SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5319-15T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JAMES RUSSELL,

Defendant-Appellant.

_________________________

Argued October 30, 2018 – Decided May 15, 2019

Before Judges Geiger and Firko.

On appeal from Superior Court of New Jersey, Law 

Division, Ocean County, Indictment Nos. 06-05-0869

and 09-01-0109.

Michael A. Priarone, Designated Counsel, argued the 

cause for appellant (Joseph E. Krakora, Public 

Defender, attorney; Michael A. Priarone, on the brief).

Shiraz I. Deen, Assistant Prosecutor, argued the cause 

for respondent (Bradley D. Billhimer, Ocean County 

Prosecutor, attorney; Samuel J. Marzarella, Deputy 

Executive Assistant Prosecutor, of counsel; Shiraz I. 

Deen, 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NOT FOR PUBLICATION WITHOUT THE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.
2

A-5319-15T2

PER CURIAM

Defendant James Russell appeals from an April 29, 2016 order denying 

his petition for post-conviction relief (PCR) without an evidentiary hearing. 

Tried to a jury, Russell and two co-defendants were convicted of the murder of 

Jose Francisco Olivares and related crimes. Russell and two co-defendants were 

subsequently tried and convicted of a second murder and related charges arising 

out of an attempt to prevent a witness from testifying about the Olivares murder. 

Russell sought PCR from each of the convictions. We affirm.

I.

Indictment No. 06-05-0869

Russell and co-defendants Jamal D. Scott and Tyleek J. Baker were 

convicted of the murder of Olivares in a Lakewood barbershop. The State 

contended Baker shot Olivares, and Russell and Scott conspired with Baker and 

acted as his accomplices.

We recounted the underlying facts in our consolidated opinion on direct 

appeal of the convictions and sentences entered against Russell, Scott, and 

Baker, and need not repeat them at length here. State v. Scott, Nos. A-3455-08, 

A-4794-08, and A-4841-08 (App. Div. April 20, 2012). Pertinent to this appeal, 

the evidence at trial revealed:
3

A-5319-15T2

[A]t approximately 4:00 p.m. on February 7, 2006, 

Jason Vega arrived at the Man, Woman and Child 

Barbershop in Lakewood. Vega's brother, Ramon, and 

Vega's friends, Christian Vivar Granados and Olivares, 

known as "Hefe," were already there. Jose Silva was 

one of the barbers at the shop that day.

Vega . . . walked through another room where 

approximately nine people were gathered, stopping

briefly to say hello. Baker, who was known as 

"Respect," was playing chess with another person when 

he began "mocking" Vega. Vega ignored Baker's 

"mocking" until he heard Baker say to someone on the 

phone, "Jason Vega and his boys are plotting on me." 

Not knowing to whom Baker was speaking, Vega was 

upset and thought he was going to "have to . . . watch[] 

[his] back." Vega challenged Baker to a fight "and he 

accepted." Vega "asked him to step outside . . . to settle 

it[,] basically, fistfight." James Bellamy . . . claimed, 

however, that Baker was not involved in any arguments 

or confrontations.

According to Vega, after Baker accepted the 

challenge, Baker asked someone if Hefe was in the 

shop. When told he was, Baker ran out the back door. 

Vega waited for Baker in front of the barbershop for 

approximately fifteen minutes and then left.

Shortly after this confrontation, Granados saw 

Russell, whom he knew as "Gotti," and Scott, who was 

known as "High-Five," enter the barber shop and walk 

to the back. They stayed in the store for a couple of 

minutes before leaving.

Silva was arranging his barber station when he 

saw Baker, who he knew as a regular customer, come 

in with two other men. When the men entered, Olivares 

was seated, but, as he stood up from his chair, Baker 
4

A-5319-15T2

shot him six times. . . . Silva could not identify the two 

men with Baker.

Granados was getting his hair cut when he saw 

Baker, Russell, and Scott walk into the shop. He heard 

Baker say, "Where's that nigger that have a beef with 

me?" Olivares stood up, said, "What's up?," and Baker 

shot him. Granados explained that during the shooting, 

Russell stood on Baker's left and Scott on his right. 

Both men had their hands crossed in front of them, kept 

a straight face, and did not appear upset or surprised.

[Id. at 9-11.]

Alexander Truyenque testified he saw three African-American men "walk 

in the barber shop and shoot somebody." Id. at 11. He stated "the one 'in the 

middle took out a weapon and fired several shots at the victim' who was sitting 

in the corner." Ibid. "When shown a photographic array that included Russell's 

photo, Truyenque stated that the photograph 'look[ed] like' one of the men who 

stood by the shooter." Ibid. 

Ramon testified he saw three men enter the barbershop and one shoot 

Olivares as the other two stood on either side. All three men ran from the 

barbershop after the shooting. Ibid. Ramon observed "a silver four-door car, 

possibly a Toyota, fleeing the scene." Ibid.

On June 1, 2006, an Ocean County grand jury returned Indictment No. 06-

05-0869, which charged all three defendants with first-degree murder, N.J.S.A. 
5

A-5319-15T2

2C:11-3 (count one), and first-degree conspiracy to commit murder, N.J.S.A. 

2C:11-3 and N.J.S.A. 2C:5-2 (count two). Baker was also charged with seconddegree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) 

(count three); third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-

5(b) (count four); and second-degree possession of a firearm by certain persons, 

N.J.S.A. 2C:39-7(b)(1) (count five).

Defendants were tried jointly and convicted by a jury on all counts. Baker 

subsequently pleaded guilty to count five.

All three defendants moved for a new trial and judgment of acquittal 

notwithstanding the verdict. The trial court denied the motions. After merging 

the conspiracy count into the first-degree murder count for sentencing purposes, 

the court sentenced Russell to a life sentence subject to the No Early Release 

Act (NERA), N.J.S.A. 2C:43-7.2. 

All three defendants appealed.1 After we consolidated the appeals, we 

affirmed the convictions and sentences imposed as to all three defendants, with 

 

1

 Russell raised the following arguments on direct appeal: (1) the photographic 

identifications of defendant were impermissibly suggestive; (2) defendant was 

denied a fair trial by the State's exercise of a peremptory challenge on 

constitutionally impermissible grounds to strike an African-American juror; (3) 

the verdict was against the weight of the evidence; (4) the admission of improper 

opinion testimony denied defendant a fair trial; (5) defendant was denied a fair 
6

A-5319-15T2

one exception; we remanded the consecutive sentence Baker received on the 

certain persons offense for reconsideration. Russell's petition for certification

was denied. State v. Russell, 212 N.J. 431 (2012).

Indictment No. 09-01-0109 

The second indictment charged Russell, Scott, Lee C. Reeves, and 

Trishawn F. Cochran – all members of the Bloods street gang2 – with offenses 

relating to a plot to prevent Granados from testifying as an eyewitness for the 

State regarding the murder of Olivares, the victim in Indictment No. 06-05-0869.

We recounted the underlying facts in our consolidated opinion on direct 

appeal of the convictions and sentences entered against Russell, Scott, Reeves, 

and Cochran, and need not repeat them at length here. State v. Scott, Reeves, 

Russell, and Cochran, Nos. A-2580-09, A-4100-09, A-4101-09, and A-6279-09

(App. Div. April 16, 2013). Pertinent to this appeal, the evidence at trial 

 

trial by the trial court's repeated denials of mistrial motions based upon the 

State's belated provision of discovery and violation of an order prohibiting any 

mention of acts of retaliation against a witness; (6) the misconduct of Baker's 

trial counsel denied Russell a fair trial; (7) the Appellate Division erred in 

reversing the trial court's ruling precluding the use of the defendants' street 

names at trial; (8) the trial court erred by denying Russell's motion for a new 

trial; (9) the cumulative effect of the trial errors denied Russell a fair trial; (10) 

Russell's sentence was excessive; and (11) the failure to perform the requested 

read-back of testimony denied Russell a fair trial.

2

 Russell is a member of the Black Guerilla Gangster Piru set of the Bloods. 
7

A-5319-15T2

revealed Granados was an eyewitness to the Olivares murder. Id. at 4. Granados

was identified in the police reports and other documents produced during 

discovery. Ibid. At a plea cut-off hearing, Scott and Russell acknowledged they 

had reviewed the discovery materials with counsel. Ibid. Following jury 

selection, the trial judge advised defendants that opening statements and witness 

testimony would begin on October 14, 2008. Members of the Bloods then made 

plans to kill Granados to prevent him from testifying. Id. at 5-7.

Defense investigators discovered Granados was staying with his 

girlfriend, Alisa Morales, and her mother, Theresa Vasquez, at an apartment in 

Lakewood. Id. at 8. Shortly before 6:00 a.m. on the day testimony was to begin, 

Vasquez was sleeping on a sofa in the living room of the apartment. Ibid. 

Morales and Granados, who were in the bedroom, heard gunshots. Ibid. Upon 

entering the living room, Morales and Granados saw the front door pushed in 

and broken off the door jamb; they also saw Vasquez bleeding on the sofa from 

multiple gunshot wounds, but they did not see the shooter. Ibid. Vasquez was 

taken by ambulance to a nearby hospital, where she died. Id. at 9. 

Subsequent investigation revealed the scheme to kill Granados, the acts 

taken in furtherance of the conspiracy, and the mistaken killing of Vazquez 

rather than Granados. Reeves was the shooter; he admitted to two others he had 
8

A-5319-15T2

kicked Vazquez's door open, shot whoever was on the couch, and ran off when 

the gun jammed. Id. at 13. The living room was dark, leading Reeves to shoot 

the wrong person. Id. at 17.

Attempts were made to hide the handgun and a shell casing. Despite those 

attempts, they were recovered by investigators. The shell casing was hidden 

beneath a sewer grate in Camden. Another shell casing was recovered at the

scene of the crime. The handgun was forensically linked to both shell casings. 

Id. at 16. In addition, another person provided further information about the 

killing, including an admission by Reeves. Id. at 15-16. 

An Ocean County grand jury returned Indictment No. 09-01-0109 

charging Russell, Scott, Reeves, and Cochran with: first-degree conspiracy to 

commit murder, N.J.S.A. 2C:11-3(a) or (b) and N.J.S.A. 2C:5-2 (count one); 

first-degree murder, N.J.S.A. 2C:11-3(a) or (b) (count two); attempted murder, 

N.J.S.A. 2C:11-3(a)(1) and N.J.S.A. 2C:5-1 (counts three and four); seconddegree burglary, N.J.S.A. 2C:18-2 (count five); possession of a weapon for an 

unlawful purpose, N.J.S.A. 2C:39-4(a) (count six); second-degree conspiracy to 

commit witness tampering, N.J.S.A. 2C:28-5(a) and N.J.S.A. 2C:5-2 (count 

seven); and first-degree witness tampering, N.J.S.A. 2C:28-5(a) (count eight). 

Count nine charged co-defendant Joseph Powell, also an admitted member of 
9

A-5319-15T2

the Bloods street gang, with second-degree unlawful possession of a weapon, 

N.J.S.A. 2C:39-5(b).3 

Defendants were tried jointly. Reeves testified at trial, and freely admitted 

he murdered Vazquez. Id. at 16. Russell, Scott, and Cochran did not testify or 

call any witnesses. Ibid. Based upon the evidence adduced at trial, the jury 

convicted Russell, Scott, and Reeves of all counts. The jury found Cochran 

guilty of both witness tampering counts but acquitted him of the remaining

charges.

Russell, Scott, Reeves, and Cochran appealed their convictions and 

sentences. We consolidated the appeals. Each defendant raised numerous issues 

on direct appeal.4 We affirmed the convictions and sentences as to all four 

defendants in all respects. Id. at 3.

 

3

 Powell pleaded guilty to that crime, as well as to the conspiracies charged in 

counts one and seven. 

4

 Russell raised the following arguments on direct appeal: (1) the trial court 

erred in denying his motion for a change of venue; (2) the trial court erred in 

denying severance and not conducting a separate trial as to each defendant; (3) 

the prosecutor committed a Batson/Gilmore error, Batson v. Kentucky, 476 U.S. 

79 (1986); State v. Gilmore, 103 N.J. 508 (1986); (4) the trial court erred by 

permitting a detective to testify as a gang expert; (5) the trial court erred by 

permitting Russell's statements in another criminal case to be used as substantive 

evidence against him in this case; (6) hearsay by alleged co-conspirators was 

improperly admitted into evidence against Russell during the State's case-in-
10 A-5319-15T2

The PCR Proceedings

On November 28, 2012, Russell filed a pro se PCR petition as to the 

Olivares homicide proceedings. The petition asserted two grounds for relief: 

(1) the trial judge had previously prosecuted Baker and (2) ineffective assistance 

of appellate counsel in failing to argue the arrest warrant was defective.

Counsel was appointed to represent Russell and submitted a brief and 

exhibits. PCR counsel averred none of Russell's claims were procedurally 

barred. The brief asserted the following grounds for relief: (1) the trial judge 

had previously prosecuted Baker; (2) trial counsel was ineffective in failing to 

produce a witness who would have exculpated Russell; (3) trial counsel was 

ineffective in failing to ask the State's star witness to inform the jury that Russell 

was not involved in a conspiracy to commit a homicide; (4) trial and appellate 

counsel were ineffective in failing to challenge unlawful portions of the jury 

instructions that pertained to Russell's street name, that misstated the evidence, 

and that improperly reduced the State's burden of proof; (5) trial and appellate 

counsel were ineffective in failing to challenge several instances of prosecutorial 

 

chief (not raised below); (7) prosecutorial misconduct caused an unfair trial; (8) 

the right to a fair trial was infringed due to juror issues that arose during trial 

and deliberations; (9) discovery violation should have precluded evidence being 

introduced at trial; and (10) his sentence was improper and excessive.
11 A-5319-15T2

misconduct; (6) trial counsel was ineffective in failing to ensure the prosecutor 

adhered to the parameters set by the Appellate Division for comments on 

Russell's street name "Gotti;" and (7) the cumulative effect of trial and appellate 

counsels' errors warrant relief.

On November 20, 2013, Russell filed a pro se PCR petition as to the

Vazquez homicide proceedings. The petition asserted two grounds for relief: 

(1) ineffective assistance of trial counsel in failing to investigate potential 

witnesses and (2) the State's Brady5 violation in failing to disclose material 

evidence.

Counsel was appointed to represent Russell. Counsel argued trial counsel 

was ineffective by failing to: (1) consult with Russell, interview and call as a 

witness an FBI agent with knowledge of co-defendant's trial counsel's criminal 

behavior, investigate and call witnesses who could provide exculpatory 

evidence, investigate potential defenses, research critical words and phrases, 

object to the trial court referring to Russell as "Gorilla Gotti,"

6

and subject the 

State's evidence to a meaningful challenge; (2) move for recusal; (3) renew the 

 

5

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

6

 Russell contends he went by the gang name "Guerilla Gotti" not "Gorilla 

Gotti." We note guerilla and gorilla are homophones. 
12 A-5319-15T2

motion for severance after Powell decided to testify against Russell and after 

Reeves raised duress as a defense; (4) prevent the jury from hearing irrelevant 

character evidence; (5) engage in effective jury selection; (6) give an adequate 

closing statement; and (7) prevent or seek remedies for prosecutorial 

misconduct.

7 PCR counsel also argued the cumulative effect of trial counsel's 

errors warranted reversal and that appellate counsel was ineffective.

Without objection by the parties, the Ocean County PCR court decided to 

hear both of Russell's PCR petitions and the petitions filed by Baker, as to the 

Olivares murder, Scott, as to the Olivares and Vazquez murders, and Reeves, as

to the Vazquez murder, together. Scott filed a motion for change of venue, and 

Russell and Baker orally joined in Scott's motion on the return date. The court 

granted the motion; the petitions were transferred to Monmouth County. 

Defendants then sought discovery of juvenile files pertaining to Baker, 

claiming the trial judge prosecuted those cases in his prior capacity as an 

assistant prosecutor in the Ocean County Prosecutor's Office. The Monmouth 

County PCR court ordered the Prosecutor's Office to produce fourteen internal 

 

7

 Russell claimed trial counsel neglected to object to the prosecutor's: (a) 

attempt to mislead the jury; (b) arguments that were not based upon the evidence

in the record; and (c) attempts to inflame the passions of the jury.
13 A-5319-15T2

files concerning Baker's juvenile delinquency charges for in camera review. 

Counsel were permitted to review the files for any references to the trial judge.

The review of Baker's juvenile files revealed nearly thirty documents, 

dated between 1993 and 1998, which indicated varying degrees of involvement 

of then-assistant prosecutor Wendel E. Daniels in nine juvenile delinquency 

cases filed against Baker. The documents are more fully described in Schedule 

A attached to this opinion. In sum, the documents show that the trial judge was 

involved in some capacity as an assistant prosecutor in at least nine juvenile 

cases involving Baker. In four of those cases, court appearance sheets suggest 

he was involved in a supervisory role. In one case, assistant prosecutor Daniels

filed four juvenile delinquency complaints against Baker.

In response to the interrogatories issued by the PCR court, the trial judge 

certified he was employed by the Ocean County Prosecutor's Office from 1988 

to 1999. During that time, he was an assistant prosecutor from 1988 to 1993. 

As an assistant prosecutor, he "tried approximately fifteen jury criminal trials," 

and during that time he "would have conferenced between 150-200 adult cases, 

which included pleas and plea negotiations, sentencings, motions, and violations 

of probation." He further certified that from 1993 to 1999, as supervisor of the 
14 A-5319-15T2

Juvenile Prosecution Unit, he would have tried over twenty cases per year and 

conferenced over 500 cases.

Concerning the trial, the trial judge certified that Baker's trial counsel "at 

no time communicated" to him that he "had a potential conflict of interest with"

Baker. He further certified that at the time he presided over the trial in 2008, he 

"did not have any recollection of having previously prosecuted [Baker] while 

[he] was an assistant prosecutor." He also certified that "[i]n the event that [he] 

had any documentary or independent recollection of having prosecuted Tyleek 

Baker, or of having received any request for disqualification, [he] would have 

transferred the case to another judge."

The record also shows that since the mid-1980s, the trial judge 

volunteered with the Omega XIII community-based youth mentoring program

in Lakewood. Reeves participated in the Omega XIII program in 2005 and 2006.

The trial judge raised the issue of his involvement in the Omega XIII 

program in an August 11, 2009 letter to all counsel. The judge noted he had no 

recollection of Reeves from the program, it was unlikely he would have known 

Reeves because he was not involved in the details of the program, maintained

distance from the participants, and avoided discussion of any of the participant's 
15 A-5319-15T2

juvenile cases. The trial judge stated he did not see a basis for disqualification, 

and requested each party's position regarding the issue. 

The trial judge addressed the issue with counsel in open court. Defense 

counsel unanimously agreed the judge's participation in the Omega XIII

program did not create a conflict. In particular, counsel for Reeves stated his

client had no objection to the trial judge continuing to hear the case. This issue 

was not subsequently raised by any defendant prior to, or during, the trial. Nor 

was it raised by any defendant other than Baker on direct appeal of the first 

trial.

8

In his answers to interrogatories, the trial judge stated he has "been an 

active member in the Omega XIII program from the mid[-]1980s to the present." 

"As a mentor, [he] offer[s] friendship, guidance, and support to the male 

participants." He has served as both an assistant prosecutor and as a judge while 

mentoring in the Omega XIII program. The trial judge certified he "did not 

 

8

 In a supplemental pro se brief, Baker alleged a conflict with the trial judge 

because the trial judge had prosecuted him as a juvenile. Baker claimed he 

brought the conflict to the attention of his trial counsel, who informed him he 

spoke to the trial judge and assured him "the trial judge would be fair." Scott, 

slip. op. at 47-48. However, the record did not disclose any discussion took 

place between trial counsel and the trial judge. Id. at 49. We, thus, declined to 

consider the conflict issue, and stated it would be "more appropriately addressed 

in the context of post-conviction relief." Ibid.
16 A-5319-15T2

recall throwing Lee Reeves out of the Omega XIII mentorship Program in 2005." 

In 2008, he did not recall speaking with Lee Reeves's mother regarding Reeves's 

participation in the program. In 2009, he did not recall ever personally 

counselling Reeves while he was in the program in 2004 or 2005, or taking 

Reeves to a banquet, or a seminar as part of his participation in the program, or 

taking Reeves to a NCAA basketball game in 2004. The trial judge further 

certified that after speaking with the president of the Lakewood Chapter of 

Omega XIII in 2015, the president confirmed the accuracy of the judge's answers 

to the interrogatories.

The PCR court consolidated the petitions filed by Russell, Scott, and 

Baker for both cases and the petition filed by Reeves in the Vazquez homicide 

proceedings. During a status conference, the PCR court discussed how the case 

should proceed in light of the State raising the issue of whether Baker's codefendants had standing to pursue the conflict issue raised by Baker. Guided by 

our decision in State v. Presley, 436 N.J. Super 440 (App. Div. 2014), the PCR 

court suggested the State proceed by motion to dismiss if it intended to pursue 

lack of standing. In response to the court's suggestion, defendant's counsel 

requested the conference and all subsequent conferences be placed on the record. 

At a subsequent status conference, the PCR court clarified:
17 A-5319-15T2

I thought the most appropriate way to deal with [the 

trial judge's] involvement in the underlying [juvenile] 

cases was to have a series of written questions 

formulated that would be agreed upon by all counsel 

and parties to be responded to under oath by [the trial 

judge] as opposed to having different investigators go 

and see him.

I thought that the areas of inquiry might be 

guided by that which is set forth [in the] Presley

decision.

The PCR court contemplated the best way to proceed given the size of the 

record, and concluded the standing issue should be decided by way of formal 

motion, responses, and oral argument, before conducting the PCR hearing.9 The 

PCR court crafted a procedure in which the defendants could submit a list of 

inquiries to Judge Daniels without investigators and counsel personally 

interviewing him. The interrogatories would then be vetted by the PCR court 

before submission to Judge Daniels.

Scott's counsel objected to the procedure, arguing the defendants had the 

right to personally question the trial judge. Scott's counsel also argued the 

procedure was deficient because a number of questions were struck before the 

list was submitted to the trial judge. Russell and Scott moved for recusal. The 

 

9

 Notably, the State did not move to dismiss the petition based on lack of 

standing. Instead, the State raised lack of standing as part of its opposition to 

granting PCR.
18 A-5319-15T2

PCR judge issued an oral decision and orders denying the motions. The court 

then heard oral argument on defendants' PCR petitions.

In a comprehensive and well-reasoned seventy-page written opinion, the 

PCR judge determined Russell failed to establish a prima facie case of 

ineffective assistance of counsel to warrant relief or an evidentiary hearing. As 

to the trial judge's conflict with Baker, the PCR court noted Baker certified he 

told his trial counsel prior to trial that he had been personally prosecuted by the 

trial judge on numerous occasions. Therefore, Baker could have raised this issue 

pretrial, during trial, at pre-sentencing, at sentencing, or at any time prior to 

November 2010, when he first raised the issue in connection with seeking a 

remand from the Appellate Division. The PCR court further noted Baker raised 

numerous arguments in his motion for acquittal but not the conflict issue. The 

PCR judge stated, "[t]o say that Baker could not have raised the disqualification 

challenge then is illogical." 

The PCR court further concluded Baker did not meet his burden of 

showing a constitutional violation took place. The PCR judge found there was 

no allegation of actual bias on the part of the trial judge and no evidence of 

partiality or knowledge of disqualifying facts. Indeed, the trial judge's 

interrogatory answers stated he "did not have any recollection of having 
19 A-5319-15T2

previously prosecuted [Baker] while [he] was an assistant prosecutor." The PCR 

judge found there was no corroborating evidence or substantiation of Baker's 

allegation that his trial counsel advised the trial judge of his prior prosecution 

of Baker. In that regard, the PCR court noted the trial judge certified that "at no 

time" did Baker's trial counsel "communicate to me that I had a potential conflict 

of interest with his client." 

The PCR judge noted the trial judge's ruling prohibiting the use of gang 

names favored defendants. The PCR judge also considered that a jury had found 

Baker guilty, providing another constitutional protection. The judge found 

Baker did not show a reasonable probability that, but for trial counsel's 

unprofessional errors, the result of the proceeding would have been different. 

Applying the Presley factors, including the passage of time between the juvenile 

prosecutions and this case, the trial judge being unaware of any conflict when 

he tried the case, and the absence of bias or partiality during the trial, the PCR 

judge concluded Baker's disqualification argument must fail. 

With regard to the claim the trial judge was disqualified from presiding 

over Indictment No. 09-01-0109, because the judge had terminated Reeves from 

the Omega XIII program, the PCR court found no constitutional violation. The 

PCR judge noted the trial judge's answers to interrogatories stated he had no 
20 A-5319-15T2

recollection of terminating Reeves from the program, ever speaking to Reeves's 

mother, ever personally counseling Reeves, or ever taking Reeves to a banquet, 

seminar, or basketball game as alleged. 

The PCR court found no substantiated allegation that the judge "was in 

any way partial or biased." She noted there was no objection to the trial judge 

presiding over the case, Reeves testified at trial and freely admitted he murdered 

Vasquez, and Reeves made several corroborating statements to witnesses. 

Moreover, Reeves did not argue on direct appeal that his conviction should be 

reversed because the trial judge was disqualified due to a conflict. Because 

defendants did not demonstrate actual bias on the part of the trial judge that 

would call into question the fairness of the Vasquez murder trial, the PCR court 

found the claims did not rise to the level of a constitutional violation and were

not suited for PCR. 

Finally, with regard to Russell and Scott's disqualification argument, the 

PCR court found they lacked standing to challenge the constitutionality of the 

trial judge trying the case. The PCR court relied on language from Presley, 

where we concluded, "[i]n the absence of a constitutional defect . . . a judge with 

a disqualifying conflict as to one defendant is an insufficient basis for the other 

defendants to seek the nullification of orders entered by the judge and the 
21 A-5319-15T2

additional relief sought." 436 N.J. Super. at 453. Thus, the PCR court reasoned 

even if Baker and Reeves's conflict claims had merit, which the court found they 

did not, Russell and Scott's conflict claims would still fail.

This appeal followed. Russell raises the following points:

I. THE PCR COURT ERRED IN FAILING TO 

RECUSE ITSELF FROM THIS MATTER AND ITS 

FAILURE TO DO SO REQUIRES THAT THIS 

MATTER BE REMANDED FOR A NEW HEARING 

BEFORE AN IMPARTIAL COURT.

II. THE TRIAL COURT ERRED IN DENYING 

DEFENDANT'S PETITION FOR POST[-] 

CONVICTION RELIEF AND IN DENYING AN 

EVIDENTIARY HEARING ON DEFENDANT'S 

CLAIMS.

II.

We first address Russell's contention the PCR judge erred in failing to 

recuse herself from this matter. He claims the PCR judge was biased based on 

her suggestion the State move to dismiss the petitions, her demeanor, her 

incidental rulings, and her denial of the opportunity to interview the trial judge. 

Russell argues the PCR judge's solicitation of a motion by the State to dismiss 

the petitions occurred before she had read any of petitioners' briefs. Russell 

contends these circumstances demonstrate the PCR judge was predisposed to 

deny his petition. 
22 A-5319-15T2

Russell moved to recuse the PCR judge. In a supporting certification, 

PCR counsel certified that during an initial status conference conducted outside 

the courtroom and off the record, "[t]he PCR judge expressed a negative attitude 

towards the four petitions for [PCR] filed by James Russell and Jamell Scott." 

At one point, the PCR judge asked the assistant prosecutor, "why don't you file 

a motion to dismiss[?]" At that point, Scott's attorney demanded the remainder 

of the conference be held on the record. PCR counsel described the remainder 

of the conference as "contentious." He alleged: "The PCR [j]udge's tone and 

facial expressions, which are not reflected by the record, were hostile towards 

defense counsel." PCR counsel represents that during a status conference 

conducted ten weeks later, "the PCR [j]udge continued to be hostile towards 

defense counsel. The PCR [j]udge's tone and facial expressions were harsher 

than the previous status conference." 

Counsel also claims the PCR judge "disregarded" a letter he sent and had 

otherwise "expressed an unwillingness to listen." He further claims the judge 

"was upset that I directed an investigator to serve a subpoena on a woman" who 

was present in court during a prior status conference. Through inadvertence, the 

subpoena was meant to be labelled a subpoena duces tecum. The judge 

admonished counsel for not providing a copy of the subpoena to the assistant 
23 A-5319-15T2

prosecutor. Counsel further claims the judge was angry because counsel did not 

"prove" to the prosecutor that he represented Russell on the first petition even 

though the prosecutor knew prior designated counsel was deceased. The judge 

directed counsel to file a substitution of attorney, even though the attorney of 

record remained the Public Defender. Counsel also points to the judge's refusal 

to consider two reply briefs submitted ten days late, while affording extensions 

to the State. The PCR judge denied the recusal motion. 

The State argues the PCR judge's suggestion that the State move to dismiss 

the petition was not indicative of any bias on her part against Russell or the codefendants. The PCR judge did not initiate discussion of lack of standing. 

Instead, the State raised lack of standing during the conference and the judge 

responded by suggesting that issue could be raised by motion to dismiss. 

Motions for disqualification "are entrusted to the sound discretion of the 

judge and the judge's decision is subject to review for abuse of discretion." State 

v. McCabe, 201 N.J. 34, 45 (2010) (citing Panitch v. Panitch, 339 N.J. Super. 

63, 66, 71 (App. Div. 2001)). "We review de novo whether the proper legal 

standard was applied." Ibid.

Judges "must avoid all impropriety and appearance of impropriety." Id.

at 43 (quoting DeNike v. Cupo, 196 N.J. 502, 514 (2008)). "In other words, 
24 A-5319-15T2

judges must avoid acting in a biased way or in a manner that may be perceived

as partial." DeNike, 196 N.J. at 514. Both Canon 3(C)(1) of the Code of Judicial 

Conduct and Rule 1:12-1 focus directly on the subject of disqualification.10 

Canon 3(C)(1) states "[a] judge should disqualify himself or herself in a 

proceeding in which the judge's impartiality might reasonably be questioned." 

Similarly, Rule 1:12-1(g) directs judges not to preside over a matter "when there 

is any . . . reason which might preclude a fair and unbiased hearing and 

judgment, or which might reasonably lead counsel or the parties to believe so."

"Our rules, therefore, are designed to address actual conflicts and bias as 

well as the appearance of impropriety." McCabe, 201 N.J. at 43. Therefore, 

"'the mere appearance of bias may require disqualification'" even "without any 

proof of actual prejudice." Presley, 436 N.J. Super. at 448 (quoting Panitch, 339 

N.J. Super. at 67). "However, before the court may be disqualified on the ground 

of an appearance of bias, the belief that the proceedings were unfair must be 

objectively reasonable." Ibid. (quoting Marshall, 148 N.J. at 279). 

Following those principles, the Court adopted "the following standard to 

evaluate requests for recusal: 'Would a reasonable, fully informed person have 

 

10

 Effective September 1, 2016, Canon 3(C)(1) of the Code of Judicial Conduct

became Canon 3, Rule 3.17(B).
25 A-5319-15T2

doubts about the judge's impartiality?'" McCabe, 201 N.J. at 44 (quoting 

DeNike, 196 N.J. at 517). As our Supreme Court has noted, "DeNike does not 

set forth any bright-line rules." State v. Dahl, 221 N.J. 601, 607 (2015). Instead, 

"the standard calls for an individualized consideration of the facts in a given 

case." Ibid. 

Applying that standard to the facts of this case, we discern no abuse of 

discretion by the PCR judge in declining to recuse herself. Russell has not 

demonstrated the PCR judge was biased. Her suggestion that the State file a 

motion to determine Russell's standing to raise the alleged conflict of the trial 

judge with a co-defendant was prudent, not improper. By addressing that issue 

preliminarily, the court could determine if a full PCR hearing was necessary, 

thereby promoting judicial economy and conserving judicial resources. To be 

sure, standing should be determined prior to a hearing on the merits, not after. 

On this record, no reasonable, fully informed person would have doubts about 

the PCR judge's impartiality.

III.

We next address Russell's claim the PCR court erred by denying his 

petition without an evidentiary hearing. At the time of defendant's petition, our 

rules provided four grounds for PCR: "(a) 'substantial denial in the conviction 
26 A-5319-15T2

proceedings' of a defendant's state or federal constitutional rights; (b) a 

sentencing court's lack of jurisdiction; (c) an unlawful sentence; and (d) any 

habeas corpus, common-law, or statutory grounds for a collateral attack." State 

v. Preciose, 129 N.J. 451, 459 (1992) (quoting R. 3:22-2).11 A petition for PCR 

"is not a substitute for a direct appeal, and a defendant who relies upon grounds 

which could have been raised in a prior proceeding may be barred from postconviction relief." State v. Guzman, 313 N.J. Super. 363, 372 (App. Div. 1998) 

(citing Preciose, 129 N.J. at 459).

A PCR court deciding whether to grant an evidentiary hearing "should 

view the facts in the light most favorable to a defendant to determine whether a 

defendant has established a prima facie claim." Preciose, 129 N.J. at 462-63. 

Nevertheless, PCR courts need not conduct an evidentiary hearing unless the 

defendant establishes a prima facie case for relief and "there are material issues 

of disputed fact that cannot be resolved by reference to the existing record." R.

3:22-10(b). "To establish such a prima facie case, the defendant must 

demonstrate a reasonable likelihood that his or her claim will ultimately succeed 

 

11

 Effective September 1, 2018, Rule 3:22-2(e) provides the following fifth basis 

for relief: "A claim of ineffective assistance of counsel based on trial counsel's 

failure to file a direct appeal of the judgment of conviction and sentence upon 

defendant's timely request."
27 A-5319-15T2

on the merits." State v. Marshall, 148 N.J. 89, 158 (1997). See also State v. 

Porter, 216 N.J. 343, 355 (2013) (noting the defendant "must do more than make 

bald assertions" to establish a prima facie claim for relief (quoting State v. 

Cummings, 321 N.J. Super. 154, 170 (App. Div. 1999))). As the PCR court did 

not hold an evidentiary hearing, we undertake a de novo review. State v. Parker, 

212 N.J. 269, 278 (2012).

Under the Sixth Amendment, a criminal defendant is guaranteed the 

effective assistance of legal counsel in his defense. Strickland v. Washington, 

466 U.S. 668, 687 (1984). To establish a deprivation of that right, a convicted 

defendant must satisfy the two-part test enunciated in Strickland by 

demonstrating that: (1) counsel's performance was deficient, and (2) the 

deficient performance actually prejudiced the accused's defense. Id. at 687;

accord State v. Fritz, 105 N.J. 42, 58 (1987) (adopting the Strickland two-part 

test in New Jersey). "This requires showing that counsel's errors were so serious 

as to deprive the defendant of a fair trial, a trial whose result is reliable." Fritz, 

105 N.J. at 52 (quoting Strickland, 466 U.S. at 687); accord State v. Castagna, 

187 N.J. 293, 314-15 (2006). Defendant "must show that there is a reasonable 

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

proceeding would have been different. A reasonable probability is a probability 
28 A-5319-15T2

sufficient to undermine confidence in the outcome." State v. Harris, 181 N.J. 

391, 432 (2004) (quoting Strickland, 466 U.S. at 694).

Russell renews the arguments presented to the PCR court and asserts that 

the court erred in denying his motion for additional discovery and an evidentiary 

hearing on his claims of ineffective assistance of trial counsel. We disagree. 

The PCR judge thoughtfully addressed each of Russell's arguments in her

comprehensive written decision. After reviewing these arguments in light of the 

record and applicable legal principles, we conclude they are without merit. We 

affirm substantially for the reasons set forth in the PCR judge's comprehensive 

written decision. We add the following comments. 

A. 

Our court rules do not authorize discovery in PCR proceedings. Marshall, 

148 N.J. at 268. "[O]nly in the unusual case will a PCR court invoke its inherent 

right to compel discovery." Id. at 270. "PCR 'is not a device for investigating 

possible claims, but a means for vindicating actual claims.'" Ibid. (quoting 

People v. Gonzalez, 800 P.2d 1159, 1206 (Cal. 1990)). Additionally, "any PCR 

discovery order should be appropriately narrow and limited." Ibid. 

Nonetheless, "where a defendant presents the PCR court with good cause to 

order the State to supply the defendant with discovery that is relevant to the 
29 A-5319-15T2

defendant's case and not privileged, the court has the discretionary authority to 

grant relief." Ibid.

We have thoroughly reviewed the PCR record and exhibits and conclude 

that the PCR court did not abuse its discretion in ruling on defendants' discovery 

motions. The PCR court recognized that additional information was needed to 

determine whether defendants made a prima facie showing. The PCR judge 

permitted counsel to review the internal juvenile files maintained by the 

Prosecutor's Office involving the trial judge's prosecution of Baker. The PCR 

court also sent interrogatories to the trial judge to obtain the necessary additional 

information. 

The trial judge's interrogatory answers revealed he had no recollection of 

prosecuting Baker as a juvenile. His answers further stated that Baker's trial 

counsel never raised a potential conflict of interest, but, had the issue been 

raised, he would have transferred the case to another judge.

12

 They also revealed 

his involvement in the Omega XIII program in which Reeves was a participant

and the limited nature of his personal interaction with Reeves. 

Based on our independent review of the record, we decline to disturb the 

PCR court's determination of the type and scope of discovery it would permit. 

 

12

 The trial judge was the criminal presiding judge at the time of both trials.
30 A-5319-15T2

Defendants did not demonstrate good cause to compel additional discovery. We 

discern no abuse of discretion by the PCR court in denying further discovery.

B.

We next address Russell's contention that the PCR court erred by rejecting 

his claim that his conviction and sentence must be set aside because the trial 

judge was disqualified from hearing the case due to his prior prosecution of 

Baker as a juvenile and his involvement in the Omega XIII program while 

Reeves was a participant. We disagree. 

Defendants argue the PCR court erred by employing the standards adopted 

in Presley, 436 N.J. Super. at 463, to determine if the trial court's conflicts with 

Baker and Reeves violated Russell's constitutional right to a fair trial. In 

Presley, we determined the following non-exclusive list of factors were relevant 

to the analysis of challenges to searches and seizures on constitutional grounds:

(1) the nature and extent of the judge's prior role as a 

prosecutor or attorney and the amount of time that 

passed since the disqualifying conduct;

(2) the facts known to the judge at the time of the 

judicial act that is challenged;

(3) the reasonableness of efforts made by the State and 

the judge to identify a conflict before judicial action is 

taken;
31 A-5319-15T2

(4) the evidence of actual partiality on the part of the 

judge, including any evidence that his or her prior role 

affected the decision made;

(5) the length of delay in raising the issue and any 

reason for such delay;

(6) prejudice to the adverse party caused by the delay 

in raising the disqualification issue; [and] 

(7) sufficiency of support for the warrant or order 

issued by the judge.

[Ibid. (footnote omitted).]

We explained no one factor is dispositive and "our analysis is informed by 

whether the nullification of orders and the suppression of evidence will serve 

the objective of the Code of Judicial Conduct 'to maintain public confidence in 

the integrity of the judiciary.'" Ibid. (quoting In re Advisory Letter No. 7-11 of 

the Supreme Court Advisory Comm., 213 N.J. 63, 71 (2013)).

While we are mindful that Presley involved search warrants issued by a 

judge who subsequently recused himself because he had previously prosecuted 

one of the defendants as an assistant prosecutor some seven years earlier, 436 

N.J. Super. at 443-44, we discern no error by the trial court in utilizing the 

Presley factors as part of its analysis. As in Presley, many years had passed 

since the trial judge's prosecution of Baker, the conflict with Baker was first 

raised long after the proceedings in question, the judge did not recall his prior
32 A-5319-15T2

prosecution of Baker, and the prior prosecution of Baker did not involve Russell 

or the other co-defendants. 

Taking into account the totality of the circumstances, we conclude Russell

did not demonstrate actual bias or prejudice to him or his co-defendants. The 

trial judge's prosecution of Baker as a juvenile would not cause a reasonable, 

informed person to have doubts about the judge's impartiality. We are likewise 

satisfied Russell's right to a fair trial was not violated. Accordingly, the 

undisclosed Baker conflict does not establish a prima facie case for PCR. 

We also conclude the trial court properly determined Russell did not make 

out a prima facie case for PCR based on the trial judge's involvement in the 

Omega XIII program. The judge's role in the program was limited. It did not 

involve discussion of pending juvenile matters. The trial judge did not 

previously prosecute Reeves. No actual bias or prejudice was shown. The trial 

judge's participation in the Omega XIII program would not cause a reasonable, 

informed person to have doubts about the judge's impartiality. We are satisfied 

Russell's right to a fair trial was not violated. Accordingly, we hold the alleged 

Reeves conflict does not establish a prima facie case for PCR.
33 A-5319-15T2

C. 

Last, we briefly address Russell's remaining grounds. Our review of the 

record reveals Russell has not established a prima facie case of ineffective 

assistance of counsel. He has not shown that his counsel's alleged errors caused 

the requisite prejudice. To establish prejudice, a defendant must show "a 

reasonable probability that, but for counsel's unprofessional errors," a different 

verdict would have resulted. Fritz, 105 N.J. at 52 (quoting Strickland, 466 U.S. 

at 694). The impact of counsel's alleged errors on a verdict turns primarily on 

the strength of the evidence against the defendant and how counsel's errors relate 

to that evidence. Where the case against the defendant is strong, counsel's 

performance, unless egregiously lacking, will not result in a different outcome. 

See State v. Pierre, 223 N.J. 560, 583 (2015) ("Important to the prejudice 

analysis is the strength of the evidence that was before the fact-finder at trial."). 

The evidence against Russell and his co-defendants was overwhelming. 

Applying these principles, Russell has failed to show a reasonable probability 

that, but for counsel's alleged errors, the jury would have reached a different 

verdict. Absent a showing of prejudice, Russell was unable to establish a prima 

facie case of ineffective assistance of counsel to warrant an evidentiary hearing

or PCR. Preciose, 129 N.J. at 462; R. 3:22-10(b). 
34 A-5319-15T2

Defendant's remaining arguments lack sufficient merit to warrant further 

discussion in a written opinion. R. 2:11-3(e)(2).

Affirmed.
35 A-5319-15T2

SCHEDULE A

(1) June 1, 1998 letter from an assistant deputy public defender (ADPD) to 

the court objecting to the disclosure of information related to Baker in 

Docket No. FJ-2690-98. The letter was copied to assistant prosecutor 

Daniels.

(2) June 19, 1998 letter from an ADPD confirming another attorney was 

taking over Baker's case in Docket No. FJ-2690-98. The letter is copied 

to the court and supervising assistant prosecutor Daniels.

(3) Undated letter from an ADPD to the court objecting to the disclosure of 

information related to co-defendant Baker in Docket No. FJ-15-2084-97. 

The letter was copied to supervising assistant prosecutor Daniels.

(4) November 19, 1993 letter from an ADPD to assistant prosecutor Daniels 

notifying him of representation of Baker in Docket No. FJ-1249-94.

(5) Handwritten notes from an unknown author concerning a juvenile matter 

involving Baker. Assistant prosecutor Daniels's name is written on one of

the documents.

(6) August 5, 1994 juvenile information disclosure notice signed by 

supervising assistant prosecutor Daniels. The notice does not reference 

Baker.

(7) Time sheet for an unknown matter, presumably from the public defender, 

spanning October 1994 to 1995. The time sheet lists two one-hour 

"consultations" with assistant prosecutor Daniels.

(8) August 1996 Notice of Disclosure of Juvenile Information, which is 

signed by supervising assistant prosecutor Daniels. The notice simply 

recites N.J.S.A. 2A:4A-60(f) and does not reference Baker.

(9) December 1, 1993 court appearance sheet for matter Docket No. FJ-1249-

94, referenced in (4) above. The sheet indicates the matter was a detention 

hearing and plea. The sheet lists assistant prosecutor Daniels. In the 

notation section, the handwritten notes discuss the probation officer's
36 A-5319-15T2

attempts to get Baker two residential programs and the need to provide 

discovery. 

(10) November 17, 1993 court appearance sheet for a detention hearing in 

Docket No. FJ-1249-94, referenced in (4) above. The sheet lists assistant 

prosecutor Daniels. In the notation section, the handwritten note states: 

"Remand. [illegible] report to court to determine whether house arrest is 

appropriate."

(11) Undated handwritten notes from an unknown author regarding Docket No. 

FJ-1249-94.

(12) April 12, 1994 letter from an unknown ADPD to assistant prosecutor 

Daniels notifying him that the Public Defender's Office was retained to 

represent Baker in Docket No. FJ-2350-94.

(13) Juvenile Investigations Unit cover sheet containing several handwritten 

notes regarding Docket No. FJ-2690-98 involving Baker. It states the 

prosecutor assigned as "Daniels," however, an unknown author crossed 

out "Daniels" and wrote "Jackson" above the edit.

(14) July 2, 1998 letter from the court to a Ms. Wilson concerning Baker in 

Docket No. FJ-15-2690-98. The letter advised Wilson of her right to refer 

the claim of ineffective assistance of Baker's counsel to the Attorney 

Ethics Committee. The letter was copied to the prosecutor's office and 

the assistant prosecutor Daniel's name is handwritten on the letter.

(15) Juvenile Waiver to Adult Court regarding Baker in Docket No. FJ-2690-

98.

(16) Undated juvenile prosecution calendar that lists assistant prosecutor 

Daniels for Docket No. FJ-2690-98, the case in which Baker was waived 

to adult court.

(17) January 3, 1995 court appearance sheet that lists assistant prosecutor

Daniels. In the notation section it states, "1/23/95 dismissal as part of a 

plea agreement."
37 A-5319-15T2

(18) February 14, 1995 court appearance sheet for Docket Nos. FJ-1642-95 and 

FJ-2227-95 that list assistant prosecutor Daniels. The notation section on 

each sheet states, "2 y[ea]rs to Jamesburg. Field placement with mental 

health component. State decided not to disclose because possible 

extraordinary harm to [illegible] – Mental health treatment needed." It is 

signed with assistant prosecutor Daniels's initials.

(19) Juvenile delinquency case disclosure form setting forth the disposition of 

Docket No. FJ-1642-95. It is signed in assistant prosecutor Daniels's

initials.

(20) January 30, 1996 letter to Baker denying him entry to the Juvenile 

Intensive Supervision Program. A handwritten note on the letter is 

addressed to assistant prosecutor Daniels's initials. It states, "what do I 

do with this?" A handwritten response states, "Please file."

(21) Juvenile Delinquency Public Disclosure form for Baker in Docket No. FJ1269-97. A different assistant prosecutor is listed.

(22) October 18, 1996 letter to the court from an ADPD objecting to the 

disclosure of Baker's identity in Docket No. FJ-1269-97. The letter is 

copied to supervising assistant prosecutor Daniels.

(23) Notice of Parole Release for Baker in Docket No. FJ-1269-97 signed in

assistant prosecutor Daniels' initials.

(24) October 10, 1996 court appearance sheet for a detention hearing in Docket 

No. FJ-1269-97 that lists assistant prosecutor Daniels. It states the 

juvenile was remanded and sets a second hearing date.

(25) Four juvenile complaints filed by assistant prosecutor Daniels against 

Baker in connection with Docket No. FJ-98-04-59. The search warrant 

issue date for each complaint is listed as September 9, 1997.

(26) April 27, 1998 letter to assistant prosecutor Daniels advising the "case is 

good against Baker" in Docket No. FJ-2690-98.
38 A-5319-15T2

(27) September 27, 1994 letter from an ADPD advising of his representation 

of Baker in Docket No. FJ-666-95. In a handwritten note, assistant 

prosecutor Daniels is mentioned as having the case.

(28) January 23, 1995 court appearance sheet in Docket No. FJ-1642-95 that 

lists assistant prosecutor Daniels. A handwritten note indicates count one 

to be dismissed and count two "guilty," with assistant prosecutor Daniels 

"to handle sentence."