SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2992-16T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ERIC NIEVES, a/k/a JASON NIEVES,

Defendant-Appellant.

__________________________________

Submitted July 9, 2018 – Decided

Before Judges Yannotti and Haas.

On appeal from Superior Court of New Jersey, 

Law Division, Union County, Indictment No. 10-

02-0238.

Joseph E. Krakora, Public Defender, attorney 

for appellant (Monique D. Moyse, Designated 

Counsel, on the brief).

Andrew C. Carey, Middlesex County Prosecutor, 

attorney for respondent (Susan L. Berkow, 

Special Assistant Prosecutor, of counsel and 

on the brief).

PER CURIAM

Defendant Eric Nieves appeals from an order entered by the 

Law Division on November 18, 2016, which denied his petition for 

NOT FOR PUBLICATION WITHOUT THE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 19, 2018
2 A-2992-16T1

post-conviction relief (PCR) without an evidentiary hearing. We 

affirm. 

I.

Defendant was charged under Middlesex County Indictment No. 

10-02-0238 with third-degree conspiracy to commit burglary, 

N.J.S.A. 2C:5-2, N.J.S.A. 2C:18-2 (count one); third-degree 

burglary, N.J.S.A. 2C:18-2 and N.J.S.A. 2C:2-6 (counts eighteen, 

thirty-four, forty, and forty-two); third-degree theft, by 

unlawful taking, N.J.S.A. 2C:20-3(a) and N.J.S.A. 2C:2-6 (counts 

nineteen, thirty-five, and forty-one); third-degree trafficking 

in stolen property, N.J.S.A. 2C:20-7.1(b) (count twenty-one); and 

third-degree receiving stolen property, N.J.S.A. 2C:20-7 (count 

twenty-three). 

The charges arose from four residential home burglaries and 

related crimes that were committed in 2009. Defendant was charged

alone in counts forty, forty-one, and forty-two. Co-defendants 

Victor Torres or Andrew Zeleniak, or both, were charged with 

defendant in the other counts. 

Sometime after the indictment was returned, this matter was 

transferred to Union County. The trial court later denied 

defendant's motion to suppress the recorded statements he gave to 

the police. Defendant was tried before a jury, which found 

defendant guilty of all charges. The court sentenced defendant to 
3 A-2992-16T1

an aggregate term of twenty-five years in state prison, with 

twelve-and-one-half years of parole ineligibility. The court 

ordered defendant to pay restitution in the amount of $4767.

Defendant appealed from the judgment of conviction dated 

September 30, 2011, and raised the following arguments:

I. THE COURT ERRED IN ACCEPTING THE STATE'S 

LEGALLY ERRONEOUS ARGUMENT THAT A LESSERINCLUDED OFFENSE OF THEFT SHOULD NOT BE 

CHARGED WITH RESPECT TO THE ALVAREZ BURGLARY 

BECAUSE IT WAS A DISORDERLY PERSONS OFFENSE –

THAT IS, THE VALUE OF THE STOLEN ITEM WAS LESS 

THAN $200 – AND COMPOUNDED THE ERROR BY 

CHARGING A LESSER-INCLUDED OFFENSE 

UNSUPPORTED BY THE RECORD. (Not Raised Below).

II. THE JURY INSTRUCTIONS ON ACCOMPLICE 

LIABILITY DID NOT COMPLY WITH STATE V. 

BIELKIEWICZ [267 N.J. Super. 520 (App. Div. 

1993)].

III. THE RESTITUTION ORDER SHOULD BE VACATED 

BECAUSE IT WAS PREDICATED UPON A VAGUE 

POSSIBILITY THAT DEFENDANT MIGHT WIN THE 

LOTTERY, WHICH SHOULD BE REJECTED AS AN 

ILLEGITIMATE CONSIDERATION IN ASSESSING 

DEFENDANT'S FURTURE ABILITY TO PAY.

IV. NOTWITHSTANDING DEFENDANT'S CRIMINAL 

RECORD, THE TWENTY-FIVE-YEAR SENTENCE WITH [A] 

TWELVE-AND-A-HALF-YEAR PAROLE DISQUALIFIER 

WAS MANIFESTLY EXCESSIVE FOR A HANDFUL OF 

THIRD-DEGREE BURGLARIES AND THEFTS.

We affirmed defendant's conviction, but remanded the matter 

to the trial court for reconsideration of the consecutive sentences 

imposed and the restitution ordered. State v. Nieves, No. A-2010-

11 (App. Div. Mar. 7, 2014) (slip op. at 20-21). On remand, the 
4 A-2992-16T1

trial court imposed the same sentence, and again ordered defendant 

to pay restitution in the amount of $4767. 

Defendant appealed from the amended judgment of conviction 

dated June 3, 2014, and we heard the appeal on our excessive 

sentence oral argument calendar. R. 2:9-11. We affirmed the 

sentence. State v. Nieves, No. A-0372-14 (App. Div. Mar. 10, 2015). 

The Supreme Court denied defendant's petition for certification. 

State v. Nieves, 222 N.J. 17 (2015). 

II.

On December 14, 2015, defendant filed a timely PCR petition. 

He alleged his trial attorney was ineffective because he failed 

to: (1) inform him of the details of the State's last plea offer; 

(2) obtain a log book from a hospital where he claimed to be when

some of the crimes were committed; (3) investigate potential 

witnesses that would support an alibi defense; and (4) file a 

motion seeking the disqualification of the assistant prosecutor. 

Defendant also claimed appellate counsel was ineffective for 

failing to argue on appeal that: (1) the change of venue for his 

trial was improper; (2) the resentencing judge should have recused 

himself; and (3) the trial court erred by failing to entertain his 

application for substitute counsel. In addition, he argued that 

his sentence was illegal and the ordered restitution was improper.

The PCR court assigned counsel to represent defendant. 
5 A-2992-16T1

The PCR court conducted a non-evidentiary hearing on November 

18, 2016. The court filed a written opinion, in which it found 

that many of defendant's claims were either barred by Rule 3:22-5 

because they had been raised and adjudicated in prior proceedings, 

or barred by Rule 3:22-4 because they could have been raised on 

direct appeal. 

The court nevertheless considered the merits of the claims 

presented. The court found that defendant had not presented a 

prima facie case of ineffective assistance of trial or appellate 

counsel, and that an evidentiary hearing was not required. The 

court entered an order dated November 18, 2016, denying PCR. This 

appeal followed.

III.

On appeal, defendant argues that the PCR court erred by 

failing to conduct an evidentiary hearing on his petition. We 

disagree. 

The PCR court should conduct an evidentiary hearing on a PCR 

petition if the defendant presents a prima facie case in support 

of PCR, the court determines there are material issues of fact 

that cannot be resolved based on the existing record, and the 

court finds that an evidentiary hearing is required to resolve the 

claims presented. R. 3:22-10(b); see also State v. Porter, 216 

N.J. 343, 354 (2013) (citing R. 3:22-10(b)). 
6 A-2992-16T1

Here, defendant claims he was denied the effective assistance 

of trial and appellate counsel. The Sixth Amendment to the United 

States Constitution and Article I, Paragraph 10 of the New Jersey 

Constitution guarantee criminal defendants the right to the 

effective assistance of counsel. State v. O'Neil, 219 N.J. 598, 

610 (2014) (citing Strickland v. Washington, 466 U.S. 668, 686 

(1984); State v. Fritz, 105 N.J. 42, 58 (1987)). 

To succeed on a claim of ineffective assistance of counsel, 

the defendant must meet the two-part test established by 

Strickland, 466 U.S. at 686, and adopted by our Supreme Court in 

Fritz, 105 N.J. at 58. Under Strickland, a defendant first must 

show his or her 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.

A defendant also must show that counsel's "deficient 

performance prejudiced the defense." Id. at 687. The defendant 

must establish "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.
7 A-2992-16T1

A. Alleged Ineffective Assistance Of Trial Counsel

1. Failure To Investigate

Defendant alleges that his trial attorney was deficient 

because he failed to investigate adequately and present additional 

witnesses at trial. 

In its opinion, the PCR court noted that defendant did not 

identify the witnesses trial counsel should have called, or the 

testimony these witnesses would have provided. The court found 

that defendant had not shown how counsel's failure to call these 

unidentified witnesses fell below a standard of reasonableness, 

or how counsel's "purported failure led to a prejudicial result." 

The record supports the court's findings.

Indeed, it is well established that a claim of ineffective 

assistance must rest on more than "bald assertions." State v. 

Jones, 219 N.J. 298, 311-12 (2014) (quoting Porter, 216 N.J. at 

355). Where, as here, a defendant claims his attorney failed to 

adequately investigate the case, the defendant must state the 

facts that an investigation would have revealed, supported by 

affidavits or certifications. Porter, 216 N.J. at 353 (citing 

State v. Cummings, 321 N.J. Super. 154, 170 (App. Div. 1999)). 

Defendant failed to present such evidence to the PCR court. 

Therefore, the PCR court correctly determined that defendant had 

not shown his attorney was deficient because he failed to 
8 A-2992-16T1

investigate and present testimony from additional, unidentified 

witnesses. Defendant also failed to show that counsel's alleged 

deficient performance prejudiced his defense.

2. Failure To Obtain Evidence

Defendant claims his trial attorney was deficient because he 

failed to obtain the logbook and surveillance video from a 

hospital. Defendant claims he was in the hospital when "some of 

the crimes were committed." 

In its opinion, the PCR court noted that defendant told the

police he was in the hospital beginning on August 8, 2009, for the 

birth of his child. He also said he was in the hospital on August 

16, 2009, because he had fallen. The court found, however, that 

the dates of defendant's purported hospitalizations did not 

coincide with the dates upon which the burglaries for which he was 

convicted were committed. The record supports that finding.

As indicated in our opinion on defendant's direct appeal, the 

charges against defendant related to burglaries at four 

residential dwellings – the Singh, Claudino, Miranda, and Alvarez 

residences. Nieves, No. A-2010-11, slip op. at 4-5. The Singh 

burglary took place on August 22, 2009; the Claudino burglary 

occurred on August 24, 2009; the burglary of the Miranda home 

occurred on September 25, 2009, and the Alvarez home was 
9 A-2992-16T1

burglarized on October 6, 2009. The dates of defendant's purported 

hospitalizations do not coincide with these dates. 

The PCR court noted that defendant had not explained how the 

purported hospitalizations supported his claim of ineffective 

assistance of counsel. The court also pointed out that in affirming 

defendant's convictions, we determined that the State had 

presented sufficient evidence to prove beyond a reasonable doubt 

that defendant committed the charged offenses on the dates alleged.

Therefore, defendant failed to show that his trial attorney

was deficient because counsel did not obtain the logbook and 

surveillance video from the facility where he was allegedly 

hospitalized. He also failed to show that his attorney's alleged 

deficient performance prejudiced his defense. 

3. Advice Regarding The State's Plea Offer

Defendant claims his trial attorney was deficient because he 

did not advise him adequately concerning the State's plea offer. 

Defendant alleges that prior to going to trial, his attorney did 

not inform him that the State's last plea offer was for a fifteenyear custodial sentence with a seven-year, eight-month period of 

parole ineligibility, rather than a fourteen-year custodial 

sentence subject to the No Early Release Act, N.J.S.A. 2C:43-7.2. 

The PCR court determined that the existing record did not support 

defendant's claim. 
10 A-2992-16T1

The court noted that defendant's pre-trial memorandum stated 

that the State's last plea offer was for a fifteen-and-one-halfyear prison sentence, with seven years and nine months of parole 

ineligibility. Defendant signed the pre-trial memorandum, which 

showed that his attorney had informed him of the State's final 

plea offer. 

Defendant also claims that his attorney did not give him the 

information he needed to make an informed decision about the plea 

offer. However, defendant has not identified the additional 

information he needed to make an informed decision regarding the 

State's plea offer. 

Therefore, defendant did not establish that his attorney 

rendered ineffective assistance regarding his plea. He did not

establish that his attorney's advice was deficient. He also failed 

to show that but for counsel's alleged deficient advice, he would 

have accepted the State's plea offer instead of proceeding to 

trial. 

B. Claims Of Ineffective Assistance of Appellate Counsel

1. Change of Venue

Defendant argues that appellate counsel was deficient because 

counsel did not argue on direct appeal that the decision to change 

venue from Middlesex County to Union County was improper. The PCR 

court noted that defendant's future mother-in-law was employed by 
11 A-2992-16T1

the Superior Court in Middlesex County. The Assignment Judge for 

the Middlesex County vicinage decided to transfer venue of the 

case to Union County to avoid the appearance of impropriety. The 

PCR court found that the decision to change venue was reasonable 

and consistent with the judiciary's policy in such matters. We 

agree. 

2. Recusal of Assistant Prosecutor

Defendant contends his trial attorney was deficient because 

he failed to move for recusal of the assistant prosecutor. 

Defendant had claimed the assistant prosecutor had a working 

relationship with his future mother-in-law, who worked in the 

office for criminal case management in Middlesex County. Defendant 

also argues his appellate counsel was ineffective for failing to 

raise this issue on direct appeal. 

The record shows, however, that at the suppression hearing, 

defendant's attorney sought the disqualification of the assistant 

prosecutor due to the alleged relationship between the assistant 

prosecutor and defendant's future mother-in-law. In opposing the 

motion, the assistant prosecutor informed the judge she did not 

have a working or personal relationship with defendant's future 

mother-in-law. The judge denied the application. 

Defendant has not shown that the judge's ruling was factually 

or legally incorrect. Accordingly, there is no merit to defendant's 
12 A-2992-16T1

claim that appellate counsel was deficient in failing to raise 

this issue on appeal. Defendant also failed to show that the appeal

would have been decided differently if the issue had been raised.

3. Recusal of Judge

Defendant argues his appellate counsel was deficient because 

counsel failed to argue on appeal that the judge who decided the 

suppression motion and sentenced him should have recused himself. 

It appears that during the suppression hearing, the judge expressed 

some displeasure with receiving another case on transfer from 

Middlesex County. Based on those remarks, defendant's attorney

sought the judge's recusal. The judge denied the application. 

The PCR court found that defendant failed to show that the 

judge erred by denying the recusal motion. The record supports 

that determination. The judge's remarks did not indicate he had 

any bias against defendant, or that he could not handle the matter 

fairly. Appellate counsel did not err by failing to raise this 

meritless issue on appeal. 

We therefore conclude that defendant failed to present a 

prima facie case of ineffective assistance of trial or appellate 

counsel, and the existing record was sufficient to resolve the 

claims. Accordingly, the PCR court correctly determined that an 

evidentiary hearing was not required.

Affirmed.