SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1723-17T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JAMES H. KIM, JR.,

Defendant-Appellant.

_________________________

Argued April 29, 2019 – Decided May 15, 2019

Before Judges Fasciale and Rose.

On appeal from Superior Court of New Jersey, Law

Division, Bergen County, Municipal Appeal No. 008-

01-16.

Nabil N. Kassem argued the cause for appellant 

(Kassem & Associates, PC, attorneys; Nabil N. Kassem 

and Dominique J. Carroll, on the brief).

Tom Dominic Osadnik, Special Deputy Attorney 

General/Acting Assistant Prosecutor, argued the cause 

for respondent (Dennis Calo, Acting Bergen County 

Prosecutor, attorney; Tom Dominic Osadnik, of 

counsel and on the 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NOT FOR PUBLICATION WITHOUT THE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.
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A-1723-17T4

PER CURIAM

Defendant James H. Kim, Jr. appeals a November 6, 2017 order denying 

his motion for reconsideration. In 2012, in Elmwood Park Municipal Court,

defendant pled guilty to driving while intoxicated (DWI), N.J.S.A. 39:4-50. 

Defendant's license was suspended for three months and he was ordered to pay 

$716 in penalties and fines. In 2016, defendant filed a petition for postconviction relief (PCR), which the municipal judge denied. Defendant appealed 

the denial to the Law Division. Following oral argument, Judge Gary Wilcox 

(the judge) denied defendant's petition for PCR and issued a well-reasoned 

written opinion. Defendant filed a motion for reconsideration, which the judge

also denied. We review the order denying reconsideration. 

On appeal, defendant argues: 

POINT I 

AS A MATTER OF LAW, THE LOWER COURT 

FAILED TO BASE ITS FINDINGS OF FACT ON 

THE EVIDENCE PRESENTED. 

POINT II 

AS A MATTER OF LAW[,] THE WARRANTLESS 

SEARCH AND SEIZURE OF [DEFENDANT] WAS 

THE RESULT OF AN UNCONSTITUTIONAL AND 

UNAUTHORIZED BOROUGH OF ELMWOOD 

PARK POLICE DEPARTMENT ENFORCED DWI 

CHECKPOINT ON JUNE 9, 2012. ACCORDINGLY, 
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ALL EVIDENCE RESULTING FROM THAT 

UNLAWFUL STOP, ARE FRUITS FROM THE 

POISONOUS TREE THEREBY REQUIRING 

REVERSAL OF THE LOWER COURT'S DECISION. 

POINT III 

AS A MATTER OF LAW[,] THE LAW DIVISION 

ERRONEOUSLY DENIED [DEFENDANT]'S 

PETITION FOR [PCR] RESULTING FROM THE 

DEPRIVATION OF HIS FEDERAL AND STATE 

CONSTITUTIONAL RIGHTS TO THE EFFECTIVE 

ASSISTANCE OF COUNSEL REQUIRING 

REVERSAL OF THE LOWER COURT'S DECISION. 

A. As A Matter Of Law, [Defendant]'s

Former Counsel Was Ineffective As She 

Failed To Investigate Any Facts And/Or 

Law Of The Case Before Advising 

[Defendant] To Plead Guilty. 

B. As A Matter Of Law, [Defendant]'s

Former Counsel Was Ineffective As She 

Failed To Request And/Or Obtain All 

Discovery Necessary To Challenge The 

Unconstitutional And Unauthorized 

Borough Of Elmwood Park Police 

Department Enforced DWI Checkpoint On 

June 9, 2012. Accordingly, Former 

Counsel Was Not Capable Of And Failed 

To Advise [Defendant] As To Any 

Defenses To The Charges. 

C. As A Matter Of Law, [Defendant]'s

Former Counsel Was Ineffective As She 

Failed To File Any Motions, Including 

Without Limitation, A Motion To Suppress 

All Evidence Obtained During The 
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A-1723-17T4

Warrantless Search And Seizure Of 

[Defendant] At The Unconstitutional And 

Unauthorized Borough Of Elmwood Park 

Police Department Enforced DWI 

Checkpoint On June 9, 2012. 

D. As A Matter Of Law, [Defendant]'s

Former Counsel Was Ineffective As She 

Failed To Inform Him Of Consequences Of 

His Guilty Plea. 

E. As A Matter Of Law, [Defendant]'s

Former Counsel Was Ineffective As She 

Failed To Challenge The Lack Of A 

Factual Basis To Establish His Guilty Plea. 

POINT IV

AS A MATTER OF LAW, THE LAW DIVISION 

ERRONEOUSLY DETERMINED THAT 

[DEFENDANT] WAS PROCEDURALLY BARRED 

FROM RAISING A FOURTH AMENDMENT 

CHALLENGE TO THE UNCONSTITUTIONAL AND 

UNAUTHORIZED BOROUGH OF ELMWOOD 

PARK POLICE DEPARTMENT ENFORCED DWI 

CHECKPOINT ON JUNE 9, 2012 IN HIS [PCR] 

PETITION. 

POINT V 

AS A MATTER OF LAW, [DEFENDANT]'S 

FORMER COUNSEL WAS INEFFECTIVE AS 

CUMULATIVELY HER ERRORS CONSTITUTE 

INEFFECTIVE ASSISTANCE OF COUNSEL. 
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A-1723-17T4

POINT VI 

AS A MATTER OF LAW, THE LOWER COURT 

ERRONEOUSLY DENIED [DEFENDANT]'S [PCR] 

PETITION AS HIS PLEA AND SENTENCE 

SHOULD HAVE BEEN VACATED DUE TO THE 

FACT THAT THE NECESSARY ELEMENTS 

REQUIRED TO ESTABLISH, AMONG OTHER 

THINGS, A DEFENDANT'S KNOWING, 

VOLUNTARY, FACTUALLY ACCURATE PLEA 

TO THE SUBJECT DWI CHARGE, WERE NOT SET 

FORTH. 

POINT VII 

AS A MATTER OF LAW, THE LOWER COURT 

ERRONEOUSLY DENIED [DEFENDANT]'S 

REQUEST TO WITHDRAW HIS GUILTY PLEA 

DESPITE SATISFYING THE APPLICABLE 

FACTORS SET FORTH IN STATE V. SLATER.

[1]

POINT VIII

AS A MATTER OF LAW, THE LAW DIVISION 

ERRONEOUSLY DENIED [DEFENDANT]'S 

MOTION FOR RECONSIDERATION OF ITS 

ORDER.

Having considered these arguments in light of the record and applicable legal 

standards, we affirm.

 

1

 198 N.J. 145 (2009).
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A-1723-17T4

I.

In June 2012, defendant was arrested at a DWI checkpoint in Elmwood 

Park, enforced by the Elmwood Park Police Department (EPPD). Defendant, 

who was twenty years old at the time, received summonses for DWI, N.J.S.A. 

39:4-50; careless driving, N.J.S.A. 39:4-97; and possession of an open alcoholic 

beverage container in a motor vehicle, N.J.S.A. 39:4-51B. 

In August 2012, defendant pled guilty to DWI, and the other two 

summonses were dismissed pursuant to the parties' plea agreement. The 

municipal judge accepted defendant's guilty plea and sentenced defendant as a 

first-time offender with a blood alcohol content in excess of .08%, but less than 

.10%. Defendant did not directly appeal his conviction, but in November 2016, 

defendant's new counsel (different from his plea counsel) filed a petition for 

PCR in the Elmwood Park Municipal Court, pursuant to Rule 7:10-2(a). 

Defendant asserted that he was not "under the influence of alcohol at any time 

prior to the search and seizure of [his] vehicle and/or person" and "but for [plea

counsel]'s ineffective assistance of counsel [he] would not have foregone [his]

constitutional right to trial." Following oral argument, the municipal judge 

denied defendant's PCR petition. Subsequently, defendant filed an appeal to the

Law Division. 
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A-1723-17T4

In June 2017, Judge Wilcox conducted oral argument. Defendant 

reiterated the arguments made before the municipal judge. On June 30, 2017, 

the judge issued an order and comprehensive seventeen-page written decision 

denying defendant's petition for PCR. Defendant filed a motion for 

reconsideration. The judge conducted oral argument in September 2017 on the 

reconsideration motion. On November 6, 2017, the judge issued an order and

five-page written decision denying defendant's motion for reconsideration. This 

appeal followed. 

II.

We begin by noting that most of defendant's claims before the judge in the 

Law Division and before us on appeal are not properly raised in his PCR petition 

because they could have been – but were not – raised on direct appeal. It is wellestablished that PCR is intended to permit a defendant to challenge the legality 

of a conviction on a ground which could not have been raised on direct appeal. 

State v. Afanador, 151 N.J. 41, 49 (1997). A PCR petition is a collateral attack 

on a judgment rendered in a criminal proceeding and is the exclusive means of 

challenging such a judgment. R. 3:22-3; see also State v. Preciose, 129 N.J. 
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451, 459 (1992). As such, we decline to address these claims because they 

should have been raised on direct appeal.2

III.

Next, we reject defendant's claim that his (now-deceased) plea counsel 

rendered ineffective assistance, which is properly raised in his PCR petition. 

Defendant contends that his plea counsel rendered ineffective assistance in five 

ways: she failed to (1) investigate any facts and/or law of the case before 

advising him to plead guilty; (2) request or obtain all necessary discovery and 

 

2

 These claims include that the municipal judge made erroneous evidentiary 

rulings, the constitutionality of the DWI checkpoint, and validity of his guilty 

plea. At oral argument, defense counsel specifically stressed the 

unconstitutionality of the DWI checkpoint, arguing that the memorandum signed 

by the county prosecutor authorized the stop to be conducted on June 8 or June 

10 – not June 9, the date defendant was stopped. This argument is unavailing 

for two reasons. First, defendant should have raised this argument either before 

pleading guilty or on direct appeal. That is, not when appealing a motion to 

reconsider the denial of a petition for PCR. See e.g., State v. Knight, 183 N.J. 

449, 470 (2005) (quoting State v. Crawley, 149 N.J. 310, 316 (1997)) 

("Generally, a defendant who pleads guilty is prohibited from raising, on appeal, 

the contention that the State violated his constitutional rights prior to the plea."). 

Second, even if we were to address the argument on the merits, we conclude that 

the checkpoint was constitutional. The county prosecutor's execution of the 

memorandum authorizing the stop is not dispositive. The county prosecutor's 

office's approval would not necessarily make a checkpoint constitutional, just as 

the lack of approval would not necessarily make a checkpoint unconstitutional. 

Instead, the court must consider thirteen factors when determining the 

constitutionality of a checkpoint or roadblock. State v. Kirk, 202 N.J. Super. 

28, 46-47 (App. Div. 1985). 
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A-1723-17T4

thus failed to advise defendant of possible defenses; (3) file any motions; (4) 

inform him of consequences of his guilty plea; and (5) challenge the lack of 

factual basis to establish his guilty plea. 

"The Sixth Amendment guarantees a defendant the effective assistance of 

counsel at 'critical stages of a criminal proceeding,' including when he enters a 

guilty plea." Lee v. United States, 582 U.S. ___, 137 S. Ct. 1958, 1964 (2017) 

(citing Lafler v. Cooper, 566 U.S. 156, 165 (2012); Hill v. Lockhart, 474 U.S. 

52, 58-59 (1985)). For a defendant to obtain relief based on ineffective 

assistance grounds, he is obliged to show not only the particular manner in which 

counsel's performance was deficient, but also that the deficiency prejudiced his 

right to a fair trial. Strickland v. Washington, 466 U.S. 668, 687 (1984); accord 

State v. Fritz, 105 N.J. 42, 58 (1987). Under the first prong of the two-prong 

Strickland test, the defendant must demonstrate that "counsel 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. Under the 

second prong, the 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." Ibid. 

That is, "there is a reasonable probability that, but for counsel's unprofessional 

errors, the result of the proceeding would have been different." Id. at 694.
10 A-1723-17T4

As to the second prong of the Strickland test, in the case of a guilty plea, 

the court considers "whether the defendant was prejudiced by the 'denial of the 

entire judicial proceeding . . . to which he had a right.'" Lee, 137 S. Ct. at 1965 

(alteration in original) (quoting Roe v. Flores-Ortega, 528 U.S. 470, 483 (2000)). 

When a defendant claims that counsel was deficient by causing him to accept a 

plea, "the defendant can show prejudice by demonstrating a 'reasonable 

probability that, but for counsel's errors, he would not have pleaded guilty and 

would have insisted on going to trial.'" Ibid. (quoting Hill, 474 U.S. at 59); see 

also State v. DiFrisco, 137 N.J. 434, 457 (1994). Moreover, a defendant must 

show that a decision to reject the plea offer "would have been rational under the 

circumstances." Padilla v. Kentucky, 559 U.S. 356, 372 (2010). That is, "can 

defendant show that, had he been properly advised, it would have been rational 

for him to decline the plea offer and insist on going to trial and, in fact, that he 

probably would have done so?" State v. Maldon, 422 N.J. Super. 475, 486 (App. 

Div. 2011) (citing Padilla, 559 U.S. at 372). 

In the Law Division, the judge found that defendant failed to prove either 

prong under Strickland. The judge considered the evidence against defendant –

his blood alcohol content of .09, his admission to police that he had seven drinks 

over a period of two hours an hour before he was stopped, failed sobriety tests, 
11 A-1723-17T4

and an open bottle of vodka in his vehicle. In light of the evidence, the judge 

found that "a reasonable person would not have gone to trial." We agree. 

Defendant's contention that his plea counsel did not effectively investigate 

the facts and the law is belied by the record. Defendant's plea counsel requested 

an adjournment because she had not yet received discovery. Approximately one 

month later, defendant pled guilty to DWI. Pursuant to the negotiated plea 

agreement, defendant pled guilty to the DWI charge, and the other two 

summonses – careless driving and possession of an open container of alcohol –

were dismissed. Thus, defendant's plea counsel was effective – two of the three 

summonses were dismissed. Defendant has not sufficiently demonstrated how 

his plea counsel's performance was deficient or what further investigation would 

have revealed regarding potential defenses; particularly in light of the evidence 

against him, such as his blood alcohol level and admission to consuming seven 

drinks.

Moreover, defendant's claim that his guilty plea was not entered 

voluntarily and knowingly is similarly belied by the record. During the colloquy 

between defendant and the municipal judge, defendant acknowledged the effect 

of pleading guilty and the rights he was giving up. He stated that he had enough 

time to discuss the matter with his attorney and that she had answered all of his 
12 A-1723-17T4

questions. Defendant further stated that he was satisfied with the services 

rendered by his attorney. Thus, defendant has failed to provide any evidence to 

support his contentions. Defendant's bald assertions are insufficient to establish 

a prima facie claim of ineffective assistance. See State v. Cummings, 321 N.J. 

Super. 154, 170 (App. Div. 1999). 

Furthermore, defendant also argues that there was insufficient credible 

evidence in the record to factually support defendant's conviction under N.J.S.A. 

39:4-50 because "the record is devoid of any credible evidence that [defendant]'s 

ability to operate a motor vehicle safely was in anyway impaired during the 

morning in question." Defendant misses the point. N.J.S.A. 39:4-50 does not 

require that the State prove that defendant was impaired in order to sustain a 

conviction. Rather, the statute provides, "a person who operates a motor vehicle 

while under the influence of intoxicating liquor, narcotic, hallucinogenic or 

habit-producing drug, or operates a motor vehicle with a blood alcohol 

concentration of 0.08% or more by weight of alcohol in the defendant’s blood 

. . . " is guilty of DWI. N.J.S.A. 39:4-50(a). Defendant's blood alcohol level 

was .09. Defendant admitted to this during the plea colloquy, in which he also 

admitted to drinking "a couple of beers." Thus, defendant has failed to offer any 

evidence as to how his plea counsel was ineffective, or how her performance 
13 A-1723-17T4

prejudiced him. And defendant's PCR petition does not create a factual dispute 

that compels an evidentiary hearing. See State v. Blake, 444 N.J. Super. 285, 

299 (App. Div. 2016) (noting that a "[d]efendant may not create a genuine issue 

of fact, warranting an evidentiary hearing, by contradicting his prior statements 

without explanation").

Next, defendant contends that his plea counsel was ineffective because 

she did not file a motion to suppress evidence obtained from the DWI 

checkpoint. The failure to file a suppression motion is not a circumstance in 

which prejudice is presumed under the second prong of Strickland. State v. 

Fisher, 156 N.J. 494, 500-01 (1998). "[W]hen counsel fails to file a suppression 

motion, the defendant not only must satisfy both parts of the Strickland test but 

also must prove that his Fourth Amendment claim is meritorious." Id. at 501

(citing Kimmelman v. Morrison, 477 U.S. 365, 384 (1986)). Moreover, "[i]n an 

ineffective assistance claim based on failure to file a suppression motion, the 

prejudice prong requires a showing that the motion would have been successful." 

State v. Roper, 362 N.J. Super. 248, 255 (App. Div. 2003) (citing Fisher, 156 

N.J. at 501). 

Here, defendant has failed to show that the motion would have been 

successful. Defendant asserts that the checkpoint was not authorized for June 
14 A-1723-17T4

9, the date of the incident, and that defendant's plea counsel should have known 

that based on the last page of the memorandum signed by the county prosecutor 

authorizing the checkpoint. But on the first page of the complete six-page 

memorandum, it explicitly states that the checkpoint would begin on June 9 at 

midnight and end at 4:00 a.m. Notably, even though PCR counsel claims that 

defendant only received the last page of the memorandum, which only states 

that the checkpoint would be June 10 or June 8, it is clear from the top of the 

page that it was a continuation from a previous page. At the top of the page, 

there are statistics – the number of summonses issued, the number of DWI 

arrests, and the number of criminal complaints signed – from a prior DWI 

checkpoint. This suggests that it was clear that there was a previous page to the 

document. The rest of the memorandum – the first five pages – were needed to 

put the last page in context, and to make the record complete. In sum, defendant 

has failed to prove that the motion to suppress would have been successful, and 

thus, his claim of ineffective assistance on this ground fails. 

Furthermore, defendant claims that his plea counsel was ineffective 

because she "misinformed" defendant of the consequences of pleading guilty. 

Defendant's contention is belied by the record. At the plea hearing, defendant's 

plea counsel informed the court that she advised defendant of penalties for DWI, 
15 A-1723-17T4

including enhanced penalties for a second and third conviction. After imposing 

sentence, the judge also informed defendant of the penalties for a subsequent 

DWI conviction. At the plea hearing, defendant stated that he was "freely and 

voluntarily" entering a guilty plea. Accordingly, defendant has failed to 

demonstrate how plea counsel was deficient to establish a prima facie claim of 

ineffective assistance. 

Lastly, defendant contends the factual basis for his guilty plea was 

"constitutionally inadequate." Defendant asserts that he never acknowledged 

that he was impaired to operate a motor vehicle, and he did not stipulate that the 

officer who administered the breathalyzer was certified or that the machine was 

properly functioning. Again, defendant argues that his plea counsel was 

ineffective because she failed to advise defendant of his right to retain a DWI 

expert to challenge the results of the breathalyzer. Defendant's arguments are 

unavailing. 

During a plea colloquy, "[t]he factual foundation may take one of two 

forms; defendant may either explicitly admit guilt with respect to the elements 

or may 'acknowledge[] . . . facts constituting the essential elements of the 

crime.'" State v. Campfield, 213 N.J. 218, 231 (2013) (alterations in original)

(quoting State v. Sainz, 107 N.J. 283, 293 (1987)). 
16 A-1723-17T4

At defendant's plea hearing, he was questioned by his plea counsel and the 

municipal judge. Defendant's plea counsel elicited the following: 

[Counsel]: [Defendant], on Saturday June 9th, 2012, 

were you driving [in] the Borough of Elmwood Park on 

Route 46?

[Defendant]: Yes. 

[Counsel]: Okay. And was that approximately two 

o'clock in the morning?

[Defendant]: Yes.

[Counsel]: Okay. Had you had anything to drink just 

prior to driving the car?

[Defendant]: Yes.

[Counsel]: And what did you drink?

[Defendant]: I had a couple beers.

[Counsel]: Okay. And . . . did you go through a 

checkpoint on Route 46 in Elmwood Park?

[Defendant]: Yes.

[Counsel]: And were you stopped? 

[Defendant]: Yes. 

[Counsel]: Okay. And were you tested by an officer?

[Defendant]: Yes.
17 A-1723-17T4

[Counsel]: And . . . were you found to be under the 

influence of . . . alcohol . . . ?

[Defendant]: Yes. 

. . . .

[Counsel]: What was the blood content? Was . . . it .09, 

as I see here in the report?

[Defendant]: Yes. 

The factual basis established the elements of the crime of DWI, N.J.S.A. 39:4-

50. Accordingly, we conclude that defendant has failed to establish either prong 

under Strickland.

To the extent that we have not addressed the parties' remaining arguments, 

we conclude they lack sufficient merit to warrant discussion in this written 

opinion. R. 2:11-3(e)(2).

Affirmed.