SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION DOCKET NO. A-1865- 21 STATE OF NEW JERSEY, Plaintiff-Respondent,

v. PHILIP S. PATRICK, Defendant-Appellant.

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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

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- 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 Prosecu tor, 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PER CURIAM NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court.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 parti es in the case and its use in other cases is limite d. R. 1:36- 3.2 A- 1865

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Defendant, Philip S. Patrick appeals from a Januar y 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 (fire arm) for an unlawful purpose, N.J.S.A. 2C:39-4(a), and third-degree unla wful 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 direc t appeal. As relevant here, he argued "the court erroneously instructed t he jury regarding 'causation' in response to a question about the murder charge instruc tion." State v. Patrick , A- 5597 -13 (App. Div

. Oct. 18 , 20 16) (slip op. at 14), cert if . denied, 2 28 N.J. 5 06 (20 17 ). 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 tr ial and the theory proposed by the defense does not sup port a conclusion that the jury might have harbored a do ubt about whether defendant had committed the murder by his own conduct. . . .3 A- 1865

- 21 Here, the jury was not charged on accomplice liabil ity, 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 a nd Edwin Price testified defendant admitted to persona lly 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 counse l, including his lawyer's failure to adequately addre ss the issue of accomplice liability." State v. Patri ck, A- 4098 -18 (App. Div. Feb. 19, 2021) (slip op. at 2), cert if . 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 gir lfriend." I bid. We affirmed the denial of the petition for the reasons expresse d in the trial judge's thorough written opinion. I bi d.
II. Here, defendant appeals the denial of his second PCR petit ion, raising the following arguments for our consideration:

POINT I4 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

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"P[CR] relief is New Jersey's analogue to the feder al 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 (cit ations omitted). "Our standard of review is necessarily deferential to a PCR court 's factual findings

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. . . [However,] we need not defer to a PCR court's i nterpretation 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 proceeding s resulting in the conviction or in any post-convicti on proceeding brought pursuant to this rule . . . . [ R. 3:22 -5.] "PCR will be precluded 'only if the issue is identical or sub stantially equivalent' to the issue already adjudicated on the merits." State v. Afanador, 151 N.J. 41,6 A- 1865

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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 evidentiar y hearings to resolve ineffective-assistance- of -counsel claims if a defendant has presented a prim a 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 def endant to determine whether a defendant has established a prima facie claim." Id

. 462

- 63. In his second PCR petition, defendant argues ineff ective 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. Cons t. art. I, ¶ 10).

To satisfy the right to counsel guaranteed by our Federal and State Constitutions, it is not enough "[t]ha t a person who happens to be a lawyer is present at t rial 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

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To establish a prima facie claim for ineffective a ssistance of counsel, a defendant must satisfy the two-prong test establish ed in Strickland. 1

First, the defendant must show that counsel's performance was deficient. This requires showing t hat counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed by the Sixt h Amendment. Second, the defendant must show that th e deficient performance prejudiced the defense. This requires showing that counsel's errors were so seri ous as to deprive the defendant of a fair trial, a tria l 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. [ St rickland, 466 U.S. at 687.]
He re, defendant also sought a new trial based on newl y 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 n ot discoverable by reasonable diligence beforehand; an d (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) (cit ing 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 ineffect ive for failing to provide [defendant] with a vigorous defense." Defendant sp ecifically 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 dif ferent angle from which defendant was standing"; (2) "ask for an instructio n 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 l iability"; and (3) "properly preserve the matter for direct appeal." We disagre e. We conclude defendant's arguments are misguided beca use they oversta te the State's position. The State never co nceded or "acknowledged" defendant9 A- 1865

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was not the shooter. In stead, the State sought to pursue a theory of defendant "as a principal . . . and/or accomplice." In suppo rting the argument for accomplice liability, the State argued there was "v ery 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 refuse d "to charge the jury on accomplice or co-conspirator liability." Consequently, we are convinced trial counsel's representation was not deficient because there w as no basis to object to the State's closing regarding defendant's princi pal liability. Further, we conclude defendant's argument

— that trial counsel was ineffective because counsel did not request a limit ing instruction as to principal liability only

— is precluded because it is "identical to or substantia lly equivalent," Afanador, 151 N.J. at 51, to th e arguments he made on direct appea l 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 th e 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 to10 A- 1865

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

- 18 (App. Div. Feb. 19, 2021) (slip op. at 2). Therefore, we are satisfied that defendant failed to susta in 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 "fi rst PCR counsel was ineffective for failing to allege that trial counse l failed to move for a mistrial after the State [] conceded the evidence did not support principal li ability." 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 fail ing 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 heari ng . We disagree. Even "view[ ing ] the facts in the light most favorable to . . . defendant" he failed to "present [] a prima facie claim in support11 A- 1865

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of [PCR]." Preciose, 129 N.J. at 462- 63 . Therefore, the second PCR judge did not err in concluding no evidentiary hearing was wa rranted.
D. Defendant next argues the PCR judge erred in denyi ng 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. I n those emails Monroe said that she had been coerced to testify falsely that d efendant was a gang member." Accordingly, defendant argues he has established a ll three factors for a new trial. See Szemp le , 247 N.J. at 99. He contends "Monroe's recantatio n . . . [(1)] was 'material' and not merely cumulative"; (2 ) "w[as] not . . . available to the defense at the time of trial"; and (3) "would ha ve a reasonable probability of changing the outcome of the case." We are not conv inced. In our opinion on defendant's direct appeal, we sta ted:

During the testimony of [Monroe], who explained defendant was a member of G-Shine, the trial judge explained defendant's gang affiliation was a questi on for the jury to determine. The evidence "is only b eing admitted for one purpose and one purpose only . . . as it reflects on motive to commit the crime charged h ere, and you[ are] only to consider it as it reflects on mo tive and not for any other purpose whatsoever." [State v. Patrick , A

- 5597 -13 (App. Div. Oct. 18, 2016) (slip op. at 2 0) .]12 A- 1865

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Initially, while we accept, for purposes of this ar gument, defendant's assertion that he was unable to print the purported email, we agree with the second PCR judge that "it is questionable whether t his alleged statement even constitutes newly discovered evidence." T he judge noted, absent from the record, wa s "any report, affidavit, or certification containi ng an actual statement by . . . Monroe." Instead, "defense ha[d] only produc ed [defendant]'s unsupported claim that he received an email from . . . Monroe." Moreover, we agree with the judge that even assumin g the claimed email rose to the level of evidence, it fail ed to pass muster under factors one and three. Ibid. The purported email as to defendant's gang affiliat ion was "cumulative." Ibid. In deed, as the judge found, "[i]n addition to . . . M onroe, 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 t he 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 t he case." Ibid. As the judge explained, "if . . . Monroe's testimony had never o ccurred at trial, there was other evidence provided to establish petitioner's gang in volvement, and evidence of13 A- 1865

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his gang involvement was only collateral to the dir ect evidence of petitioner' s guilt. " We agree. To the extent we have not addressed any of defendan t's remaining arguments, we conclude they lack sufficient merit t o warrant discussion in a written opinion. R. 2:11 -3(e)(2). Affirmed.