SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION DOCKET NO. A-2561- 21 STATE OF NEW JERSEY, Plaintiff-Respondent,

v. FROYLAN LOPEZ, Defendant-Appellant.

_______________________

Submitted February 6, 2024

– Decided February 13, 2024 Before Judges Haas and Gooden Brown. On appeal from the Superior Court of New Jersey, La w Division, Hudson County, Indictment No. 16- 06

- 0882. Jennifer Nicole Sellitti, Public Defender, attorney for appellant (Richard Sparaco, Designated Counsel, on the brief). Esther Suarez, Hudson County Prosecutor, attorney f or respondent (Andrew Frank Guarini, Assistant Prosecu tor, 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PER CURIAM NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court.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- 2561

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Defendant Froylan Lopez appeals from a Law Divisio n order denying his petition for post-conviction relief (PCR) without a n evidentiary hearing. We affirm. Following a trial, a jury found defendant guilty o f first-degree murder, thirddegree possession of a knife for an unlawful purpos e, and fourth-degree unlawful possession of a knife. After appropriate mergers, t he trial judge sentenced defendant to forty years in prison, subject to the No Early R elease Act, N.J.S.A. 2C:43-7.2. Defendant filed a direct appeal. We affirmed defe ndant's conviction and sentence, and the Supreme Court denied certificatio n. State v. Lopez, No. A- 4145

- 17 (App. Div. Aug. 12, 2019), certif. denied, 240 N .J. 402 (2020). Defendant filed a timely petition for PCR. Among other things, defendant asserted that his trial attorney provided him with ineffective assistance because she failed to request a jury instruction on passion/pro vocation manslaughter. Defendant also argued that his attorney should have called "othe r people in the area on the night of th[e] incident" as witnesses at trial. Accordin g to defendant, if his attorney had presented these witnesses, "the jury would have hea rd that other people in the area encountered the victim and that the victim was stab bed during one of these other
encounters." Following oral argument, the PCR judge rendered a thorou gh written decision, concluding that defendant did not satisfy the two-p rong test of Strickland v.3 A- 2561

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Washington, 466 U.S. 668, 687 (1984), which require s a showing that trial counsel's performance was deficient and that, but for the def icient performance, the result would have been different. As to defendant's contention concerning the lack of a passion/provocation charge, the judge noted that defendant previously

alleged on direct appeal that the jury should have been instructed as such, and the Appellate Division, aft er providing a full analysis of the facts compared to the four elements to passion/provocation manslaughter, concl uded that "there [] was adequate time for defendant to c ool off . . . the record [did] not 'clearly indicate' that there was adequate provocation["] and as such the passion/pro vocation charge was not required. Because this court had already determined on direct appeal that a passion/provocation charge was not necessary under the circumstances of this case, the PCR judge determined that defendant was barred by Rule 3:22 -5 1 from raising this issue again in a PCR proceeding. 2

1 Rule 3:22 -5 states that "[a] prior adjudication upon the mer its of any ground for relief is conclusive whether made in the proceedings result ing in the conviction or in any post-conviction proceeding brought pursuant to this rule or prior to the adoption thereof, or in any appeal taken from such proceedin gs."

2 We also note that because this court had already de termined that a passion/provocation charge was not required, defend ant failed to satisfy the second Strickland prong. Thus, even if defense counsel had requested this ch arge at the trial, the trial court would not have been required to giv e it because it was not "rationally based on the evidence." State v. Simms, 369 N.J. S uper. 466, 471 (App. Div. 2004).4 A- 2561

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The judge also rejected defendant's claim that his attorney was ineffective because she did not call "other people in the area" to testify at the trial. The judge explained his decision as follows:

[Defendant] provided no further information regardi ng these "other people" to this [c]ourt in either his brief or oral arguments. This [c]ourt does not have affidavits f rom these witnesses, the names of these witnesses, the locati on of the witnesses, or the number of witnesses [defendant] b elieves to exist. [Defendant] even appears unsure as to ho w man y "other" altercations there were that day where [the ] [v]ictim was supposedly stabbed instead. [Defendant] certif ies that there was "another event" (singular) in the third p aragraph of his [c]ertification and then states [v]ictim was stabbed "during one of these other encounters" (plural) in the following paragraph. Lacking any evidence in suppo rt of these bald assertions, [defendant] has failed to es tablish a prima facie showing that his trial counsel failed i n this regard.
On appeal, defendant raises the same arguments he unsu ccessfully presented to the Law Division. Defendant contends:

POINT 1

– DEFENDANT WAS ENTITLED TO AN EVIDENTIARY HEARING WHERE HE ESTABLISHED A PRIMA FACIE CASE OF INEFFECTIVE ASSISTANCE OF COUNSEL IN THE FAILURE OF TRIAL COUNSEL TO REQUEST A JURY INSTRUCTION ON PASSION/PROVOCATION MANSLAUGHTER WHEN SUCH AN INSTRUCTION WAS CLEARLY SUPPORTED BY THE FACTS. POINT II

– DEFENDANT WAS ENTITLED TO AN EVIDENTIARY HEARING ON HIS CLAIM THAT TRIAL COUNSEL WAS INEFFECTIVE IN FAILING TO CALL5 A- 2561

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EYEWITNESSES WHO WERE PRESENT AT THE SCENE. When petitioning for PCR, the defendant must estab lish, by a preponderance of the credible evidence, that he is entitled to th e requested relief. State v. Nash, 212 N.J. 518, 541 (2013); State v. Preciose, 129 N.J. 4 51, 459 (1992). To sustain that burden, the defendant must allege and articulate spec ific facts that "provide the court with an adequate basis on which to rest its decisio n." State v. Mitchell, 126 N.J. 565, 579 (1992). The mere raising of a claim for PCR does not entit le the defendant to an evidentiary hearing and the defendant "must do more than make bald assertions tha t he was denied the effective assistance of counsel." State v. Cummings, 321 N.J. Super. 154, 170 (App. Div. 1999). Rather, trial co urts should grant evidentiary hearings and make a determination on the merits onl y if the defendant has presented a prima facie claim of ineffective assistance, mate rial issues of disputed facts lie outside the record, and resolution of the issues nec essitates a hearing. R. 3:22 -10(b); State v. Porter, 216 N.J. 343, 355 (2013). We revi ew a judge's decision to deny a PCR petition without an evidentiary hearing for abu se of discretion. Preciose, 129 N.J. at 462. To establish a prima facie claim of ineffective ass istance of counsel, the defendant is obliged to show not only the particula r manner in which counsel's6 A- 2561

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performance was deficient, but also that the defici ency prejudiced his right to a fair trial. Strickland, 466 U.S. at 687; State v. Fritz , 105 N.J. 42, 58 (1987). There is a strong presumption that counsel "rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Strickland, 466 U.S. at 690. Further, because prej udice is not presumed, Fritz, 105 N.J. at 52, the defendant must demonstrate "how spe cific errors of counsel undermined the reliability" of the proceeding. Uni ted States v. Cronic, 466 U.S. 648, 659 n.26 (1984). Having considered defendant's contentions in light of the record and the applicable law, we affirm the denial of defendant's PCR peti tion substantially for the reasons detailed at length in the PCR judge's writt en opinion. We discern no abuse of discretion in the judge's consideration of the i ssues, or in his decision to deny the petition without an evidentiary hearing. We are sa tisfied that the trial attorney's performance was not deficient, and defendant provid ed nothing more than bald assertions to the contrary. Affirmed.