SUPERIOR COURT OF NEW JERSEY 

 APPELLATE DIVISION 

 DOCKET NO. A-1667-21 

STATE OF NEW JERSEY, 

 Plaintiff-Respondent, 

v.

DAWAN INGRAM, 

 Defendant-Appellant. 

_______________________

Submitted December 12, 2023 – Decided December 19, 2023 

Before Judges Haas and Puglisi. 

On appeal from the Superior Court of New Jersey, Law 

Division, Essex County, Indictment No. 14-03-0827.

Joseph E. Krakora, Public Defender, attorney for 

appellant (Steven M. Gilson, Designated Counsel, on

the brief). 

Theodore Stephens, II, Acting Essex County 

Prosecutor, attorney for respondent (Frank J. Ducoat, 

Special Deputy Attorney General/Acting Assistant 

Prosecutor, of counsel and 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NOT FOR PUBLICATION WITHOUT THE 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.
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PER CURIAM 

 Defendant Dawan Ingram appeals from the Law Division's November 5, 

2021 order denying his petition for post-conviction relief (PCR) following an 

evidentiary hearing. We affirm. 

 We incorporate the procedural history and facts set forth in our decision 

on defendant's direct appeal of his conviction for first-degree murder and 

weapons offenses. State v. Ingram, Docket No. A-0463-16 (App. Div. Apr. 12, 

2019), certif. denied, 240 N.J. 12 (2019). After his appeal, defendant filed a 

timely petition for PCR. Among other things, defendant asserted his trial 

attorney provided him with ineffective assistance because she: (1) presented an 

alibi defense to the jury after he instructed her not to do so; (2) failed to 

adequately investigate the alibi defense before presenting it; and (3) did not 

move for reconsideration of the denial of his suppression motion related to 

certain identification evidence or move for a mistrial because of the faulty 

identification procedure he alleges was employed by the police. 

 The trial judge conducted an evidentiary hearing concerning defense 

counsel's decision to raise the alibi defense. Defendant claimed he sent a letter 

to his attorney several months before the trial began advising her not to put forth 

an alibi defense. Defense counsel testified she did not recall ever receiving 
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such a letter. She stated that defendant agreed with her decision to present the 

defense and he gave her contact information for his mother and sister who 

testified at trial in support of that defense. Defense counsel testified that 

defendant never objected to the decision to proceed with the alibi testimony. 

 In her written decision, the trial judge found that defense counsel's account 

was credible, while defendant's claims were not. Accordingly, the judge 

rejected defendant's argument that his trial attorney provided him with 

ineffective assistance by pursuing the alibi defense. 

 The trial judge also rejected defendant's argument that his attorney should 

have conducted a more in-depth investigation of the alibi defense before 

presenting it at trial. According to defendant, the potential success of the 

defense was predicated on his ability to return from the murder scene to his 

home in nine minutes or less. However, defendant's investigator presented a 

report in support of his PCR petition stating that this trip took almost sixteen 

minutes. Defendant argued that his attorney was ineffective because she failed 

to conduct a similar investigation before raising the defense. 

 However, the trial judge found that one of the State witnesses had testified 

that it was possible to make the trip in five minutes if the person drove the car 

in excess of the posted speed limit. With that favorable testimony in hand, the 
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judge determined that defense counsel was not required to present additional 

evidence on the travel time issue at the trial. 

 Finally, defendant argued that the police improperly showed one of the 

eyewitnesses the same set of photographs during two separate photographic 

arrays. Defendant asserted that his attorney should have moved for a mistrial or 

for reconsideration of the denial of his suppression motion as soon as this 

testimony was presented at trial. 

However, the trial judge found that the witness's testimony did not clearly 

establish that the photographs were the same in both arrays. Instead, the witness 

stated several times that she could not remember what photographs the police 

showed her. Because defense counsel lacked a factual basis for the motions 

defendant believed she should have filed, the judge held that his attorney's 

decision not to proceed with any motions at that juncture was appropriate. 

In sum, the trial judge concluded that defendant failed to satisfy the twoprong test of Strickland v. Washington, 466 U.S. 668, 687 (1984), which 

requires a showing that defense counsel's performance was deficient and that, 

but for the deficient performance, the result would have been different. This 

appeal followed. 
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In the brief filed by his appellate counsel, defendant repeats the same three 

contentions he unsuccessfully raised before the trial court. Defendant asserts: 

POINT I 

DEFENDANT'S CONVICTIONS MUST BE 

REVERSED BECAUSE TRIAL COUNSEL WAS 

INEFFECTIVE FOR FAILING TO COMPLY WITH 

DEFENDANT'S INSTRUCTIONS NOT TO PURSUE 

AN ALIBI DEFENSE. 

POINT II 

IN THE ALTERNATIVE, THIS MATTER MUST BE 

REMANDED FOR AN EVIDENTIARY HEARING 

BECAUSE DEFENDANT ESTABLISHED A PRIMA 

FACIE CASE OF ADDITIONAL CLAIMS AS TO 

TRIAL COUNSEL'S INEFFECTIVENESS. 

A. Trial Counsel Failed to Adequately Investigate 

the Alibi Defense. 

B. Trial Counsel Failed to Move for 

Reconsideration of a Wade/Henderson Hearing 

and/or a Mistrial, when it was Disclosed that the 

State's Primary Eyewitness Had Been Shown the 

Same Photo of Defendant on Two Different 

Dates. 

In addition, defendant raises the following arguments in his pro se 

supplemental brief: 

POINT I 

PCR COURT ERRED IN DENYING [PCR] FOR 

INEFFECTIVE TRIAL COUNSEL WHERE TRIAL 
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COUNSEL PROCEEDED WITH A PREJUDICIAL 

ALIBI DEFENSE. 

POINT II 

PCR COURT ERRED IN DENYING [PCR] FOR 

INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL 

W[H]ERE TRIAL COUNSEL FAILED TO OBJECT 

TO REMIND THE TRIAL COURT OF THEIR 

POSITION TO CONDUCT A 104 HEARING. 

POINT III 

PCR COURT ERRED IN DENYING [PCR] WHERE 

TRIAL COUNSEL WAS INEFFECTIVE FOR 

FAILING TO INVESTIGATE EVIDENCE THAT 

CLEARLY ESTABLISHED DEFENDANT'S 

INNOCENCE. 

POINT IV 

PCR COURT ERRED IN DENYING [PCR] FOR 

NEWLY DISCOVERED EVIDENCE WHERE 

EXPERT WITNESS WAS EXPOSED AS HAVING 

RACIAL ANIMUS. 

POINT V 

DEFENDANT'S CREDIBILITY. 

POINT VI 

APPELLATE REDETERMINATION OF 

CREDIBILITY ISSUE. 
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When petitioning for PCR, the defendant must establish, by a 

preponderance of the credible evidence, that he is entitled to the requested relief. 

State v. Nash, 212 N.J. 518, 541 (2013); State v. Preciose, 129 N.J. 451, 459 

(1992). To sustain that burden, the defendant must allege and articulate specific 

facts that "provide the court with an adequate basis on which to rest its decision." 

State v. Mitchell, 126 N.J. 565, 579 (1992). 

 To establish a prima facie claim of ineffective assistance of counsel, the 

defendant is obligated 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, 466 U.S. at 687; State v. Fritz, 105 N.J. 42, 58 (1987). 

Under the first prong of this 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. There is a strong presumption that counsel "rendered adequate 
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assistance and made all significant decisions in the exercise of reasonable 

professional judgment." Id. at 690. 

Moreover, the acts or omissions of counsel of which a defendant 

complains must amount to more than mere tactical strategy. Id. at 689. As the 

Supreme Court observed in Strickland: 

[a] fair assessment of attorney performance requires 

that every effort be made to eliminate the distorting 

effects of hindsight, to reconstruct the circumstances of 

counsel's challenged conduct, and to evaluate the 

conduct from counsel's perspective at the time. 

Because of the difficulties inherent in making the 

evaluation, a court must indulge a strong presumption 

that counsel's conduct falls within the wide range of 

reasonable professional assistance; that is, the 

defendant must overcome the presumption that, under

the circumstances, the challenged action "might be 

considered sound trial strategy." 

[Ibid. (quoting Michel v. Louisiana, 350 U.S. 91, 101 

(1955)).] 

When a defendant asserts his attorney was ineffective by failing to file a 

motion, he must establish that the motion would have been successful. State v. 

O'Neal, 190 N.J. 601, 619 (2007). "It is not ineffective assistance of counsel for 

defense counsel not to file a meritless motion." Ibid. 

Where, as here, the judge conducts an evidentiary hearing, we must 

uphold the judge's factual findings, "so long as those findings are supported by 
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sufficient credible evidence in the record." State v. Rockford, 213 N.J. 424, 440 

(2013) (quoting State v. Robinson, 200 N.J. 1, 15 (2009)). Additionally, we 

defer to a trial judge's findings that are "substantially influenced by [the trial 

judge's] opportunity to hear and see the witnesses and to have the 'feel' of the 

case, which a reviewing court cannot enjoy." Ibid. (alteration in original) 

(quoting Robinson, 200 N.J. at 15). 

Having considered defendant's contentions in light of the record and these 

well-established principles, we affirm the denial of defendant's PCR petition 

substantially for the reasons detailed at length in the trial judge's thorough 

written decision. We discern no abuse of discretion in the judge's consideration 

of the issues. We are satisfied that the trial attorney's performance was not 

deficient and defendant's arguments to the contrary in his counselled appellate 

brief are unavailing. 

As to the issues presented by defendant in his pro se supplemental brief, 

they largely parrot the points raised by his appellate counsel. To the extent they 

do not, his arguments lack sufficient merit to warrant further discussion in a 

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

Affirmed.