SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1676-16T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JERMAINE A. WILLIAMS,

a/k/a BLACK,

Defendant-Appellant.

______________________________

Argued telephonically May 10, 2018 – Decided

Before Judges Yannotti and Carroll.

On appeal from Superior Court of New Jersey, 

Law Division, Passaic County, Indictment No. 

00-03-0263.

Jermaine A. Williams, appellant, argued the 

cause pro se.

Christopher W. Hsieh, Chief Assistant 

Prosecutor, argued the cause for respondent 

(Camelia M. Valdes, Passaic County Prosecutor, 

attorney; Christopher W. Hsieh, on the brief).

PER CURIAM

Defendant Jermaine A. Williams appeals from an order entered 

by the Law Division on November 30, 2016, which denied his second 

NOT FOR PUBLICATION WITHOUT THE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.

June 20, 2018
2 A-1676-16T4

petition for post-conviction relief (PCR) and his application for 

the assignment of counsel. We affirm. 

I.

A Passaic County grand jury charged defendant with firstdegree felony murder, N.J.S.A. 2C:11-3(a)(3) (count one); firstdegree robbery, N.J.S.A. 2C:15-1 and 2C:2-6 (count two); seconddegree conspiracy to commit robbery, N.J.S.A. 2C:5-2, 2C:15-1 

(count three); first-degree aggravated manslaughter, N.J.S.A. 

2C:11-4(a) (count four); second-degree possession of a weapon for 

an unlawful purpose, N.J.S.A. 2C:39-4(a), 2C:2-6 (count five); and 

third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b), 

2C:2-6 (count six). 

Defendant was tried before a jury. At the trial, the State 

presented evidence that, on the afternoon of September 26, 1999, 

defendant and two of his friends, Stuart Jones and Jahkeam Francis, 

gathered in Newark. They decided to travel by taxi to the home of 

Jahkeam's cousin, A.C., in Paterson.

1 Defendant was in possession 

of a silver handgun. Defendant said he needed money and would rob 

someone if he had the opportunity to do so. 

 Late in the afternoon, defendant, Jones, and Francis took a 

taxi to East Orange, and there they got into a livery cab that was 

 

1 In this opinion, we use initials to identify certain 

individuals.
3 A-1676-16T4

driven by another man. Defendant was seated in the rear with Jones. 

Francis sat up front, alongside of the driver. The cab stopped at 

A.C.'s mother's home and then proceeded to the intersection of 

North Fourth Street and Haledon Avenue in Paterson. 

There, at approximately 5:30 p.m., defendant observed Miguel 

"Danny" Mercado on the sidewalk in front of his father's grocery 

store. Mercado, who was sixteen-years old, was talking to a friend. 

Mercado was wearing a thick, gold chain around his neck. The car 

stopped and defendant got out. He grabbed Mercado from behind, 

placed the gun to the right side of Mercado's neck and demanded 

that Mercado give him the chain.

Mercado resisted and attempted to extricate himself from 

defendant's grip. Mercado and defendant struggled. Defendant shot 

Mercado in the abdomen, took the necklace, and got back into the 

cab, which then drove off. Mercado died the following day as a 

result of the internal hemorrhaging caused by the gunshot wound 

in his abdomen. 

After the robbery, the driver drove defendant, Jones and 

Francis to A.C.'s home. The driver dropped them off and left. A.C.

was at home with her boyfriend, Rasheem White, and her daughter. 

Later that evening, defendant, Jones, and Francis went with A.C.

and White to a club. They left at around 2:30 a.m. A.C. dropped 

defendant and Jones off at a location in Orange. Defendant told 
4 A-1676-16T4

Jones that he wanted to get rid of the gold chain. They sold the 

chain in New York City two days later.

Officers from the Paterson Police Department investigated the 

matter, and that investigation led them to A.C. and White, who 

gave statements to the police. Detective Richard Reyes testified 

that A.C. and Francis had identified defendant, Jones, and Francis 

from photo lineups. In October 1999, Jones was arrested. He 

initially denied involvement in the incident, but later said that 

defendant robbed and shot Mercado and he had been in the car at 

the time. Francis was arrested in March 2000. On June 16, 2000, 

defendant was arrested in York, Pennsylvania.

On count four, the jury found defendant not guilty of 

aggravated manslaughter, but guilty of the lesser-included offense 

of first-degree reckless manslaughter, N.J.S.A. 2C:11-4(a). The 

jury found defendant guilty on the other counts. At sentencing, 

the court merged counts two, three, and four with count one and 

sentenced defendant on that count to life imprisonment, with a 

thirty-year period of parole ineligibility. On count five, 

defendant was sentenced to a concurrent term of ten years, with a 

five-year period of parole ineligibility. On count six, the court

sentenced defendant to a consecutive term of five years of 

incarceration, with two-and-one-half years of parole 

ineligibility. 
5 A-1676-16T4

Defendant appealed his conviction and sentence and raised the 

following issues:

POINT I:

THE PROSECUTOR COMMITTED MISCONDUCT, AND THUS 

DEPRIVED DEFENDANT OF A FAIR TRIAL, WHEN HE 

TOLD THE JURORS DURING SUMMATION THAT THEIR 

ROLE IN THE CASE WAS "ABOUT COURAGE" AND 

"ABOUT ALLOCATING RESPONSIBILITY." 

POINT II:

THE COURT'S FAILURE TO INSTRUCT THE JURY TO 

APPLY SPECIAL SCRUTINY TO THE TESTIMONY OF 

ACCOMPLICES REQUIRES REVERSAL.

POINT III:

THE AGGREGATE SENTENCE OF LIFE PLUS FIVE 

YEARS, WITH A 32-1/2 YEAR PAROLE BAR, WAS 

MANIFESTLY EXCESSIVE UNDER ALL OF THE 

APPLICABLE CIRCUMSTANCES.

POINT IV:

THE CONVICTION FOR POSSESSION OF A WEAPON FOR 

AN UNLAWFUL PURPOSE SHOULD HAVE BEEN MERGED 

INTO THE FELONY-MURDER CONVICTION.

 Defendant also filed a pro se brief and addendum in which he 

raised the following issues:

POINT I:

PROSECUTOR IN SUMMATION CALLING DEFENSE 

WITNESS A "BUM" PRODUCED PREJUDICIAL ERROR 

REQUIRING REVERSAL.

POINT II:

COUNSEL WAS INEFFECTIVE FOR STATING DEFENDANT 

WAS IN GETAWAY CAR OF ROBBERY DURING [HIS] 

OPENING ARGUMENT.

POINT III:

THE COURT'S JURY CHARGE OF FLIGHT WAS 

INAPPROPRIATE. TRIAL JUDGE INSTRUCTED JURY 

THAT IT "COULD INFER THAT DEFENDANT HAD FLED 
6 A-1676-16T4

SHORTLY AFTER ALLEGED COMMISSION OF CRIME"; 

SUCH INSTRUCTION TO JURY MAY HAVE SUGGESTED 

THAT JUDGE BELIEVED DEFENDANT TO BE THE 

PERPETRATOR OF CRIME. THEREFORE REQUIRING 

REVERSAL.

POINT IV:

THE COURT'S CHARGE TO THE JURY ON 

IDENTIFICATION WAS INADEQUATE AND INCOMPLETE 

DEPRIVING DEFENDANT OF HIS RIGHT TO A FAIR 

TRIAL UNDER BOTH THE NEW JERSEY AND FEDERAL 

CONSTITUTION[S].

POINT V:

TRIAL COURT COMMITTED HARMFUL ERROR WHEN IT 

OVERRULED DEFENDANT'S OBJECTION TO AN ALLEGED 

OUT-OF-COURT IDENTIFICATION MADE BY SOMEONE 

OTHER THAN THE POLICE OFFICER TESTIFYING IN 

THE PROCEEDING. THUS, DEFENDANT WAS DENIED THE 

RIGHT TO CONFRONTATION, AND IN EFFECT 

[DEPRIVED] OF A FAIR TRIAL.

POINT VI:

THE HEARSAY RULE AND DEFENDANT'S 

CONSTITUTIONAL RIGHT TO CONFRONTATION WERE 

VIOLATED DURING THE COURSE OF THE TRIAL WHEN 

[J.F.] TESTIFIED ABOUT HER BOYFRIEND'S 

KNOWLEDGE OF THE ASSAILANTS AND THE CRIME. 

CONSEQUENTLY, THE TRIAL COURT SHOULD HAVE 

TRIED TO CORRECT OR INSTITUTE CURATIVE 

MEASURES FOR THE HEARSAY TESTIMONY OF [J.F.] 

IN REGARDS TO WHAT SHE SAID HER BOYFRIEND 

ALLEGEDLY SAID. 

We affirmed defendant's convictions. State v. Williams, No. 

A-3568-01 (App. Div. Feb. 26, 2004) (slip. op. at 10). We also 

rejected defendant's contention that his sentences were excessive, 

but vacated the separate concurrent sentence that the court had

imposed on the conviction for possession of a weapon for an 

unlawful purpose. Ibid. We remanded the matter for entry of an
7 A-1676-16T4

amended judgment of conviction merging the count charging that 

offense with count one, charging felony murder. Ibid. 

II.

In October 2004, defendant filed his first PCR petition, and 

the trial court assigned counsel to represent defendant. On October 

18, 2006, the court denied the petition without a hearing. 

Defendant appealed and raised the following arguments:

POINT I:

THE [PCR] COURT SHOULD HAVE GRANTED THE 

DEFENDANT AN EVIDENTIARY HEARING ON THE 

DEFENDANT'S MOTION FOR POST-CONVICTION RELIEF 

ON THE BASIS OF INEFFECTIVE ASSISTANCE OF 

TRIAL COUNSEL.

A: TRIAL COUNSEL FAILED TO ADEQUATELY 

INVESTIGATE AND PREPARE FOR TRIAL BY FAILING 

TO INTERVIEW AND CALL AN ALIBI WITNESS.

B: TRIAL COUNSEL FAILED TO ADEQUATELY ADVISE 

THE DEFENDANT ON HIS RIGHT TO TESTIFY.

POINT II:

THE DEFENDANT'S MOTION FOR POST-CONVICTION 

RELIEF SHOULD HAVE BEEN GRANTED DUE TO 

PROSECUTORIAL MISCONDUCT IN KNOWINGLY 

PRESENTING PERJURED TESTIMONY.

POINT III:

APPELLATE COUNSEL WAS INEFFECTIVE DUE TO HIS 

FAILURE TO RAISE THE ISSUE, ON DIRECT APPEAL 

REGARDING PROSECUTORIAL MISCONDUCT IN THE 

OPENING STATEMENTS.

POINT IV:

DEFENDANT'S MOTION FOR POST-CONVICTION RELIEF 

SHOULD HAVE BEEN GRANTED BASED UPON A FLAWED 

JURY SELECTION PROCESS; THE DEFENDANT WAS NOT 
8 A-1676-16T4

PERMITTED BY HIS ATTORNEY TO PARTICIPATE IN 

JURY SELECTION. 

 Defendant also filed a pro se brief in which he raised the 

following points:

POINT I:

POST-CONVICTION RELIEF COUNSEL FAILED TO 

ADVANCE ALL CLAIMS BY PETITIONER IN HIS PROSE PETITION. FAILURE OF COUNSEL TO [BRIEF], 

AND ARGUE INEFFECTIVE ASSISTANCE CLAIMS 

VIOLATES [RULE] 3:22-6(d)[.] COUNSEL ALSO 

FAILED TO ADVANCE GROUNDS INSISTED UPON BY 

DEFENDANT.

POINT II:

THE COURT ERRED IN REFUSING TO SET ASIDE 

DEFENDANT'S CONVICTIONS ON THE BASIS OF THE 

INEFFECTIVE ASSISTANCE OF COUNSEL CLAIMS. THAT 

CLEARLY VIOLATED THE [SIXTH] AMENDMENT. 

We affirmed the denial of PCR. State v. Williams, No. A-1494-

06 (App. Div. Sept. 25, 2008) (slip op. at 16-17). Defendant then 

petitioned the Supreme Court for certification. The Court denied 

the petition. State v. Williams, 197 N.J. 259 (2008).

It appears that in April 2009, defendant filed a petition for 

a writ of habeas corpus in the United States District Court for 

the District of New Jersey. On September 4, 2009, defendant filed 

his second PCR petition in the Law Division. On September 24, 

2010, the Law Division dismissed the petition without prejudice. 

The court indicated that defendant could re-file the petition 

after his federal claims had been resolved. 
9 A-1676-16T4

On January 22, 2015, the federal district court denied 

defendant's habeas petition and refused to issue a certificate of 

appealability. Williams v. Ricci, No. 09-1822, 2015 U.S. Dist. 

LEXIS 7618, at *36 (D.N.J. Jan. 22, 2015). It appears defendant's 

Third Circuit appeal of that decision was unsuccessful.

Thereafter, the Supreme Court of the United States denied his 

petition for a writ of certiorari. Williams v. Johnson, 136 S. Ct. 

849 (2016). 

III.

On February 9, 2016, defendant filed his PCR petition, in 

which he alleged: (1) James F. Avigliano, who represented codefendant Jones, had a conflict of interest because he later became 

County Prosecutor; (2) the assistant prosecutor committed 

misconduct and violated R.P.C. 3.8(a) by prosecuting a case that 

was not supported by probable cause; (3) the prosecutor violated 

Brady v. Maryland, 373 U.S. 83 (1963), because he failed to turn 

over certain exculpatory evidence to the defense; (4) his trial 

attorney was ineffective because he did not file a motion to 

dismiss the indictment; and (5) appellate counsel was ineffective 

because he failed to raise Avigliano's alleged conflict of interest 

on appeal. 

The PCR court found that the petition was barred under Rule

3:22-12(a)(2) and Rule 3:22-4(b). The court nevertheless addressed 
10 A-1676-16T4

the claims and found that they lacked merit. The court also found 

that defendant had not established good cause under Rule 3:22-6(b) 

for the assignment of counsel. This appeal followed.

On appeal, defendant raises the following arguments:

I. DEFENDANT['S] SECOND [PCR] IS TIMELY UNDER 

[RULE] 3:22-12[] BECAUSE IT WAS FILED BEFORE 

THE NEWLY AMENDED ONE-YEAR TIME REQUIREMENT, 

THE SECOND [PCR] HERE WAS FILED WITHIN THE 

[FIVE]-YEAR STIPULATION OF THE INITIAL [PCR] 

AND DISMISSED WITHOUT PREJUDICE BY THE TRIAL 

COURT BELOW, AND THEREFORE SHOULD BE 

CONSIDERED TIMELY (Not Raised Below).

II. FORMER HEAD PASSAIC COUNTY PROSECUTOR 

JAMES F. AVIGLIANO COMMITTED A CONFLICT OF 

INTEREST DURING THE APPELLANT'S TRIAL AND 

APPEAL PROCESS. FIRST BY FAILING TO ALERT THE 

TRIAL COURT THAT HE WAS CAMPAIGNING[] AND 

SEEKING EMPLOYMENT WITH THE PASSAIC COUNTY 

PROSECUTOR'S OFFICE[] WHILE ASSISTING THE 

APPELLANT'S CO-DEFENDANT IN TESTIFYING 

AGAINST APPELLANT[] KNOWING WEEKS AFTER THE 

APPELLANT'S TRIAL, HE WOULD BE THE BOSS OF THE 

[INDIVIDUALS] THAT HE NEGOTIATED THE 

UNCONSITUTIONAL DEALS WITH. SECONDLY, DURING 

THE APPELLANT['S] FIRST [PCR] MR. AVIGLIANO 

ALSO COMMITTED A CONFLICT OF INTEREST[] 

BECAUSE HE NOW REPRESENTED THE PASSAIC COUNTY 

PROSECUTOR'S OFFICE, AND IT WAS ONLY WHEN THE 

APPELLANT WAS APPEALING HIS FIRST [PCR] THAT 

THE ATTORNEY GENERAL REVEALED THE CONFLICT IN 

VIOLATION OF THE APPELLANT'S [FIFTH, SIXTH, 

AND FOURTEENTH] AMENDMENT RIGHTS UNDER THE 

U.S. CONSTITUTION.

III. FORMER PROSECUTOR WILLIAM J. PURDY 

COMMITTED MISCONDUCT BY PROSECUTING A CASE 

THAT WAS NOT SUPPORTED BY PROBABLE CAUSE 

UNDER [RPC] 3.8(a). THE APPELLANT'S CODEFENDANT RASHEEM WHITE WAS THE FIRST OF THE 

[SUSPECTS] INITIALLY ARRESTED, AND THE 
11 A-1676-16T4

PROSECUTOR'S CASE HINGED OFF [SIC] HIS ILLEGAL 

INVOLUNTARY, INADMISSIBLE STATEMENT[] BECAUSE 

THE COMPLAINT (ARREST WARRANT) WAS SIGNED BY 

A POLICE OFFICER[ ]WHO WAS NOT AUTHORIZED TO 

ISSUE A WARRANT UNDER NEW JERSEY LAW[][.] IT 

WAS NOT SIGNED UNDER OATH BY THE PROPER 

JUDICIAL OFFICER. THE LAW ENFORCEMENT OFFICER 

WHO TOOK THE COMPLAINT, IN FACT[,] ISSUED THE 

WARRANT, AND THIS WAS IN VIOLATION OF THE 

APPELLANT'S [FOURTH AND FOURTEENTH] AMENDMENT 

CONSITUTIONAL DUE PROCESS RIGHTS. THE NEW 

JERSEY CONSTITUTION, ART. 1, PARA 7, STATES: 

THAT NO WARRANT SHALL ISSUE EXCEPT UPON 

PROBABLE CAUSE, SUPPORTED BY OATH OR 

AFFIRMATION.

IV. THE PROSECUTOR COMMITTED A DUE PROCESS 

VIOLATION OF BRADY[] BY FAILING TO [TURN OVER] 

EXCULPATORY EVIDENCE TO THE DEFENSE. THE 

APPELLANT'S TRIAL COUNSEL HAD REQUESTED THE 

9-1-1 TAPE DURING THE TRIAL, AND THE 

PROSECUTOR FAILED TO [TURN OVER] THE TAPE TO 

THE DEFENSE, AND CONTINUES TO WITHHOLD THE 

EVIDENCE[] IN VIOLATION OF THE APPELLANT'S DUE 

PROCESS RIGHTS UNDER THE U.S. CONSTITUTION, 

AND THE [PROSECUTOR'S] DISCLOSURE DUTIES.

V. TRIAL COUNSEL THOMAS KAISER WAS 

INEFFECTIVE[] FOR FAILING TO MOVE TO GET THE 

INDICTMENT DISMISSED AGAINST THE APPELLANT, 

DUE TO THE DEFECTIVE WARRANT THAT WAS IN 

VIOLATION OF THE APPELLANT'S FEDERAL[] AND 

STATE PROVISIONS [SIC]. THE PROSECUTOR WOULD 

NOT HAVE BEEN ABLE TO MOVE THE CASE FORWARD 

WITHOUT THE DEFECTIVE WARRANT, INVOLUNTARY[] 

AND INADMISSIBLE STATEMENT OF RASHEEM WHITE[] 

THAT TRIAL COUNSEL MR. KAISER FAILED TO HAVE 

SUPPRESSED, IN VIOLATION OF THE APPELLANT'S 

[SIXTH] AMENDMENT RIGHT TO EFFECTIVE 

ASSISTANCE OF COUNSEL UNDER THE STATE AND U.S. 

CONSTITUTION[S].

VI. APPELLANT'S INITIAL [PCR] APPEAL COUNSEL

. . . WAS INEFFECTIVE DURING THE APPELLANT'S 

APPEAL PROCESS[] FOR FAILING TO ADDRESS THE 
12 A-1676-16T4

NEWLY DISCOVERED APPELLATE GROUND OF CONFLICT 

OF INTEREST THAT WAS REVEALED AGAINST THE NOW 

FORMER PROSECUTOR JAMES F. AVIGLIANO, IN 

VIOLATION OF THE APPELLANT'S [SIXTH] AMENDMENT 

RIGHTS UNDER THE U.S. CONSTITUTION. 

IV.

As stated previously, although the PCR court found the 

petition was barred under Rules 3:22-12(a)(2) and 3:22-4(b), the 

court addressed the merits of the claims and found they were

entirely without merit. We agree. 

A. Conflict of Interest

Defendant argues that James F. Avigliano, who was codefendant Jones's trial attorney, had a conflict of interest. 

Defendant asserts that Jones pled guilty, obtained a favorable 

plea agreement, and agreed to testify against defendant. Defendant 

notes that several months after the trial, Avigliano became County 

Prosecutor. 

Defendant alleges Avigliano "had his hat in the 

prosecutor['s] arena" before his trial. He claims "everyone" in 

the prosecutor's office "had to feel some sort of pressure" from 

Avigliano knowing "he would soon be their boss." Defendant also 

notes that the Attorney General assumed responsibility for his 

direct appeal, which was pending after Avigliano became County 

Prosecutor. 
13 A-1676-16T4

The PCR court found that Avigliano's representation of codefendant Jones did not result in the denial of defendant's 

constitutional right to a fair trial. The record supports the 

court's finding. Indeed, there is no evidence in the record to 

support defendant's claim that Avigliano and persons in the 

prosecutor's office knew at the time of trial that he would be 

appointed as County Prosecutor, or that Avigliano worked with the 

prosecutor's office to obtain a favorable plea agreement for Jones 

and prosecute defendant.

Moreover, the Attorney General stepped in and superseded the 

Passaic County Prosecutor's Office (PCPO) in the handling of 

defendant's direct appeal because Avigliano had become County 

Prosecutor, and he had previously represented one of the defendants 

charged in the indictment. The Attorney General's decision to 

supersede the PCPO for the appeal does not support defendant's 

claim that Avigliano had a conflict of interest during the trial 

court proceedings. 

B. Alleged Prosecutorial Misconduct

Defendant argues the assistant prosecutor committed 

misconduct by purportedly prosecuting this case without probable 

cause. According to defendant, co-defendant White was arrested on 

the basis of a warrant that was not signed by a judicial officer 
14 A-1676-16T4

and not supported by probable cause. He claims White's unlawful 

arrest tainted his conviction. 

Defendant argues that the statement White provided to the 

police regarding the robbery and shooting of Mercado should have 

been excluded at trial. The record shows, however, that White's 

statement was not the product of an allegedly invalid warrant. 

White was arrested at around 11:30 p.m. on September 29, 1999, 

based on an outstanding warrant for an unrelated crime. The police

questioned White about the Mercado robbery and shooting. At around 

2:45 a.m., White provided a statement. White then was arrested and

charged. 

Defendant claims that White's arrest on the charges related 

to the Mercado robbery and shooting was the product of an invalid 

arrest warrant. However, even if there was some technical flaw in 

the warrant, White's statement was not the product of that arrest. 

As noted, White provided his statement before that warrant was 

issued. 

Moreover, as the PCR court noted, the State did not use 

White's statement as evidence against defendant at trial. Instead,

the defense called White as a witness in an effort to exculpate 

defendant. White testified that although he was not in the car at 

the time of the shooting, he signed a typed statement placing him 
15 A-1676-16T4

in the car because he was told to sign it and he did "whatever 

they told [him] to do."

In any event, the PCR court correctly found that defendant's

claim that the assistant prosecutor pursued a matter without 

probable cause was entirely without merit. Wholly aside from

White's statement, the State had sufficient evidence to support 

defendant's indictment. 

C. Brady Violation

Defendant asserts the State violated Brady by failing to 

provide the defense with a copy of a 9-1-1 call to police 

headquarters on September 26, 1999. The record shows that the 

assistant prosecutor agreed to provide the defense with a copy of 

the 9-1-1 recording. The assistant prosecutor told the court an 

unknown person made the call and reported the shooting. It was, 

the prosecutor stated, a "very brief call." 

To establish a Brady violation, the defendant must show that 

"(1) the prosecution suppressed evidence; (2) the evidence is 

favorable to the defense; and (3) the evidence is material." State 

v. Martini, 160 N.J. 248, 268 (1999) (citation omitted). Here, 

there is no evidence that the State failed to provide the defense 

with a copy of the recording of the 9-1-1 call. 

Moreover, defendant has not shown that the recording was 

exculpatory and material to the defense. According to the assistant 
16 A-1676-16T4

prosecutor, the caller merely reported the shooting and did not 

identify herself. The PCR court correctly determined that 

defendant had not shown that the State violated its obligation 

under Brady to provide the defense with material, favorable 

evidence. 

D. Ineffective Assistance of Trial and PCR Counsel

Defendant further argues he was denied the effective 

assistance of counsel because his trial attorney did not seek 

dismissal of his indictment on the ground that White's arrest 

warrant was illegal. He also claims he was denied the effective 

assistance of PCR counsel because his attorney did not raise a 

claim regarding Avigliano's purported conflict of interest in the 

first PCR proceeding. 

To establish a claim of ineffective assistance of counsel, 

the defendant must meet the two-part test established in Strickland 

v. Washington, 466 U.S. 668, 686 (1984), and adopted by our Supreme 

Court in State v. Fritz, 105 N.J. 42, 58 (1987)). The defendant 

first must show that his attorney made errors "so serious that 

counsel was not functioning as the 'counsel' guaranteed the 

defendant by the Sixth Amendment." Strickland, 466 U.S. at 687. 

Counsel's performance is deficient if it "[falls] below an 

objective standard of reasonableness." Id. at 688.
17 A-1676-16T4

The defendant also must show that his counsel's "deficient 

performance prejudiced the defense." Id. at 687. 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." Id. at 694. A "reasonable probability" 

is a "probability sufficient to undermine confidence in the 

outcome" of the proceeding. Ibid.

Here, defendant failed to show that his trial attorney was 

deficient in failing to seek the dismissal of his indictment based 

on White's alleged illegal arrest warrant and his alleged coerced 

statement. As we stated previously, wholly aside from White's 

statements, there was probable cause for the indictment. Thus, if 

defendant's attorney had made such a motion, it would have been 

denied.

Defendant also failed to show that his PCR counsel erred by

failing to raise Avigliano's purported conflict of interest in the 

first PCR petition. The claim was meritless and the result of that 

proceeding would not have been different if counsel had raised the 

issue. 

In view of our decision, we need not address defendant's 

contention that the PCR court erred by finding that his second PCR 

petition was barred by Rules 3:22-12(a)(2) and 3:22-4(b). 

Affirmed.