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, Law 

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 for 

respondent (Andrew Frank Guarini, Assistant Prosecutor, 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NOT FOR PUBLICATION WITHOUT THE 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 parties in the case and its use in other cases is limited. R. 1:36-3.
2 A-2561-21

 Defendant Froylan Lopez appeals from a Law Division order denying his 

petition for post-conviction relief (PCR) without an evidentiary hearing. We affirm. 

 Following a trial, a jury found defendant guilty of first-degree murder, thirddegree possession of a knife for an unlawful purpose, and fourth-degree unlawful 

possession of a knife. After appropriate mergers, the trial judge sentenced defendant 

to forty years in prison, subject to the No Early Release Act, N.J.S.A. 2C:43-7.2. 

 Defendant filed a direct appeal. We affirmed defendant's conviction and 

sentence, and the Supreme Court denied certification. 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/provocation manslaughter. Defendant 

also argued that his attorney should have called "other people in the area on the night 

of th[e] incident" as witnesses at trial. According to defendant, if his attorney had 

presented these witnesses, "the jury would have heard that other people in the area 

encountered the victim and that the victim was stabbed during one of these other 

encounters." 

 Following oral argument, the PCR judge rendered a thorough written decision, 

concluding that defendant did not satisfy the two-prong test of Strickland v. 
3 A-2561-21

Washington, 466 U.S. 668, 687 (1984), which requires a showing that trial counsel's 

performance was deficient and that, but for the deficient 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, after 

providing a full analysis of the facts compared to the four 

elements to passion/provocation manslaughter, concluded 

that "there [] was adequate time for defendant to cool off 

. . . the record [did] not 'clearly indicate' that there was 

adequate provocation["] and as such the passion/provocation 

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 3:22-51 from raising this issue again 

in a PCR proceeding.2

1

 Rule 3:22-5 states that "[a] prior adjudication upon the merits of any ground for 

relief is conclusive whether made in the proceedings resulting 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 proceedings." 

2

 We also note that because this court had already determined that a 

passion/provocation charge was not required, defendant failed to satisfy the second 

Strickland prong. Thus, even if defense counsel had requested this charge at the trial, 

the trial court would not have been required to give it because it was not "rationally 

based on the evidence." State v. Simms, 369 N.J. Super. 466, 471 (App. Div. 2004). 
4 A-2561-21

 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 regarding these 

"other people" to this [c]ourt in either his brief or oral 

arguments. This [c]ourt does not have affidavits from these 

witnesses, the names of these witnesses, the location of the 

witnesses, or the number of witnesses [defendant] believes 

to exist. [Defendant] even appears unsure as to how many 

"other" altercations there were that day where [the] [v]ictim 

was supposedly stabbed instead. [Defendant] certifies that 

there was "another event" (singular) in the third paragraph 

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 support of 

these bald assertions, [defendant] has failed to establish a 

prima facie showing that his trial counsel failed in this 

regard. 

On appeal, defendant raises the same arguments he unsuccessfully 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 CALL 
5 A-2561-21

EYEWITNESSES WHO WERE PRESENT AT THE 

SCENE. 

 When petitioning for PCR, the defendant must establish, by a preponderance 

of the credible evidence, that he is entitled to the requested relief. State v. Nash, 212 

N.J. 518, 541 (2013); State v. Preciose, 129 N.J. 451, 459 (1992). To sustain that 

burden, the defendant must allege and articulate specific facts that "provide the court 

with an adequate basis on which to rest its decision." State v. Mitchell, 126 N.J. 565, 

579 (1992). 

 The mere raising of a claim for PCR does not entitle 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 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. Preciose, 129 

N.J. at 462. 

To establish a prima facie claim of ineffective assistance of counsel, the 

defendant is obliged to show not only the particular manner in which counsel's 
6 A-2561-21

performance was deficient, but also that the deficiency 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 prejudice is not presumed, Fritz, 105 

N.J. at 52, the defendant must demonstrate "how specific errors of counsel 

undermined the reliability" of the proceeding. United 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 petition substantially for the 

reasons detailed at length in the PCR judge's written opinion. We discern no abuse 

of discretion in the judge's consideration of the issues, or in his decision to deny the 

petition without an evidentiary hearing. We are satisfied that the trial attorney's 

performance was not deficient, and defendant provided nothing more than bald 

assertions to the contrary. 

 Affirmed.