SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3816-15T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

CECILIA X. CHEN,

Defendant-Appellant.

____________________________

Submitted December 14, 2017 – Decided

Before Judges Rothstadt and Gooden Brown.

On appeal from Superior Court of New Jersey, 

Law Division, Monmouth County, Indictment No. 

06-04-0739.

Joseph E. Krakora, Public Defender, attorney 

for appellant (Kisha M. Hebbon, Designated 

Counsel, on the brief).

Christopher J. Gramiccioni, Monmouth County 

Prosecutor, attorney for respondent (Lisa 

Sarnoff Gochman, Legal Assistant, of counsel 

and on the brief).

PER CURIAM

Defendant Cecilia X. Chen appeals from the February 16, 2016

Law Division order denying her petition for post-conviction relief 

NOT FOR PUBLICATION WITHOUT THE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.

September 6, 2018
2 A-3816-15T1

(PCR) without an evidentiary hearing. On appeal, defendant raises 

the following contentions:

POINT I:

THE TRIAL COURT ERRED IN DENYING DEFENDANT'S 

PETITION FOR [PCR] WITHOUT AFFORDING HER AN 

EVIDENTIARY HEARING TO DETERMINE THE MERITS 

OF HER CONTENTION THAT SHE WAS DENIED THE 

RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL.

A.[1] TRIAL COUNSEL RENDERED 

INEFFECTIVE LEGAL REPRESENTATION BY 

VIRTUE OF HIS FAILURE TO REQUEST THE 

DISMISSAL OF THE INDICTMENT BASED 

UPON THE STATE'S FAILURE TO PRESERVE 

BLOOD AND FOOTPRINT EVIDENCE, TO 

OBJECT TO THE STATE'S USE OF OTHER 

EVIDENCE OBTAINED FROM THE SCENE, 

AND TO REQUEST AN "ADVERSE 

INFERENCE" [SPOLIATION] JURY 

INSTRUCTION.

B. APPELLATE COUNSEL RENDERED 

INEFFECTIVE LEGAL REPRESENTATION BY 

VIRTUE OF HIS FAILURE TO RAISE THE 

ISSUE REGARDING THE STATE'S FAILURE 

TO PRESERVE EVIDENCE ON DIRECT 

APPEAL.

C. DEFENDANT IS ENTITLED TO A REMAND 

TO THE TRIAL COURT TO AFFORD HER AN 

EVIDENTIARY HEARING TO DETERMINE 

THE MERITS OF HER CONTENTION THAT 

SHE WAS DENIED THE EFFECTIVE 

ASSISTANCE OF TRIAL AND APPELLATE 

COUNSEL.

Having considered the arguments and applicable law, we affirm.

 

1 We have consolidated parts A and B of defendant's argument for 

clarity.
3 A-3816-15T1

We incorporate herein the facts set forth in State v. Chen, 

402 N.J. Super. 62 (App. Div. 2008), in which we remanded

defendant's 2007 convictions for attempted murder, aggravated 

assault, and related weapons offenses, and her ten-year prison 

sentence, subject to the No Early Release Act, N.J.S.A. 2C:43-7.2. 

We directed the trial court to conduct a hearing on the 

admissibility of the identification evidence admitted at 

defendant's jury trial and indicated that "[i]f the trial court 

conclude[d] that the evidence [was] admissible under the standards 

described [in our opinion], the convictions [were] affirmed." 

Chen, 402 N.J. Super. at 86-87. Otherwise, "the convictions [would 

be] reversed and a new trial . . . held without the unreliable 

evidence." Id. at 87. 

We also incorporate the facts set forth in State v. Chen, 208

N.J. 307, 327 (2011), wherein our Supreme Court affirmed our 

decision remanding the case to the trial court, but modified our

approach "to assess the admissibility of identification evidence 

when there is suggestive behavior but no police action." On the 

remand, the trial court determined that the victim's 

identification was properly admitted and entered an order 

upholding defendant's convictions. We affirmed that determination 

in State v. Chen, No. A-2710-11 (App. Div. Aug. 20, 2013), and the
4 A-3816-15T1

Supreme Court denied defendant's petition for certification. 

State v. Chen, 217 N.J. 295 (2014). 

The convictions stemmed from defendant brutally attacking and

stabbing the pregnant wife of her ex-boyfriend, after duping the 

victim to gain access to her home. The victim, who had never seen 

her attacker before, fought back, and both women ended up outside,

where a neighbor heard the victim's screams, observed the fighting,

and called the police. When the neighbor ran to the victim's aid, 

the attacker fled. 

Although the police were unable to locate the attacker, they 

recovered a blood drop in the snow just outside the front door of 

the victim's house and boot prints in the snow around the blood 

drop. However, the bloodstained snow melted before it could be 

analyzed, and the police did not attempt to identify the boot 

prints because of all the people who responded and trampled the 

crime scene. Nonetheless, the victim told police she did not 

believe she had injured her attacker or caused her to bleed.

The investigation ultimately targeted defendant based on a 

telephone conversation three days earlier between defendant and 

the victim's husband, during which defendant expressed regret over 

their break up several years prior. The victim later identified 

defendant as her attacker from a photo array, after her husband 

made the suggestion and showed her photographs of defendant from 
5 A-3816-15T1

her personal website.

2 The neighbor also identified defendant as 

the attacker from a photo array, after viewing a composite sketch 

of the attacker in the newspaper. 

With defendant's consent, police searched defendant's home 

and car. From the search of her car, police recovered a piece of 

paper bearing the victim's phone number. From the search of her 

home, police recovered clothing matching the description provided 

by the victim. A coworker of defendant also confirmed that 

defendant wore black eyeglasses similar to a pair recovered from 

the crime scene. At trial, defendant admitted calling the victim's 

husband three days before the attack because she felt badly about 

the breakup, but denied leaving her home in Maryland to come to 

New Jersey on the date in question to attack the victim.

In her timely PCR petition, defendant argued, among other 

things, that her trial attorney was ineffective for not moving to 

dismiss the indictment because of the State's failure to preserve 

crime scene evidence, namely, the bloodstained snow and boot 

prints. She argued further that her trial attorney was ineffective 

for not requesting an adverse inference jury instruction based on 

the spoliation of the evidence. She also argued that her appellate 

 

2 The reliability of the victim's identification following these 

actions by a private party were the focus of the appellate

litigation. 
6 A-3816-15T1

counsel was ineffective for failing to raise the spoliation issue 

on her direct appeal.

Following oral argument, without conducting an evidentiary 

hearing, the PCR court denied defendant's petition in a February 

16, 2016 written opinion. First, Judge Ronald L. Reisner

determined that "defendant's arguments regarding spoliation of 

evidence [were] procedurally barred" because "[t]here [was]

sufficient evidence in the trial record . . . such that counsel 

could have raised these issues on direct appeal." Thus, the judge 

concluded that "defendant's claims of spoliation and consequential 

issues" were "barred under [Rule] 3:22-4."3

Nonetheless, the judge addressed the merits. Applying 

Strickland v. Washington, 466 U.S. 668 (1984), State v. Fritz, 105 

N.J. 42 (1987), and Rule 3:22-10(b), the judge determined that

 

3 Rule 3:22-4(a) bars any ground for relief not raised in a prior 

proceeding unless the court finds

(1) that the ground for relief not previously 

asserted could not reasonably have been raised 

in any prior proceeding; or

(2) that enforcement of the bar . . . would 

result in fundamental injustice; or

(3) that denial of relief would be contrary 

to a new rule . . . under either the 

Constitution of the United States or the State 

of New Jersey.
7 A-3816-15T1

defendant failed to establish a prima facie case of ineffective 

assistance of counsel on any of the grounds raised to warrant an 

evidentiary hearing or PCR. The judge explained that "defendant 

offer[ed] only conclusory statements asserting that [trial]

counsel was ineffective for not properly addressing the spoliation 

of evidence at the trial" or "request[ing] an adverse jury 

instruction." Further, "[d]efendant [had] not demonstrated that 

her appellate counsel performed deficiently because he failed to 

raise these issues on direct appeal." 

The judge stated that defendant neither "explain[ed] how this 

conduct . . . fell below an objective standard of reasonableness"

nor "demonstrate[d] how the result of the proceedings would have 

been different." Rather, defendant only asserted "that this

evidence could have been helpful to her defense. However, 

according to the judge, counsel's performance was not deficient 

because "[t]he arguments with respect to the snow and boot print 

evidence were not . . . sufficiently material to the defense of 

innocence or third party guilt, or even reasonable doubt" and 

"trial counsel did indeed address this evidence in summations to 

the jury." Thus, "[t]he jury . . . did consider these arguments 

and rejected them."

Further, in rejecting defendant's claims, the judge 

explained:
8 A-3816-15T1

There [was] no evidence whatsoever that the 

perpetrator of the attack . . . was cut or 

bleeding, therefore the blood in the snow was 

not that of the attacker. Moreover, even if 

all the footprints would have been 

photographed or retained, given the number of 

individuals who arrived at the crime scene, 

there would be no way to connect any of the 

footprints to the shoes worn by the attacker 

as no shoes were ever located or seized for 

any comparative tests.

 

Turning to the prejudice prong, the judge concluded that

"defendant [had] not proffered sufficient proof that prior 

counsel's failure to address the spoliation of evidence would have 

prejudiced the defendant" because the trial court "would have 

likely denied a motion to dismiss the indictment and reject[ed]

the adverse inference charge." Further, had the jury "been 

instructed as to the spoliation," they "could have still rejected 

the adverse inference and reached the same conclusion that they 

did." Moreover, "it [was] doubtful that the jury's verdict would 

have been different given the overwhelming evidence supporting the 

conviction." 

As to appellate counsel, citing Harrington v. Richter, 562 

U.S. 86, 90 (2011), the judge pointed out that "[i]t [was] 

difficult to establish ineffective assistance when counsel's 

overall performance indicates active and capable advocacy." The 

judge found that "[h]ere, appellate counsel's overall 

performance . . . indicate[d] capable advocacy" because "[h]is 
9 A-3816-15T1

post-conviction representation of defendant was so successful that 

the New Jersey Supreme Court [had] . . . recognized the need for 

a 'Chen[4] hearing' to address whether 'eyewitness identifications 

tainted by private suggestive procedures' are admissible." The 

judge entered a memorializing order, and this appeal followed.

On appeal, defendant argues she established "a prima facie 

case that trial counsel's failure to request the dismissal of the 

indictment based upon the State's failure to preserve blood and 

footprint evidence, . . . failure to object to the State's use of 

other evidence obtained from the scene,[5] . . . failure to request 

an 'adverse inference' spoliation jury instruction," as well as 

"appellate counsel's failure to raise these issues on direct appeal 

constituted ineffective assistance of counsel in violation of the 

state and federal constitutions." Defendant asserts a remand is 

necessary for an "evidentiary hearing . . . to further 

substantiate these claims." We are not persuaded by any of these 

arguments and affirm substantially for the reasons expressed by 

Judge Reisner in his comprehensive written opinion. We add only 

the following brief comments.

 

4 Chen, 208 N.J. at 311.

5 Because defendant presents no legal argument to support this 

contention, she has effectively waived this argument on appeal. 

See N.J. Dep't of Envtl. Prot. v. Alloway Twp., 438 N.J. Super. 

501, 506 n.2 (App. Div. 2015).
10 A-3816-15T1

Even if defendant's claims were not procedurally barred, the 

mere raising of a claim for PCR does not entitle the defendant to 

an evidentiary hearing. State v. Cummings, 321 N.J. Super. 154, 

170 (App. Div. 1999). Rather, trial courts should grant 

evidentiary hearings and make a determination on the merits only 

if the defendant has presented a prima facie claim of ineffective 

assistance of counsel, material issues of disputed fact lie outside 

the record, and resolution of the issues necessitates a hearing. 

R. 3:22-10(b); State v. Porter, 216 N.J. 343, 355 (2013). We 

review a judge's decision to deny a PCR petition without an 

evidentiary hearing for abuse of discretion. State v. Preciose, 

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

To establish a prima facie claim of ineffective assistance 

of counsel, the defendant must meet the Strickland-Fritz two-prong 

test. Specifically, the defendant must establish both that: (l) 

counsel's performance was so deficient as to "[fall] below an 

objective standard of reasonableness"; and (2) the defect in 

performance prejudiced defendant's rights 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 688, 694.

Claims of ineffective assistance of appellate counsel are 

guided by the same principles. State v. Morrison, 215 N.J. Super. 
11 A-3816-15T1

540, 546 (App. Div. 1987). In addition, an appellate attorney is 

not ineffective for failing to raise every issue imaginable. State 

v. Gaither, 396 N.J. Super. 508, 515 (App. Div. 2007). Rather, 

appellate counsel is afforded the discretion to construct and 

present what he or she deems are the most effective arguments in 

support of their client's position. Id. at 516.

"[I]n order to establish a prima facie claim, [the defendant] 

must do more than make bald assertions that [s]he was denied the 

effective assistance of counsel. [She] must allege facts 

sufficient to demonstrate counsel's alleged substandard 

performance." Cummings, 321 N.J. Super. at 170. Indeed, the 

defendant must establish, by a preponderance of the credible 

evidence, that she is entitled to the requested relief. State v. 

Nash, 212 N.J. 518, 541 (2013).

We conclude from our review of the record that defendant 

failed to make a prima facie showing of ineffective assistance of 

counsel under the Strickland-Fritz test, and we discern no abuse 

of discretion in the denial of defendant's PCR petition without 

an evidentiary hearing. 

Affirmed.