SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION DOCKET NO. A-0650- 22 STATE OF NEW JERSEY, Plaintiff-Respondent,

v. YO HER JIMENEZ, a/k/a YOHER A. CUBILLOS, 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, Bergen County, Indictment No. 11- 07

- 1355. Jennifer Nicole Sellitti, Public Defender, attorney for appellant (Frank M. Gennaro, Designated Counsel, on the brief). Mark Musella, Bergen County Prosecutor, attorney fo r respondent (William P. Miller, 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PER CURIAM NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court.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 parti es in the case and its use in other cases is limite d. R. 1:36- 3.2 A- 0650

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Defendant Yoher Jimenez appeals from a Law Division orde r denying his petition for post-conviction relief (PCR) without a n evidentiary hearing. We

affirm.

I. We incorporate herein the procedural history and f acts set forth in our decision affirming defendant's conviction and sentence on direct appeal in State v. Jimenez, No. A-5560-16 (App. Div. Jun. 17, 2020) , certif. denied, 244 N.J. 303 (2020). The following facts are pertinent to t he present appeal.

The victim in this case was a thirteen-month-old b aby girl. Id. at 3. Defendant was in a relationship with the baby's mot her, who left the child in defendant's care on April 4, 2010. Defendant claim ed at trial that he placed the

child in a bathtub full of water while he retrieved some boxes from his car. Ibid. When he returned, he found the baby face down in th e tub. Ibid. He removed her from the tub, dried and dressed her, and took h er to the superintendent of the apartment building for help. Ibid. EMTs arrived and transported the baby to the hospital, where she remained on life support fo r four days before dying. Ibid. Defendant alleged that the child's death was accide ntal and that she "died from

her submersion in the bathtub water." Ibid.3 A- 0650

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The State's trial evidence told a different story. The medical examiner performed an autopsy that revealed the child had fi fteen rib fractures, two of

which were fresh. Ibid. The medical examiner brought in an expert neuropathologist to review the case after the medic al examiners discovered that the child's brain was swollen and that "[t]here was an odd cluster of blood vessels on the top surface of [her] skull[.]" Id. at 3- 4. The neuropathologist found that the child's brain swelling "indicat[ed] a deprivation of oxygen or blood supply." Id. at 4. The expert found signs of prior brain trauma, which was not related to the ch ild's death. Id. at 4-5. When he examined the child's spinal cord, the expert fou nd that it had been crushed.

Id. at 5-6. Once that crush injury occurred, the baby wa s no longer able to

breathe. Id. at 6. Thus, the baby's "submersion in water had no r elevance whatsoever to [the child's] death once the crush in jury to the spinal cord occurred[.]" Ibid. The neuropathologist opined that the spinal cord injury was unquestionably the actua l cause of death. He deduced a powerful force must h ave been inflicted such that [the child's] head was suddenly moved ('hyper-flexed') far backward or far forward in a way that caused the bones of her spine to move agai nst one another. Such a high cervical spinal cord inju ry is almost always fatal.4 A- 0650

- 22 [Id. at 6-7.]

The medical examiner "issued a death certificate li sting the cause of death as acute cervical spinal cord injury and the manner of death as homicide." Id. at 7. In a statement to police, defendant claimed that he was "pla ying" with the child in the bathtub. He admitted he held the baby by her feet and repeatedly

forced her head under the water. The child then hit her head on either the faucet

or the tub bottom. Defendant demonstrated his acti ons using a doll the police provided him. After "playing" with the infant in t his fashion, defendant stated the baby looked like "she was about to go to sleep. " Defendant claimed he took the child to the bedroom, and h e demonstrated for the police how he threw her body onto the mattr ess. He drove the heel of his

hand "real hard" into the child's stomach. Defenda nt told the police that when the child turned purple, he went for help. During the interview, defendant admitted that he ha d previously hit the child. He also gave

varying accounts of how [the child] came to be critically unresponsive while in his sole care to: the building superintendent, the EMTs and police who responded to a 911 call, a detective at the hospita l at which [the child] was treated, detectives during defendant's statement taken at the Prosecutor's Off ice, [the child's] mother, and at trial.5 A- 0650

- 22 [Id. at 30.] On direct appeal, defendant raised the same ineffe ctive assistance of counsel argument that he presents in the matter at hand. He asserted his trial attorney was ineffective because he did not "subpoe na Dr. Zhongxue Hua, a forensic pathologist, whose trial testimony would h ave buttressed defendant's defense that [the child] drowned while he left her alone in the bathtub, countering the State's evidence as to her cause of death." Id. at 7-8. Finding that this issue would be better addressed through a petition for PCR, we declined

to consider defendant's ineffectiveness of counsel argument in our decision on direct appeal. Id. at 15. However, we set forth the facts underlying defenda nt's claim of ineffective assistance of counsel in our opinion. Id. at 8-15. The parties are fully familiar with these facts and, therefore, we need only brief ly summarize them here. Defendant's prior attorney retained Hua sometime i n 2013. Id. at 8. However, in 2016, the attorney advised the court th at he had decided not to use Hua as an expert. Id. at 9. A few months later, defendant hired a new atto rney for the trial.6 A- 0650

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Just before the trial began in January 2017, defen dant's trial attorney listed

Hua on his witness list. Ibid. However, the attorney did not provide Hua's report to the State until jury selection had begun. Id. at 10. Hua supplied a

summary report, which the trial court later characterized as a net opinion[.] [The summary report] synopsized the doctor's review:

1. [The baby's] cause of death was due to her drowning on April 4, 2010.

2. Her eventual brain death with global brain and spinal hypoxic ischemia changes on [April 8, 2010] was due to her prolonged cardiopulmonary arrest on [April 4, 2010].

3. The autopsy described discoloration of outer table of left parietal skull was due to her medical treatment and/or resuscitation.

4. [The baby's] rib fractures and healed subdural membrane were not related to . . . her cardiopulmonary . . . arrest on [April 4, 2010] and her subsequent death.

5. [T he baby] had no evidence of fatal trauma on her head and neck on [April 4, 2010]. [Id. at 10 -11.] However, defendant's trial counsel never called Hu a as a witness at the trial. The attorney advised that there was a dispu te between Hua and the Office

of the Public Defender over the doctor's fee. Id. at 12. In addition, the attorney7 A- 0650

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stated that Hua had scheduling issues which prevent ed him from testifying. Id.

at 12 -13. And, as already mentioned, the trial court de termined that Hua's report was an inadmissible net opinion. Id. at 10. The jury convicted defendant of first-degree murde r, second-degree endangering the welfare of a child, and third-degre e hindering apprehension or prosecution. Id. at 1. The trial court sentenced defendant to an aggr egate term of life in prison, subject to the No Early Release Act, N.J.S.A. 2C:43-7.2. Ibid.

We affirmed defendant's convictions and sentence on direct appeal. Id. at 2.

II. Defendant filed a timely petition for PCR. Among other things, defendant again argued that his trial attorney was ineffectiv e because he failed to call Hua as a witness at trial. Defendant argued that his a ttorney's failure to subpoena Hua prevented him from presenting a complete defens e. Following oral argument, the PCR judge rendered a thorough written decision, concluding that defendant did not satisfy the two-prong test of Strickland v. 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.8 A- 0650

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The PCR judge identified the issue to be decided as "whether Dr. Hua's testimony was such that, in its absence, defendant was unable to present a defense and the jury received only a partial presen tation of facts." In answering this question in the negative, the PCR judge agreed with the trial court that Hua's summary report was "an inadmissible net opinion." Therefore, the judge found that the trial court would not have permitted Hua t o testify even if defendant's trial attorney had subpoenaed him to do so. 1

1 This ruling was clearly correct. Expert opinions m ust "be grounded in 'facts or data derived from[:] (1) the expert's personal observations, or (2) evidence admitted at the trial, or (3) data relied upon by t he expert which is not necessarily admissible in evidence but which is the type of dat a normally relied upon by experts.'" Townsend v. Pierre, 221 N.J. 36, 53 (20 15) (quoting Polzo v. Cty. of Essex (Polzo I), 196 N.J. 569, 583 (2008)). "The net opini on rule is a 'corollary of [N.J.R.E. 703] . . . which forbids the admission into evidence of an expert's conclusions that are not supported by factual eviden ce or other data.'" Id. at 53- 54 (alteration in original) (quoting Polzo I, 196 N .J. at 583). Therefore, an expert is required to "'give the why and wherefore' that supports the opinion, 'rather than a mere conclusio n.'" Id. at 54 (quoting Borough of Saddle River v. 66 E. Allendale, L.L.C., 216 N.J. 115, 144 (2013)). The net opinion rule directs that experts "be able to identify the factual bases for their conclusions, explain their methodology, and d emonstrate that both the factual bases and the methodology are reliable." Id. at 55 (quoting Landrigan v. Celotex Corp., 127 N.J. 404, 417 (1992)). In short , the net opinion rule is "a prohibition against speculative testimony." Harte v . Hand, 433 N.J. Super. 457, 465 (App. Div. 2013) (quoting Grzanka v. Pfeifer, 3 01 N.J. Super. 563, 580 (App. Div. 1997) ).9 A- 0650

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Just as importantly, the PCR judge found that even if Hua's net opinion had been permitted in evidence, it would not have c hanged the result of the trial. This is so because Hua's summary conclusions did no t contradict the conclusions of the State's experts. For example, Hua opined that the baby's death was d ue to drowning. However, Hua did not respond or address the State's neuropathologist's finding that the crushed spinal cord was the actual cause o f death. The PCR judge stated, "More strikingly, however, a finding that [the baby ] died of drowning (rather than a crush injury) does little to rebut the State 's case- in -chief that the defendant brutally beat and murdered" the baby. The judge fu rther explained:

Whether [the child] died of drowning or injury to h er spinal cord has little bearing on this underlying argument. While defendant may have tried to utiliz e this alternate cause of death as a means to establi sh [the baby's] accidental death (contrary to murder), this court cannot readily find that such a defense would have been successful before the jury, which was presented wit h (1) defendant's confession to violently beating [th e infant] in the bathtub, even after she went limp, ( 2) evidence of [the baby's] freshly broken limbs and cr ush injury to her spinal cord, (3) evidence of [the bab y's] injuries indicating abuse, (4) defendant's admissio n of Hua's summary report failed to satisfy the requirem ents for admission. He did not explain "the factual bases for [his] conclu sions, explain [his] methodology, [or] demonstrate that both the factual bases and the methodology are reliable." Townsend , 2 21 N.J. at 55.10 A- 0650

- 22 inflicting prior harm to [the child], (5) defendant 's inconsistent explanation of the events surrounding [the infant's] death, and (6) defendant's attempt to cov er-up his actions by drying and dressing [the child] befo re seeking aid. [2] The PCR judge also rejected defendant's argument t hat his trial attorney was ineffective because he did not call another exp ert as a witness when Hua was unavailable. The judge noted that even now, "d efendant has failed to establish that there was or is an expert who would refute the opinion of the State's expert[.]" Absent such evidence, defendant was not able to establish the second prong of the Strickland test. The judge sta ted:

[T]his court declines to find that [defense counsel ] was ineffective for failing to secure Dr. Hua's appeara nce and testimony. [Defense counsel] acted reasonably in determining, as previous counsel had, not to call D r. Hua. And, even if [defense counsel] had acted unreasonably, defendant's case was not prejudiced, and the outcome was not affected, by Dr. Hua's failure to appear. III. On appeal, defendant presents the following conte ntions:

POINT ONE

2 The PCR judge also explained how none of Hua's four other summary conclusions contradicted those provided by the Stat e's expert neuropathologist and by the medical examiner.11 A- 0650

- 22 TRIAL COUNSEL'S FAILURE TO RETAIN AND PRODUCE FORENSIC PATHOLOGIST, DR. ZHONGXUE HUA, AS A DEFENSE WITNESS AT TRIAL DENIED THE DEFENDANT HIS RIGHT TO PRESENT A COMPLETE DEFENSE, AND CONSTITUTED A PRIMA FACIE CLAIM FOR [PCR].

A. THE PREVAILING LEGAL PRINCIPLES REGARDING CLAIMS FOR INEFFECTIVE ASSISTANCE OF COUNSEL, EVIDENTIARY HEARINGS AND PETITIONS FOR [PCR].

B. TRIAL COUNSEL'S NEGLECT TO ENSURE THE PRESENCE OF DR. HUA AT TRIAL, AND HIS MISREPRESENTATIONS ABOUT DR. HUA'S AVAILABILITY AS DEFENDANT'S FORENSIC PATHOLOGY EXPERT AMOUNTED TO INEFFECTIVE ASSISTANCE OF COUNSEL. When petitioning for PCR, the defendant must estab lish, 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. P reciose, 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 basi s 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 entit le the defendant to an evidentiary hearing and the defendant "must do more than make bald assertions

that he was denied the effective assistance of coun sel." State v. Cummings, 32112 A- 0650

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N.J. Super. 154, 170 (App. Div. 1999). Rather, tri al courts should grant evidentiary hearings and make a determination on th e merits only if the defendant has presented a prima facie claim of inef fective assistance, material issues of disputed facts lie outside the record, an d 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 ass istance of counsel, the defendant is obliged to show not only the particula r manner in which counsel's performance was deficient, but also that the defici ency prejudiced his right to a fair trial. Strickland, 466 U.S. at 687; State v. Fritz, 105 N.J. 42, 58 (1987). There is a strong presumption that counsel "rendere d adequate assistance and made all significant decisions in the exercise of r easonable professional judgment." Strickland, 466 U.S. at 690. Further, because prejudice is no t presumed, Fritz, 105 N.J. at 52, the defendant must demonstrate "how specific errors of counsel undermined the reliability" of th e proceeding. United States v. Cronic, 466 U.S. 648, 659 n.26 (1984). Where, as here, the defendant asserts that his atto rney failed to call a witness who would have exculpated him, he must asse rt the facts that would13 A- 0650

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have been revealed, "supported by affidavits or cer tifications based upon the personal knowledge of the affiant or the person making the ce rtification." State

v. Petrozelli, 351 N.J. Super. 14, 23 (App. Div. 2002 ) (quoting Cummings, 321 N.J. Super. at 170). When a defendant claims that trial counsel inadequately investigated his case, he must also supply certific ations supporting his claim. State v. Porter, 216 N.J. 343, 354 (2013). In additi on, deciding which witnesses to call to the stand is "an art," and we must be "h ighly deferential" to such choices. State v. Arthur, 184 N.J. 307, 321 (2005) (quoting Strickland, 466 U.S. at 689). 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 lengthy written opinion. We discern no abuse of discretion in the judge's co nsideration of the issues, or

in his decision to deny the petition without an evidentia ry hearing. We are satisfied that the trial attorney's performance was not deficient, and defendant provided nothing more than bald assertions to the c ontrary. Affirmed.