SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5063-17T1

STATE OF NEW JERSEY,

Plaintiff-Appellant,

v.

ADAM A. REED,

Defendant-Appellant.

____________________________

Submitted January 21, 2020 – Decided

Before Judges Fasciale and Rothstadt.

On appeal from the Superior Court of New Jersey, Law 

Division, Camden County, Indictment No. 11-10-2446.

Joseph E. Krakora, Public Defender, attorney for 

appellant (Andrew Robert Burroughs, Designated 

Counsel, on the brief).

Jill S. Mayers, Acting Camden County Prosectuor, 

attorney for respondent (Linda A. Shashoua, Special 

Deputy Attorney General/Acting Assistant Prosecutor, 

on the brief).

Appellant filed a pro se supplemental brief. 

NOT FOR PUBLICATION WITHOUT THE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.

January 29, 2020
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A-5063-17T1

PER CURIAM 

Defendant appeals from a February 16, 2018 order denying his petition 

for post-conviction relief (PCR). Defendant maintains that his trial counsel 

rendered ineffective assistance of counsel. Judge Michele M. Fox, who also 

served as the trial judge, entered the order and rendered a fifty-seven page 

written opinion.1

In September 2013, a grand jury indicted and charged defendant with 

third-degree possession of a controlled dangerous substance (CDS), N.J.S.A. 

2C:35-10(a)(1) (count one); second-degree possession of a CDS with intent to 

distribute, N.J.S.A. 2C:35-5(b)(2) (count two); third-degree possession of a 

CDS with intent to distribute within 1000 feet of a school, N.J.S.A. 2C:35-7 

(count three); second-degree possession of a CDS with intent to distribute within 

500 feet of a public park, N.J.S.A. 2C:35-7.1 (count four); second-degree 

resisting arrest/eluding, N.J.S.A. 2C:29-2(b) (count five); fourth-degree 

resisting arrest, N.J.S.A. 2C:29-2(a)(2) (count six); first-degree attempted 

murder, N.J.S.A. 2C:5-1 and 2C:11-3(a)(1) (count seven); second-degree 

aggravated assault, N.J.S.A. 2C:12-1(b)(1) (count eight); third-degree 

1

 The order denying defendant's PCR petition is dated February 16, 2018 but 

was filed on February 20, 2018. 
3

A-5063-17T1

aggravated assault with a deadly weapon, N.J.S.A. 2C:12-1(b)(2) (count nine); 

fourth-degree aggravated assault by pointing, N.J.S.A. 2C:12-1(b)(4) (count 

ten); third-degree resisting arrest, N.J.S.A. 2C:29-2(a)(3) (count eleven); fourthdegree possession of hollow nose bullets, N.J.S.A. 2C:39-3(f) (count twelve); 

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

4(a) (count thirteen); second-degree unlawful possession of a weapon, N.J.S.A. 

2C:39-5(b) (count fourteen); and second-degree certain persons not to have 

weapons, N.J.S.A. 2C:39-7(b) (count fifteen). The judge bifurcated the certain 

persons charge (count fifteen). 

Judge Fox presided over a jury trial, which began on May 14, 2013. On 

May 31, 2013, the jury returned a guilty verdict as to all charges (counts one 

through fourteen). On June 3, 2013, the same jury returned a guilty verdict 

convicting defendant of the certain persons offense (count fifteen). The judge 

sentenced defendant to an aggregate term of sixty-six years in prison, subject to 

forty-seven years and three months of parole ineligibility.2

2

 The judge merged counts one and three with count two; count six and eleven 

with count five; counts eight, nine, ten, and thirteen with count seven; and counts 

twelve and fourteen with count fifteen. As to count seven, the judge sentenced 

defendant to forty-five years in prison, mandatory extended term subject to the 

No Early Release Act, N.J.S.A. 2C:43-7.2, with five years of post-release parole 

supervision. As to count two, the judge sentenced defendant to eight years in 
4

A-5063-17T1

Defendant filed a direct appeal and raised the following arguments:

POINT I

REPEATED INSTANCES OF PROSECUTORIAL 

MISCONDUCT DENIED [DEFENDANT] HIS 

RIGHTS TO DUE PROCESS AND A FAIR TRIAL. 

U.S. CONST., AMENDS. V, VI, XIV; N.J. CONST. 

ART. I., ¶¶ 1, 10. (Not Raised Below).

POINT II

INSOFAR AS THE STATE FAILED TO PROVIDE 

ANY EVIDENCE THAT [DEFENDANT] WAS 

PROPERLY LIABLE FOR THE ELUDING UNDER 

THE STATE'S THEORY OF ACCOMPLICE 

LIABILITY, THAT CONVICTION MUST BE 

VACATED. (Partially Raised Below).

POINT III

INSOFAR AS THE STATE FAILED TO PROVIDE 

ANY EVIDENCE THAT [DEFENDANT] 

POSSESSED ANY CDS WITH THE INTENT TO 

DISTRIBUTE SAME WITHIN 500 FEET OF A PARK 

AS DEFINED BY N.J.S.A. 2C:35-7.1, THAT

CONVICTION MUST BE VACATED. (Partially 

Raised Below).

prison consecutive to count seven and subject to four years of parole 

ineligibility. As to count four, the judge sentenced defendant to seven years in 

prison concurrent to count two but consecutive to count seven. As to count five, 

the judge sentenced defendant to an eight-year prison term consecutive to counts 

two, four, and seven. Finally, as to count fifteen, the judge sentenced defendant 

to a five-year prison term with five years of parole ineligibility, consecutive to 

counts two, four, five, and seven.
5

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POINT IV

BECAUSE THE CREDIBLE EVIDENCE WAS 

INSUFFICIENT TO PROVE BEYOND A 

REASONABLE DOUBT THAT [DEFENDANT] WAS 

GUILTY OF THE SCHOOL ZONE OFFENSE, THE 

TRIAL [JUDGE] SHOULD HAVE ENTERED A 

JUDGMENT OF ACQUITTAL ON THAT COUNT. 

(Not Raised Below).

POINT V

THE SENTENCING [JUDGE] IMPROPERLY 

FAILED TO MERGE THE POSSESSION WITH 

INTENT TO DISTRIBUTE AND THE SCHOOL 

ZONE OFFENSE INTO THE PUBLIC PROPERTY 

OFFENSE.

POINT VI

THE SENTENCING [JUDGE] ERRED IN 

ORDERING CONSECUTIVE SENTENCES FOR 

THE THREE "GROUPINGS" OF OFFENSES.

POINT VII

[DEFENDANT]'S SENTENCE IS EXCESSIVE, 

UNDULY PUNITIVE, AND MUST BE REDUCED.

In a supplemental pro se brief, defendant made the following additional 

arguments, which we have renumbered: 
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A-5063-17T1

POINT VIII

THE STATE COMMITTED DISCOVERY AND 

[BRADY3] VIOLATIONS WHEN IT FAILED TO 

DISCLOSE TO DEFENSE COMPUTER[-AIDED] 

DISPATCH RECORDS [CAD] AND INFORMATION 

THAT [OFFICER] MARTIN WAS A MATERIAL 

WITNESS WHO MADE STATEMENTS OVER THE 

POLICE DISPATCHER EXCULPATORY TO THE 

DEFENSE AND CONTRADICTING [OFFICER] 

GONZALEZ'S CLAIM OF []ATTEMPTED 

MURDER[]. DEFENDANT'S CONSTITUTIONAL 

RIGHT TO A FAIR TRIAL AND DUE PROCESS OF 

LAW WAS VIOLATED. HIS CONVICTIONS MUST 

BE REVERSED AND A NEW TRIAL GRANTED.

POINT IX

DEFENDANT['S] CONSTITUTIONAL RIGHT TO 

DUE PROCESS WAS VIOLATED WHEN OFFICER

. . . SIMPSON OF THE CAMDEN COUNTY POLICE 

DEPT[MENT] ALLOWED POLICE RADIO 

TRANS[MISSIONS] WITH EXCULPATORY 

VALUE TO BE ERASED (DESTROYED) THUS 

INTERFERING WITH DEFENDANT[']S RIGHT TO 

PRESENT A COMPLETE DEFENSE. 

DEFENDANT[']S CONVICTION MUST BE 

REVERSED AND HIS INDICTMENT DISMISSED.

POINT X

[THE] TRIAL [JUDGE] COMMITTED REVERSIBLE 

ERROR WHEN IT ALLOWED [OFFICER] SIMPSON

TO TESTIFY AS A SURROGATE IN PLACE OF THE 

ACTUAL CRIME SCENE INVESTIGATOR WHO 

PROCESSED BALLISTIC EVIDENCE, MADE THE 

3

 Brady v. Maryland, 373 U.S. 83 (1963). 
7

A-5063-17T1

POLICE REPORTS AND SIGNED THE CHAIN OF 

CUSTODY. [THE] TRIAL [JUDGE] COMMITTED 

REVERSIBLE ERROR BY ALLOWING THE STATE 

TO MOVE THE FOLLOWING INTO EVIDENCE 

VIA THE BUSINESS RECORD EXCEPTION: 

TESTIMONY OF [OFFICER] SIMPSON 

(PERTAINING TO)[] ALL BALLISTIC EVIDENCE 

DOCUMENTATION, BALLISTIC EVIDENCE 

MENTIONED THEREIN ALL CHAIN OF CUSTODY 

IN VIOLATION OF DEFENDANT[']S U.S. CONST. 

[SIXTH] AMEND. CONFRONTATION CLAUSE 

AND N.J. CONSTITUTION ART[.] I PARA[.] 10.

POINT XI

TRIAL COUNSEL WAS INEFFECTIVE FOR

FAILING TO MOVE FOR AN ADVERSE 

INFERENCE INSTRUCTION AND OTHER 

DEFENSE LEVER[A]GING DISCOVERY 

SANCTIONS WHEN IT WAS REALIZED THAT 

THE STATE HAD VIOLATED DEFENDANT[']S 

DUE PROCESS BY ALLOWING THE RADIO 

TRANSMISSION EVIDENCE TO BE DESTROYED 

VIOLATING DEFENDANT[']S U.S. CONST. 

[SIXTH] AMENDMENT RIGHT TO COUNSEL.

POINT XII

DEFENDANT RECEIVED INEFFECTIVE 

ASSISTANCE OF COUNSEL WHEN TRIAL 

COUNSEL EVINCED IGNORANCE OF RELEVANT 

AND BINDING LAW BY FAILING TO OBJECT TO 

THE STATE[']S AND TRIAL COURT[']S LEGAL 

REMEDY OF ADMITTING INCOMPETENT 

BALLISTIC EVIDENCE, DOCUMENTATION AND 

CHAIN OF CUSTODY VIA THE BUSINESS 

RECORDS EXCEPTION, WHICH DOES NOT 
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A-5063-17T1

APPLY TO LAW ENFORCEMENT[] GENERATED 

DOCUMENTS.

POINT XIII

TRIAL COUNSEL WAS INEFFECTIVE FOR 

FAILING TO FAMILIARIZE HIMSELF WITH THE 

CAMDEN POLICE DEPARTMENT 

COMMUNICATIONS PROCEDURE BEFORE 

CROSS[]EXAMINING [OFFICER] SIMPSON AND 

OTHER OFFICERS CONCERNING ERASED 

RADIO TRANSMISSIONS VIOLATING 

DEFENDANT[']S U.S. CONST. [SIXTH] AMEND.

RIGHT TO COUNSEL AND RIGHT TO CONFRONT 

WITNESSES AGAINST HIM.

POINT XIV

TRIAL COUNSEL WAS INEFFECTIVE FOR 

FAILING TO OBTAIN EXCULPATORY [CAD] 

RECORDS ALTHOUGH THEY WERE AVAILABLE 

TO HIM UPON REQUEST AND SUPPORT THE 

DEFENSE THAT [OFFICER] GONZALEZ'S STORY 

OF []ATTEMPTED MURDER[] WAS NOT TRUE[,] 

VIOLATING DEFENDANT'S U.S. CONST. [SIXTH] 

AMEND. RIGHT TO ASSISTANCE OF COUNSEL.

POINT XV

[DEFENDANT]'S CONVICTION MUST BE 

REVERSED BECAUSE OF THE CUMULATIVE 

ERROR[S] THAT OCCURRED DURING TRIAL.

We affirmed the convictions and sentence. State v. Reed, No. A-1074-13 (App. 

Div. Feb. 11, 2016). The Supreme Court denied certification. State v. Reed,

224 N.J. 529 (2016). Defendant filed his pro se PCR petition in July 2016. 
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A-5063-17T1

Defendant and his PCR counsel submitted a total of twenty-six arguments. 

Judge Fox conducted oral argument, entered the order under review, and 

rendered an extensive written decision. 

On this appeal, defendant argues:

POINT I

THE PCR [JUDGE] ERRED WHEN [SHE] FOUND 

DEFENDANT HAD FAILED TO ESTABLISH A 

PRIMA FACIE CASE OF INEFFECTIVE 

ASSISTANCE OF COUNSEL.

1. Trial counsel was ineffective for failing to request 

the CAD report.

2. Trial counsel failed to cross[]examine Officers 

Gonzalez and Diaz about their respective medical 

records.

3. Trial counsel was ineffective by failing to have 

[d]efendant's clothing tested for gun powder residue.

4. Trial counsel was ineffective for not demanding the 

State disclose all notes taken from officers involved in 

the case.

5. Trial counsel was ineffective by failing to ask the 

trial [judge] for an adverse inference charge related to 

the State's destruction of the audio recordings.

6. Trial counsel was ineffective when he failed to 

investigate Officer Frucci's history of civil rights and 

excessive force [c]omplaints.
10 A-5063-17T1

7. Trial counsel was ineffective for not objecting to the 

admission of Exhibit 7-A depicting marijuana because 

. . . [d]efendant was not indicted on a CDS charge 

involving possession of marijuana.

8. Trial counsel failed to raise the issue of prosecutorial 

misconduct for the State's failure to preserve the video 

of the scene, or for not asking for an adverse inference 

charge.

9. Trial counsel was ineffective for failing to challenge 

the State's motion for an extended term sentence under 

the Graves Act.

10. Trial counsel was ineffective for not calling 

[Officer] Martin as a witness as he possessed 

exculpatory evidence [c]ontradicting [Officer] 

Gonzalez's testimony of shots being fired by

[d]efendant.

11. Trial counsel's cumulative errors denied his client 

effective legal representation.

POINT II

THE PCR [JUDGE] ERRED WHEN [SHE] DENIED 

DEFENDANT'S CLAIM THAT HE WAS ENTITLED 

TO A NEW TRIAL ON THE GROUNDS OF NEWLY 

DISCOVERED EVIDENCE AND VIOLATION OF 

HIS DUE PROCESS RIGHTS UNDER [BRADY].

POINT III

AS THERE WERE GENUINE ISSUES OF 

MATERIAL FACTS IN DISPUTE, AN 

EVIDENTIARY HEARING WAS REQUIRED. 
11 A-5063-17T1

In a pro se supplemental brief, defendant raises the following arguments, 

which we have renumbered:

[POINT IV]

THE PCR [JUDGE] ABUSED [HER] DISCRETION 

IN NOT GRANTING DEFENDANT[] AN 

EVIDENTIARY HEARING ON HIS INEFFECTIVE 

ASSISTANCE OF COUNSEL CLAIMS WHEN A 

FAIR ADJUDICATION REMAINS IMPOSSIBLE 

WITHOUT RESOLUTION OF DISPUTED 

MATERIAL FACTS[] IN ADDITION TO RULING 

ON [INEFFECTIVE ASSISTANCE OF COUNSEL]

CLAIMS BEFORE HEARING TRIAL COUNSEL'S 

TESTIMONY AS TO HIS DECISION MAKING 

PROCESS. (Not Raised Below).

A. TRIAL COUNSEL WAS INEFFECTIVE FOR 

FAILING TO MOVE FOR AN ADVERSE 

INFERENCE INSTRUCTION AND OTHER 

DEFENSE LEVER[AG]ING DISCOVERY 

SANCTIONS WHEN IT WAS REALIZED THAT 

THE STATE HAD VIOLATED DEFENDANT'S DUE 

PROCESS BY ALLOWING THE RADIO 

TRANSMISSION EVIDENCE TO BE DESTROYED.

B. DEFENDANT RECEIVED INEFFECTIVE 

ASSISTANCE OF COUNSEL WHEN TRIAL 

COUNSEL EVINCED IGNORANCE OF RELEVANT 

AND BINDING LAW BY FAILING TO OBJECT TO 

THE STATE AND TRIAL [JUDGE'S] LEGAL 

REMEDY OF ADMITTING INCOMPETENT 

BALLISTIC EVIDENCE, DOCUMENTATION AND 

CHAIN OF CUSTODY VIA THE BUSINESS 

RECORD EXCEPTIO[N].
12 A-5063-17T1

C. TRIAL COUNSEL WAS INEFFECTIVE FOR 

FAILING TO FAMILIARIZ[E] HIMSELF WITH THE 

CAMDEN POLICE DEPARTMENT 

COMMUNICATIONS PROCEDURE BEFORE 

CROSS EXAMINATION [OF OFFICER] SIMPSON 

AND OTHER OFFICERS CONCERNING ERASED 

RADIO TRANSMISSIONS.

D. TRIAL COUNSEL WAS INEFFECTIVE FOR 

FAILING TO OBTAIN EXCULPATORY AND 

IMPEACHMENT EVIDENCE IN THE FORM OF

[CAD] RECORDS ALTHOUGH THEY WERE 

AVAILABLE TO HIM UPON REQUEST AND 

SUPPORTED THE DEFENSE THAT [OFFICER]

GONZALEZ'S STORY OF []ATTEMPTED 

MURDER[] WAS NOT TRUE.

E. TRIAL COUNSEL WAS INEFFECTIVE WHEN 

HE FAILED TO IMPEACH THE CHARACTER OF 

OFFICER FRUCCI BY USING THE RECORD OF 

MULTIPLE EXCESSIVE FORCE CLAIMS LODGED 

AGAINST HIM, TO DEMONSTRATE THAT 

FRUCCI HAS A PENCHANT FOR COMBAT AND A 

REASON FOR BIAS IN PROTECTING HIMSELF 

AGAINST FURTHER CIVIL ACTIONS AND 

DISCIPLINARY REPERCUSSIONS. DEFENDANT 

WAS DENIED A COMPLETE DEFENSE BASED ON 

COUNSEL'S FAILURE TO PRESENT ANY 

EVIDENCE TO CHALLENGE THE COUNTS OF 

THE INDICTMENT ALLEGING ASSAULT ON 

FRUCCI.

F. THE STATE COMMITTED DISCOVERY AND 

[BRADY] VIOLATIONS WHEN IT FAILED TO 

DISCLOSE TO DEFENSE COMPUTERIZED 

DISPATCH RECORDS (CAD) AND INFORMATION 

THAT [OFFICER] MARTIN WAS A MATERIAL 

WITNESS WHO MADE STATEMENTS OVER THE 
13 A-5063-17T1

POLICE DISPATCHER EXCULPATORY TO THE 

DEFENSE AND CONTRADICTING [OFFICER] 

GONZALEZ'S CLAIM OF []ATTEMPTED 

MURDER[].

G. DEFENDANT'S CONVICTION MUST BE 

REVERSED BECAUSE OF THE CUMULATIVE 

ERRORS THAT OCCURRED DURING TRIAL; 

BECAUSE . . . COUNSEL'S INEFFECTIVENESS 

RESULTED IN DEFENDANT BEING DENIED A 

COMPLETE DEFENSE AND THE STATE'S 

CUMULATIVE DESTRUCTION OF EVIDENCE 

AND [BRADY] VIOLATIONS RESULTED IN A 

TRIAL THAT WAS FUNDAMENTALLY UNFAIR. 

We conclude that defendant's appeal lacks sufficient merit to warrant discussion 

in a written opinion. R. 2:11-3(e)(2). We affirm substantially for the reasons 

given by Judge Fox and add the following brief remarks. 

Claims of ineffective assistance of counsel are considered under the twopart test enumerated in Strickland v. Washington, 466 U.S. 668, 687 (1984), and 

adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987). The 

Strickland test requires a defendant to show that the performance of his attorney 

was deficient, and that counsel's deficient performance prejudiced the defense. 

Strickland, 466 U.S. at 687. We are satisfied from our review of the record that 

defendant failed to demonstrate the ineffectiveness of his trial counsel under the 

Strickland-Fritz test. 
14 A-5063-17T1

To meet the first part of the Strickland test, a defendant must establish that 

his attorney "made errors so serious that counsel was not functioning as the 

'counsel' guaranteed the defendant by the Sixth Amendment." Ibid. The 

defendant must rebut the "strong presumption that counsel's conduct falls within 

the wide range of reasonable professional assistance[.]" Id. at 689. Defendant 

failed to do so here.

To satisfy the second part of the Strickland test, a defendant must show 

"that counsel's errors were so serious as to deprive the defendant of a fair trial, 

a trial whose result is reliable." Id. at 687. A defendant must establish "a 

reasonable probability that, but for counsel's unprofessional errors, the result of 

the proceeding would have been different." Id. at 694. The second prong of the 

Strickland test also requires a defendant to show that counsel's alleged 

deficiency caused prejudice. Fritz, 105 N.J. at 52. 

We are convinced the PCR judge correctly determined that the record 

failed to present a prima facie case of ineffective assistance of counsel. We 

further reject defendant's contention that an evidentiary hearing was required as 

defendant failed to demonstrate a "reasonable likelihood of succeeding" on his 

ineffective assistance claim. State v. Preciose, 129 N.J. 451, 463 (1992). 

Because defendant failed to make out a prima facie case of ineffective assistance 
15 A-5063-17T1

of counsel, the judge properly adjudicated the petition without an evidentiary 

hearing.

Affirmed.