NOT FOR PUBLICATION WITHOUT THE 

APPROVAL OF THE APPELLATE DIVISION 

 SUPERIOR COURT OF NEW JERSEY 

 APPELLATE DIVISION 

 DOCKET NO. A-2638-22

STATE OF NEW JERSEY 

 Plaintiff-Respondent, 

v.

DANA KEARNEY, 

 Defendant-Appellant. 

Submitted September 12, 2024 – Decided September 18, 2024 

Before Judges Sabatino, Berdote Byrne, and Jacobs. 

On appeal from the Superior Court of New Jersey, 

Law Division, Middlesex County, Indictment No. 16-

10-1645.

Jennifer Nicole Sellitti, Public Defender, attorney for 

appellant (Steven M. Gilson, Designated Counsel, on

the brief). 

Yolanda Ciccone, Middlesex County Prosecutor, 

attorney for respondent (Erin M. Campbell, Assistant 

Prosecutor, on the brief). 

 The opinion of the court was delivered by 

SABATINO, P.J.A.D. 

Defendant Dana Kearney, who was convicted of murder and other 

offenses at his 2017 jury trial, appeals the trial court's denial of his petition for 

APPROVED FOR PUBLICATION 

September 18, 2024 

APPELLATIE DVISION 
A-2638-22 2 

postconviction relief ("PCR") without an evidentiary hearing. He alleges his 

trial counsel was constitutionally ineffective in two respects. 

In this opinion we afford substantial discussion as to one of those 

claims: whether defendant's representation was compromised because his coparent and girlfriend, who was called at trial as a fact witness for the State, 

paid for the legal fees of his private criminal defense attorney. Defendant 

alleges the fee arrangement created an untenable conflict of interest. 

For the reasons that follow, we affirm the PCR court's determination that 

defendant was not deprived of effective representation of his counsel, who 

represented him zealously at trial. In particular, defense counsel vigorously 

cross examined the witness, who had paid his fees, about certain incriminating 

statements she made regarding defendant to police detectives. 

We agree with the PCR court that the fee arrangement, of which 

defendant was surely aware, did not create a per se conflict of interest that 

disqualified his counsel in the circumstances presented. Nor has defendant 

shown he was actually prejudiced or subject to a great likelihood of such 

prejudice. 

I.

 The background facts and procedural history are detailed in our 2020 

unpublished opinion affirming the convictions of defendant and his two 
A-2638-22 3 

codefendants, Shane Timmons and Joseph Kearney. State v. Shane Timmons, 

et al., A-2567-17, A-2843-27, A-4138-17 (App. Div. January 7, 2020). We 

incorporate those details here by reference. 

Briefly stated, the indictment stemmed from the fatal stabbing of the 

victim, Christopher Sharp, on August 18, 2013, at a house in Perth Amboy 

where defendant's girlfriend and co-parent, Alicia Boone, resided with 

defendant and her three children. Sharp was Boone's cousin. A party took 

place at the house that night, at which defendant was present. An argument 

between defendant and Sharp ensued. According to the State's proofs, 

defendant stabbed Sharp three times sometime in the early morning. 

The jury found defendant guilty of murder and other serious offenses 

and also found his two codefendants guilty of charged offenses. The trial court 

sentenced defendant to an aggregate fifty-year sentence with a forty-year 

period of parole ineligibility under the No Early Release Act, N.J.S.A. 2C:43-

7.2. 

Our lengthy unpublished opinion of January 7, 2020 affirmed the 

convictions and sentences of all three defendants. Timmons, slip op. at 1. The 

Supreme Court denied this defendant's petition for certification. State v. Dana 

Kearney, 244 N.J. 349 (2020). 
A-2638-22 4 

In his PCR petition, defendant made two claims now before us alleging 

his trial counsel—who is now deceased—was ineffective. First, he mainly 

argues his attorney had a conflict of interest because his defense fees were paid 

by Boone, who was called as a witness for the State at trial. Second, he claims 

his lawyer failed to give him proper advice about his right to testify under the 

Fifth Amendment. The PCR judge rejected both claims. On the conflict issue, 

she found no per se ethical violation in the fee arrangement. On the Fifth 

Amendment issue, she was satisfied the trial transcript clearly showed 

defendant agreed on the record that counsel had advised him of his right to 

testify. 

In his brief on appeal, defendant advances the following arguments: 

I. TRIAL COUNSEL'S INHERENT CONFLICT OF 

INTEREST, THAT THE STATE'S MAIN WITNESS 

HIRED AND PAID FOR DEFENDANT'S TRIAL 

COUNSEL, CONSTITUTES PER SE 

INEFFECTIVENESS AND MANDATES THAT 

DEFENDANT'S CONVICTIONS BE REVERSED; IN 

THE ALTERNATIVE, THIS MATTER MUST BE 

REMANDED FOR AN EVIDENTIARY HEARING 

BECAUSE DEFENDANT ESTABLISHED A PRIMA 

FACIE CASE OF TRIAL COUNSEL'S 

INEFFECTIVENESS. 

II. TRIAL COUNSEL'S ABRIDGING DEFENDANT'S 

CONSTITUIONAL RIGHT TO TESTIFY 

CONSTITUTES INEFFECTIVENESS OF COUNSEL 

AND MANDATES THAT DEFENDANT'S 

CONVICTIONS BE REVERSED; IN THE 

ALTERNATIVE, THIS MATTER MUST BE 
A-2638-22 5 

REMANDED FOR AN EVIDENTIARY HEARING 

BECAUSE DEFENDANT ESTABLISHED A PRIMA 

FACIE CASE OF TRIAL COUNSEL'S 

INEFFECTIVENESS. 

We reject these arguments, having applied the relevant legal principles 

to the record. 

II. 

Our analysis applies well established standards that govern a criminal 

defendant's claims of ineffective assistance of counsel. Under the Sixth 

Amendment of the United States Constitution, a person accused of crimes is 

guaranteed the effective assistance of legal counsel in that person's defense. 

Strickland v. Washington, 466 U.S. 668, 687 (1984); State v. Cottle, 194 N.J. 

449, 466 (2008). To establish a deprivation of that right, a convicted 

defendant must satisfy the two-part test prescribed in Strickland by 

demonstrating that: (1) counsel's performance was deficient, and (2) the 

deficient performance actually prejudiced the accused's defense. Strickland, 

466 U.S. at 687; see also State v. Fritz, 105 N.J. 42, 58 (1987) (adopting the 

Strickland two-part test in New Jersey). 

With respect to the first prong of deficient performance, "the test is 

whether counsel's conduct fell below an objective standard of reasonableness." 

State v. Savage, 120 N.J. 594, 614 (1990) (citing Strickland, 466 U.S. at 688). 

"[A] defendant challenging assistance of counsel must demonstrate that 
A-2638-22 6 

counsel's actions were beyond the 'wide range of professionally competent 

assistance.'" Ibid. (quoting Strickland, 466 U.S. at 690). 

Courts apply a strong presumption that defense counsel "rendered 

adequate assistance and made all significant decisions in the exercise of 

reasonable professional judgment." Strickland, 466 U.S. at 690. Given that 

presumption, "complaints 'merely of matters of trial strategy' will not serve to 

ground a constitutional claim of inadequacy." Fritz, 105 N.J. at 54 (quoting 

State v. Williams, 39 N.J. 471, 489 (1963)); see also State v. Echols, 199 N.J. 

344, 357-59 (2009). "The quality of counsel's performance cannot be fairly 

assessed by focusing on a handful of issues while ignoring the totality of 

counsel's performance in the context of the State's evidence of defendant's 

guilt." State v. Castagna, 187 N.J. 293, 314 (2006) (citing State v. Marshall, 

123 N.J. 1, 165 (1991)). "To rebut that presumption, a defendant must 

establish that trial counsel's actions did not equate to 'sound trial strategy.'" 

State v. Chew, 179 N.J. 186, 203 (2004) (quoting Strickland, 466 U.S. at 689). 

"In evaluating a defendant's claim, the court 'must judge the reasonableness of 

counsel's challenged conduct on the facts of the particular case, viewed as of 

the time of the attorney's conduct.'" Ibid. (quoting Strickland, 466 U.S. at 

690). 

"[T]o satisfy the second prong—that a defendant has been prejudiced by 
A-2638-22 7 

counsel's actions—there must be a 'reasonable probability that, but for 

counsel's unprofessional errors, the result of the proceeding would have been 

different. A reasonable probability is a probability sufficient to undermine 

confidence in the outcome.'" Savage, 120 N.J. at 614 (quoting Strickland, 466 

U.S. at 694). "[T]he ultimate focus of inquiry must be on the fundamental 

fairness of the proceeding whose result is being challenged." Strickland, 466 

U.S. at 696. 

Here, as is often the case, defendant's claims of counsel's ineffectiveness 

have been asserted through a PCR petition. A defendant must establish by a 

preponderance of the credible evidence entitlement to the relief requested in 

the petition. State v. Nash, 212 N.J. 518, 541 (2013). 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). "[B]ald assertions" of deficient performance are simply 

insufficient to support a PCR application. State v. Cummings, 321 N.J. Super. 

154, 170 (App. Div. 1999); see also R. 3:22-10(b); State v. Porter, 216 N.J. 

343, 355 (2013) (reaffirming these principles in evaluating which of a 

defendant's various PCR claims warranted an evidentiary hearing). 

 With these general principles in mind, we turn to defendant's specific 

claims. 
A-2638-22 8 

A.

 Defendant's conflict of interest argument warrants our more extensive 

discussion. His specific claim that his trial counsel was per se compromised 

because a prosecution witness paid his defense counsel's fees has not 

previously been the subject of a published opinion in our State. The following 

circumstances in the record inform our analysis. 

1.

As we noted above, this criminal case arose from the stabbing death of 

Sharp at the home of Boone. The stabbing occurred in the early morning hours 

of August 18, 2013, following a gathering that began at the home the day 

before. Boone lived in Perth Amboy with her three children, and the youngest 

child's father, defendant. Timmons, slip op. at 6. Boone, the witness who is at 

issue on appeal, was defendant's then-girlfriend and co-parent of her youngest 

child, and Sharp's cousin. Boone did not observe the stabbing, as she had left 

for her mother's house with her children beforehand. Boone had given 

defendant a ride to her mother's house and then had a conversation with 

defendant about him needing to go back to her house to check on Sharp. 

Boone learned later of Sharp's death. 
A-2638-22 9 

Boone's Three Interviews and Statements to Police 

Following the homicide, Police Detective Marcos Valera and Police 

Sergeant Jose Rodriguez interviewed Boone three times at the Perth Amboy 

police station. Timmons, slip op. at 17. Boone's first statement to police 

occurred on the morning of August 18, 2013, a few hours after Sharp's death. 

At trial, Boone acknowledged she told the police in her first interview 

that, shortly after the incident, defendant had told her he needed to return to 

her house because "Chris got cut," referring to the victim. 

Boone's second statement to the police took place later that afternoon. In 

her second statement, Boone expressed concerns for her family "because 

[defendant] was 'mean.'" Timmons, slip op. at 18. "She said her first 

statement to the officers was '90 percent true.'" Ibid. Boone acknowledged 

"initially telling detectives that [defendant] said he thought [Sharp] was 'cut,' 

but told them in her second statement that [defendant] said he 'poked' Sharp or 

'another word like that.'" Ibid. 

On August 21, Boone voluntarily returned to the police station and gave 

a third statement. Ibid. She recounted in that third statement that defendant 

admitted to her, "'I poked Chris.'" Ibid. 

Boone's Trial Testimony 

The State called Boone as a witness at trial, essentially to confirm the 
A-2638-22 10

substance of her statements to the police. The State specifically elicited 

Boone's recounting during her second and third interviews that defendant told 

her he had "poked" Sharp. 

During Boone's cross-examination, defendant's counsel1 zeroed in on the 

seven hours between Boone's first and second statements to the police. 

Defendant's counsel elicited testimony from Boone that she had been scared 

after an off-the-record conversation with another Police Detective, Carlos 

Rodriguez, which occurred in between her first and second statements, in 

which that detective allegedly "insinuated [Boone] wasn't going home." 

Boone agreed with counsel's query that she changed her statement regarding 

defendant because of that intimidation, and that "in a sense the[] [police] kind 

of broke [her]." 

On redirect, Boone was vague in her recollection of the timing of her 

interaction with Detective Carlos Rodriguez and how and why her demeanor 

changed for the second statement. In this regard, Boone testified that 

[e]veryone had left. So, I asked Detective [Carlos] 

Rodriguez, I said,—I said, everybody's leaving. And 

he said, yeah. And I said, am I being locked up? No. 

I said, is there—I said, everyone's—I said, am I being 

1

 Counsel for the two other codefendants also questioned Boone, but less 

extensively, after this defendant's counsel's cross-examination. They did not 

avail themselves of re-cross. Throughout this opinion, the counsel at issue in 

this appeal will be identified as "defendant's counsel" or "his counsel." 
A-2638-22 11

locked up for something? And he said, well why do 

you ask that? And I said, because you let everyone

leave but me. And he said, now that's a good 

observation. I insinuated that meant I was not going 

home, because all he had to say was yes or no. And

that's not what he said. 

Boone elaborated further about her conversation with the detective: 

Then he told me, come on, Alicia. He said, 

come on, you got something else to tell me. I said, no 

I don't have anything else to tell you. I said, I told you 

everything. He said, no, come on, you got something 

else. I said, Detective,—I was telling him, look, I 

don't. And then he—I mean he went on and on with 

that, and on. And then I said to him, look, 

[defendant]—and I said this. I said, look, [defendant] 

is—is mean. And then he said, he's mean. And I said 

yeah. And I said, I'm not going—I don't want to go in 

there and say—and he said, come on. He said, it's 

going to be all right, you know, I'm telling you it's 

going to be cool. I said, you know what. And then I 

didn't even agree actually. He said to the other 

detectives, you know what, I think Alicia has 

something else she want[s] to tell you guys. And 

that's when I went in there and made my second 

statement. 

After her testimony on redirect, Boone's second recorded statement was 

played for the jury. The prosecutor then elicited testimony from Boone that 

she "was crying [during her second statement] because she was afraid of . . . 

[defendant]." Boone testified that, apart from telling her lawyer,2 her cross2

 Although she was not a party to the case or charged with any offenses, 

Boone retained a lawyer to advise her and represent her interests. That 
A-2638-22 12

examination on the previous day was the first time she had spoken about her 

interactions with, and alleged mistreatment by, Detective Carlos Rodriguez. 

Boone further testified that, by comparison, both Detective Valera and 

Sergeant Jose Rodriguez were "very good to [her]." The prosecutor also 

reaffirmed with Boone her third statement to Detective Valera and Sergeant 

Jose Rodriguez on August 21, 2013, in which she again told the police "that 

[defendant] said that he poked Chris." 

On re-cross, defendant's counsel resumed his attack on the credibility of 

Boone's second and third statements to the police. Perhaps most significantly, 

defendant's counsel elicited dramatic testimony from Boone on a second recross in which she proclaimed, "my family and I are very much aware of who 

killed my cousin. We are much aware that it was not Dana Kearney." 

Boone's Testimony About Her Payment of Defendant's Legal Fees and 

Interactions with His Counsel 

Apart from their focus on Boone's police interviews, counsel also 

developed on the record certain facts relating to Boone's payment of 

defendant's legal fees. During her redirect by the State, Boone testified she 

had previously met defendant's trial counsel "[a]t his office" about "[t]hree 

_________________

separate attorney was not defendant's counsel. In fact, as the PCR judge 

found, defendant's attorney advised Boone to obtain her own counsel. 
A-2638-22 13

times" where they discussed "[p]ayment." Boone testified that defendant's 

counsel "wouldn't talk about the facts of the case" and she did not think anyone 

had gone with her to those meetings. At the end of the redirect, the prosecutor 

elicited the following testimony from Boone: 

Q. Ms. Boone, you love [defendant], right? 

A. Yes. I love all of them actually, but yes I do love 

[defendant]. 

Q. Like you told us before, you hired Mr. Duffy to 

represent him, right? 

A. Yes. 

Q. And you're paying for his services? 

A. Yes. 

Q. And [defendant] is the father of your child, right? 

A. Yes. 

Q. And since this incident, you've spoken to him 

thousands of times. Is that fair to say? 

A. Yes. 

Q. You've seen him hundreds of occasions, right? 

A. Yes. 

Q. You don't want to see anything bad to happen to 

him, right? 

A No. 
A-2638-22 14

Q. Certainly not because of anything that you say, 

right? 

A. Exactly. 

 On re-cross, defendant's counsel asked Boone about her visits to his 

office, prompting the following exchange: 

Q. Now, the Prosecutor brought out that you have 

been to my office and that you had paid my legal fee. 

A. Yes. 

Q. When was the last time you were at my office? 

A. I don't know. I mean, I don't—maybe 2014. . . . 

Maybe 2014. Maybe possibly. A few years ago. 

. . . . 

Q. So, after you paid my legal fee, we really had no 

other direct communication? 

A. No. 

 On a second re-cross, defendant's counsel asked Boone if she was 

"coloring [her] testimony because [she] d[id]n't want anything bad to happen 

to [defendant]," to which Boone responded "No." 

 Other Witnesses 

 Other trial witnesses, including Boone's daughters, goddaughter, and 

mother's boyfriend, provided incriminating evidence regarding defendant's 
A-2638-22 15

actions. We refer in this regard to our discussion of the strength of the State's 

case in our 2020 opinion on direct appeal. Timmons, slip op. at 6-8, 23. 

 The Defense Summation 

 During his summation, defendant's counsel addressed at length Boone's 

statements to police. Counsel delved into her credibility and potential motives 

for changing her initial statement about defendant's alleged words to her on the 

day of her cousin's death. He argued Detective Carlos Rodriguez had 

pressured Boone, and that her recollection of defendant telling her that he had 

"poked" Sharp had been "manufactured" and was not credible: 

[I now turn to] [t]he handling of Alicia Boone 

by the police. All right. She's brought to the police 

station at about 3 a.m. She's placed in somewhat 

solitary confinement. Nobody could really get to her 

except the police. Once again, we return to the issue 

of statement integrity. Not only was statement 

integrity violated by allowing witnesses for at least an 

hour at the crime scene itself to talk to her, [and] her 

mother, it also was violated at police headquarters. 

 . . . . 

So let's examine Alicia's first statement to the 

police. You saw her. She was calm. She disclosed

exactly what was stated to her concerning the issue of 

what [defendant] told her about the nature of the 

injury. 

[Defendant] said he wanted to return to the 

house. Why? Chris got cut, or words to that effect. 

Chris got cut, or words to that effect. Compare that 
A-2638-22 16

with her statement some seven hours later. "I poked

Chris," or words to that effect. 

Now, [the] first statement is extremely different 

from the second statement, in what regard? Well, the 

first statement suggests facts that Alicia relied upon in 

reaching that conclusion. What were those facts? 

Glass was on the floor. In fact, Alicia indicated that 

her first reaction was that Chris must have cut himself 

on the glass on the floor. That was her initial reaction. 

Seems relatively straightforward, there's glass on the 

floor, he cut himself on that glass. Okay. 

Then we go to the second one. What did that 

demonstrate? Well, the prosecutor is going to argue to 

you that the second statement, the second statement

really was about the fact that he's mean. That was the 

point of the second statement, that he's mean? Or was 

that justification for the second statement. He's mean. 

What possible, what possible, I don't know, 

what possible statement could that be, he's mean? 

Gone was that Chris got cut, and it was replaced by I 

poked him, or words to that effect. . . . 

. . . . 

Okay. At the end of the day, you have two 

dramatically different statements. You have the 

statement "Chris got cut" or words to that effect or "I 

think I poked Chris" or words to that effect. You must 

decide which of those statements are more reliable. 

It's on you. You must decide whether or not Alicia

Boone, having sat in Perth Amboy Police Department 

for hours, changed up her statement for any other 

reason than well, [defendant]'s mean. 

Now if you believe that Chris got cut, or words 

to that effect, then your duty is obvious; you must vote 

to acquit. If you believe that Chris got cut or words to 
A-2638-22 17

that effect, presents a reasonable alternative 

explanation to the State's theory, your duty is obvious; 

you must acquit. If you believe that "I poked Chris" is 

a reasonable, well, then, what can I tell you. You've 

already convicted. 

. . . . 

Didn't you expect Sergeant [Jose] Rodriguez to 

have stopped Alicia when she changed her statement 

regarding cut versus poked and ask her why she 

changed the statement? Didn't you expect Sergeant 

[Jose] Rodriguez to question Alicia about why she 

thought she was the only member of her family not to 

go home for all those 15 hours? After all, she was

there voluntarily. Listen, I can go on for quite awhile, 

but I think at the end, you will be forced to conclude 

that the State manufactured a great deal in this case. 

[(Emphasis added).] 

2.

The PCR Proceedings and the Court's Ruling on the Conflicts Issue 

 After hearing oral argument, the PCR court issued an order and 

accompanying written decision on February 1, 2023 denying all relief apart 

from vacating court-imposed restitution. 

 The PCR court specifically rejected defendant's contention that his trial 

attorney had a disqualifying conflict of interest. The PCR court found that 

"based on th[e] limited interaction between Boone and trial counsel, it cannot 

be said that there was an actual conflict of interest. The record reflects . . . 

Boone interacted with trial counsel solely for the purpose of paying his legal 
A-2638-22 18

fees. Without more, these limited interactions did not create an actual 

conflict." Thus, "[b]ased on the totality of the circumstances, there was no per 

se conflict or improprieties as to trial counsel's responsibilities towards the 

petitioner." 

 In reaching this conclusion, the PCR court observed that "[w]hile it may 

be atypical for a victim's cousin and the State's main witness to pay for the 

petitioner's legal fees, those facts alone do not create an actual conflict of 

interest." The PCR court relied on the following series of pivotal facts 

reflecting the absence of a true conflict: 

The interactions between trial counsel and 

Boone were limited in nature; arising early in the 

litigation when Boone made payments to trial counsel 

for his services. Boone is not alleged to have 

discussed the substance or case strategies with trial 

counsel. Nor did her communications with trial 

counsel extend beyond discussing payment. This case 

went on for several years, without any indication of 

further communication between Boone and trial 

counsel. Additionally, trial counsel's decision to refer 

Boone to another attorney, showcases his attempts to 

prevent any appearance of impropriety, and to a 

greater extent, any actual conflict of interest and

protect the petitioner. 

 Rejecting the alleged necessity of an evidentiary hearing, the PCR court 

found that "[t]he record below is clear relative to the issues raised in this PCR 

[and that] [w]ithout showing how the results would have been different, an 
A-2638-22 19

evidentiary hearing is not warranted."3 The PCR court further concluded that 

"[f]or the reasons addressed above as to each of his claims, the [defendant] has 

not made out a prima facie case to warrant an evidentiary hearing." 

3.

 In analyzing defendant's allegations that his trial attorney was 

compromised by Boone's payment of his legal fees, we are guided by both case 

law and principles of legal ethics. 

 General Conflict of Interest Principles Affecting Criminal Defendants 

Generally, for counsel to be "effective" under our State Constitution, 

counsel must provide the client "undivided loyalty, '"unimpaired" by 

conflicting interests.'" State v. Cottle, 194 N.J. 449, 466-67 (2008) (quoting 

State v. Norman, 151 N.J. 5, 23 (1997)). "There is no greater impairment of a 

defendant's constitutional right to counsel than that which can occur when his 

attorney is serving conflicting interests. The resulting representation may be 

more harmful than the complete absence of a lawyer." State v. Bellucci, 81 

N.J. 531, 538 (1980); accord State v. Sheika, 337 N.J. Super. 228, 244 (App. 

Div. 2001). 

3

 The PCR court also made findings rejecting defendant's claim that his 

counsel failed to provide him with adequate advice concerning his right to 

testify, which we discuss, infra, in Part II(B). 
A-2638-22 20

Even so, "a great likelihood of prejudice must be shown . . . to establish 

constitutionally defective representation of counsel." Cottle, 194 N.J. at 467-

68. The conflict must be based in fact, rather than merely create the 

appearance of impropriety. State v. Hudson, 443 N.J. Super. 276, 289 (App. 

Div. 2015) ("Disqualification must be based on an actual conflict or potential 

conflict of interest, as now defined by the RPCs.") (emphasis added). 

This court's "evaluation of an actual or apparent conflict . . . does not 

take place in a vacuum, but is, instead, highly fact specific." State v. Harvey,

176 N.J. 522, 529, (2003) (citations and internal quotation marks omitted). "In 

that respect, the [c]ourt's attention is directed to something more than a 

fanciful possibility." Ibid. "To warrant disqualification in this setting, the 

asserted conflict must have some reasonable basis." Ibid. 

Similarly in this regard, under federal law, the mere "possibility" of a 

conflict of interest "is insufficient to impugn a criminal conviction." Cuyler v. 

Sullivan, 446 U.S. 335, 350 (1980). To avoid the prejudice inquiry under 

prong two of Strickland, a defendant bringing an ineffective assistance of 

counsel claim under the Sixth Amendment must prove an "actual" rather than a 

mere "potential" conflict of interest and also that "the conflict adversely 

affected counsel's performance." Mickens v. Taylor, 535 U.S. 162, 170 

(2002). 
A-2638-22 21

To be sure, New Jersey courts have departed from their federal 

counterparts and "have exhibited a much lower tolerance for conflict-ridden 

representation under the New Jersey Constitution than federal courts have 

under the United States Constitution," and have accordingly found that "certain 

attorney conflicts render the representation per se ineffective," warranting a 

presumption of prejudice. Cottle, 194 N.J. at 470; see also State v. Drisco, 355 

N.J. Super. 283, 292 (App. Div. 2002) ("New Jersey's constitutional standard 

thus provides broader protection against conflicts than does the Federal 

Constitution."). 

Is There a Per Se Conflict? 

Under New Jersey's "two-tiered approach in analyzing whether a conflict 

of interest has deprived a defendant of his state constitutional right to the 

effective assistance of counsel," courts must first determine whether the 

alleged conflict is a "per se conflict." Cottle, 194 N.J. at 467. If a per se 

conflict is found, "prejudice is presumed in the absence of a valid waiver, and 

the reversal of a conviction is mandated." Ibid. In addition to that 

presumption, there is also a strong presumption against waiver of a defendant's 

"constitutional right to independent counsel." Bellucci, 81 N.J. at 544. 

The "per se analysis is reserved for those cases in which counsel's 

performance is so likely to prejudice the accused that it is tantamount to a 
A-2638-22 22

complete denial of counsel." Savage, 120 N.J. at 616; see also State v. Miller, 

216 N.J. 40, 70 (2013) ("[O]nly an extraordinary deprivation of the assistance 

of counsel triggers a presumption of prejudice."). For a conflict of interest to 

trigger a per se deprivation of the right to counsel there must be an "overriding 

concern of divided loyalties." Cottle, 194 N.J. at 467 n.8. For these reasons, 

our Supreme Court "has never presumed prejudice . . . in a situation . . . in 

which the defendant was represented by competent counsel with no conflict of 

interest." Miller, 216 N.J. at 60-61. 

Courts have generally "limited the per se conflict on constitutional 

grounds to cases in which 'a private attorney, or any lawyer associated with 

that attorney, is involved in simultaneous dual representations of 

codefendants.'" Cottle, 194 N.J. at 467 (quoting Norman, 151 N.J. at 24-25). 

See, e.g., State ex rel. S.G., 175 N.J. 132, 134-35 (2003) (holding that a law 

firm's simultaneous representation of a shooting suspect and the estate of the 

shooting victim constituted an unwaivable conflict of interest); State v. 

Murray, 162 N.J. 240, 250 (2000) (holding that the defendant made a prima 

facie showing of a per se conflict warranting an evidentiary hearing, where the 

attorneys for defendant and a codefendant shared "office space and a phone 

number"); Bellucci, 81 N.J. at 544 ("Whenever the same counsel including 

partners or office associates represents more than one [co]defendant, both the 
A-2638-22 23

attorney and the trial court must explain the possible consequences of joint 

representation to each defendant."). Here, that particular situation did not exist 

because defendant's two codefendants had their own attorneys. 

 Given these principles, we must consider whether the payment of 

defendant's legal fees by a person who is called as a witness for the 

prosecution should be regarded inherently as creating a per se conflict. That 

leads us to consider principles of legal ethics that address the payment of a 

client's legal fees by a third party. 

Payment by Third Parties 

Under New Jersey's Rules of Professional Conduct (the "RPCs"), 

"lawyer[s] shall not accept compensation for representing a client from one 

other than the client unless: (1) the client gives informed consent; (2) there is 

no interference with the lawyer's independence of professional judgment or 

with the lawyer-client relationship; and (3) information relating to 

representation of a client is protected." RPC 1.8(f). 

Our Supreme Court has noted that "RPC 1.8(f) does not exist in a 

vacuum: two other RPCs directly touch on the question presented." In re 

State Grand Jury Investigation, 200 N.J. 481, 494 (2009). "First, RPC 1.7(a) . 

. . recognizes '[a] concurrent conflict of interest . . . if: . . . there is a 

significant risk that the representation of one or more clients will be materially 
A-2638-22 24

limited by the lawyer's responsibilities to . . . a third person or by a personal 

interest of the lawyer." Ibid. (quoting RPC 1.7(a)(2)). "Second, RPC 5.4(c) 

provides that '[a] lawyer shall not permit a person who recommends, employs, 

or pays the lawyer to render legal services for another to direct or regulate the 

lawyer's professional judgment in rendering such legal services.'" Ibid. 

In In re State Grand Jury Investigation, the Court found that "[a] 

synthesis of RPCs 1.7(a)(2), 1.8(f) and 5.4(c) yield[ed] a salutary, yet practical 

principle: a lawyer may represent a client but accept payment, directly or 

indirectly, from a third party provided each of the six conditions is satisfied." 

200 N.J. at 495. Those six conditions are: 

(1) The informed consent of the client is secured. In 

this regard, "'[i]nformed consent' is defined as the 

agreement by a person to a proposed course of 

conduct after the lawyer has communicated adequate 

information and explanation about the material risks 

of and reasonably available alternatives to the 

proposed course of conduct." 

(2) The third-party payer is prohibited from, in any 

way, directing, regulating or interfering with the 

lawyer's professional judgment in representing his 

client. . . . 

(3) There cannot be any current attorney-client 

relationship between the lawyer and the third-party

payer. 

(4) The lawyer is prohibited from communicating with 

the third-party payer concerning the substance of the 

representation of his client. . . . 
A-2638-22 25

(5) The third-party payer shall process and pay all

such invoices within the regular course of its business, 

consistent with manner, speed and frequency it pays

its own counsel. 

(6) Once a third-party payer commits to pay for the

representation of another, the third-party payer shall 

not be relieved of its continuing obligations to pay 

without leave of court brought on prior written notice 

to the lawyer and the client. . . . 

[Id. at 498-97 (internal citations omitted).] 

 The last five of these six conditions were clearly not violated here. As 

the PCR court found, Boone did not direct or interfere with defendant's 

counsel's representation of his client. Nor is there evidence she communicated 

with his counsel concerning the substance of the case. As described by Boone 

in her testimony, she had three meetings with counsel at the outset of his work 

to discuss and arrange payment, and that was essentially the end of their 

contact. No billing disputes or payment problems were identified. And 

defendant's counsel had no attorney-client relationship with Boone. To the 

contrary, as the PCR court found, defendant's counsel recommended Boone 

secure her own attorney to represent her interests—which she did. 

 As to the first condition concerning defendant's informed consent, we 

acknowledge the record contains no documentation of such express consent. 

Defendant alleges in his petition that counsel "never advised him or sought a 
A-2638-22 26

waiver" of a potential conflict.4 Because defendant's counsel is now deceased, 

the veracity of that claim cannot realistically be disproved. 

But we decline to hinge a finding of a per se conflict and constitutional 

violation upon such a "bald assertion." See Cummings, 321 N.J. Super. at 170. 

We reach that conclusion for several reasons. First and foremost, the noncompliance with an ethics requirement, while relevant, does not automatically 

trigger per se civil or criminal consequences. Baxt v. Lilola, 155 N.J. 190, 

197-98 (1998). Second, it is readily inferable from the record that defendant 

must have been fully aware that his co-parent Boone had paid his legal fees, as 

was adduced in open court by Boone's trial testimony. Third, counsel's 

behavior, as we will discuss in more detail, demonstrated that he acted as a 

zealous advocate of defendant's interests and exhibited loyalty to his client. 

See RPC 1.7; Cottle, 194 N.J. at 463. Counsel advocated fiercely to negate 

Boone's second and third police statements about defendant "poking" the 

victim. He elicited extremely favorable testimony from her attesting that she 

did not believe defendant killed Sharp. Any conceivable division of counsel's 

4

 Notably, defendant does not claim he was unaware that Boone was paying 

his defense counsel's fees. And when the State brought out in Boone's trial 

testimony that she had paid the fees, and defendant's counsel adduced further 

information about the fee arrangement in cross-examination, the transcript 

lacks any indication that defendant was surprised by this disclosure to the jury 

or that he sought a mistrial. 
A-2638-22 27

loyalties that could be the subject of a waiver was, in retrospect, purely 

hypothetical. 

We take judicial notice it is not unusual that a defendant's family and 

friends will pay a private defense lawyer's fees to represent a loved one or 

close acquaintance who is accused of a crime. Such private defense counsel 

perform a vital institutional role in supplementing the services provided by the 

Office of the Public Defender to clients who personally cannot afford counsel. 

In a few instances, as here, that payer may also be a potential fact witness for 

the State at the ensuing criminal trial. We discern no per se constitutional 

prohibition on such fee arrangements if they are disclosed and with the assent 

of the defendant and where the counsel's vigorous representation of the client 

is not being materially limited by the payer. 

That said, going forward, we recommend that private criminal defense 

counsel document the client's informed consent with a written 

acknowledgment or some other recorded means at the time the fee arrangement 

is made. See RPC 1.8(f)(1). There may, of course, be instances in which the 

payer's testimony for the State is anticipated to be so hostile to a defendant's 

interests that the lawyer is, in fact, materially limited. This is not one of them. 

We also reject any notion that defendant's counsel here was materially 

limited by the fact that Boone paid his legal fees. The record contains not a 
A-2638-22 28

shred of evidence that defendant's counsel was restrained by Boone in his 

advocacy of his client. There are no indicia that counsel was timid in his 

repeated cross-examinations of Boone. To the contrary, he vigorously 

endeavored to show the critical portions of her second and third police 

statements were not truthful. 

Actual Conflict Analysis 

Having concluded that there was no per se conflict here, case law 

instructs us that "the potential or actual conflict of interest must be evaluated 

and, if significant, a great likelihood of prejudice must be shown in that 

particular case to establish constitutionally defective representation of 

counsel." Norman, 151 N.J. at 25 (emphasis added); accord Cottle, 94 N.J. at 

467-68 (quoting same). In this non-per se context, prejudice is not presumed. 

Norman, 151 N.J. at 25. 

A "great likelihood of prejudice" is itself a lower standard than prong 

two of the Strickland test, which requires showing that counsel's errors 

actually "prejudiced defendant." Fritz, 105 N.J. at 66. "If [such] a great 

likelihood of prejudice is found, then we presume that actual prejudice has 

resulted in constitutionally defective representation." Drisco, 355 N.J. Super. 

at 292-93.
A-2638-22 29

For reasons we have already canvassed, there was no actual conflict of 

interest here, and certainly no "great likelihood of prejudice." See Fritz, 105 

N.J. at 66. We repeat that defendant's counsel advocated his interests 

forcefully. Counsel stridently endeavored to undermine the incriminating 

portions of Boone's police statements. His lengthy parries in Boone's crossexamination prompted the State to respond with extensive questioning on 

redirect. He spotlighted the problems in the State's case in a forceful 

summation. 

We realize counsel's strategic efforts failed in the end, given the 

strengths of the State's other proofs, which we noted on direct appeal. But, as 

case law instructs, trial counsel's strategic choices, even if they fail, are 

generally inadequate to establish constitutional ineffectiveness. Marshall, 123 

N.J. at 165; Sheika, 337 N.J. Super. at 243.

To sum it up, we affirm the PCR court's sound rejection of defendant's 

conflict of interest argument. No evidentiary hearing on the issue was required 

in these circumstances. State v. Preciose, 129 N.J. 451, 462-63 (1992). 

B.

 Defendant's other claim of his counsel's ineffectiveness, i.e., that he was 

allegedly deprived of adequate advice about his right to testify at trial, 

warrants little discussion. 
A-2638-22 30

 The PCR court found defendant's contention regarding his counsel's 

failure to advise him about his right to testify unavailing because "the trial 

record amply demonstrates that defendant knew he had the right to testify and 

voluntarily waived that right." The PCR court found "[a]dditionally, the 

record reflects that the [defendant] told the judge that he had adequate time to 

discuss the potential of testifying with his lawyer [and that] [f]ollowing the 

judge's questioning, the [defendant] waived his right to testify." 

The PCR court concluded that "[n]otwithstanding any alleged failure by 

trial counsel to discuss [defendant's] right to testify—which is belied by the 

[defendant's] sworn testimony that he did discuss [testifying]—the trial judge's 

voir dire was sufficient to notify the defendant of his rights, which he 

ultimately waived." 

 The PCR court further addressed the possibility of trial strategy, noting 

that "[t]he [trial] court's colloquy with [defendant] included advising the 

[defendant] that he could be cross-examined about his prior record of 

conviction." The PCR court found that "[i]t would fall within the realm of trial 

strategy decisions to avoid testifying in light of [defendant's] record." Citing 

the "well-established" law that counsel's "strategic choices made after 

thorough investigation of law and facts relevant to plausible options are 
A-2638-22 31

virtually unchallengeable," the PCR court found that "without more, a trial 

strategy's failure does not render performance deficient." 

 We fully adopt these findings. Defendant's second argument is utterly 

without merit, and no evidentiary hearing about it was necessary.

III. 

 In conclusion, we affirm the trial court's dismissal of defendant's PCR 

petition for the abundant reasons we have stated. Defendant's now-deceased 

trial counsel had no per se or actual conflict of interest arising from the fee 

arrangement with Boone. Moreover, defendant was manifestly advised 

sufficiently about his right to testify. 

 Affirmed.