SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3209-17T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JAQUAN L. LEE, a/k/a JAQUAN 

JULIUS LEE, JACQUAN LEE, 

JAQUEAN J. LEE, JAKWAN J.

LEE, JAKWAN LARRY LEE,

and JAKWAM L. LEE,

Defendant-Appellant.

_____________________________

Submitted June 1, 2020 – Decided July 21,2020

Before Judges Ostrer and Susswein.

On appeal from the Superior Court of New Jersey, Law 

Division, Union County, Indictment No. 07-12-1019.

Joseph E. Krakora, Public Defender, attorney for 

appellant (Karen A. Lodeserto, Designated Counsel, on 

the briefs).

Lyndsay V. Ruotolo, Acting Union County Prosecutor, 

attorney for respondent (Michele C. Buckley, Special 

NOT FOR PUBLICATION WITHOUT THE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.
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Deputy Attorney General/Acting Assistant Prosecutor, 

of counsel and on the briefs).

PER CURIAM

Defendant Jaquan Lee appeals from the trial court's order denying his 

petition for post-conviction relief after an evidentiary hearing. Lee collaterally 

challenges his conviction of multiple counts of first-degree robbery and weapons 

offenses. He was ultimately sentenced, after remand, to an aggregate thirtyfive-year term, subject to the No Early Release Act, N.J.S.A. 2C:43-7.2. 

Narrowing his claim of ineffective assistance of counsel on appeal, he contends 

that his trial counsel, as a result of her inexperience, (1) failed to adequately 

explain the ramifications of a mid-trial disclosure that incriminating DNA, 

which a report previously attributed to Lee's co-defendant, Tony Lee Canty, 

actually belonged to Lee, and (2) failed to adequately counsel Lee about the plea 

offer that the State resurrected mid-trial after the DNA mix-up came to light.1 

We affirm. 

 

1

 Defendant does not address the trial court's rejection of his claims that his trial 

attorney was ineffective in other aspects of her defense. Therefore, we deem 

those claims waived. See Sklodowsky v. Lushis, 417 N.J. Super. 648, 657 (App. 

Div. 2011) (holding that an issue not briefed on appeal is deemed waived). 
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I.

We assume the reader's familiarity with the facts underlying Lee's

conviction, which we reviewed in our opinion on his direct appeal. See State v. 

Lee, No. A-2842-10 (App. Div. August 12, 2013). In summary, the State 

presented evidence that one night, Lee, Canty, and a third person robbed at 

gunpoint three groups of persons. One of Lee's former girlfriends testified she 

drove Lee and the others from one robbery to another. A second former 

girlfriend testified she loaned Lee the car, which matched the victims' 

description, including its license plate number. Lee was arrested attempting to 

flee from the stopped car when the police approached. Inside the car were 

various items taken in the robberies along with items that separately linked Lee 

to the vehicle. Lee matched the physical description the victims gave, including 

wearing a distinctive Detroit Lions cap. One of the victims identified Lee in 

court. 

On top of this evidence, the State disclosed before trial that Canty's DNA 

was found on one of the stolen cellphones and a Detroit Lions jacket that police 

seized from the vehicle. However, as the State neared the end of its case, it 

came to light that, as a result of a transposed number, the State's DNA report 
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had mistakenly identified Canty as the DNA contributor. In fact, the DNA on 

the items belonged to Lee.2

As a result of this late disclosure, Lee's trial counsel asked the court to 

exclude the DNA evidence, or grant a mistrial. She argued it prejudiced her 

defense, although she did not explain what she would have done differently. 

The court stated there were "no grounds for a mistrial." After an extensive 

colloquy with counsel, the court permitted the State's DNA expert to testify that 

buccal samples were taken from both defendants; the State tested items that were 

likely to yield good DNA samples; and Canty was excluded from the DNA 

samples taken from the phone and jacket found in the vehicle. The expert was 

silent on whether the DNA from the samples matched Lee's DNA. Lee's trial 

attorney did not cross-examine the expert. Although the parties contended 

before the PCR court that the attorneys entered into a stipulation regarding the 

DNA, we have found no evidence in the trial transcript of such a stipulation, and 

neither party identified the point in the trial when the alleged stipulation was 

presented to the jury. 

The parties agree that in the midst of discussions about how to handle the 

DNA mix-up, the assistant prosecutor advised Lee's trial attorney that he would 

 

2

 We did not address the DNA evidence in our previous opinion.
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permit Lee to accept the State's pre-trial plea offer. As before, the State offered 

to recommend a ten-year sentence, subject to NERA, in return for Lee's guilty 

plea and testimony against Canty, if needed. How counsel communicated the 

offer and how she responded to the DNA mix-up is the focus of Lee's remaining 

claims of ineffective assistance.

In brief, Lee alleged his attorney never informed him the plea offer was 

back on the table; by contrast, his trial attorney asserted she told him, and he 

rejected it. Although Lee and his attorney presented different versions of what 

they said in discussions following the disclosure, PCR counsel emphasized their 

point of agreement – that trial counsel was rushed and ineffectively counseled 

defendant about the DNA mix-up, and the revived plea offer. 

In his PCR petition, defendant contended that his trial attorney discussed 

the DNA development for only several minutes in a hallway off the courtroom, 

within earshot of two sheriff's officers. He contended he did not understand 

everything she said to him. He said in his certification that he asked her if she 

could ask the State to revive its pre-trial plea offer of a ten-year term, subject to 

NERA. He said, to his "knowledge she never did because she never discussed 

it with me." 
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At the evidentiary hearing, Lee amplified his version of events. He 

realized the DNA mix-up damaged his case. He could no longer argue there was 

no forensic evidence tying him to the stolen items; and he feared jurors might 

speculate that his DNA was found on the items, because only Canty would 

explicitly be excluded. Nonetheless, he contended he did not understand 

everything his counsel told him in the hallway. He said he did not "recall" that 

she conveyed the revived plea offer during their discussion. He clarified that it 

was only after they returned to counsel table that he asked her, "what's up with

the State's plea offer?" He admitted he did not explicitly say he wanted to accept 

it, but he asserted that his inquiry implied that he would accept it. He said his 

attorney just "blew [him] off." He insisted he would have accepted the plea 

offer, including testifying against Canty, if necessary. He asserted that he 

declined the pre-trial plea offer because of the lack of forensic evidence against 

him, not a disinclination to testify against Canty.

Lee's trial attorney supported his claim of ineffective assistance by 

contending that she needed more time to explain adequately the significance of 

the DNA mix-up, and the reasons why she advised him to accept the revived 

plea offer. Although she had been in practice for seventeen years, and secondchaired several criminal cases as an associate of a respected attorney, she never 
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tried a case solo, let alone a first-degree criminal case. She said she was given 

one week to prepare for trial, and, as a result of her inexperience, she did not 

assert herself sufficiently. She claimed she did not present a vigorous argument 

in support of a mistrial, and she did not insist on an adjournment, so she could 

have a fulsome opportunity to discuss the developments in the case, including

the revived plea offer.

Regarding her hallway conference with Lee, she said, "I am sure that he 

could not totally understand everything that I was explaining to him or the 

ramifications of what I was explaining to him." She blamed herself for 

discussing such an important matter under time pressure, in a hallway, within 

possible earshot of sheriff's officers. 

She testified that before trial, she and Lee discussed at length the State's 

plea offer and she urged him to accept it, but he declined. At a pre-trial 

conference, the trial judge informed Lee that if convicted he could face what 

would be tantamount to a life sentence. Trial counsel recalled telling Lee that 

she did not think there was a great likelihood of a consecutive sentence, and that

Lee's exposure was likely in the 20-25 years range. She acknowledged she was 

wrong. 
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However, the DNA mix-up weakened the defense and strengthened the 

argument for accepting the State's revived plea offer. She testified that she 

should have taken more time to explain to Lee that they lost a major theme of 

the defense – the absence of forensic evidence incriminating him and the 

presence of evidence incriminating Canty. She said she should have counseled 

him, with regard to the plea offer, that he needed to consider what was best for 

himself. However, she insisted that she conveyed the plea offer to Lee in the 

discussion in the hallway, and he rejected it. She also said she ineffectively 

argued for the mistrial, and should have rejected the alleged stipulation 

regarding the DNA evidence.3 

In PCR counsel's summation, she did not rest the petition for relief on the 

claim that trial counsel failed to disclose the revived plea offer. Rather, she 

argued that the circumstances surrounding the discussion led to confusion, and 

trial counsel was obliged to have a more fulsome discussion of the ramifications 

of the DNA mix-up, and the pros and cons of the revived plea offer. When PCR 

counsel recalled Lee's assertion that he was never told of the revived plea offer, 

 

3

 As she recalled the stipulation, it permitted discussion that the DNA excluded 

Canty, "but then [there would be] this wall of silence as to how or in what way" 

it involved Lee. "[I]t certainly opened the door to a negative inference. I never 

should have stipulated to it. It was harmful." 
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the PCR judge interrupted to reject it. Noting Lee's motive to avoid a thirtyfive-year sentence, the court concluded Lee had "no credibility on that point . . . 

I don't believe him at all." When the judge asked PCR counsel if she was 

suggesting that trial counsel was "lying when she . . . [told] . . . him the deals 

are back on the table," PCR counsel conceded, "I'm not saying she's lying, I'm 

just saying there was a lot of confusion because of what happened . . . ." 

The PCR judge credited the attorney's version of events and rejected 

Lee's.4 The court found that despite trial counsel's assertions of her own 

 

4

 We note that Lee and his trial counsel testified on separate days before 

different judges. The first judge fell ill after Lee testified. The second judge 

completed the hearing pursuant to Rule 1:12-3(b). Lee's PCR counsel did not 

object, nor did she ask the second judge to recall Lee. See R. 1:12-3(c) (stating 

that a substituted judge, in order to fairly discharge his judicial duties, "shall 

make such disposition as the circumstances warrant, . . . in a case tried without 

a jury, by directing the recall of any witness"). We asked counsel to file 

supplemental briefs to address whether the trial court was obliged, sua sponte, 

to recall Lee. Cf. Fed. R. Civ. P. 63, and Advisory Committee Note to Fed. R. 

Civ. P. 63 (stating a substitute judge "risk[s] error to determine the credibility 

of a witness not seen or heard who is available to be recalled"). We appreciate 

counsel's additional submissions. We conclude that, whether PCR counsel's 

failure to request Lee's recall was strategic or an oversight, the court's decision 

to proceed without recalling Lee does not amount to plain error, particularly 

under the circumstances of this case. PCR counsel did not hinge the petition on 

the judge believing Lee over his trial counsel. The thrust of PCR counsel's 

argument was that the plea discussion, assuming it occurred, was 

constitutionally inadequate. Therefore, not recalling Lee does not raise a 

reasonable doubt the PCR court reached a result it "otherwise might not have 

reached," or denied Lee a "fair [hearing] and a fair decision on the merits." State 

v. Macon, 57 N.J. 325, 336, 338 (1971); R. 2:10-2.
10 A-3209-17T4

inadequacies, she provided effective assistance of counsel. He noted that she 

moved for a mistrial, but the trial judge found no basis for granting one. 

The PCR judge also found that Lee received the "opportunity . . . to 

reconsider the extraordinarily favorable 10-year plea offer that had been given 

to him prior to trial." The court concluded that extensive discussion of the offer 

was not needed to explain it to defendant, as it was the same offer that trial

counsel had discussed several times before trial, and Lee was "adamant in not 

taking it." The PCR court noted that the trial "court granted a short recess to 

allow the defendant to reconsider the exact same plea offer. . . . There was 

nothing new." 

The judge acknowledged trial counsel's testimony that the circumstances 

prevented a full discussion. But, he found "the opportunity to discuss was a fair 

and reasonable one and Mr. Lee was adamant in his assertions of innocence and 

was unwilling to take the renewed 10-year plea offer which occurred in the 

middle of trial. . . . He made the decision, which he is entitled to, to reject the 

plea and go forward." 

On appeal, Lee presents the following points for our consideration:

 POINT I

THE PCR COURT ERRED IN DENYING 

DEFENDANT'S PETITION FOR POST-
11 A-3209-17T4

CONVICTION RELIEF BECAUSE TRIAL 

COUNSEL ADMITTED SHE WAS TOO 

INEXPERIENCED TO HANDLE HIS TRIAL AND 

DID NOT SPEND SUFFICIENT TIME EXPLAINING 

THE DNA ISSUE WITH DEFENDANT.

POINT II

THE PCR COURT ERRED IN DENYING 

DEFENDANT'S PETITION FOR POSTCONVICTION RELIEF BECAUSE TRIAL 

COUNSEL ADMITTED SHE WAS INEFFECTIVE 

REGARDING HER DISCUSSIONS OF THE REEXTENDED PLEA OFFER WITH DEFENDANT.

II.

Mindful of the PCR judge's opportunity to hear and see live witnesses,

"we will uphold the PCR court's findings that are supported by sufficient

credible evidence in the record." State v. Nash, 212 N.J. 518, 540 (2013). We

review de novo issues of law. Id. at 540-41. Applying that standard of review,

we affirm the PCR court's order. 

To prevail on a claim of ineffective assistance of counsel, Lee was obliged

to satisfy the two-prong Strickland test by showing: (l) his counsel's

performance was deficient, and she made errors that were so egregious she was

not functioning effectively as guaranteed by the Sixth Amendment to the United

States Constitution; and (2) "there is a reasonable probability that, but for

counsel's unprofessional errors, the result of the proceeding would have been
12 A-3209-17T4

different." Strickland v. Washington, 466 U.S. 668, 687, 694 (1984); see also

State v. Fritz, 105 N.J. 42, 52 (1987).

The right to effective assistance of counsel extends to the plea bargaining

process. Lafler v. Cooper, 566 U.S. 156, 162 (2012). "In the context of a guilty

plea, counsel is required to give a defendant information sufficient 'to make a

reasonably informed decision whether to accept a plea offer.'" Shotts v. Wetzel,

724 F.3d 364, 376 (3d Cir. 2013) (quoting United States v. Day, 969 F.2d 39,

43 (3d Cir. 1992)).

"Adequate assistance of an attorney is measured according to whether the

counsel has professional skills comparable to other practitioners in the field."

State v. Davis, 116 N.J. 341, 351 (1989). "'Reasonable competence' does not

require the best of attorneys, but certainly not one so ineffective as to make the

idea of a fair trial meaningless." Ibid. "The test is not whether defense counsel

could have done better, but whether he [or she] met the constitutional threshold

for effectiveness." Nash, 212 N.J. at 543. A defendant must overcome a strong

presumption that counsel exercised "reasonable professional judgment." 

Strickland, 46 U.S. at 690. "No particular set of detailed rules for counsel's

conduct can satisfactorily take account of the variety of circumstances faced by
13 A-3209-17T4

defense counsel or the range of legitimate decisions regarding how best to

represent a criminal defendant." Id. at 688-89.

When a defendant claims his attorney's ineffective assistance caused him

to reject a plea offer, the defendant must prove that "but for counsel's deficient

performance there is a reasonable probability he [or she] and the trial court

would have accepted the guilty plea." Lafler, 566 U.S. at 174. A court should

not upset a conviction "solely because of [a defendant's] post hoc assertions . . .

about how he would have pleaded but for his attorney's deficiencies." Lee v.

United States, 582 U.S. ___, ___, 137 S. Ct. 1958, 1967 (2017). Rather, a court

must consider "contemporaneous evidence to substantiate a defendant's

expressed preferences." Ibid.

Although Lee complains that his trial counsel spent insufficient time 

explaining the DNA mix-up to him, the evidence reflects that he understood the 

significance of the mix-up. His claim that he inquired about the plea offer at 

counsel table reflects that he understood the mix-up was a significant, negative 

development. Even if one credits his statement that he may not have 

"understood everything that [his attorney] was explaining to [him]," he 

understood his defense was weakened. Otherwise, he would not have inquired 

whether the plea was still a possibility. Although counsel "could have done 
14 A-3209-17T4

better," Nash, 212 N.J. at 543, by requesting and spending additional time to 

discuss the DNA development at greater length, trial counsel successfully 

conveyed the import of the development. Thus, we do not conclude trial counsel 

was ineffective by providing what she views now as a rushed explanation of the 

DNA mix-up and how she intended to respond. 

We also reject the argument that trial counsel was ineffective in reviewing 

the revived plea offer. As we have noted, the PCR court credited Lee's trial 

attorney's version of events: she disclosed the revived plea offer during the 

hallway discussion, and Lee rejected it. We are obliged to defer to the PCR 

judge's fact-finding. The PCR judge did not observe Lee's demeanor when he 

testified, because he testified before a different judge. But, the PCR judge, in 

effect, characterized Lee's testimony as "post hoc assertions" of what he might 

have done. Furthermore, Lee never flatly denied that counsel raised the plea 

offer in the hallway conference. He said he did not understand everything trial 

counsel said in the hallway discussion, and he did not "recall" her mentioning 

the revived plea offer. And, although he claims he inquired about the plea offer 

at counsel table, he did not expressly say he wanted to accept it.

As noted, on appeal, Lee does not directly challenge the trial court's 

finding that trial counsel communicated the plea offer. Had trial counsel failed 
15 A-3209-17T4

to communicate the offer at all, her ineffectiveness would not be open to debate. 

Missouri v. Frye, 566 U.S. 134, 145 (2012). Rather, Lee argues that his trial 

counsel was ineffective because she rushed; she did not secure more time; and 

she did not convey in sufficient depth the reasons why she believed Lee should 

have accepted the plea agreement. 

The PCR court found that a more extensive discussion was not required 

to satisfy the constitutional right to effective assistance, because Lee understood 

the pros and cons of the plea offer; he rejected it pre-trial; he understood the 

DNA development; and he rejected the plea offer mid-trial. Essentially, the PCR 

court found that trial counsel was not deficient; and Lee suffered no prejudice. 

We shall not disturb the PCR court's conclusion. 

As trial counsel testified, she and Lee reviewed the plea offer during 

extended discussions before trial. The plea offer that the State revived after the 

DNA mix-up was the same one Lee had rejected. He was familiar with it; and 

he was familiar with trial counsel's argument. Although there was an additional 

factor favoring the plea offer in trial counsel's mind – the DNA mix-up – Lee 

understood the ramifications of that development, too. 

We do not minimize the potential value of a more extensive discussion. 

A more experienced and assertive attorney may have asked for more time. She 
16 A-3209-17T4

may have gotten some, but that is by no means certain. Trial counsel testified 

that if she had more time, she would have encouraged Lee to think about what 

was best for him – implying that testifying against Canty was the main stumbling 

block. Whether more time might have led Lee to make a different decision is 

not the test. Nor is the test whether the trial attorney could have done a better 

job. The question is whether she provided the minimal level of competence 

required by the Constitution. We shall not disturb the PCR court's determination 

that she did. 

Affirmed.