SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3940-15T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

EDARIEL MELENDEZ, a/k/a

RIDDICK,

Defendant-Appellant.

__________________________

Submitted October 19, 2017 – Decided

Before Judges Simonelli and Haas. 

On appeal from Superior Court of New Jersey, 

Law Division, Union County, Indictment No. 08-

11-0966.

Joseph E. Krakora, Public Defender, attorney 

for appellant (Louis H. Miron, Designated 

Counsel, on the brief).

Thomas K. Isenhour, Acting Union County 

Prosecutor, attorney for respondent (Meredith 

L. Balo, Special Deputy Attorney 

General/Acting Assistant Prosecutor, of 

counsel and on the brief).

Appellant filed a pro se supplemental 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NOT FOR PUBLICATION WITHOUT THE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.

November 21, 2017
2 A-3940-15T1

PER CURIAM 

Defendant Edariel Melendez appeals from the April 1, 2016 Law 

Division order, which denied his petition for post-conviction 

relief (PCR) without an evidentiary hearing. We affirm.

We incorporate herein the procedural history and facts set 

forth in State v. Melendez, No. A-3829-10 (App. Div. June 27, 

2014), certif. denied, 220 N.J. 100 (2014). The following facts 

are pertinent to the present appeal.

Following a second jury trial,

1 defendant was convicted of 

first-degree murder, N.J.S.A. 2C:11-3(a)(1) and (2) (counts two 

and twenty-one);2 second-degree aggravated assault, N.J.S.A.

2C:12-1(b)(1) (counts three and six); third-degree aggravated 

assault, N.J.S.A. 2C:12-1(b)(2) (counts four and seven); fourthdegree aggravated assault, N.J.S.A. 2C:12-1(b)(4) (counts five and

eight); second-degree possession of a weapon for an unlawful 

purpose, N.J.S.A. 2C:39-4(a) (counts nine and twenty-five); thirddegree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b) 

(counts ten, twenty-six and thirty-three); third-degree hindering 

apprehension, N.J.S.A. 2C:29-3(a)(3) (count thirty-four); and 

 

1 The first trial ended in a mistrial because of juror misconduct.

2 The court dismissed count one charging defendant with seconddegree conspiracy, N.J.S.A. 2C:5-2.
3 A-3940-15T1

third-degree hindering apprehension, N.J.S.A. 2C:29-3(b)(1) (count 

thirty-five).3 The charges stemmed from defendant's involvement 

with co-defendants Bryant Lee and Monte Foster in two gang-related 

murders.

The trial court imposed two consecutive forty-year terms of 

imprisonment with an eighty-five percent period of parole 

ineligibility pursuant to the No Early Release Act, N.J.S.A. 2C:43-

7.2. Defendant also received two consecutive seven-year terms of 

imprisonment on his second-degree aggravated assault convictions, 

concurrent with the four-year sentence he received on his weapons 

conviction. In addition, the court imposed a four-year consecutive 

sentence for the hindering conviction. Defendant's aggregate 

sentence was 98 years with a 79.9-year period of parole 

ineligibility.

Defendant appealed his conviction and sentence. We found no 

abuse of discretion in the court's admission of evidence of 

defendant's gang membership and photographs of his gang-related 

tattoos, and no plain error in the prosecutor's summation comment

about defendant's tattoos. Melendez, supra, (slip op. at 14, 18). 

 

3 Co-defendant Bryant Lee was charged in counts eleven through 

nineteen, twenty-seven through thirty-two, and thirty-seven 

through thirty-nine. Co-defendant Monte Foster was charged in 

counts forty and forty-one.
4 A-3940-15T1

We specifically found the prosecutor's "comment was not so 

egregious as to have denied defendant a fair trial." Id. at 18.

Defendant filed a PCR petition, arguing that trial counsel 

rendered ineffective assistance by failing to call J.G.4 as a 

witness, meet with defendant sufficiently to prepare for trial,

and object to the prosecutor's improper summation comment about 

his tattoos. In a pro se supplemental brief, defendant added that 

trial counsel failed to call Lee and Foster to testify and

investigate the biased testimony of two witnesses whose stepfather 

interceded on their behalf with the court and the prosecutor.

In an April 1, 2016 order and written opinion, the PCR judge 

denied the petition. The judge found the procedural bar of Rule

3:22-5 applied to defendant's argument about the prosecutor's 

summation comment. The judge also found the State called J.G. as 

a witness, trial counsel engaged in a lengthy cross-examination, 

bringing to light inconsistencies between J.G.'s testimony and his 

statement to the police, and counsel attacked the photo array in 

which J.G. participated. 

The PCR judge found there were no affidavits from Lee and 

Foster, and trial counsel exercised reasonable strategy in not 

calling them as witnesses. The judge noted that Lee and Foster,

 

4 We use initials to identify this witness to protect his privacy.
5 A-3940-15T1

who had pending charges relating to this matter, would have either 

invoked their Fifth Amendment right not to testify, or their 

testimony would have damaged the defense by presenting evidence 

of co-defendants' shared gang membership with defendant. The 

judge also found that, given the considerable amount of evidence 

presented against defendant, Lee's and Foster's testimony would 

not have changed the outcome.

The PCR judge determined defendant did not show that trial

counsel's alleged failure to meet with him sufficiently to prepare 

for trial rose to the level of constitutionally-inadequate 

representation. The judge noted that trial counsel argued 

reasonably on defendant's behalf in pre-trial motions, sought a 

directed verdict at the close of the State's case, cross-examined 

witnesses, and called alibi witnesses. The judge emphasized there 

were no affidavits or certifications showing that trial counsel 

was objectively unreasonable in his trial preparation and 

strategy. The judge concluded that defendant failed to establish 

both prongs of Strickland v. Washington, 466 U.S. 668, 104 S. Ct.

2052, 80 L. Ed. 2d 674 (1984) to warrant an evidentiary hearing. 

This appeal followed.

On appeal, defendant raises the following contentions:

 I. THE INEFFECTIVE ASSISTANCE OF TRIAL 

COUNSEL DEPRIVED [DEFENDANT] OF A FAIR 
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TRIAL AND RENDERED THE JURY'S VERDICT AS 

FUNDAMENTALLY UNRELIABLE.

A. Trial Counsel Failed to Represent 

[Defendant] Effectively. 

 II. TRIAL COUNSEL'S ERRORS, CONSIDERED 

CUMULATIVELY, AMOUNTED TO THE 

INEFFECTIVE ASSISTANCE OF COUNSEL FOR 

[DEFENDANT]. (Not Raised Below).

 III. THE PCR COURT SHOULD HAVE CONDUCTED AN 

EVIDENTIARY HEARING TO ADDRESS ALL OF 

[DEFENDANT'S] CLAIMS.

Defendant argues that trial counsel's cross-examination of the 

State's witnesses, particularly J.G., was "woefully inadequate," 

and counsel failed to called Lee as a witness and investigate and 

prepare for trial.

Defendant raises the following contentions in his pro se 

brief:

Point I

The Defendant was entitled to a New Trial 

where he made a prima facie showing that trial 

counsel failed to render effective assistance 

of counsel and in particular counsel failed 

to interview and prepare alibi witnesses for 

trial, failed to pursue a dismissal because 

of a mistrial and failed to explore any 

challenges to statements, plea agreements and 

sentencing of Mr. Lee and Mr. Foster. 

Furthermore, a Charles Thomas wrote a letter 

to a Judge seeking consideration for testimony 

of his daughter. His daughter did in fact 

testify at trial. I never saw the letter. 

The content of the letter should have been 

used for impeachment purposes.
7 A-3940-15T1

We decline to address defendant's argument that trial 

counsel's cross-examination of the State's witnesses was "woefully

inadequate." We also decline to address defendant's argument in

his pro se brief that trial counsel failed to pursue a dismissal 

because of a mistrial, explore any challenges to co-defendants' 

statements, plea agreements, and sentencing, and use an 

investigator to investigate his case. Defendant did not present 

these arguments to the PCR judge and they do not involve the 

court's jurisdiction or present a matter of great public interest. 

State v. Robinson, 200 N.J. 1, 20 (2009); R. 3:22-4(a). 

Accordingly, we focus on defendant's remaining arguments.

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.), certif. denied, 162 N.J. 199 (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, material issues of 

disputed facts 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). 
8 A-3940-15T1

To establish a prima facie claim of ineffective assistance 

of counsel, the defendant

must satisfy two prongs. First, he must 

demonstrate that counsel made errors "so 

serious that counsel was not functioning as 

the 'counsel' guaranteed the defendant by the 

Sixth Amendment." An attorney's 

representation is deficient when it "[falls] 

below an objective standard of 

reasonableness."

Second, a defendant "must show that the 

deficient performance prejudiced the 

defense." A defendant will be prejudiced when 

counsel's errors are sufficiently serious to 

deny him a "fair trial." The prejudice 

standard is met if there is "a reasonable 

probability that, but for counsel's 

unprofessional errors, the result of the 

proceeding would have been different." A 

"reasonable probability" simply means a 

"probability sufficient to undermine 

confidence in the outcome" of the proceeding.

[State v. O'Neil, 219 N.J. 598, 611 (2014) 

(quoting Strickland, supra, 466 U.S. at 687-

88, 694, 104 S. Ct. at 2064, 2068, 80 L. Ed.

2d at 693, 698).]

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

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

effective assistance of counsel. He must allege facts sufficient 

to demonstrate counsel's alleged substandard performance." 

Cummings, supra, 321 N.J. Super. at 170. The defendant must 

establish, by a preponderance of the credible evidence, that he 
9 A-3940-15T1

is entitled to the required relief. State v. Nash, 212 N.J. 518, 

541 (2013). 

When a defendant claims that trial counsel inadequately 

investigated his case, "he must assert the facts that an 

investigation would have revealed, supported by affidavits or 

certifications based upon the personal knowledge of the affiant 

or the person making the certification." Porter, supra, 216 N.J.

at 353 (quoting Cummings, supra, 321 N.J. Super. at 170). 

Defendant provided no affidavit or certification

In addition, deciding which witnesses to call to the stand 

is "an art," and we must be "highly deferential" to such choices. 

State v. Arthur, 184 N.J. 307, 321 (2005) (quoting Strickland,

supra, 466 U.S. at 689, 693, 104 S. Ct. at 2065, 2067, 80 L. Ed.

2d at 694, 697). Furthermore,

[d]etermining which witnesses to call to the 

stand is one of the most difficult strategic 

decisions that any trial attorney must 

confront. A trial attorney must consider what 

testimony a witness can be expected to give, 

whether the witness's testimony will be 

subject to effective impeachment by prior 

inconsistent statements or other means, 

whether the witness is likely to contradict 

the testimony of other witnesses the attorney 

intends to present and thereby undermine their 

credibility, whether the trier of fact is 

likely to find the witness credible, and a 

variety of other tangible and intangible 

factors.

[Id. at 320-21 (citation omitted).]
10 A-3940-15T1

Where the defendant asserts that his attorney failed to call 

witnesses who would have exculpated him, "he must assert the facts 

that would have been revealed, 'supported by affidavits or 

certifications based upon the personal knowledge of the affiant 

or the person making the certification.'" State v. Petrozelli, 

351 N.J. Super. 14, 23 (App. Div. 2002) (quoting Cummings, supra, 

321 N.J. Super. at 170). 

Finally, simple mistakes, bad strategy, or bad tactics "do 

not amount to ineffective assistance of counsel unless, taken as 

a whole, the trial was a mockery of justice." State v. Bonet, 132 

N.J. Super. 186, 191 (App. Div. 1975). The simple fact that a 

trial strategy fails does not necessarily mean that counsel was 

ineffective. State v. Bey, 161 N.J. 233, 251 (1999) (citation 

omitted), cert. denied, 530 U.S. 1245, 120 S. Ct. 2693, 147 L. Ed.

2d 964 (2000). 

We have considered defendant's contentions in light of the 

record and applicable legal principles and conclude they are 

without sufficient merit to warrant discussion in a written 

opinion. R. 2:11-3(e)(2). We discern no abuse of discretion in 

the denial of defendant's PCR petition without an evidentiary 

hearing, and affirm substantially for the reasons set forth in the 

PCR judge's written opinion. We are satisfied that trial counsel's 
11 A-3940-15T1

performance was not deficient, and defendant provided nothing more 

than bald assertions to the contrary.

Affirmed.