SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0282-18T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JOHN BRINSON, a/k/a JOHN 

BROWN, and CHRISTOPHER

EVANS,

Defendant-Appellant.

_____________________________

Submitted October 15, 2019 – Decided

Before Judges Rothstadt and Moynihan.

On appeal from the Superior Court of New Jersey, Law 

Division, Essex County, Indictment No. 12-03-0811.

Joseph E. Krakora, Public Defender, attorney for 

appellant (Louis H. Miron, Designated Counsel, on the 

brief).

Theodore N. Stephens II, Acting Essex County 

Prosecutor, attorney for respondent (Stephen Anton

Pogany, Special Deputy Attorney General/Acting 

Assistant Prosecutor, 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NOT FOR PUBLICATION WITHOUT THE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.

January 31, 2020
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PER CURIAM

Defendant John Brinson appeals from the denial of his petition for postconviction relief (PCR) without an evidentiary hearing. For the reasons that 

follow, we affirm.

Defendant was convicted by a jury of first-degree murder, N.J.S.A. 2C:11-

3(a)(1)(2); second-degree unlawful possession of a handgun, N.J.S.A. 2C:39-

5(b); and second-degree possession of a weapon for an unlawful purpose, 

N.J.S.A. 2C:39-4(a). The charges arose from defendant's murder of a thirteenyear-old victim on June 19, 2011. The sentencing court imposed an aggregate 

sentence of fifty years, subject to the No Early Release Act, N.J.S.A. 2C:43-7.

Defendant appealed, arguing that the trial judge "improperly precluded 

[him] from adducing evidence regarding third-party guilt," denied his request 

for a Wade hearing, and erred by admitting into evidence the prior statements of 

three witnesses. He also challenged his sentence as excessive and "unduly 

punitive." We affirmed his convictions and sentence in an unpublished opinion. 

State v. Brinson, No. A-3611-13 (App. Div. Jan. 11, 2017) (slip op. at 28). The 

Supreme Court denied his petition for certification. State v. Brinson, 230 N.J. 

418 (2017). 
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The facts underlying defendant's convictions are set forth in our opinion 

and need not be repeated here. See Brinson, slip op. at 3-11. 

On June 6, 2017, defendant filed a PCR petition in which he asserted that 

he received ineffective assistance of counsel (IAC) from his trial attorney. After 

he was assigned PCR counsel, defendant filed a supporting certification that 

stated he asked his trial counsel to interview "various members of [his] family" 

about his presence at a family gathering the night of his victim's murder. He 

also certified that during trial, his counsel never cross-examined a specific 

witness about an affidavit in which the witness allegedly "repudiat[ed] his 

statement to the police that he saw [defendant on] the night of the" murder. 

Defendant also stated that he informed counsel that he was a victim of two driveby shootings in May 2011, which he believed were related to his victim's murder. 

He asserted that counsel failed to investigate the shootings and "whether there 

was [any] connection to [his] frame-up." 

Moreover, defendant added that counsel advised him not to "accept a 

lesser-included offense," and advised him to decline a plea offer from the State, 

without advising defendant of "the penal consequences of refusing the offer" or 

"the relative strengths and weaknesses of" his or the State's case. Finally, 
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defendant asserted that another person may have been involved in the murder 

and his counsel failed to investigate a third-party guilt defense. 

The PCR judge, who was also the trial judge, denied defendant's petition 

by order dated May 9, 2018, after he placed his reasons on the record that day. 

Addressing defendant's claims of third-party guilt, the judge explained that there 

was no evidence to support the claim. Regarding counsel's failure to crossexamine a witness about the affidavit concerning the witness's recantation, the 

judge observed that no such affidavit existed. Turning to counsel's decisions 

not to seek a jury charge on lesser-included offenses and not to call and crossexamine witnesses, the judge found that the decisions "were all of a strategic 

nature," which the "[c]ourt [would] not second guess." 

Addressing defendant's claim about a plea agreement, the judge noted that 

although the prosecutor and defense counsel had informal discussions even on 

the day of trial about a possible plea offer, because defendant never indicated he 

was interested in pleading guilty, no plea offer was ever made. Instead, 

defendant maintained his innocence throughout the litigation and "if [defendant 

was] maintaining his innocence, [he could not], under oath, plead guilty, which 

would . . . clearly [be] inconsistent with" the position he was taking. Under 

those circumstances, defendant could not plead guilty without committing 
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perjury. For that reason, the PCR judge did not find any merit to defendant's 

claim that he would have accepted a plea offer had he been advised of one. 

Turning to defendant's contentions about the judge's jury charge on 

witness identification, trial counsel's failure to object to the charge, and 

appellate counsel's failure to raise the issue on appeal,1the judge found there 

was nothing wrong with the charge and noted that it was "quite lengthy, . . . took 

up [sixteen] pages . . . , and was rather thorough with regard to what it sa[id]." 

He found that the charge was clear in advising the jury to consider eyewitness 

testimony skeptically. 

The judge then discussed defendant's claim that he was entitled to an 

evidentiary hearing. Citing to Strickland v. Washington, 466 U.S. 668 (1984), 

he found that defendant failed to present a prima facie case of IAC by not 

showing that counsel was deficient and was prejudiced by any alleged 

deficiency. Defendant's arguments that counsel failed to investigate possible 

alibis, inform the jury of certain facts, call and cross-examine certain witnesses, 

and pursue a third-party defense, were either unsupported by the record, the 

result of reasonable strategic decisions by counsel, or, assuming counsel acted 

1

 PCR counsel argued this point at oral argument. It also may have been 

included in a supporting brief, but we have not been provided with a copy of 

that submission if it existed. 
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in conformity with defendant's contentions, would not have changed the result 

in this case. Moreover, the judge found, as to appellate counsel, defendant's 

attorney did not fail to raise meritorious arguments on appeal, and arguments 

that defendant was raising for the first time on PCR, should have been raised on 

direct appeal. An order denying relief was entered on the same day. This appeal 

followed. 

Defendant presents the following issues for our consideration in his 

appeal.

POINT I

THE PCR COURT ERRED IN RULING 

THAT BRINSON RECEIVED THE 

EFFECTIVE ASSISTANCE OF 

COMPETENT TRIAL COUNSEL IN 

CONNECTION WITH THE STATE'S 

PLEA OFFER TO BRINSON.

POINT II

APPELLATE COUNSEL WAS 

CONSTITUTIONALLY INEFFECTIVE 

BECAUSE COUNSEL FAILED TO 

RAISE THE ISSUE CONCERNING THE 

TRIAL COURT'S FAILURE TO 

CONDUCT A PRETRIAL 

CONFERENCE TO ENSURE THAT 

BRINSON WAS AWARE OF THE 

STATE'S PLEA OFFER AND HAD THE 

OPPORTUNITY TO REVIEW, 

EVALUATE AND ACCEPT THE PLEA 
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OFFER ON THE RECORD (NOT 

RAISED BELOW).

POINT III

THE PCR COURT ERRED IN RULING 

THAT BRINSON RECEIVED THE 

EFFECTIVE ASSISTANCE OF 

COMPETENT TRIAL COUNSEL 

WHERE COUNSEL FAILED TO 

PERFORM THE REQUISITE 

INVESTIGATION TO SUPPORT 

BRINSON'S THIRD-PARTY GUILT 

DEFENSE.

POINT IV

THE PCR COURT ABUSED ITS 

DISCRETION IN DENYING 

DEFENDANT'S PCR PETITION WITH 

RESPECT TO DEFENDANT'S CLAIM 

THAT HE RECEIVED THE 

INEFFECTIVE ASSISTANCE OF TRIAL 

COUNSEL AND APPELLATE 

COUNSEL IN CONNECTION WITH 

THE TRIAL COURT'S INSTRUCTION 

ON IDENTIFICATION WHICH WAS 

FATALLY FLAWED BECAUSE IT 

IMPROPERLY INFERRED THAT THE 

FOUR EYEWITNESSES' 

IDENTIFICATIONS WERE BASED 

UPON THEIR HAVING OBSERVED 

DEFENDANT AT THE SCENE OF THE 

CRIME AND DEFENDANT'S HAVING 

ENGAGED IN AN ILLEGAL ACT.
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POINT V

THE PCR COURT ABUSED ITS 

DISCRETION BY FAILING TO 

CONDUCT AN EVIDENTIARY 

HEARING TO ADDRESS THE CLAIMS 

RAISED BY DEFENDANT.

We are not persuaded by any of these arguments and affirm. 

At the outset, we will not consider defendant's arguments in Point II,

which were not raised before the PCR judge, about appellate counsel's failure to 

argue that his conviction should have been reversed because the court did not 

conduct a pretrial conference under Rule 3:9-1(f). "For sound jurisprudential 

reasons, with few exceptions, '[we] will decline to consider questions or issues 

not properly presented to the trial court when an opportunity for such a 

presentation is available.'" State v. Witt, 223 N.J. 409, 419 (2015) (quoting State 

v. Robinson, 200 N.J. 1, 20 (2009)). 

Moreover, we conclude that defendant's contention about trial counsel's 

alleged IAC involving a failure to communicate plea offers, which defendant 

identifies as "the essence" of his PCR claim, is without merit. No plea offer was 

made because defendant continued to assert his innocence up through the 

commencement of trial. Even if a plea offer was made, according to defendant,

it was the trial court's duty, not counsel's, to conduct the pretrial hearing where 
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defendant could be apprised of the final plea offer and the "procedural realities

and prospects for punishment" he was facing if he refused to accept a plea offer

had one been made. As defendant states in his brief, "[l]egally, it does not matter 

whether [he] was advised of the plea offer and his substantial sentencing 

exposure by his trial attorney" because that was the trial court's "non-delegable 

duty." 

So too do we reject defendant's arguments about counsel's failure to 

pursue defendant's claim of third-party guilt. As we found in our earlier opinion 

affirming defendant's conviction, his claim had no merit. See Brinson, slip op 

at 15-16. Since we previously considered defendant's contentions about thirdparty guilt, his claim on PCR is procedurally barred, R. 3:22-5, and 

substantively, it has not changed since we first addressed that argument, see

State v. Marshall, 173 N.J. 343, 351 (2002) (stating that an issue is precluded 

from consideration on PCR when it "is identical or substantially equivalent to 

that adjudicated previously on direct appeal" (quoting State v. Marshall, 148 

N.J. 89, 150 (1997))); see also State v. McQuaid, 147 N.J. 464, 484 (1997).

Turning to defendant's remaining arguments and applying our de novo 

standard of review, State v. Jackson, 454 N.J. Super. 284, 291 (App. Div. 2018); 
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see also State v. Harris, 181 N.J. 391, 421 (2004), we find them to be without 

merit.

The standard for determining whether counsel's performance was 

ineffective for purposes of the Sixth Amendment was formulated in Strickland, 

466 U.S. at 687, and adopted by our Supreme Court in State v. Fritz, l05 N.J. 

42, 49-50 (l987). In order to prevail on a claim of IAC, defendant must meet 

the two-prong test of establishing both: (l) that counsel's performance was 

deficient and he or she made errors that were so egregious that counsel was not 

functioning effectively as guaranteed by the Sixth Amendment of the United 

States Constitution; and (2) that the defect in performance prejudiced 

defendant's right to a fair trial such that there exists a "reasonable probability 

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

have been different." Strickland, 466 U.S. at 687, 694.

We conclude from our review of the record that defendant failed to make 

a prima facie showing of IAC as to trial counsel within the Strickland-Fritz test, 

and as to appellate counsel under State v. Echols, 199 N.J. 344, 361 (2009)

(stating that petitioner must prove his appellate counsel failed to raise an issue 

that would have constituted reversible error on appeal). We find defendant's

arguments, to the contrary, are without sufficient merit to warrant further 
11 A-0282-18T3

discussion in a written opinion. R. 2:11-3(e)(2). Suffice it to say his contentions

about trial counsel's failure to object to the identification jury charge or appellate 

counsel's failure to raise the issue on appeal are belied by the completeness of 

the charge delivered by the judge and its mirroring of the Model Jury Charge. 

See Model Jury Charges (Criminal), "Identification: Out-of-Court 

Identification Only" (rev. July 19, 2012); Estate of Kotsovska v. Liebman, 221 

N.J. 568, 596 (2015) (stating that a "presumption of propriety . . . attaches to a 

trial court's reliance on the model jury charge" when it is used for "the specific 

purpose for which [it] was adopted"). Accordingly, the PCR judge correctly 

concluded that an evidentiary hearing was not warranted. See State v. Preciose, 

129 N.J. 451, 462-63 (1992).

Affirmed.