SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1513-19

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

TERRI BAILEY, a/k/a 

TERRI FRANKLIN, TERRY

BAILEY, and DAVID D. JONES,

Defendant-Appellant.

_____________________________

Argued November 29, 2021 – Decided January 31, 2022

Before Judges Messano and Enright.

On appeal from the Superior Court of New Jersey, Law 

Division, Atlantic County, Indictment No. 18-08-1277.

Al Glimis, Designated Counsel, argued the cause for 

appellant (Joseph E. Krakora, Public Defender, 

attorney; Al Glimis, on the brief).

Steven K. Cuttonaro, Deputy Attorney General, argued 

the cause for respondent (Andrew J. Bruck, Acting 

Attorney General, attorney; Steven K. Cuttonaro, of 

counsel and on the briefs).

NOT FOR PUBLICATION WITHOUT THE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.
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Appellant filed a pro se supplemental brief.

PER CURIAM

An Atlantic County grand jury returned an indictment charging defendant 

Terri Bailey with second-degree unlawful possession of a handgun without a 

permit, N.J.S.A. 2C:39-5(b)(1) (count one); fourth-degree obstructing the 

administration of law, N.J.S.A. 2C:29-1(a) (count two); fourth-degree resisting 

arrest, N.J.S.A. 2C:29-2(a)(2) (count three); second-degree certain persons not 

to possess a firearm, N.J.S.A. 2C:39-7(b) (count four); and first-degree unlawful 

possession of a handgun by an individual with a prior conviction for a crime 

enumerated in N.J.S.A. 2C:43-7.2(d),

1 N.J.S.A. 2C:39-5(j) (subsection (j))

(count five). At trial, before the jury was selected, the State dismissed counts 

one through four without objection.

The jury convicted defendant of the remaining count, and the State moved 

to sentence him as a persistent offender pursuant to N.J.S.A. 2C:44-3(a). The 

judge granted the State's motion and sentenced defendant to an extended, 

1 N.J.S.A. 2C:43-7.2 is the No Early Release Act, commonly referred to as 

NERA.
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twenty-five-year term of imprisonment, with a twelve-and-one-half year period 

of parole ineligibility.2

Defendant raises the following points for our consideration:

POINT I

THE REPEATED REFERENCE TO THE 

UNSANITIZED DETAILS OF MR. BAILEY'S 

PREDICATE CONVICTION DEPRIVED HIM OF A 

FAIR TRIAL. (Partially raised below)

POINT II

MR. BAILEY'S SENTENCE IS MANIFESTLY 

EXCESSIVE AND UNDULY PUNITIVE3

In a supplemental pro se brief, defendant makes the following arguments:

POINT ONE

THE DEFENDANT DOES NOT HAVE A 

PREDICATE NERA CONVICTION AS REQUIRED 

BY N.J.S.A. 2C:39-5(j), THUS HIS CONVICTION 

AND SENTENCE VIOLATES THE UNITED 

STATES CONSTITUTION V, VI, VIII, AND XIV 

AMENDMENTS, AND THE NEW JERSEY STATE 

CONSTITUTION ART. 1, PAR. 10[.] (Not raised 

below) 

2 The State also moved pursuant to N.J.S.A. 2C:43-6(c), which mandates an 

extended term of imprisonment for a defendant convicted of certain Chapter 39 

crimes if previously convicted of certain crimes enumerated in N.J.S.A. 2C:44-

3(d). The judge denied this motion, finding subsection (j) was not one of the 

Chapter 39 crimes enumerated in N.J.S.A. 2C:43-6(c).

3 We omitted the subpoints in defendant's brief.
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POINT TWO

BECAUSE THE DEFENDANT WAS NOT TRIED OR 

CONVICTED FOR A VIOLATION OF SUBSECTION 

(a), (b), (c), or (f) OF N.J.S.A. 2C:39-5(j), WHICH IS 

A REQUISITE COMPONENT OF THE STATUTE[,]

HIS CONVICTION AND SENTENCE SHOULD BE 

VACATED[.] (Not raised below) 

POINT THREE

THE DEFENDANT WAS DENIED HIS DUE 

PROCESS RIGHTS TO A FAIR TRIAL BECAUSE 

SERGEANT MOYNIHAN TESTIFIED THAT A 

STILL PHOTOGRAPH OF THE PERPETRATOR 

OBTAINED FROM THE VIDEO SURVEILLANCE 

FOOTAGE WAS THE DEFENDANT WHEN THE 

IDENTITY OF THE PERSON WAS A QUESTION 

SOLELY FOR THE JURY THEREFORE THE 

CONVICTION SHOULD BE REVERSED[.] 

(Partially raised below) 

POINT FOUR

THE DEFENDANT WAS DEPRIVED OF 

EFFECTIVE ASSISTANCE OF TRIAL COUNSEL 

WHEN SHE ENTERED INTO A STIPULATION 

THAT CONCEDED THE DEFENDANT'S GUILT TO 

THE REQUISITE ELEMENTS OF THE CHARGED 

OFFENSE, AND SHE FAILED TO SUBJECT THE

STATE'S CASE TO AN ADVERSARIAL TESTING 

THEREFORE THE CONVICTION SHOULD BE 

REVERSED[.] (Not raised below) 

We have considered these arguments in light of the record and applicable legal 

standards. We affirm defendant's conviction and sentence. However, we 
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remand the matter to the trial court to immediately conduct a hearing on

defendant's claim of ineffective assistance of trial counsel. 

I.

Before opening statements, the prosecutor and defense counsel advised 

the judge of two stipulations for her to read to the jury. The parties stipulated 

defendant "did not have a permit to possess a weapon" on the day in question. 

The second stipulation was that defendant "ha[d] a prior conviction of [an] 

enumerated crime in N.J.S.A. 2C:43-7.2, that being kidnapping in the first 

degree with a date of conviction of November 9th, 1989." The judge asked: 

"So, you're not going to be introducing any judgment of conviction . . . ?" The 

prosecutor said she still intended to introduce a redacted version. Defense 

counsel seemed surprised, stating, "I thought that was the whole point of the 

stipulation." 

Defense counsel told the judge the "certified copy of the judgment of 

conviction does not delineate the degree of the offense so the stipulation should 

not either." When the prosecutor pointed out the "degree" was referenced on 

the second page of the certified copy, defense counsel said she no longer had 

any objection. Counsel then noted the certified copy contained the "penalties" 

associated with defendant's sentence, and the prosecutor agreed to redact those
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from the document. After further colloquy, defense counsel reiterated that she 

only objected to inclusion of the "fines and penalties page" of the certified 

judgment of conviction.

4

 

In her preliminary instructions, the judge told the jury that the parties 

stipulated defendant was "previously . . . convicted of . . . kidnapping in the first 

degree with a date of conviction of November 9th, 1989." She also told the jury 

that it would have "a judgment of conviction which actually will depict the 

information I just gave you . . . in the jury room for your deliberations." In her 

opening statement, the prosecutor reiterated defendant's prior conviction was for 

kidnapping; in her opening statement, defense counsel acknowledged that fact, 

but told jurors the only relevant issue in the case was identification.

The trial testimony was brief. On March 29, 2018, around 4:52 p.m., 

Police Officer Thomas Moynihan of the Atlantic City Police Department was 

dispatched to an address in response to a ShotSpotter alert. While canvassing 

the area, Moynihan received information that a black male with dreadlocks and

a silver car were involved. Moynihan saw three men, one of whom matched the 

description, near a silver car. At trial, he identified defendant as one of these 

4 Defendant's 1989 judgment of conviction for kidnapping is not in the appellate 

record.
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men. Moynihan said on that day, defendant was wearing a gray "hoodie" and 

black and white baseball cap.

Moynihan observed the men "for a few moments" before approaching. He 

saw defendant "reach around his waistband, around his hoodie pockets," and 

Moynihan instructed him to remove his hands from his pockets and stop moving. 

Defendant refused to comply and "took off running." Moynihan followed. 

During the chase, Moynihan heard "something hit the ground," and another 

officer who joined the pursuit, Thomas Gilardi, testified that he saw an 

automatic handgun fall from the fleeing man's waistband. Gilardi's bodycam 

video footage documented his recovery of the weapon, and the video was played 

for the jury. The officers lost the suspect who ran through the entrance gate of 

and into a housing site; they were unable to locate him. 

Moynihan reviewed video surveillance footage in the housing site's 

security booth near the gate, as well as video from a surveillance camera at a 

nearby school. Moynihan took still photos of the security booth's video, which 

he identified for the jury as showing defendant. The officer also identified for 

the jury the school's video footage. It showed Moynihan approaching three men 

on the sidewalk, the officer patting down one of the men, and one of the other 

men fleeing down the sidewalk with Moynihan in pursuit. 
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About ninety minutes later, after speaking with other officers, Moynihan 

was able to "put the face" of the person he chased to "the name." Several days 

later, on April 5, 2018, Detective Ermindo Marsini was on surveillance at a 

location where he believed defendant might be and arrested him. 

Michael Holts testified for the defense. Holts was working as a security 

guard at the housing site on the day in question. He testified defendant was 

present at the site before police arrived. Holts said defendant was wearing black 

and gold clothing emblematic of Holts' favorite football team, the Pittsburgh 

Steelers, not a gray hoodie like the man depicted in the video and described by 

Officer Moynihan. Another defense witness, Donette Faulkner lived next door 

to defendant's mother at the housing site, where Faulkner also worked in the 

security booth. Faulkner testified that when police arrived to look at the video 

surveillance footage and were in the security booth with her, defendant was 

present at the site and walked out of the entrance gate. 

In summation, defense counsel argued that defendant was not the person 

shown in the surveillance videos and not the person Moynihan chased. She only 

briefly mentioned the predicate offense of kidnapping, noting defendant was a 

juvenile when convicted of that crime. The prosecutor's summation referenced 

defendant's kidnapping conviction more frequently, but without particular 
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emphasis. The judge's final instructions tracked the model charge. See Model 

Jury Charges (Criminal), "Unlawful Possession of a Handgun Prior NERA 

Conviction (First Degree) (N.J.S.A. 2C:39-5(j))" (approved June 11, 2018) (the 

Model Charge). During the charge, the judge told the jury several times that 

defendant's predicate NERA conviction was kidnapping.

II.

Before turning to the arguments raised in Point I of counsel's brief, and 

Point Four of defendant's pro se brief, we briefly address the remaining points 

on appeal, none of which merit reversal. Defendant claims he was not 

previously convicted of a requisite predicate crime under subsection (j) because 

he was convicted of kidnapping in 1989, before NERA was enacted. In pertinent 

part, subsection (j) makes it a first-degree crime for anyone previously convicted 

of a crime listed in subsection (d) of NERA to unlawfully possess a handgun. 

Subsection (j) does not refer to NERA at all; it only requires that a defendant be 

previously convicted of a crime listed in N.J.S.A. 2C:43-7.2(d). Defendant was 

convicted of kidnapping, N.J.S.A. 2C:13-1, a crime enumerated in subsection 

(d) of NERA. Those facts are undisputed. The argument requires no further 

discussion. R. 2:11-3(e)(2). 
10 A-1513-19

Defendant contends the jury never convicted him of unlawful possession 

of a handgun pursuant to N.J.S.A. 2C:39-5(b), one offense for which a 

conviction is necessary to prove a violation of subsection (j). Even though the 

State dismissed count one of the indictment, it introduced proof of all the 

elements of unlawful possession, and the judge's charge instructed the jury that 

it must find beyond a reasonable doubt: (1) there was a handgun, (2) defendant 

knowingly possessed the handgun, (3) defendant did not have a permit to possess 

the handgun, and (4) defendant had a prior conviction of an enumerated offense 

under N.J.S.A. 2C:43-7.2(d), in this case, kidnapping. The argument requires 

no further discussion. R. 2:11-3(e)(2).

Defendant argues that Moynihan's testimony identifying him as the man 

in the video stills and surveillance footage was impermissible lay opinion. 

Because there was no objection, we review the argument for plain error. R.

2:10-2.

"Lay opinion is admissible 'if it falls within the narrow bounds of 

testimony that is based on the perception of the witness and that will assist the 

jury in performing its function.'" State v. Sanchez, 247 N.J. 450, 466 (2021) 

(quoting State v. Singh, 245 N.J. 1, 14 (2021)). In Sanchez, the Court held the

defendant's parole officer "became familiar with defendant's appearance by 
11 A-1513-19

meeting with him on more than thirty occasions during his period of parole 

supervision. Her identification of defendant as the front-seat passenger in the 

surveillance photograph was 'rationally based on [her] perception,' as N.J.R.E. 

701 requires." Id. at 469 (alteration in original). The Court also concluded the

parole officer's opinion would assist the jury, because her "contacts with 

defendant were more than sufficient to enable her to identify him in the 

surveillance photograph more accurately than a jury could." Id. at 474. 

The same is true in this case. Moynihan can be seen in the school 

surveillance video approaching a group of three men, one of whom he testified 

was defendant. After being in close proximity with defendant, albeit briefly, 

Moynihan identified the man seen running away as defendant. Moynihan chased 

that man, who entered a housing site through a security gate; Moynihan viewed 

video footage shortly thereafter, taking still photographs of that footage to 

preserve its images. He testified the man seen in those photographs was 

defendant, who Moynihan identified in court. There was no error in admitting 

this testimony. 

Lastly, we find no reason to reverse defendant's sentence. An appellate 

court reviews a sentence "in accordance with a deferential standard." State v. 

Trinidad, 241 N.J. 425, 453 (2020) (quoting State v. Fuentes, 217 N.J. 57, 70 
12 A-1513-19

(2014)). We defer to the sentencing court's factual findings and should not 

"second-guess" them. State v. Case, 220 N.J. 49, 65 (2014). An appellate court 

must affirm a sentence "even if [it] would have arrived at a different result, as 

long as the trial court properly identifies and balances aggravating and 

mitigating factors that are supported by competent credible evidence in the 

record." State v. Grate, 220 N.J. 317, 337 (2015) (quoting State v. Lawless, 214 

N.J. 594, 606 (2013)). 

The judge found aggravating factors three, six and nine. See N.J.S.A. 

2C:44-1(a)(3) (the risk of re-offense); (a)(6) (defendant's prior criminal history); 

and (a)(9) (the need to deter defendant and others). These were amply supported 

by evidence in the record, including defendant's prior criminal convictions and 

history of juvenile delinquency. The judge found no mitigating factors. She 

concluded the aggravating factors "clearly and substantially outweigh[ed] the 

non-existing mitigating factors," and, citing State v. Pierce, 188 N.J. 155 (2006), 

she determined a discretionary extended term was appropriate.

Defendant contends the judge erred in failing to find mitigating factor 

eleven, N.J.S.A. 2C:44-1(b)(11), that his imprisonment would result in an 

excessive hardship to his family. However, the judge did consider that factor 

and concluded while "any type of incarceration by any defendant is a hardship," 
13 A-1513-19

there was nothing presented demonstrating a particular hardship in this case. 

We agree. 

While this sentence was harsh, defendant was convicted of a first-degree 

crime, was indisputably eligible for an extended term as a persistent offender, 

and the sentence imposed does not shock our judicial conscience. State v. 

Tillery, 238 N.J. 293, 323 (2019).

III.

In Point I, defendant contends it was error to permit the jury to know the 

"unsanitized details" of his prior conviction. In his pro se brief, defendant 

contends trial counsel provided ineffective assistance because she stipulated to 

a prior conviction in the first place and did not put the State to its proofs. The 

State argues defendant is barred from raising this argument since counsel agreed 

to the stipulation and admission of the redacted judgment of conviction. 

Alternatively, the State contends any error was harmless.

We are unaware of any reported case addressing subsection (j), which was

enacted in 2013. The statute's structure is similar to the "certain persons" statute, 

N.J.S.A. 2C:39-7(b)(1), which makes it a second-degree crime for any person 

previously convicted of certain crimes, including kidnapping, to "purchase[], 
14 A-1513-19

own[], possess[] or control[]" a firearm.5 The model jury charges for both

crimes are virtually identical. We therefore look to case law developed under 

N.J.S.A. 2C:39-7(b)(1) in addressing defendant's arguments.

Frequently, as in this case, a defendant indicted for violating the certain 

persons statute is also charged in the same indictment for the possessory 

weapons offense. In those circumstances, the trial must be bifurcated, with the 

jury first considering guilt as to the possessory offense without being told of the 

prior predicate conviction. See State v. Ragland, 105 N.J. 189, 194 (1986) 

("Severance is customary and presumably automatic where it is requested 

because of the clear tendency of the proof of the felony conviction to prejudice 

trial of the separate charge of unlawful possession of a weapon." (emphasis 

added)). However, in State v. Brown, the Court held that when the State 

dismisses the possessory offense and tries the defendant solely on the certain 

persons count, bifurcation is unnecessary. 180 N.J. 572, 582 (2004). Critically, 

to ameliorate "any potential for prejudice," the Court required "sanitization of 

the predicate offense." Id. at 584. The Court held: "if defendant stipulates to 

the offense, the jury need be instructed only that defendant was convicted of a 

5 As noted, defendant was indicted for violating N.J.S.A. 2C:39-7(b) in the 

dismissed count four of the indictment.
15 A-1513-19

predicate offense. If the defendant does not stipulate, then the trial court should 

sanitize the offense or offenses and limit the evidence to the date of the 

judgment." Id. at 585.

After Brown, the certain persons model charge was amended:

In explaining what crimes are set forth as 

predicate offenses in N.J.S.A. 2C:39-7(b), the model 

jury charge further explains how to sanitize the record 

of a defendant's predicate offense. Specifically, the 

charge notes:

Unless the defendant stipulates, the prior 

crimes should be sanitized. Thus, the trial 

court should refer to them as crime(s) of 

the appropriate degree. For example, if the 

offense were aggravated sexual assault, the 

court would indicate that defendant 

previously was convicted of a crime of the 

first degree. Nothing prevents a defendant, 

however, from choosing to inform the jury 

of the name of the prior crime of which 

he/she was convicted.

[State v. Bailey, 231 N.J. 474, 487 (2018) (quoting 

Model Jury Charges (Criminal), "Certain Persons Not 

to Have Any Firearms (N.J.S.A. 2C:39-7(b)(1)" at 1 n.4 

(rev. June 13, 2005)).]

In Bailey, the defendant refused to stipulate to the predicate offense, and

hewing closely to the guidance in Brown and the model charge, the judge 

redacted the predicate judgments of conviction "so as to include only the date 

and degree of each offense." 231 N.J. at 478–79 (2018). On appeal, we found 
16 A-1513-19

the continued use of the model charge "disquieting," because the State 

introduced "no proof of any predicate crime"; nonetheless, we affirmed the 

defendant's conviction finding any error was invited. Id. at 480.

The Court reversed, holding "[t]he over-sanitization called for in the 

model charge inject[ed] a constitutional defect into any trial on a certain persons 

offense where a defendant declines to stipulate," because it relieved the State of 

"prov[ing] that the defendant was convicted of an enumerated predicate offense 

and later possessed a firearm." Id. at 488. The Court explained:

If a defendant chooses to stipulate, evidence of 

the predicate offense is extremely limited: "[t]he most 

the jury needs to know is that the conviction admitted 

by the defendant falls within the class of crimes that . . . 

bar a convict from possessing a gun[.]" A defendant 

who stipulates can therefore prevent the State from 

presenting evidence of the name and nature of the 

offense. Provided that the stipulation is a knowing and 

voluntary waiver of rights, placed on the record in 

defendant's presence, the prosecution is limited to 

announcing to the jury that the defendant has 

committed an offense that satisfies the statutory 

predicate-offense element.

[Ibid. (alterations in original) (emphasis added)

(quoting Old Chief v. United States, 519 U.S. 172, 190–

91 (1997)).] 

However, "[w]hen a defendant refuses to stipulate to a predicate offense under 

the certain persons statute, the State shall produce evidence of the predicate 
17 A-1513-19

offense: the judgment of conviction with the unredacted nature of the offense, 

the degree of offense, and the date of conviction." Id. at 490–91. The Court 

also concluded the invited error doctrine did not apply "because the error cut 

mortally into defendant's due process right to have the jury decide each element 

beyond a reasonable doubt." Id. at 490. The Court referred the matter to its 

Committee on Model Criminal Jury Charges for revision. Id. at 491.

The Committee's action was swift. The current certain persons model jury 

charge provides: "If defendant is stipulating to the predicate offense, do not 

read the crime listed in the Certain Persons count." Model Jury Charges 

(Criminal), "Certain Persons Not To Have Any Firearms (N.J.S.A. 2C:39-

7(b)(1))" at 1 n.3 (revised Feb. 12, 2018) (emphasis added). Citing Brown and 

Bailey, the charge now instructs judges 

if defendant stipulates to the offense, the jury must be 

instructed only that defendant was convicted of a 

predicate offense[]. Defendant’s stipulation must be a 

knowing and voluntary waiver of rights, placed on the 

record in defendant’s presence; the prosecution is 

limited to announcing to the jury that the defendant has 

committed an offense that satisfies the statutory 

predicate-offense element.

[Ibid. n.6 (emphasis added).] 
18 A-1513-19

The model charge for subsection (j), however, only provides the following 

footnote: "If defendant is stipulating to the predicate offense, do not read the 

crime listed in the Certain Persons count." Id. at 1 n.1.

We have long recognized that in a prosecution under N.J.S.A. 2C:39-7(b), 

the court must permit a defendant to stipulate to the predicate conviction. State 

v. Alvarez, 318 N.J. Super. 137, 152–54 (App. Div. 1999); see also Old Chief, 

519 U.S. at 191 (holding "it was an abuse of discretion to admit the record when 

an admission was available"). As future Justice Virginia A. Long wrote for our 

court, "[t]he specifics of defendant's prior crimes have no evidentiary 

significance beyond a stipulation that defendant falls within the class of 

offenders our Legislature thought should be barred from possessing weapons." 

Alvarez, 318 N.J. Super. at 153. See Bailey, 231 N.J. at 488 ("[T]he prosecution 

is limited to announcing to the jury that the defendant has committed an offense 

that satisfies the statutory predicate-offense element."). We see no principled 

reason why these same tenets should not apply to prosecutions under subsection 

(j). 

In this case, however, defense counsel both stipulated that defendant had 

previously been convicted of a predicate crime enumerated in N.J.S.A. 2C:43-

7.2(d) and agreed the jury would be told of the specific crime, kidnapping in the 
19 A-1513-19

first degree. Additionally, despite entering a stipulation, counsel only voiced 

limited objection to introduction of the actual judgment of conviction in 

evidence, redacted only to delete the "penalties" imposed; during deliberations

therefore, the jury had a document stating defendant had been convicted of firstdegree kidnapping in 1989. 

Undoubtedly, the judge's failure to "sanitize" defendant's kidnapping 

conviction does not provide a basis to reverse because any error in that regard

was invited. See State v. A.R., 213 N.J. 542, 561 (2013) ("Under that settled 

principle of law, trial errors that 'were induced, encouraged or acquiesced in or 

consented to by defense counsel ordinarily are not a basis for reversal on 

appeal.'" (quoting State v. Corsaro, 107 N.J. 339, 345 (1987))). And, unlike

Bailey, defense counsel's decision in this case did not relieve the prosecutor of 

the requirement to prove all elements of the offense, a structural error that the 

Court in Bailey held could not be harmless. As the State argued before us, 

defendant was free to stipulate and free to choose what that stipulation would 

be. 

Defendant's argument in his pro se brief that trial counsel provided 

ineffective assistance because she agreed to stipulate to a qualifying predicate 

crime lacks sufficient merit to warrant discussion in a written opinion. R. 2:11-
20 A-1513-19

3(e)(2). Counsel's decision to stipulate, particularly when the State had a 

judgment of conviction available for introduction in evidence, made eminent 

good sense; not so, however, as to counsel's decision to agree to a stipulation 

that identified the predicate crime and not object to admission of the redacted 

judgment of conviction that included the same information.

"Generally, ineffective assistance of trial counsel claims are not 

entertained 'on direct appeal because such claims involve allegations and 

evidence that [normally] lie outside the trial record.'" State v. Veney, 409 N.J. 

Super. 368, 386–87 (App. Div. 2009) (alteration in original) (quoting State v. 

Castagna, 187 N.J. 293, 313 (2006)). "However, when the trial itself provides 

an adequately developed record upon which to evaluate defendant's claims, 

appellate courts may consider the issue on direct appeal." Ibid. (quoting 

Castagna, 187 N.J. at 313). As in Veney, we largely agree that this is such a 

case.

To prevail on an ineffective assistance of counsel (IAC) claim, a defendant 

must satisfy the two-prong test set forth in Strickland v. Washington, 466 U.S. 

668, 694 (1984), and recognized by our Supreme Court in State v. Fritz, 105 

N.J. 42, 58 (1987). A defendant must first show "that counsel made errors so 

serious that counsel was not functioning as the 'counsel' guaranteed . . . by the 
21 A-1513-19

Sixth Amendment." Fritz, 105 N.J. at 52 (quoting Strickland, 466 U.S. at 687). 

As to this prong, "there is 'a strong presumption that counsel's conduct falls 

within the wide range of reasonable professional assistance,' [and t]o rebut that 

strong presumption, a defendant must establish that trial counsel's actions did 

not equate to 'sound trial strategy.'" Castagna, 187 N.J. at 314 (quoting 

Strickland, 466 U.S. at 689). Defense counsel's decision to tell the jury that her 

client was convicted of first-degree kidnapping, when the actual crime need not 

have been disclosed, was the result of deficient performance, not sound trial 

strategy, as the State contends in its supplemental brief.

Additionally, to succeed on an IAC claim, a defendant must prove he 

suffered prejudice. Strickland, 466 U.S. at 687. A defendant must show by a 

"reasonable probability" that the deficient performance affected the outcome. 

Fritz, 105 N.J. at 58. "A reasonable probability is a probability sufficient to 

undermine confidence in the outcome." State v. Pierre, 223 N.J. 560, 583 (2015) 

(quoting Strickland, 466 U.S. at 694; Fritz, 105 N.J. at 52). In general, "only an 

extraordinary deprivation of the assistance of counsel triggers a presumption of

prejudice." State v. Miller, 216 N.J. 40, 70 (2013) (citing Bell v. Cone, 535 U.S 

685, 695–96 (2002)). 
22 A-1513-19

In Veney, among other things, the defendant was charged with the 

possessory weapon offense under N.J.S.A. 2C:39-5(b), and the certain persons 

offense under N.J.S.A. 2C:39-7(b). 409 N.J. Super. at 373. Like here, the 

prosecutor dismissed all counts of the indictment against the defendant, 

including count one that charged him with unlawful possession, and tried the 

case solely on the certain persons offense. Id. at 374. The jury convicted the 

defendant, but the judge subsequently granted his motion notwithstanding the 

verdict, finding the defendant's prior conviction was not for one of the statutory 

predicate crimes. Id. at 375. The defendant then pled guilty to the unlawful 

possession of a handgun, count one of the indictment. Id. at 376–77.

On direct appeal, the defendant raised an IAC claim. Id. at 377. We 

rejected the defendant's contention that counsel provided ineffective assistance 

because prosecution of count one was barred by principles of double jeopardy. 

Id. at 382. However, we concluded the defendant's subsequent prosecution 

under count one violated the Code's "mandatory joinder provision," N.J.S.A. 

2C:1-8(b), and Rule 3:15-1(b), and was fundamentally unfair. Id. at 384–85. 

We also determined that the existing record was sufficient to conclude the 

defendant satisfied the two prongs of Strickland. Id. at 387. We held that 

defense counsel's failure to move for formal dismissal of count one prior to the 
23 A-1513-19

defendant's guilty plea "cannot be deemed trial strategy," and that failure 

"denied [the] defendant the effective assistance of trial counsel." Id. at 388.

In State v. Allah, the Court considered the defendant's IAC claim on the 

existing record and concluded that trial counsel's failure to file a meritorious 

motion to dismiss a second prosecution on double jeopardy grounds

demonstrated deficient performance, finding "[n]o assertion of strategy 

complicates this analysis." 170 N.J. 269, 285 (2002). The Court also found the 

defendant had been prejudiced, noting "[a]t the very least, had counsel filed the 

motion, defendant's claim of double jeopardy would have been preserved. 

Counsel's inaction plainly prejudiced defendant." Id. at 286.

Unlike Veney and Allah, where the defendants were forced to undergo a 

second trial or enter a guilty plea because of counsel's deficient performance, 

defendant here received competent representation in all aspects of the trial, but 

for the admission of evidence that he had been convicted previously of 

kidnapping in the first degree. Yet, it is indeed difficult to see how permitting 

the jury to know the nature of defendant's prior conviction, when an avoidable 

alternative was available, did not affect the outcome of the case. Fritz, 105 N.J. 

at 58. As we said in State v. Hooper, 

We acknowledge that situations such as the one we 

confront in this case, where the record on the post-trial 
24 A-1513-19

motion contains all the facts necessary to establish a 

prima facie case of ineffective assistance of counsel, 

are rare. But when circumstances permit, a defendant 

is entitled to the court's prompt review of the claim. 

[459 N.J. Super. 157, 180–81 (App. Div. 2019) (citing 

Allah, 170 N.J. at 285).]

 

Nonetheless, because we think it fair defendant and the State have an 

opportunity to address the IAC claim as now framed in this opinion, we remand 

the matter to the trial judge to immediately conduct a hearing regarding trial

counsel's decisions: 1) to enter into a stipulation that provided the jury with 

evidence of defendant's prior conviction for first-degree kidnapping; and 2) to 

consent to admission of a minimally redacted judgement of conviction that 

included the specific crime. 

Although the court may inquire as to counsel's reasons for making these 

decisions, we have already concluded on this record that those decisions 

demonstrate deficient performance as a matter of law. The judge shall only 

consider whether defendant has met the second prong of the Strickland/Fritz

standard. We leave the conduct of the hearing, including additional testimony

if necessary, to the judge's sound discretion. If considering the strengths and 

weaknesses of the State's case the judge concludes by a "reasonable probability" 

that counsel's deficient performance affected the outcome of the trial, Fritz, 105 
25 A-1513-19

N.J. at 58, she shall vacate defendant's conviction. Otherwise, we affirm

defendant's conviction and sentence. 

Affirmed in part; remanded in part. We do not retain jurisdiction.