SUPERIOR COURT OF NEW JERSEY 

 APPELLATE DIVISION 

 DOCKET NO. A-1865-21 

STATE OF NEW JERSEY, 

 Plaintiff-Respondent, 

v. 

PHILIP S. PATRICK, 

 Defendant-Appellant. 

_______________________

Submitted November 28, 2023 – Decided January 25, 2024 

Before Judges Whipple, Enright and Paganelli. 

On appeal from the Superior Court of New Jersey, Law 

Division, Union County, Indictment No. 10-02-0181.

Joseph E. Krakora, Public Defender, attorney for 

appellant (Andrew Robert Burroughs, Designated 

Counsel, on the briefs). 

William A. Daniel, Union County Prosecutor, attorney 

for respondent (Meredith L. Balo, Assistant Prosecutor, 

of counsel and on the brief). 

PER CURIAM 

NOT FOR PUBLICATION WITHOUT THE 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-1865-21

 Defendant, Philip S. Patrick appeals from a January 3, 2022 order denying 

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

hearing. We affirm. 

I.

 A jury convicted defendant of first-degree murder, N.J.S.A. 2C:11-3(a)(1) 

and (2), second-degree possession of a weapon (firearm) for an unlawful 

purpose, N.J.S.A. 2C:39-4(a), and third-degree unlawful possession of a weapon 

(handguns), N.J.S.A. 2C:39-5(b). He was sentenced to an aggregate fifty-five 

year prison term, subject to an eighty-five percent parole ineligibility period 

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

 Following the convictions, defendant filed a direct appeal. As relevant 

here, he argued "the court erroneously instructed the jury regarding 'causation' 

in response to a question about the murder charge instruction." State v. Patrick, 

A-5597-13 (App. Div. Oct. 18, 2016) (slip op. at 14), certif. denied, 228 N.J. 

506 (2017). We rejected the argument, concluding 

[t]he failure of the trial court to instruct a jury on the 

difference between accomplice and principal murder 

was not error, because the evidence presented at trial 

and the theory proposed by the defense does not support 

a conclusion that the jury might have harbored a doubt 

about whether defendant had committed the murder by

his own conduct. . . . 
3 A-1865-21

Here, the jury was not charged on accomplice liability, 

and the State, in summation, argued that defendant was 

the only person who could have killed the victim. 

Numerous witnesses testified defendant was the only

person who was with the victim when he was killed and 

Edwin Price testified defendant admitted to personally 

killing the victim. The judge's instructions were not 

clearly capable of producing an unjust result. 

[Id. at 16.]

Thereafter, defendant filed his first PCR petition. Defendant's requested 

relief was denied. On appeal, he "raised several assertions of ineffective 

assistance of trial counsel, including his lawyer's failure to adequately address 

the issue of accomplice liability." State v. Patrick, A-4098-18 (App. Div. Feb. 

19, 2021) (slip op. at 2), certif. denied, 249 N.J. 451 (2022). "Defendant also 

asserted his trial counsel should have objected to certain testimony from [a]

prosecution witness[] . . . Monroe, defendant's girlfriend." Ibid. We affirmed 

the denial of the petition for the reasons expressed in the trial judge's thorough 

written opinion. Ibid. 

II. 

Here, defendant appeals the denial of his second PCR petition, raising the 

following arguments for our consideration: 

POINT I 
4 A-1865-21

AS DEFENDANT HAD SHOWN THAT HE 

RECEIVED INEFFECTIVE ASSISTANCE OF TRIAL 

AND FIRST PCR COUNSEL, THE PCR COURT 

ERRED BY DENYING DEFENDANT'S PCR 

PETITION WITHOUT AN EVIDENTIARY 

HEARING. 

(1) FIRST PCR COUNSEL WAS 

INEFFECTIVE BY FAILING TO ARGUE 

THAT TRIAL COUNSEL WAS 

INEFFECTIVE FOR FAILING TO 

PROVIDE HIS CLIENT WITH A 

VIGOROUS DEFENSE. 

(2) FIRST PCR COUNSEL WAS 

INEFFECTIVE FOR FAILING TO 

ALLEGE THAT TRIAL COUNSEL 

FAILED TO MOVE FOR A MISTRIAL 

AFTER THE STATE[] CONCEDED THE 

EVIDENCE DID NOT SUPPORT 

PRINCIPAL LIABILITY. 

(3) AS THERE ARE GENUINE ISSUES 

OF MATERIAL FACT IN DISPUTE, THE 

PCR COURT SHOULD HAVE HELD AN 

EVIDENTIARY HEARING BEFORE 

ADJUDICATING DEFENDANT'S 

SECOND PCR PETITION. 

POINT II 

THE PCR COURT ERRED WHEN IT DENIED 

DEFENDANT'S MOTION FOR A NEW TRIAL ON 

THE GROUNDS OF NEWLY DISCOVERED 

EVIDENCE. 
5 A-1865-21

"P[CR] relief is New Jersey's analogue to the federal writ of habeas 

corpus." State v. Pierre, 223 N.J. 560, 576 (2015) (quoting State v. Preciose, 

129 N.J. 451, 459 (1992)). PCR provides a "built-in 'safeguard that ensures that 

a defendant [is] not unjustly convicted.'" State v. Nash, 212 N.J. 518, 540 (2013) 

(quoting State v. McQuaid, 147 N.J. 464, 482 (1997)). 

"A petitioner must establish the right to [PCR] by a preponderance of the 

credible evidence." Preciose, 129 N.J. at 459 (citations omitted). "Our standard 

of review is necessarily deferential to a PCR court's factual findings. 

. . . [However,] we need not defer to a PCR court's interpretation of the law; a 

legal conclusion is reviewed de novo." Nash, 212 N.J. at 540-41. 

"A petitioner is generally barred from presenting a claim on PCR that 

could have been raised at trial or on direct appeal, R. 3:22-4(a), or that has been 

previously litigated, R. 3:22-5." Id. at 546. Rule 3:22-5 provides: 

A prior adjudication upon the merits of any ground for 

relief is conclusive whether made in the proceedings 

resulting in the conviction or in any post-conviction 

proceeding brought pursuant to this rule . . . . 

[R. 3:22-5.] 

"PCR will be precluded 'only if the issue is identical or substantially equivalent' 

to the issue already adjudicated on the merits." State v. Afanador, 151 N.J. 41, 
6 A-1865-21

51 (1997) (citing McQuaid, 147 N.J. at 482 (quoting Picard v. Connor, 404 U.S. 

270, 276-77 (1971))). 

 "[T]rial courts ordinarily should grant evidentiary hearings to resolve 

ineffective-assistance-of-counsel claims if a defendant has presented a prima 

facie claim in support of [PCR]." Preciose, 129 N.J. at 462. "[C]ourts should 

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

defendant has established a prima facie claim." Id. 462-63. 

 In his second PCR petition, defendant argues ineffective assistance of trial 

and first PCR counsel. "Those accused in criminal proceedings are guaranteed 

the right to counsel to assist in their defense." State v. Gideon, 244 N.J. 538, 

549 (2021) (citing U.S. Const. amend. VI; N.J. Const. art. I, ¶ 10). 

To satisfy the right to counsel guaranteed by our 

Federal and State Constitutions, it is not enough "[t]hat 

a person who happens to be a lawyer is present at trial 

alongside the accused," rather the right to counsel has 

been interpreted by the United States Supreme Court

and [the New Jersey Supreme] Court as "the right to the 

effective assistance of counsel." 

[Id. at 550 (quoting Strickland v. Washington, 466 U.S. 

668, 685-86 (1984)).] 
7 A-1865-21

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

defendant must satisfy the two-prong test established in Strickland.1 

First, the defendant must show that counsel's 

performance was deficient. This requires showing that 

counsel made errors so serious that counsel was not

functioning as the "counsel" guaranteed by the Sixth 

Amendment. Second, the defendant must show that the 

deficient performance prejudiced the defense. 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. Unless a defendant makes both 

showings, it cannot be said that the conviction . . . 

resulted from a breakdown in the adversary process that 

renders the result unreliable. 

[Strickland, 466 U.S. at 687.] 

Here, defendant also sought a new trial based on newly discovered 

evidence. In that regard, we note: 

[A] movant seeking a new trial based on newly 

discovered evidence must demonstrate that the 

evidence is, indeed, newly discovered; a new trial is 

warranted only if the evidence is "(1) material to the 

issue and not merely cumulative or impeaching or 

contradictory; (2) discovered since the trial and not 

discoverable by reasonable diligence beforehand; and 

(3) of the sort that would probably change the jury's 

verdict if a new trial were granted." 

1

 The New Jersey Supreme Court adopted the Strickland standard in State v. 

Fritz, 195 N.J. 42, 58 (1987). 
8 A-1865-21

[State v. Szemple, 247 N.J. 82, 99 (2021) (citing Nash, 

212 N.J. at 549 (quoting State v. Carter, 85 N.J. 300, 

314 (1981))).] 

III. 

Applying the applicable legal standards and having reviewed the record 

on appeal, we are convinced defendant failed to establish a prima facie right to 

PCR or a right to a new trial. 

A.

 In Point I, defendant argues his first PCR counsel was ineffective because 

he failed to argue that "trial counsel was ineffective for failing to provide 

[defendant] with a vigorous defense." Defendant specifically contends trial 

counsel was ineffective because he failed to: (1) "object to the State's closing 

remarks[,]" "that defendant was the shooter[,] notwithstanding [the State's] 

acknowledgment that the shots were fired from a different angle from which 

defendant was standing"; (2) "ask for an instruction that limited the jury's 

consideration only to principal liability" after "[t]he trial court had denied the 

State's motion to instruct the jury on accomplice liability"; and (3) "properly 

preserve the matter for direct appeal." We disagree. 

 We conclude defendant's arguments are misguided because they overstate

the State's position. The State never conceded or "acknowledged" defendant 
9 A-1865-21

was not the shooter. Instead, the State sought to pursue a theory of defendant 

"as a principal . . . and/or accomplice." In supporting the argument for 

accomplice liability, the State argued there was "very strong circumstantial 

evidence that a third party may have been involved." However, the trial judge 

found there was nothing "more than speculation that somebody else was the 

shooter . . . ." Therefore, the trial judge refused "to charge the jury on 

accomplice or co-conspirator liability." Consequently, we are convinced trial 

counsel's representation was not deficient because there was no basis to object 

to the State's closing regarding defendant's principal liability. 

Further, we conclude defendant's argument—that trial counsel was 

ineffective because counsel did not request a limiting instruction as to principal 

liability only—is precluded because it is "identical to or substantially 

equivalent," Afanador, 151 N.J. at 51, to the arguments he made on direct appeal 

and in the first PCR. In our review of defendant's direct appeal, we held "[t]he 

failure of the trial court to instruct a jury on the difference between accomplice 

and principal murder was not error . . . ." State v. Patrick, A-5597-13 (App. Div. 

Oct. 18, 2016) (slip op. at 16). In addition, in our opinion denying defendant's 

first PCR, we rejected his arguments regarding "his lawyer's failure to 
10 A-1865-21

adequately address the issue of accomplice liability." State v. Patrick, A-4098-

18 (App. Div. Feb. 19, 2021) (slip op. at 2). 

Therefore, we are satisfied that defendant failed to sustain his prima facie 

burden that first PCR counsel's representation was deficient in failing to raise 

deficiencies in trial counsel's representation. 

B.

We, similarly, reject defendant's argument that "first PCR counsel was 

ineffective for failing to allege that trial counsel failed to move for a mistrial 

after the State[] conceded the evidence did not support principal liability." We 

reiterate that defendant's argument overstates the State's position. The State 

never conceded or "acknowledged" defendant was not the shooter. Therefore, 

we conclude defendant failed to sustain his burden that first PCR counsel's 

representation was deficient for failing to allege trial counsel's representation 

was deficient for failing to move for a mistrial. 

C.

 Defendant argues the second PCR judge erred by not holding an 

evidentiary hearing. We disagree. Even "view[ing] the facts in the light most 

favorable to . . . defendant" he failed to "present[] a prima facie claim in support 
11 A-1865-21

of [PCR]." Preciose, 129 N.J. at 462-63. Therefore, the second PCR judge did 

not err in concluding no evidentiary hearing was warranted. 

D.

 Defendant next argues the PCR judge erred in denying his request for a 

new trial. He avers that "[s]econd PCR counsel told the PCR court that Monroe 

had emailed defendant via the J-Pay email system. In those emails Monroe said 

that she had been coerced to testify falsely that defendant was a gang member." 

 Accordingly, defendant argues he has established all three factors for a 

new trial. See Szemple, 247 N.J. at 99. He contends "Monroe's recantation . . . 

[(1)] was 'material' and not merely cumulative"; (2) "w[as] not . . . available to 

the defense at the time of trial"; and (3) "would have a reasonable probability of 

changing the outcome of the case." We are not convinced. 

 In our opinion on defendant's direct appeal, we stated: 

During the testimony of [Monroe], who explained 

defendant was a member of G-Shine, the trial judge 

explained defendant's gang affiliation was a question 

for the jury to determine. The evidence "is only being 

admitted for one purpose and one purpose only . . . as 

it reflects on motive to commit the crime charged here, 

and you[ are] only to consider it as it reflects on motive 

and not for any other purpose whatsoever." 

[State v. Patrick, A-5597-13 (App. Div. Oct. 18, 2016) 

(slip op. at 20).]
12 A-1865-21

Initially, while we accept, for purposes of this argument, defendant's 

assertion that he was unable to print the purported email, we agree with the 

second PCR judge that "it is questionable whether this alleged statement even 

constitutes newly discovered evidence." The judge noted, absent from the 

record, was "any report, affidavit, or certification containing an actual statement 

by . . . Monroe." Instead, "defense ha[d] only produced [defendant]'s 

unsupported claim that he received an email from . . . Monroe."

Moreover, we agree with the judge that even assuming the claimed email 

rose to the level of evidence, it failed to pass muster under factors one and three. 

Ibid. The purported email as to defendant's gang affiliation was "cumulative." 

Ibid. Indeed, as the judge found, "[i]n addition to . . . Monroe, the prison inmate 

testified about [defendant]'s gang affiliation and provided significant details 

relating to same" and "one gang culture expert read portions of letters written 

by [defendant] in jail in which [he] talked about the G-Shine gang's procedures 

for dealing with 'snitches.'" 

Further, we are convinced that Monroe's recantation "would [not] have a 

reasonable probability of changing the outcome of the case." Ibid. As the judge 

explained, "if . . . Monroe's testimony had never occurred at trial, there was other 

evidence provided to establish petitioner's gang involvement, and evidence of 
13 A-1865-21

his gang involvement was only collateral to the direct evidence of petitioner's 

guilt." We agree. 

To the extent we have not addressed any of defendant's remaining 

arguments, we conclude they lack sufficient merit to warrant discussion in a 

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

Affirmed.