NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO.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, Assistan t 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 DVISIONA- 2638

- 22 2 postconviction relief ("PCR") without an evidentiar y hearing. He alleges his trial counsel was constitutionally ineffective in t wo respects. In this opinion we afford substantial discussion as to one of those claims: whether defendant's representation was com promised 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 def ense attorney. Defendant alleges the fee arrangement created an untenable co nflict of interest. For the reasons that follow, we affirm the PCR cour t's determination that defendant was not deprived of effective representat ion 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 d etectives

. We agree with the PCR court that the fee arrangemen t, of which defendant was surely aware, did not create a per se conflict of interest that disqualified his counsel in the circumstances prese nted. Nor has defendant shown he was actually prejudiced or subject to a gr eat likelihood of such prejudice.
I. The background facts and procedural history are de tailed in our 2020 unpublished opinion affirming the convictions of defendant and his twoA- 2638

- 22 3 codefendants, Shane Timmons and Joseph Kearney. St ate 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 fat al 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 w as present. An argument between defendant and Sharp ensued. According to t he 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 charg ed offenses. The trial court sentenced defendant to an aggregate fifty-year sent ence with a forty-year period of parole ineligibility under the No Early R elease 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 beca use 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 h is right to testify under the Fifth Amendment. The PCR judge rejected both claim s. On the conflict issue, she found no per se ethical violation in the fee ar rangement. On the Fifth Amendment issue, she was satisfied the trial transc ript clearly showed defendant agreed on the record that counsel had adv ised him of his right to testify. In his brief on appeal, defendant advances the foll owing 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 BEA- 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 relev ant legal principles to the record.
II. Our analysis applies well established standards tha t govern a criminal defendant's claims of ineffective assistance of cou nsel. Under the Sixth Amendment of the United States Constitution, a pers on accused of crimes is guaranteed the effective assistance of legal counse l 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 tha t 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 accus ed'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 perfor mance, "the test is whether counsel's conduct fell below an objective s tandard of reasonableness." State v. Savage, 120 N.J. 594, 614 (1990) (citing S trickland, 466 U.S. at 688). "[A] defendant challenging assistance of counsel mu st demonstrate thatA- 2638

- 22 6 counsel's actions were beyond the 'wide range of pr ofessionally competent assistance.'" Ibid. (quoting Strickland, 466 U.S. at 690). Courts apply a strong presumption that defense coun sel "rendered adequate assistance and made all significant decisi ons in the exercise of reasonable professional judgment." Strickland, 466 U.S. at 690. Given that presumption, "complaints 'merely of matters of tria l strategy' will not serve to ground a constitutional claim of inadequacy." Frit z, 105 N.J. at 54 (quoting State v. Williams, 39 N.J. 471, 489 (1963)); see al so State v. Echols, 199 N.J. 344, 357-59 (2009). "The quality of counsel's perf ormance cannot be fairly assessed by focusing on a handful of issues while i gnoring 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 equa te to 'sound trial strategy.'" State v. Chew, 179 N.J. 186, 203 (2004) (quoting St rickland, 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 pa rticular 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 byA- 2638

- 22 7 counsel's actions

— there must be a 'reasonable probability that, but f or counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probabili ty sufficient to undermine confidence in the outcome.'" Savage, 120 N.J. at 6 14 (quoting Strickland, 466 U.S. at 694). "[T]he ultimate focus of inquiry mus t be on the fundamental fairness of the proceeding whose result is being ch allenged." Strickland, 466 U.S. at 696. Here, as is often the case, defendant's claims of c ounsel's ineffectiveness have been asserted through a PCR petition. A defen dant 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 (20 13). To sustain that burden, the defendant must allege and articulate specific f acts that "provide the court with an adequate basis on which to rest its decisio n." State v. Mitchell, 126 N.J. 565, 579 (1992). "[B]ald assertions" of defic ient 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 ev aluating which of a defendant's various PCR claims warranted an evident iary 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. H is specific claim that his trial counsel was per se c ompromised because a prosecution witness paid his defense coun sel'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 th e 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 bega n 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 an d co-parent of her youngest child, and Sharp's cousin. Boone did not observe t he 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 Val era and Police Sergeant Jose Rodriguez interviewed Boone three tim es 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 h ours after Sharp's death. At trial, Boone acknowledged she told the police in her first interview that, shortly after the incident, defendant had tol d 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 l ater 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 [defenda nt] said he 'poked' Sharp or 'another word like that.'" Ibid. On August 21, Boone voluntarily returned to the pol ice station and gave a third statement. Ibid. She recounted in that third statement that defendan t admitted to her, "'I poked Chris.'" Ibid. Boone's Trial Testimony The State called Boone as a witness at trial, essen tially to confirm theA- 2638

- 22 10 substance of her statements to the police. The Sta te specifically elicited Boone's recounting during her second and third inte rviews that defendant told her he had "poked" Sharp. During Boone's cross-examination, defendant's couns el 1 zeroed in on the seven hours between Boone's first and second statem ents to the police. Defendant's counsel elicited testimony from Boone t hat 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 th at detective allegedly "insinuated [Boone] wasn't goi ng home." Boone agreed with counsel's query that she changed her statement regarding defendant because of that intimidation, and that "i n 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 questio ned 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 coun sel" 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 goi ng home, because all he had to say was yes or no. And that's not what he said. Boone elaborated further about her conversation wit h 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 somethin g 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 rec orded statement was played for the jury. The prosecutor then elicited testimony from Boone that she "was crying [during her second statement] becau se she was afraid of . . . [defendant]." Boone testified that, apart from tel ling 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. ThatA- 2638

- 22 12 examination on the previous day was the first time she had spoken about her interactions with, and alleged mistreatment by, Det ective Carlos Rodriguez. Boone further testified that, by comparison, both D etective Valera and Sergeant Jose Rodriguez were "very good to [her]." The prosecutor also reaffirmed with Boone her third statement to Detect ive Valera and Sergeant Jose Rodriguez on August 21, 2013, in which she aga in 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 fro m Boone on a second re cross in which she proclaimed, "my family and I are very much aware of who killed my cousin. We are much aware that it was no t 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 B oone'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 tes tified 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 l ove [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, rig ht?
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 fe e. 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 n o other direct communication?
A. No. On a second re-cross, defendant's counsel asked Bo one if she was "coloring [her] testimony because [she] d[id]n't wa nt 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'sA- 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 addresse d at length Boone's statements to police. Counsel delved into her cred ibility 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 Car los Rodriguez had pressured Boone, and that her recollection of defen dant telling her that he had "poked" Sharp had been "manufactured" and was no t credible:

[I now turn to] [t]he handling of Alicia Boone by the police. All right. She's brought to the po lice station at about 3 a.m. She's placed in somewhat solitary confinement. Nobody could really get to h er except the police. Once again, we return to the is sue of statement integrity. Not only was statement integrity violated by allowing witnesses for at lea st 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 effec t. Chris got cut, or words to that effect. Compare th atA- 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, t he first statement suggests facts that Alicia relied u pon 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 him self on the glass on the floor. That was her initial re action. 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 argu e 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 o r "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 wo rds toA- 2638

- 22 17 that effect, presents a reasonable alternative explanation to the State's theory, your duty is obv ious; you must acquit. If you believe that "I poked Chri s" 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 a while, but I think at the end, you will be forced to concl ude that the State manufactured a great deal in this ca se. [(Emphasis added).]
2. The PCR Proceedings and the Court's Ruling on the C onflicts Issue After hearing oral argument, the PCR court issued an order and accompanying written decision on February 1, 2023 d enying all relief apart from vacating court-imposed restitution. The PCR court specifically rejected defendant's co ntention that his trial attorney had a disqualifying conflict of interest. The PCR court found that "based on th[e] limited interaction between Boone a nd trial counsel, it cannot be said that there was an actual conflict of intere st. The record reflects . . . Boone interacted with trial counsel solely for the purpose of paying his legalA- 2638

- 22 18 fees. Without more, these limited interactions did not create an actual conflict." Thus, "[b]ased on the totality of the c ircumstances, there was no per se conflict or improprieties as to trial counsel's responsibilities towards the petitioner." In reaching this conclusion, the PCR court observe d that "[w]hile it may be atypical for a victim's cousin and the State's m ain witness to pay for the petitioner's legal fees, those facts alone do not c reate an actual conflict of interest." The PCR court relied on the following series of piv otal 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 counse l for his services. Boone is not alleged to have discussed the substance or case strategies with tri al counsel. Nor did her communications with trial counsel extend beyond discussing payment. This cas e went on for several years, without any indication o f further communication between Boone and trial counsel. Additionally, trial counsel's decision to refer Boone to another attorney, showcases his attempts t o 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, anA- 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 hi s claims, the [defendant] has not made out a prima facie case to warrant an evide ntiary hearing."
3. In analyzing defendant's allegations that his tria l attorney was compromised by Boone's payment of his legal fees, w e 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 th at which can occur when his attorney is serving conflicting interests. The res ulting 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 (A pp. Div. 2001).

3 The PCR court also made findings rejecting defendan t'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 s hown . . . to establish constitutionally defective representation of counse l." Cottle, 194 N.J. at 467- 68. The conflict must be based in fact, rather tha n merely create the appearance of impropriety. State v. Hudson, 443 N. J. Super. 276, 289 (App. Div. 2015) ("Disqualification must be based on an a ctual conflict or potential conflict of interest, as now defined by the RPCs.") (emphasis added). This court's "evaluation of an actual or apparent c onflict . . . does not take place in a vacuum, but is, instead, highly fac t specific." State v. Harvey , 176 N.J. 522, 529, (2003) (citations and internal quotation marks omi tted). "In that respect, the [c]ourt's attention is directed t o something more than a fanciful possibility." Ibid. "To warrant disquali fication in this setting, the asserted conflict must have some reasonable basis." Ibid. Similarly in this regard, under federal law, the me re "possibility" of a conflict of interest "is insufficient to impugn a c riminal conviction." Cuyler v. Sullivan, 446 U.S. 335, 350 (1980). To avoid the p rejudice inquiry under prong two of Strickland, a defendant bringing an in effective 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 th eir federal counterparts and "have exhibited a much lower toler ance for conflict-ridden representation under the New Jersey Constitution th an federal courts have under the United States Constitution," and have acc ordingly 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 analyzin g whether a conflict of interest has deprived a defendant of his state c onstitutional right to the effective assistance of counsel," courts must first determine whether the alleged conflict is a "per se conflict." Cottle, 1 94 N.J. at 467. If a per se conflict is found, "prejudice is presumed in the ab sence of a valid waiver, and the reversal of a conviction is mandated." Ibid. In addition to that presumption, there is also a strong presumption aga inst waiver of a defendant's "constitutional right to independent counsel." Bell ucci, 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 t hat it is tantamount to aA- 2638

- 22 22 complete denial of counsel." Savage, 120 N.J. at 6 16; see also State v. Miller , 216 N.J. 40, 70 (2013) ("[O]nly an extraordinary de privation 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 counse l 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 co unsel 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 a ny lawyer associated with that attorney, is involved in simultaneous dual rep resentations of codefendants.'" Cottle, 194 N.J. at 467 (quoting N orman, 151 N.J. at 24-25). See, e.g. , State ex rel. S.G., 175 N.J. 132, 134-35 (2003) (ho lding that a law firm's simultaneous representation of a shooting su spect 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 ev identiary hearing, where the attorneys for defendant and a codefendant shared "o ffice space and a phone number"); Bellucci, 81 N.J. at 544 ("Whenever the s ame counsel including partners or office associates represents more than one [co]defendant, both theA- 2638

- 22 23 attorney and the trial court must explain the possi ble consequences of joint representation to each defendant."). Here, that pa rticular situation did not exist because defendant' s two codefendants had their own attorneys. Given these principles, we must consider whether t he payment of defendant's legal fees by a person who is called as a witness for the prosecution should be regarded inherently as creati ng a per se conflict. That leads us to consider principles of legal ethics tha t 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 (t he "RPCs"), "lawyer[s] shall not accept compensation for repres enting 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 p rofessional judgment or with the lawyer-client relationship; and (3) inform ation 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 materiallyA- 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 ano ther to direct or regulate the lawyer's professional judgment in rendering such le gal 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) yiel d[ed] a salutary, yet practical principle: a lawyer may represent a client but acc ept 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 th e agreement by a person to a proposed course of conduct after the lawyer has communicated adequate information and explanation about the material risk s of and reasonably available alternatives to the proposed course of conduct." (2) The third-party payer is prohibited from, in an y 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 wit h the third-party payer concerning the substance of t he 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 busi ness, 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 sh all not be relieved of its continuing obligations to pa y 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 interf ere with defendant's counsel's representation of his client. Nor is the re evidence she communicated with his counsel concerning the substance of the ca se. As described by Boone in her testimony, she had three meetings with couns el at the outset of his work to discuss and arrange payment, and that was essent ially the end of their
contact. No billing disputes or payment problems were identified. And defendant's counsel had no attorney-client relation ship with Boone. To the contrary, as the PCR court found, defendant's couns el recommended Boone secure her own attorney to represent her interests

— which she did. As to the first condition concerning defendant's i nformed consent, we acknowledge the record contains no documentation of such express consent. Defendant alleges in his petition that counsel "nev er advised him or sought aA- 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 confl ict and constitutional violation upon such a "bald assertion." See Cummin gs, 321 N.J. Super. at 170. We reach that conclusion for several reasons. Firs t and foremost, the noncompliance with an ethics requirement, while releva nt, does not automatically trigger per se civil or criminal consequences. Bax t 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 testimon y. Third, counsel's behavior, as we will discuss in more detail, demons trated that he acted as a zealous advocate of defendant's interests and exhib ited loyalty to his client. See RPC 1.7; Cottle, 194 N.J. at 463. Counsel advo cated fiercely to negate Boone's second and third police statements about de fendant "poking" the victim. He elicited extremely favorable testimony from her attesting that she did not believe defendant killed Sharp. Any concei vable division of counsel's

4 Notably, defendant does not claim he was unaware th at Boone was paying his defense counsel's fees. And when the State bro ught 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-exam ination, the transcript lacks any indication that defendant was surprised b y 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 de fendant'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 person ally 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 discer n no per se constitutional prohibition on such fee arrangements if they are di sclosed and with the assent of the defendant and where the counsel's vigorous r epresentation 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 b e so hostile to a defendant's interests that the lawyer is, in fact, materially l imited. 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 aA- 2638

- 22 28 shred of evidence that defendant's counsel was rest rained 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 contr ary, he vigorously endeavored to show the critical portions of her sec ond 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 prejudic e must be shown in that particular case to establish constitutionally defec tive 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, pr ejudice 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. a t 66. "If [such] a great likelihood of prejudice is found, then we presume that actual prejudice has resulted in constitutionally defective representati on." 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 o f prejudice." See Fritz, 105 N.J. at 66. We repeat that defendant's counsel adv ocated his interests forcefully. Counsel stridently endeavored to under mine the incriminating portions of Boone's police statements. His lengthy parries in Boone's crossexamination prompted the State to respond with exte nsive questioning on redirect. He spotlighted the problems in the State 's case in a forceful summation. We realize counsel's strategic efforts failed in th e end, given the strengths of the State's other proofs, which we not ed on direct appeal. But, as case law instructs, trial counsel's strategic choic es, even if they fail, are generally inadequate to establish constitutional in effectiveness. Marshall, 123
N.J. at 165; Sheika, 337 N.J. Super. at 243. To sum it up, we affirm the PCR court's sound rejec tion of defendant's conflict of interest argument. No evidentiary hear ing 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 ineffecti veness, i.e., that he was allegedly deprived of adequate advice about his rig ht to testify at trial, warrants little discussion.A- 2638

- 22 30 The PCR court found defendant's contention regardi ng his counsel's failure to advise him about his right to testify un availing because "the trial record amply demonstrates that defendant knew he ha d the right to testify and voluntarily waived that right." The PCR court foun d "[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 rig ht to testify." The PCR court concluded that "[n]otwithstanding any alleged failure by trial counsel to discuss [defendant's] right to tes tify

— 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 [defendan t] included advising the [defendant] that he could be cross-examined about h is 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 "strategi c choices made after thorough investigation of law and facts relevant to plausible options areA- 2638

- 22 31 virtually unchallengeable," the PCR court found tha t "without more, a trial strategy's failure does not render performance defi cient." 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 dismiss al 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 i nterest arising from the fee arrangement with Boone. Moreover, defendant was ma nifestly advised sufficiently about his right to testify. Affirmed.