SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3199-15T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JUAN TOMAS-AGUILAR,

Defendant-Appellant.

___________________________

Submitted September 19, 2017 – Decided

Before Judges Hoffman and Gilson.

On appeal from Superior Court of New Jersey, 

Law Division, Monmouth County, Indictment No. 

11-05-0816.

Joseph E. Krakora, Public Defender, attorney 

for appellant (Monique Moyse, 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 Juan Tomas-Aguilar appeals from an April 18, 2016

order denying his petition for post-conviction relief (PCR) 

without an evidentiary hearing. We affirm because defendant failed 

NOT FOR PUBLICATION WITHOUT THE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.

October 13, 2017
2 A-3199-15T4

to show a prima facie case of ineffective assistance of his trial 

counsel.

I.

In 2011, a jury convicted defendant of first-degree robbery, 

N.J.S.A. 2C:15-1; third-degree possession of a weapon for an 

unlawful purpose, N.J.S.A. 2C:39-4(d); fourth-degree unlawful 

possession of a weapon, N.J.S.A. 2C:39-5(d); third-degree 

possession of cocaine, N.J.S.A. 2C:35-10(a)(1); and fourth-degree 

resisting arrest, N.J.S.A. 2C:29-2(a)(2). Defendant was sentenced 

to an aggregate term of twelve years in prison, with eighty-five 

percent of that time ineligible for parole as prescribed by the 

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

Defendant's convictions arose out of the robbery of a taxi 

driver. The taxi driver testified that he agreed to take defendant 

from Point Pleasant to Asbury Park for $28. When they arrived in 

Asbury Park, defendant asked the driver for change for a $100 bill 

and the driver pulled out five $20 bills. According to the driver, 

defendant pulled out a knife and held it to his throat. The driver 

asked two women who were walking by to call the police. A struggle 

ensued and the driver managed to disarm defendant. Defendant, 

however, took the five $20 bills and fled as the police were 

arriving. Following a short chase, the police apprehended 
3 A-3199-15T4

defendant. When arrested, defendant was found to be in possession 

of five $20 bills and cocaine. 

Defendant testified in his own defense and claimed that he 

had fallen asleep in the taxi. He went on to explain that when 

the driver tried to wake him up, they got into an altercation and 

he ran off when the police arrived because he knew he possessed 

drugs. 

During deliberations, the jury submitted several questions 

to the judge. In one question, the jury asked for a transcript 

of defendant's testimony. In response, the trial judge informed 

the jury that they could have a read back of the testimony, but 

that it would take approximately one hour. Defense counsel did 

not object to that response and the jurors sent out a note stating 

that they did not need to hear the read back. The jury also asked 

for clarification on the charge of unlawful possession of a weapon. 

The judge responded by repeating his earlier instructions 

concerning possession of a weapon and used an example of a person 

holding a beer mug and using it to hit another person over the 

head. Again, there was no objection to the trial judge's response 

and Juror No. 1 confirmed that the judge's explanation answered 

their question.

Defendant filed a direct appeal, and we affirmed. State v. 

Juan Tomas-Aguilar, No. A-5559-11 (App. Div. May 27, 2014) (slip 
4 A-3199-15T4

op. at 8). On his direct appeal, defendant argued that the trial 

judge erred in responding to the jury's questions during 

deliberations. We rejected those arguments holding that the trial 

judge's responses were appropriate under the circumstances and 

there was no plain error. Id. at 6. The Supreme Court denied 

defendant's request for certification. State v. Tomas-Aguilar, 

220 N.J. 99 (2014).

In 2015, defendant filed a PCR petition, he was assigned 

counsel, and the PCR court heard oral argument on the petition. 

On January 26, 2016, the PCR court denied the petition and 

defendant's request for an evidentiary hearing. The court issued 

a written opinion in support of its decision. On April 18, 2016, 

the court filed an amended order to correct the identification of 

the indictment number. Defendant now appeals the denial of his 

PCR petition.

II.

On appeal, defendant argues:

POINT ONE – MR. TOMAS-AGUILAR IS ENTITLED TO 

AN EVIDENTIARY HEARING ON HIS CLAIM THAT HIS 

ATTORNEY RENDERED INEFFECTIVE ASSISTANCE OF 

COUNSEL

Defendant asserts that his trial counsel was ineffective 

because counsel failed to properly prepare for and investigate the 

charges and failed to make appropriate objections. With regard 
5 A-3199-15T4

to the investigation allegation, defendant asserts that his trial 

counsel only started preparing for trial a few days before the 

trial and failed to request DNA testing on the knife.

With regard to the failure to object, defendant contends that 

his trial counsel should have objected to the trial judge's 

responses to the jury concerning both the request for a read back 

and the request for clarification on the possession of a weapon

charge.

Defendant's petition arises from the application of Rule

3:22-2, which permits collateral attack of a conviction based upon 

a claim of ineffective assistance of counsel within five years of 

the conviction. See R. 3:22-12(a)(1); see also Strickland v. 

Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed.

2d 674, 693 (1984); State v. Fritz, 105 N.J. 42, 58 (1987). To 

establish a claim of ineffective assistance of counsel, a defendant 

must satisfy the two-part Strickland test by showing: (1) "counsel 

made errors so serious that counsel was not functioning as the 

'counsel' guaranteed the defendant by the Sixth Amendment[,]" and 

(2) "the deficient performance prejudiced the defense." 

Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed.

2d at 693 (quoting U.S. Const. amend. VI); Fritz, supra, 105 N.J.

at 58-59 (adopting the Strickland two-part test in New Jersey).
6 A-3199-15T4

Rule 3:22-10(b) provides that a defendant is only entitled 

to an evidentiary hearing if he or she establishes a prima facie 

case in support of PCR. Moreover, there must be "material issues 

of disputed fact that cannot be resolved by reference to the 

existing record," and the court must determine that "an evidentiary 

hearing is necessary to resolve the claims for relief." State v. 

Porter, 216 N.J. 343, 354 (2013) (quoting R. 3:22-10(b)). To 

establish a prima facie case, a defendant must demonstrate "the 

reasonable likelihood of succeeding under the test set forth in 

Strickland." State v. Preciose, 129 N.J. 451, 463 (1992). 

Here, defendant failed to establish a prima facie showing 

under the Strickland test. Defendant first contends that his 

trial counsel failed to adequately prepare for trial, including 

having the knife tested for DNA. Defendant argues that his trial 

counsel only started to prepare four days before trial. He fails 

to make any showing, however, that four days was an inadequate 

amount of time to prepare. In other words, defendant makes a 

conclusory allegation without any factual support. Such 

unsupported claims cannot establish a prima facie claim of

ineffective assistance of counsel. See State v. Cummings, 321 

N.J. Super. 154, 170 (App. Div.)("[I]n order to establish a prima 

facie claim, a petitioner must do more than make bald assertions 
7 A-3199-15T4

that he was denied the effective assistance of counsel."), certif. 

denied, 162 N.J. 199 (1999). 

Defendant also argues that trial counsel should have 

conducted DNA testing on the knife. He speculates that such 

testing would not have revealed his DNA on the knife. Again, that 

allegation is speculation and cannot support a prima facie showing 

of ineffective assistance of counsel. Moreover, as the PCR judge 

noted, trial counsel may well have had strategic reasons for not 

having the knife tested for DNA. 

Moreover, defendant has made no showing that the alleged 

inadequate investigation by trial counsel prejudiced his defense. 

Defendant must establish "a reasonable probability that, but for 

counsel's unprofessional errors, the result of the proceedings 

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

104 S. Ct. at 2068, 80 L. Ed. 2d at 698.

Defendant also contends that his trial counsel was 

ineffective in failing to object to the court's responses to 

questions posed by the jury during deliberation. On direct appeal, 

we held that the trial court did not err in responding to the 

questions posed by the jury. Indeed, we held that under the 

circumstances of this case, the trial judge's responses were 

appropriate. Accordingly, even if trial counsel had objected, 

there is no basis for defendant to claim that there was any 
8 A-3199-15T4

resulting prejudice to his defense. Defendant must affirmatively 

prove prejudice to the defense. Strickland, supra, 486 U.S. at 

694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698. Here, defendant has 

failed to make such an affirmative showing of prejudice.

Affirmed.