseph Dutcher were patrolling in a marked vehicle when they saw defendant, sitting alone in a parked car in the parking lot of an apartment comple x. As the y approached defendant's car on foot , another vehicle drove by and someone inside yelled something indecipherable. D efendant then drove past the officers, nearly hitting Ganci . Dutcher then banged on the window of defendant's car to alert him to stop, but defendant sped away. The

o fficer s ' ensuing car chase concluded when defendant's car came to a stop after4 A

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collid ing into a retaining wall

. Defendant tried to escape on foot , but was apprehended by Dutch er . A subsequent search incident to defendant's arrest resulted in the seizure of multiple controlled dangerous substances (CDS) and $787 . At trial, the State presented the testimony of an expert in the field of CDS to establish that
defendant had the intent to sell the CDS and that the money was from the sal e of CDS

. A jury found defendant guilty of multiple offenses: third

- degree possession of heroin; third

- degree possession of h eroin with intent to distribute ; second

- degree possession of heroin with intent to distribute w ithin 500 feet of a public park ; th ird

- degree possession of cocaine; third

- degree possession of cocaine with intent to distribute; second

- degree possession of cocaine with intent to distribute within 500 feet of a public park; second

- degree eluding; and fourth

- degree resisting arrest. Defendant was sentenced to an aggregate extended prison term of f ifteen years with a five

- year period of parole ineligibility. We affirmed his conviction and sentence on direct appeal, State v.
Brown , No. A

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- 12 (App. Div. Jan. 8, 2016), and his petiti on for certification was denied

. 224 N.J. 529 (2016 )

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Shortly thereafter, d efen d a nt filed a PCR petition alleging his trial counsel was ineffective because s he failed to: (1) consult with, hire, or call to testify an expert to substantia te his schizoaffective d isorder in order to present an insanity defense ; (2) consult with, hire, or call to testify an expert in the field of forensic video analysis to evaluate the operation of the officers' motor vehicle recording device ; (3) challenge original unsworn complaints as to probable cause and lack of a neutral judicial officer's signature ; (4) challenge judicial and prosecutorial misconduct in hiding evidence; and (5 ) investigate defense witnesses who observed defendant prior to an ensuing police cha se. He also contended appellate counsel failed to argue judicial or prosecutorial misconduct and made erroneous arguments regard ing the illegality of his extended term sentences

. The PCR j udge , who was also the trial judge , issued an order deny ing PCR without an evidentiary hearing. In his appeal to us, d efendant maintains the judge erred in not recognizing his schizoaffective diagnosis that was rendered prior to his arrest , and would have supported an insanity defense . He maintains
that if the d efense had been presented at trial , the jury would have found him not guilty by reason of insanity

. Thus, he asserts a remand is necessary so he can present the merits of the contention at an evidentiary hearing. We see no
cause to disagree with the PCR judge's order.6 A

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Applying the well

- recognized two

- prong test to establish ineffectiveness of counsel , Strickland v. Washington , 466 U.S. 668, 687 (1984) and State v. Fritz , 105 N.J. 42, 58 (1987), the judge found there was no prima facie claim that : (1) trial counsel 's performance was deficient and (2) that the deficient performance prejudiced the defense

. As to the first prong , the judge stated in his written decision , "the record indicates that defense counsel had defendant evaluated and the conclusio ns of that evaluation stated that defenda nt lacked an affirmative defense for mental incapacity. Moreover, [d] e f endant received inpatient drug treatment and there was no diagnosis of [s] chizoaffective
disorder

. " And as to the second prong, the judge note d , " it is highly unlikely even if [defendant ] could show that he suffered a mental incapacity , the outcome of the trial would have been different." Since no prima facie claim of ineffective
assistance of counsel was established, the judge correctly applie d State v. Preciose , 129 N.J. 451, 463 (1992) , to determine defendant was not entitled to an evidentiary hearing. Accordingly, we affirm substantially for the reasons set forth by the PCR judge in his written decision. W e only add that defendant's contention he could have presented a viable insanity defense is a bald assertion not " supported by affidavits or certifications based upon the personal knowledge of the affiant or7 A

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the person making the certification." State v. Cummings , 321 N.J. Super. 15 4,
170 (App. Div. 1999) (citing R. 1:6

- 6) ; see also State v. Jones , 219 N.J. 298, 312 (2014) (holding affidavits or certifications supporting PCR petitions must identify the facts sought to be established with particularity). Defendant f ailed to submit an affidavit or certification by someone qualified to assert that
defendant had a mental d isorder at the time of the crimes that would have justified an affirmative defense of not guilt y by reason of insanity

. Affirmed.