SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3586-14T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MUMEEN A. STARKS,

Defendant-Appellant.

____________________________

Submitted February 1, 2017 – Decided

Before Judges Carroll and Gooden Brown.

On appeal from the Superior Court of New 

Jersey, Law Division, Essex County, Indictment 

No. 08-07-2240.

Joseph E. Krakora, Public Defender, attorney 

for appellant (William P. Welaj, Designated 

Counsel, on the brief).

Carolyn A. Murray, Acting Essex County 

Prosecutor, attorney for respondent (Camila A. 

Garces, 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NOT FOR PUBLICATION WITHOUT THE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.

July 24, 2017
2 A-3586-14T2

Defendant appeals from a December 2, 2014 order, denying his 

first petition for post-conviction relief (PCR). Having reviewed 

the record in light of the applicable legal principles, we affirm.

I.

Following a jury trial, defendant was convicted of murder,

N.J.S.A. 2C:11-3(a)(1)(2); second-degree aggravated assault,

N.J.S.A. 2C:12-1(b)(1); second-degree unlawful possession of a 

firearm, N.J.S.A. 2C:39-5(b); and second-degree possession of a 

firearm for an unlawful purpose, N.J.S.A. 2C:39-4(a). Defendant

was sentenced on December 7, 2009, to an aggregate term of life 

in prison, subject to the No Early Release Act (NERA), N.J.S.A.

2C:43-7.2.1 

The convictions stemmed from defendant firing several 

gunshots at approximately 10:30 p.m. on April 18, 2008, into a 

vehicle occupied by Tynesha Morris and her cousin, Theo Stewart,

following a verbal altercation with Morris. Stewart was struck 

by two of the bullets and died as a result of his gunshot wounds. 

At trial, the State presented eyewitness testimony from Morris,

her cousin, Frank Parker, and their mutual friend, Demetrius

 

1 Following the trial, defendant pled guilty to third-degree 

unlawful taking of a means of conveyance, N.J.S.A. 2C:20-10, and 

second-degree eluding, N.J.S.A. 2C:29-2(b), and was simultaneously 

sentenced. Those offenses occurred five days after the homicide, 

were charged in a separate indictment, and are not part of this 

appeal.
3 A-3586-14T2

Heyward. Parker and Heyward testified to recognizing defendant 

from the neighborhood. Heyward saw defendant pull out a gun and 

fire three to four shots within two feet of him. Parker heard the 

gunshots and saw defendant running from the scene. Morris observed 

defendant holding a gun immediately after the shots were fired. 

Defendant was described as wearing a black hoodie with a 

distinctive multi-colored design. 

Defendant filed a direct appeal, asserting the following 

arguments: 

POINT I: THE TRIAL JUDGE ERRED IN DENYING THE 

DEFENDANT'S REPEATED REQUESTS FOR A MISTRIAL, 

A REQUEST BASED ON THE INCLUSION OF NUMEROUS 

INSTANCES OF PREJUDICIAL TESTIMONY.

POINT II: THE TRIAL JUDGE ERRED IN DENYING THE 

DEFENDANT'S REQUEST TO HAVE THE JURY CHARGED 

ON PASSION/PROVOCATION MANSLAUGHTER AS A 

LESSER OFFENSE OF MURDER.

POINT III: THE DEFENDANT'S SENTENCE IS 

EXCESSIVE.

We affirmed defendant's convictions and sentence, State v. Starks, 

No. A-2802-09 (App. Div. Oct. 24, 2011), and our Supreme Court 

denied defendant's petition for certification. State v. Starks, 

210 N.J. 109 (2012). 

On June 26, 2012, defendant filed a timely pro se petition 

for PCR and was later assigned counsel who filed a supporting 

brief. In the brief, defendant argued that his trial counsel was 
4 A-3586-14T2

ineffective for: (1) failing to present an alibi defense; (2) 

failing to advise defendant about his right to testify at trial; 

(3) failing to inform the judge that a juror had been sleeping; 

and (4) failing to object to an erroneous stipulation. Defendant 

also argued that he was denied a fair trial because of the trial 

court's mishandling of a jury question and the cumulative effect 

of the errors. In addition, defendant argued that he was denied 

the effective assistance of appellate counsel. 

Following oral argument, Judge Verna G. Leath rejected 

defendant's claim that his "appellate counsel's performance was 

deficient or that there was a reasonable probability that but for 

counsel's deficient performance (which was not established), 

defendant's conviction[s] would have been overturned." Based on 

trial counsel's performance at trial as well as the fact that 

defendant's convictions and sentence were affirmed on appeal, 

Judge Leath also rejected defendant's assertion that "the 

cumulative effect of trial counsel's errors rendered his trial 

unfair."

Judge Leath did, however, grant defendant's request for an 

evidentiary hearing limited to defendant's claims regarding trial 

counsel's failure to call alibi witnesses, to advise defendant of 

his right to testify, and to object to an erroneous stipulation 

entered without defendant's consent. Regarding the sleeping juror 
5 A-3586-14T2

claim, Judge Leath considered defendant's averment in his 

supporting certification that trial counsel took no action when 

he informed him that he observed one of the jurors who later became 

the foreperson nodding off during the course of the trial.

However, Judge Leath precluded its exploration at the evidentiary 

hearing, finding that such testimony would not elucidate the issue 

since there was nothing in the record "to indicate if or when a 

juror was sleeping" and nothing to indicate whether a juror's eyes 

were closed to enhance the "ability to focus" which "is not 

uncommon in . . . trials[.]" 

The evidentiary hearing commenced on September 12, 2013, at

which time Judge Leath conducted a preliminary voir dire of trial 

counsel focused solely on defendant's waiver of the attorneyclient privilege in order to pursue his ineffective assistance of 

counsel claim. Prior to the hearing, the prosecuting attorney 

disclosed to Judge Leath and PCR counsel that, three days prior, 

he had spoken to trial counsel briefly to prepare him to testify 

for the State at the upcoming evidentiary hearing and specifically 

discussed with trial counsel the alibi witnesses he spoke with and 

his investigator's attempts to locate them. At PCR counsel's 

request, Judge Leath sought to ascertain whether trial counsel 

violated the attorney-client privilege during that five-minute 

conversation with the prosecuting attorney by discussing the case 
6 A-3586-14T2

outside the presence of defendant and PCR counsel.2 Judge Leath 

also permitted PCR counsel to cross-examine trial counsel on that 

specific issue. 

During the voir dire, there were inconsistencies between 

trial counsel's recollection of the conversation and the 

prosecuting attorney's account, prompting defendant to move to 

disqualify the prosecuting attorney in order to call him as a 

witness to undermine trial counsel's credibility. Defendant's 

application to disqualify the prosecuting attorney was denied by 

Judge Leath who found that defendant "failed to show a compelling 

and legitimate need" for disqualification because the prosecuting 

attorney was "willing to stipulate as to what the conversation 

. . . was about."

Over defendant's objection, the case was then transferred to 

Judge Robert H. Gardner to continue the evidentiary hearing. PCR 

counsel opposed the transfer, arguing that because credibility was 

 

2 See ABA Comm. on Ethics & Prof'l Responsibility, Formal Opinion 

10-456 (July 14, 2010) (addressing disclosure of information to a 

prosecutor by a criminal defense lawyer whose former client claims 

ineffective assistance of counsel and providing that "[o]utside 

judicial proceedings, . . . the lawyer may not voluntarily disclose 

any information, even non-privileged information, relating to the 

defendant's representation without the defendant's informed 

consent.") available at 

https://www.americanbar.org/content/dam/aba/images/crsj/DPDPRP/e

thics_opinion_10_456.authcheckdam.pdf.
7 A-3586-14T2

a key factor, Judge Leath was in a better position to assess PCR 

counsel's credibility from the inconsistencies elicited during the 

preliminary voir dire. Judge Gardner overruled PCR counsel's 

objection to the transfer. Judge Gardner explained that the case 

was assigned to Judge Leath while he was assigned to the Family 

Part. However, once he returned to the Criminal Division, the 

Criminal Presiding Judge transferred the case to him presumably 

because he had presided over the trial. Noting that there was no 

prejudice to defendant because there was no testimony elicited on 

the substantive PCR claims, Judge Gardner proceeded to conduct the 

evidentiary hearing over the course of three days. 

Six witnesses testified at the evidentiary hearing. Trial 

counsel and his investigator testified for the State, and 

defendant, his mother, his sister and his grandfather testified 

for the defense. Defendant's mother, sister and grandfather, all 

of whom resided with defendant, testified consistent with their 

respective certifications that defendant was at home on the night 

of the homicide. Defendant's mother testified that defendant 

returned home at approximately 7:00 p.m. and stayed home for the 

rest of the night. She specifically recalled checking on him at 

approximately 11:00 p.m. and 2:00 a.m. and he was asleep with his 

one-year-old daughter. Although she never provided the 

information to the authorities when defendant was arrested and 
8 A-3586-14T2

charged, she provided the information to an investigator and 

expected to be called as a witness at defendant's trial. However, 

despite attending most of the trial proceedings, she was never 

called to the stand. 

Defendant's grandfather could not specify what time defendant 

returned home. However, he testified that defendant was home 

before dinner, which was usually about 7:00 p.m., and stayed home 

with his daughter the rest of the night. Although he never 

provided the information to the authorities and was never 

interviewed, he too expected to testify at defendant's trial but 

was never called. Defendant's sister testified that she saw 

defendant at home at 3:40 p.m. when she returned home from school. 

She testified that defendant asked her to babysit his daughter, 

but she refused. Although she could not specify exactly where 

defendant was in the house between the hours of 10:00 p.m. and 

11:00 p.m., she testified that defendant was home all day and 

night and she wanted to testify to that effect but was never 

interviewed or called as a witness. Nonetheless, she also

acknowledged that she never provided the information to the 

authorities once she became aware of defendant's arrest.

Defendant testified that he told his trial attorney, William 

Strauss, that he was at home at the time in question and that all 

the members of his household could vouch for him being there. 
9 A-3586-14T2

Defendant acknowledged that the notice of alibi and the defense 

witness list included the names he provided. Defendant testified

he did not know that Strauss was not going to call the alibi 

witnesses until Strauss began his summation. When he confronted 

Strauss about it, Strauss responded that "he had the case won, he 

didn't need to call them." In his supporting certification, 

defendant averred that when he confronted Strauss about not calling 

the alibi witnesses, Strauss stated that "because they were my 

family, the jury would not believe them." 

Defendant also testified that he wanted to testify at his 

trial. However, rather than prepare him to testify or explain the 

ramifications of testifying, Strauss simply "told [him] not to"

and defendant accepted it because he did not know that he could 

go against his attorney's advice. Defendant conceded, however, 

that during the trial, he answered in the affirmative when Judge 

Gardner asked him whether his attorney had explained all the 

ramifications of testifying or remaining silent and whether the 

decision to remain silent was his choice. 

Defendant testified further that he did not become aware of 

the trial stipulation agreed to by Strauss regarding the hoodie

until 2012 when he was reading his trial transcripts. According 

to defendant, he would not have agreed to such a stipulation. On 

cross-examination, when defendant was asked whether he recalled 
10 A-3586-14T2

Strauss stating on the record during the trial that he was 

stipulating to the hoodie to avoid the State calling the arresting 

officer to testify that defendant was wearing the hoodie when he 

was arrested on other charges, defendant denied hearing that 

colloquy despite being present. 

Strauss, an experienced defense attorney who tried over sixty 

cases for the Public Defender's Office over twenty-five years, 

testified that he did in fact speak with defendant about his case 

on multiple occasions, and that defendant advised him of several

family members with whom he resided as well as his girlfriend who 

could provide the basis for an alibi defense. According to 

Strauss, while the case was pending, he, defendant's mother and 

three of his sisters discussed providing an alibi for defendant

in the courthouse hallway after a status conference. In addition, 

Strauss testified that he had weekly telephonic conversations with 

defendant's mother. Based on these conversations, Strauss filed 

a notice of alibi in anticipation of cooperation by the family 

members and requested his investigator, Michael Petrillo, to take 

statements from the witnesses to support an alibi defense. To 

corroborate his testimony, both the notice of intent to rely on 

alibi as a defense and the request for investigation were admitted 

into evidence at the evidentiary hearing. 
11 A-3586-14T2

Petrillo confirmed that he was requested by Strauss to 

interview defendant's girlfriend and eight of defendant's family 

members, including defendant's mother, grandfather and sister, to 

support an alibi defense. He obtained a statement from defendant's 

mother that defendant was home on the night in question and that 

she checked on him repeatedly during the night. Petrillo also 

spoke with defendant's grandfather but did not take a statement 

from him. None of the other witnesses provided by defendant 

responded or cooperated despite Petrillo's and Strauss' requests 

and representations by defendant's mother and family members that 

the witnesses would cooperate. 

Strauss testified that when he started the trial, he intended 

to call the alibi witnesses. However, he "felt that during the 

trial [he] was making some headway with some of the [State's] 

witnesses" and he did not believe that the alibi witnesses would 

"help us win the case." Further, Strauss testified that because 

he did not have statements from the alibi witnesses, other than 

defendant's mother, he was unable to assess whether there was 

consistency among them, and was concerned that none of the 

purported alibi witnesses had notified the authorities of

defendant's alibi when he was arrested and charged. Regarding 

defendant's mother, Strauss ultimately decided against using her 

as an alibi witness. In addition to the fact that she would be 
12 A-3586-14T2

subject to impeachment based on her relationship to defendant, he 

had additional concerns about her credibility. Specifically, her 

statement that it was impossible for defendant to be out of the 

house on the night in question because he had a small child was 

inconsistent with defendant being arrested about a week later 

driving his girlfriend's car. 

Strauss testified that "[h]aving a family member or a friend 

testify to an alibi is not . . . airtight." According to Strauss,

in his experience, "if you put on an alibi that has any weakness 

you risk having the burden [of proof] shift from the State to the 

defendant" because "the jury's going to wonder . . . [w]hy are you 

putting on this alibi that doesn't really stand up?" Strauss 

believed that "you're better off attacking . . . why [the State]

didn't prove their case as opposed to putting on an alibi and risk 

losing . . . credibility[.]" Strauss testified that he explained 

to defendant why he was resting without calling the alibi 

witnesses. When defendant protested that he had eight witnesses 

compared to the State's three witnesses, Strauss "tried to explain 

to him that the number of witnesses doesn't overcome the 

credibility issues." Strauss characterized his decision to not 

present an alibi defense as a strategic one, explaining that 

because there were three eyewitnesses who knew defendant from the 

past and placed him at the scene, "it was almost irrefutable that 
13 A-3586-14T2

he was present at the scene. And to put on an alibi in the face 

of that . . . , the jury would have not reacted well to that at 

all." 

Strauss testified further that he did explain to defendant 

the advantages and disadvantages of testifying at the trial. 

Strauss acknowledged that defendant had no prior criminal record,

lived approximately three miles away from the homicide scene, and 

would have denied being at the scene if he had testified. However, 

he explained to defendant that since "[t]he strategy is to concede 

that you were at the scene. . . . [I]f you get on the stand and 

testify to an alibi when the strategy is that none of these people 

saw what they claimed they saw then that just puts . . . our case 

at risk." According to Strauss, his discussion with defendant was 

"very civil" and defendant "agreed with" the strategy. Strauss 

testified that nonetheless "prior to going out on the record [he] 

made it clear to [defendant] it's his decision whether to testify 

or not. It's his right. And based upon that he . . . had to come 

out in court and he had to tell the court what his choice was." 

Regarding the hoodie, Strauss acknowledged entering into a 

stipulation with the prosecutor that the hoodie admitted into 

evidence at trial was the hoodie defendant was wearing at the time 

of his arrest. Strauss explained that by agreeing to the 

stipulation, he avoided any testimony by the arresting officer 
14 A-3586-14T2

concerning the circumstances of defendant's arrest, including the 

location and the ensuing eluding charge. Strauss testified that 

he told defendant what he was doing and why he was doing it and 

defendant said "fine." However, instead of instructing the jury 

that the parties agreed that the hoodie "was what [defendant] was 

wearing at the time of his arrest[,]" the court erroneously 

instructed the jury that "[t]he parties agree[d] that this [was]

the hoodie in this particular case." Strauss testified that 

although he was aware at the time that the court had misread the 

stipulation, as a matter of trial strategy, he did not object and 

call attention to the issue because he did not want to "highlight 

over and over this [hoodie]." In addition, Strauss did not request 

a curative instruction because "what the judge told the jury, 

while we didn't agree with that stipulation, was not inconsistent 

with my argument to the jury that my client was merely present at 

the time of the homicide."

Following the evidentiary hearing, Judge Gardner denied 

defendant's petition in a written opinion. Preliminarily, Judge 

Gardner found the testimony of "trial counsel and his investigator

. . . to be credible and the facts testified to by [defendant] and 

his family not to be consistent or credible." Judge Gardner noted 

that while Petrillo "testified consistently with . . . Strauss and 

corroborated trial counsel's version of how the investigation 
15 A-3586-14T2

unfolded[,]" defendant's family members were neither "consistent"

nor "credible." In rejecting defendant's contention that Strauss

did not adequately investigate, prepare, and produce alibi 

witnesses at trial, Judge Gardner explained:

Mr. Strauss is an attorney of extensive 

experience. He clearly and consistently 

articulated his reasons for not pursuing the 

alibi defense in his testimony. Mr. Strauss' 

reasons for not calling the family as alibi 

witnesses was a strategic decision based on 

their lack of cooperation and his inability 

to have their statements taken so as to 

determine their testimony and how they would 

be perceived on the stand. Additionally, he 

felt that the alibi testimony they would give 

would not provide a uniform story to bolster 

the arguments that [defendant] was not at the 

location at the time of the incident. His 

decisions were clearly grounded in a choice 

of trial strategy by an experienced trial 

attorney. Mr. Strauss testified that, in his 

determination, the alibi that [defendant] 

wanted him to argue to the jury was not going

to factually be a "perfect alibi" due to the 

lack of cooperation of corroborating 

witnesses. It was Mr. Strauss' trial strategy 

to argue that [defendant] was at or near the 

location, but that the identification made by 

the eyewitnesses was faulty. This [c]ourt 

does not find that the strategy chosen by 

trial counsel was unreasonable given the 

circumstances.

Next, Judge Gardner evaluated defendant's claim that he did

not knowingly and voluntarily waive his right to testify at trial 

because trial counsel failed to properly advise him of his right

and failed to properly prepare him to testify. Citing State v. 
16 A-3586-14T2

Savage, 120 N.J. 594, 631 (1990), certif. denied, 228 N.J. 35 

(2016), Judge Gardner noted that while "'counsel's responsibility

includes advising a defendant of the benefits inherent in 

exercising that right and the consequences inherent in waiving 

it'" our Supreme Court has stated that "'to ensure that counsel 

meets that obligation, it may be the better practice for a trial 

court to inquire of counsel whether he or she had advised a . . . 

defendant[] of his right to testify.'" Ibid. In rejecting 

defendant's argument, Judge Gardner accepted Strauss' testimony 

that he did, in fact, speak with defendant about testifying at 

trial. In addition, Judge Gardner pointed out that 

the [c]ourt conducted a voir dire of 

[defendant] about his right to testify and the 

positive and negative aspects of doing so 

. . . . [Defendant] stated under oath that he 

had spoken to his attorney, discussed the 

matter and had elected not to testify. . . . 

Therefore, whether or not [defendant] spoke 

with his attorney is of no moment. This 

[c]ourt conducted the voir dire of [defendant] 

and he acknowledged his waiver of the right 

to testify. 

Finally, Judge Gardner evaluated defendant's contention that 

the "[c]ourt misread the stipulation regarding the hoodie . . .

[and] mistakenly led the jury to believe he was the shooter." 

Judge Gardner explained:

[Defendant] contends that while it does appear 

that trial counsel stipulated that . . . the 

hoodie, was the same hoodie that [defendant] 
17 A-3586-14T2

was wearing when he was arrested, it does not 

appear that . . . trial counsel stipulated 

that this was the hoodie worn by the shooter 

in this particular case. This allegation 

should have been raised by appellate counsel 

on the direct appeal as the issue was wholly 

contained within the trial record. R. 3:22-

3; 3:22-4. However, no such claim was made 

in the appeal.

Even if this claim was not procedurally 

barred, this claim fails substantively as 

well. Trial counsel's strategic and tactical 

decisions will not ordinarily provide the 

basis for a finding of ineffective assistance 

of counsel, even if they are miscalculations. 

State v. Castagna, 187 N.J. 293, 314-15 

(2006). A stipulation such as one in this 

case is within the realm of trial counsel's 

strategic decision. Mr. Strauss testified at 

the PCR hearing that although he was aware at 

the time that the court had misread the 

stipulation, he, as a matter of trial 

strategy, did not object and call attention 

to the issues regarding the hoodie to the 

jury. Further, [defendant] was in court at 

the time and lacks an explanation for why he 

did not bring up the topic with Mr. Strauss 

at the time it happened. . . .

Even assuming such a strategic decision 

to stipulate to the hoodie in question amounts 

to ineffective assistance of counsel, however, 

it is highly unlikely that without the 

stipulation the outcome of the case would have 

been different. Thus, [defendant] has failed 

to show that trial counsel was ineffective or

that but-for the alleged ineffectiveness of 

counsel, the outcome of the case would have 

been different.

Judge Gardner concluded that 

the trial strategy, decision making, and 

performance of Mr. Strauss was not deficient 
18 A-3586-14T2

pursuant to Strickland v. Washington[, 466

U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 

(1984)]. Even if this [c]ourt were to assume 

that the performance of trial counsel and 

appellate counsel were deficient, the evidence 

of guilt of [defendant] that was produced at 

trial was overwhelming. Therefore, this 

[c]ourt finds that there is no reasonable 

probability that trial or appellate counsels' 

performance would have changed the ultimate 

result in this case.

This appeal followed. On appeal, defendant raises the 

following arguments for our consideration.

POINT I: THE TRIAL COURT ERRED IN DENYING THE 

DEFENDANT'S PETITION FOR POST CONVICTION 

RELIEF FOLLOWING AN EVIDENTIARY HEARING SINCE 

THE DEFENDANT FAILED TO RECEIVE ADEQUATE LEGAL 

REPRESENTATION FROM TRIAL COUNSEL IN SEVERAL 

DIFFERENT RESPECTS, WHILE THE FACTUAL FINDINGS 

MADE BY THE TRIAL COURT UNDERLYING ITS DENIAL 

WERE NOT SUPPORTED BY THE RECORD ESTABLISHED 

AT THE HEARING.

A.

3 THE TRIAL COURT ERRED IN 

DENYING THAT ASPECT OF THE 

DEFENDANT'S PETITION FOR POST 

CONVICTION RELIEF MAINTAINING HE 

DID NOT RECEIVE ADEQUATE LEGAL 

REPRESENTATION FROM TRIAL COUNSEL 

AS A RESULT OF TRIAL COUNSEL'S 

FAILURE TO THOROUGHLY INVESTIGATE 

AND PRESENT AN ALIBI DEFENSE ON THE 

DEFENDANT'S BEHALF.

B. THE TRIAL COURT ERRED IN 

DENYING THAT ASPECT OF THE 

DEFENDANT'S PETITION FOR POST 

CONVICTION RELIEF MAINTAINING HE 

DID NOT RECEIVE ADEQUATE LEGAL 

REPRESENTATION FROM TRIAL COUNSEL 

 

3 Defendant's sub-parts have been renumbered for clarity.
19 A-3586-14T2

AS A RESULT OF COUNSEL'S FAILURE TO 

THOROUGHLY DISCUSS WITH HIS CLIENT 

ALL RELEVANT RAMIFICATIONS 

ASSOCIATED WITH THE DECISION 

WHETHER OR NOT TO TESTIFY, AS A 

RESULT OF WHICH THE DEFENDANT DID 

NOT TESTIFY IN HIS OWN DEFENSE.

C. THE TRIAL COURT ERRED IN 

DENYING THAT ASPECT OF THE 

DEFENDANT'S PETITION FOR POST 

CONVICTION RELIEF MAINTAINING HE 

DID NOT RECEIVE ADEQUATE LEGAL 

REPRESENTATION FROM TRIAL COUNSEL 

AS A RESULT OF TRIAL COUNSEL'S 

FAILURE TO OBJECT TO THE TRIAL 

COURT'S ERRONEOUS RECITATION OF A 

STIPULATION TO THE JURY DURING ITS 

CHARGE, AND BY FAILING TO REQUEST AN 

IMMEDIATE CURATIVE INSTRUCTION TO 

AMELIORATE THE RESULTING 

PREJUDICIAL IMPACT TO THE 

DEFENDANT.

POINT II: THE TRIAL COURT ERRED IN DENYING THE 

DEFENDANT'S PETITION FOR POST CONVICTION 

RELIEF WITHOUT AFFORDING HIM AN EVIDENTIARY 

HEARING TO FULLY ADDRESS HIS CONTENTION THAT 

HE DID NOT RECEIVE ADEQUATE LEGAL 

REPRESENTATION FROM TRIAL COUNSEL AS A RESULT 

OF TRIAL COUNSEL'S FAILURE TO INFORM THE COURT 

A JUROR HAD BEEN SLEEPING DURING THE COURSE 

OF THE TRIAL.

POINT III: THE POST CONVICTION RELIEF JUDGE 

ERRED IN DENYING POST CONVICTION RELIEF 

COUNSEL'S REQUEST TO RETURN THE EVIDENTIARY 

HEARING TO THE POST CONVICTION RELIEF JUDGE 

WHO ORIGINALLY PRESIDED OVER LEGAL ARGUMENT 

WHICH RESULTED IN ORDERING AN EVIDENTIARY 

HEARING, AND WHO ALSO THEREFORE HEARD PARTIAL 

TESTIMONY FROM TRIAL COUNSEL.
20 A-3586-14T2

II.

Claims of ineffective assistance of counsel (IAC) are 

generally governed by the standards set forth in Strickland v. 

Washington, supra, and United States v. Cronic, 466 U.S. 648, 104 

S. Ct. 2039, 80 L. Ed. 2d 657 (1984), and adopted by this Court 

in interpreting the New Jersey Constitution. See State v. Allah, 

170 N.J. 269, 283 (2002); State v. Fritz, 105 N.J. 42, 58 (1987). 

To be entitled to a new trial based on IAC, a defendant must make 

a two-part showing:

First, the defendant must show that counsel's 

performance was deficient. This requires 

showing that counsel made errors so serious 

that counsel was not functioning as the 

"counsel" guaranteed the defendant by the 

Sixth Amendment. Second, the defendant must 

show that the deficient performance prejudiced 

the defense. This requires showing that 

counsel's errors were so serious as to deprive 

the defendant of a fair trial, a trial whose 

result is reliable. Unless a defendant makes 

both showings, it cannot be said that the 

conviction . . . resulted from a breakdown in 

the adversary process that renders the result 

unreliable.

[Fritz, supra, 105 N.J. at 52 (quoting 

Strickland, supra, 466 U.S. at 687, 104 S. Ct.

at 2064, 80 L. Ed. 2d at 693).]

Defendant bears the burden of proving both elements of an IAC 

claim by a preponderance of the evidence. State v. Gaitan, 209 

N.J. 339, 350 (2012), cert. denied, ___ U.S. ___, 133 S. Ct. 1454, 

185 L. Ed. 2d 361 (2013).
21 A-3586-14T2

In determining whether defense counsel's representation was 

deficient, "'[j]udicial scrutiny . . . must be highly 

deferential,' and must avoid viewing the performance under the 

'distorting effects of hindsight.'" State v. Norman, 151 N.J. 5, 

37 (1997) (quoting Strickland, supra, 466 U.S. at 689, 104 S. Ct.

at 2065, 80 L. Ed. 2d at 694). Because of the inherent difficulties 

in evaluating a defense counsel's tactical decisions from his or 

her perspective during trial, "a court must indulge a strong 

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

reasonable professional assistance; that is, the defendant must 

overcome the presumption that, under the circumstances, the 

challenged action 'might be considered sound trial strategy.'" 

Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed.

at 694-95 (quoting Michel v. Louisiana, 350 U.S. 91, 101, 76 S. 

Ct. 158, 164, 100 L. Ed. 83, 93 (1955)).

In determining whether defense counsel's alleged deficient 

performance prejudiced the defense, "[i]t is not enough for the 

defendant to show that the errors had some conceivable effect on 

the outcome of the proceeding." Id. at 693, 104 S. Ct. at 2067, 

80 L. Ed. 2d at 697. Rather, defendant bears the burden of showing 

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 
22 A-3586-14T2

sufficient to undermine confidence in the outcome." Id. at 694, 

104 S. Ct. at 2068, 80 L. Ed. 2d at 698; see also State v. Harris, 

181 N.J. 391, 432 (2004), cert. denied, 545 U.S. 1145, 125 S. Ct.

2973, 162 L. Ed. 2d 898 (2005).

We review the PCR court's findings of fact based on "live 

witnesses testimony" to determine whether such findings are

supported by sufficient credible evidence in the record. State 

v. Nash, 212 N.J. 518, 540 (2013). However, we review the PCR 

court's conclusions of law under a de novo standard. Id. at 540-

41; see also Harris, supra, 181 N.J. at 420-21. For mixed 

questions of law and fact, we give deference to the supported 

factual findings of the PCR court, but review de novo the PCR 

court's application of any legal rules to such factual findings. 

Harris, supra, 181 N.J. at 416 (citing State v. Marshall, 148 N.J.

89, 185, cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed.

2d 88 (1997)). "[W]here no evidentiary hearing has been held, we 

'may exercise de novo review over the factual inferences drawn 

from the documentary record by the [PCR judge].'" State v. Reevey, 

417 N.J. Super. 134, 146-47 (App. Div. 2010) (alteration in 

original) (quoting Harris, supra, 181 N.J. at 421), certif. denied, 

206 N.J. 64 (2011). Indeed, "[a]ssessing IAC claims involves 

matters of fact, but the ultimate determination is one of law[.]" 

Harris, supra, 181 N.J. at 419. 
23 A-3586-14T2

Judged by these standards, we conclude that trial counsel's

performance was not deficient and we affirm substantially based 

upon Judge Gardner's well-reasoned written opinion. Contrary to 

defendant's assertions, we are satisfied that Judge Gardner's 

factual findings based upon his credibility assessments are

supported by sufficient credible evidence in the record to warrant 

our deference, and we concur with his conclusions of law. Notably, 

we reject defendant's contention that Judge Gardner erred in 

overruling defendant's objection to the transfer of the PCR 

proceedings from Judge Leath. Although defendant "believed trial 

counsel's credibility had been adversely impacted" during the 

preliminary voir dire, rendering Judge Leath better suited to 

evaluate trial counsel's credibility, a factual inconsistency 

between trial counsel's and the prosecuting attorney's 

recollection of a five-minute conversation does not rise to the 

level of a credibility finding. We agree with Judge Gardner that 

there was no prejudice to defendant because trial counsel's 

testimony about the substantive PCR claims occurred before Judge 

Gardner who had the "opportunity to hear and see the witness[]"

and make his own credibility findings. State v. Gamble, 218 N.J.

412, 425 (quoting State v. Johnson, 42 N.J. 146, 161 (1964)). 

As a whole, we find the claims defendant offers to establish 

IAC lacking in sufficient merit to require more than limited
24 A-3586-14T2

comments in a written opinion. R. 2:11-3(e)(2). Those comments 

are as follows. It is well established that "[i]n matters of 

trial strategy, we accord great deference to the decisions of 

counsel[.]" State v. Biegenwald, 126 N.J. 1, 56 (1991). Moreover, 

[S]trategic choices made after thorough 

investigation of law and facts relevant to 

plausible options are virtually 

unchallengeable; and strategic choices made 

after less than complete investigation are 

reasonable precisely to the extent that 

reasonable professional judgments support the 

limitations on investigation. In other words, 

counsel has a duty to make reasonable 

investigations or to make a reasonable 

decision that makes particular investigations 

unnecessary. In any ineffectiveness case, a 

particular decision not to investigate must 

be directly assessed for reasonableness in all 

the circumstances, applying a heavy measure 

of deference to counsel's judgments.

[Strickland, supra, 466 U.S. at 690-91, 104 

S. Ct. at 2066, 80 L. Ed. 2d 695.] 

Defendant argues that "[t]rial counsel, in essence, 

intentionally ignored a defense which the defendant believed was 

substantiated not merely by himself, but by numerous other 

individuals[,]" and "despite the defendant's desire to testify at 

trial, counsel . . . failed to call him as a witness[.]" It is 

axiomatic that one of the most difficult strategic decisions that 

any trial attorney must confront is determining which witnesses 

to call to the stand. State v. Arthur, 184 N.J. 307, 320 (2005). 
25 A-3586-14T2

A trial attorney must consider what testimony 

a witness can be expected to give, whether the 

witness's testimony will be subject to 

effective impeachment by prior inconsistent 

statements or other means, whether the witness 

is likely to contradict the testimony of other 

witnesses the attorney intends to present and 

thereby undermine their credibility, whether 

the trier of fact is likely to find the witness 

credible, and a variety of other tangible and 

intangible factors. 

[Id. at 320-21.] 

Therefore, like other aspects of trial representation, a defense 

attorney's decision concerning which witnesses to call to the 

stand is "an art," and a court's review of such a decision should 

be "highly deferential." Strickland, supra, 466 U.S. at 689, 693, 

104 S. Ct. at 2065, 2067, 80 L. Ed. 2d at 694, 697. Moreover, 

"[c]ounsel's fear that a weak alibi could cause more harm than 

good is the type of strategic decision that should not be second 

guessed on appeal." State v. Drisco, 355 N.J. Super. 283, 291 

(App. Div. 2002), certif. denied, 178 N.J. 252 (2003). Here, 

trial counsel's decision to withhold an alibi defense from the 

jury was entitled to highly deferential review by the PCR court, 

a standard to which the PCR court abided in concluding that there 

was a reasonable basis for trial counsel's strategic decision. 

Even assuming trial counsel was deficient in failing to call 

the proffered witnesses, we are unable to find prejudice to the 

defense such that there is a "reasonable probability" the outcome 
26 A-3586-14T2

of defendant's trial would have been different, or "the factfinder 

would have had a reasonable doubt respecting guilt." Strickland, 

supra, 466 U.S. at 695, 104 S. Ct. at 2068-69, 80 L. Ed. 2d at 

698. In making a prejudice finding, the PCR court must consider 

"the totality of the evidence before the judge or jury" and "a 

verdict or conclusion only weakly supported by the record is more 

likely to have been affected by errors than one with overwhelming 

record support." Id. at 695-96, 104 S. Ct. at 2069, 80 L. Ed. 2d 

at 698-99. Here, as Judge Gardner noted, the verdict had 

overwhelming support in the trial record. Cf. State v. Pierre, 

223 N.J. 560 (2015) (reversing denial of defendant's petition for 

PCR and finding that his attorney was deficient in failing to 

present evidence, including the testimony of absent witnesses, 

that could have reinforced defendant's alibi and defendant was 

prejudiced because there was sparse evidence implicating him in 

the crimes).

Defendant argues further that Judge Gardner erred in 

determining that his voir dire with defendant regarding his 

election to testify or remain silent was dispositive of defendant's 

IAC claim that trial counsel failed to sufficiently discuss the 

decision with him. However, Judge Gardner's ruling comports with 

State v. Ball, 381 N.J. Super. 545, 557 (App. Div. 2005), where 

we held "that regardless of whether defendant was advised by 
27 A-3586-14T2

counsel," the trial judge's explanation of defendant's right to 

testify and the possible consequences of his choice, as occurred 

here, defeats an IAC claim and cures any alleged deficiency in 

counsel's performance in that regard. 

Defendant also argues that "contrary to the trial court's 

conclusion, the effect of the misread stipulation guaranteed the 

outcome of the case to the defendant's detriment, and trial 

counsel's failure to take appropriate action could not possibly 

have been characterized as constituting sound trial strategy." We 

disagree.

The quality of counsel's performance 

cannot be fairly assessed by focusing on a 

handful of issues while ignoring the totality 

of counsel's performance in the context of the 

State's evidence of defendant's guilt. As a 

general rule, strategic miscalculations or 

trial mistakes are insufficient to warrant 

reversal "except in those rare instances where 

they are of such magnitude as to thwart the 

fundamental guarantee of [a] fair trial."

[Castagna, supra, 187 N.J. at 314-15 

(alteration in original) (citations 

omitted).] 

This is not such an instance.

Additionally, defendant asserts that an evidentiary hearing 

was warranted to further address his claim that trial counsel was 

ineffective for failing to take action when he informed him that 

a juror was sleeping during the course of the trial. The mere 
28 A-3586-14T2

raising of a claim for PCR does not entitle the defendant to an 

evidentiary hearing. State v. Cummings, 321 N.J. Super. 154, 170

(App. Div.), certif. denied, 162 N.J. 199 (1999). Rather, trial 

courts should grant evidentiary hearings only if the defendant has 

presented a prima facie claim of ineffective assistance, material 

issues of disputed fact lie outside the record, and resolution of 

the issues necessitate a hearing. R. 3:22-10(b); State v. Porter, 

216 N.J. 343, 355 (2013). "Rule 3:22-10 recognizes judicial 

discretion to conduct such hearings." State v. Preciose, 129 N.J.

451, 462 (1992). Here, we discern no abuse of discretion in Judge 

Leath's rejection of defendant's self-serving claim without 

granting an evidentiary hearing as defendant's vague assertions

in essence amounted to uncorroborated "bald assertions[.]" 

Cummings, supra, 321 N.J. Super. at 170. 

The purpose of the constitutional guarantee of effective 

assistance of counsel "is simply to ensure that criminal defendants 

receive a fair trial." Strickland, supra, 466 U.S. at 689, 104 

S. Ct. at 2065, 80 L. Ed. 2d at 694; see also Waters v. Thomas, 

46 F.3d 1506, 1512 (11th Cir. 1995) (en banc) ("The test [of 

ineffective assistance] has nothing to do with what the best 

lawyers would have done. Nor is the test even what most good 

lawyers would have done. . . . We are not interested in grading 

lawyers' performances; we are interested in whether the 
29 A-3586-14T2

adversarial process at trial, in fact, worked adequately.") 

(quoting White v. Singletary, 972 F.2d 1218, 1220-21 (11th Cir.

1992), cert. denied, 514 U.S. 1131, 115 S. Ct. 2008, 131 L. Ed.

2d 1008 (1995)), cert. denied, 516 U.S. 856, 116 S. Ct. 160, 133 

L. Ed. 2d 103 (1995). Thus, "[t]he test is not whether defense 

counsel could have done better, but whether he met the 

constitutional threshold for effectiveness." Nash, supra, 212 

N.J. at 543. 

A review of the complete record shows that trial counsel made 

an objectively reasonable decision regarding his overall strategy 

in defending the charges against defendant and that he conducted 

this defense in a reasonably effective manner. Therefore, we are 

satisfied that trial counsel's representation of defendant fell 

"within the wide range of reasonable professional assistance" to 

which an accused is entitled and that defendant received a "fair 

trial." Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 

80 L. Ed. 2d at 694. 

Affirmed.