SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2379-20

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DEREK S. MCDONOUGH,

Defendant-Appellant.

_______________________

Submitted October 4, 2022 – Decided October 28, 2022

Before Judges Susswein and Berdote Byrne.

On appeal from the Superior Court of New Jersey, Law 

Division, Union County, Indictment No. 10-04-0441.

The Allongo Law Firm, LLC, attorneys for appellant 

(Michael S. Allongo, of counsel and on the brief; 

Falguni Patel, on the brief). 

William A. Daniel, Union County Prosecutor, attorney 

for respondent (Milton S. Leibowitz, Assistant 

Prosecutor, of counsel and on the brief). 

PER CURIAM

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the 

internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
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In this appeal of a petition for post-conviction relief (PCR) defendant 

Derek McDonough requests we consider whether he was denied effective 

assistance of trial counsel or at minimum, that he made a prima facie showing 

entitling him to an evidentiary hearing. Specifically, McDonough claims his 

counsel's performance was deficient by releasing inculpatory evidence to the 

State, failing to interview a material witness, failing to exercise defendant's right 

to a speedy trial, failing to leverage his first mistrial to secure a better plea or 

dismissal, and failing to adequately inform him of his right to testify. 

McDonough contends these cumulative errors and his counsel's failure to 

communicate with him deprived him of a fair trial.

Because we conclude McDonough failed to carry his burden to assert 

specific facts demonstrating counsel's performance was deficient with respect to 

any of the claims raised or that he experienced prejudice as a result, we affirm 

substantially for the reasons set forth by Judge John M. Deitch in his wellreasoned, twenty-four-page written opinion. The facts and procedural history 

leading to defendant's conviction are set forth in our earlier opinion affirming 

McDonough's conviction and sentence, State v. McDonough (McDonough I), 

Nos. A-4901-11, A-0525-12 (App. Div. Mar. 5, 2015) (slip op. at 5-7), certif. 
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denied, 224 N.J. 245 (2016), and we incorporate them here by reference. We add 

the following comments. 

McDonough was alleged to have contacted and met with B.B., a thirteenyear-old girl, on multiple occasions, penetrating her and having her fellate him. 

B.B.'s nanny met him once, questioned whether he was seventeen years old, and 

asked to see his driver's license, at which point she learned he was twenty-eight 

years old and told B.B.'s parents. Defendant gave a videotaped confession and 

consent to have his computers taken by police.1 After defendant was initially 

charged, defendant made further contact with B.B., asking her to not appear at 

trial. B.B. also sent him naked photos at his request. B.B.'s parents found the 

flash drive containing the photos and gave it to defendant's attorney. The 

victim's parents testified about the flash drive before the grand jury, at which 

point the State became aware of its existence and obtained a warrant to gain 

possession of the flash drive from defendant's attorney. 

At trial, defendant did not testify or present witnesses. On the record, 

defense counsel stated he spoke with defendant about testifying many times over 

the course of several years and defendant was steadfast in asserting he did not 

1

 Defendant's counsel filed a suppression motion regarding the confession, 

which was denied.
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want to testify. In response to a detailed colloquy by the trial judge, defendant 

confirmed he signed his waiver to testify form after discussing his rights with 

his attorney and understanding his rights. 

The first trial resulted in a mistrial when B.B. inadvertently testified 

defendant had been incarcerated before. After a second trial, defendant was 

convicted of having committed fourth-degree criminal sexual contact and thirddegree witness tampering. The jury acquitted defendant of second-degree 

endangering the welfare of a child and third-degree promoting obscene material. 

The jury was unable to render a verdict on second-degree sexual assault, seconddegree luring, and third-degree endangering the welfare of a child. Defendant 

was sentenced to five-and-one-half years, subject to a two-year period of parole 

ineligibility. 

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

of the credible evidence, he is entitled to the requested relief. State v. Echols, 

199 N.J. 344, 357 (2009). To sustain this burden, the petitioner must allege and 

articulate specific facts "which, if believed, would provide the court with an 

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

579 (1992).
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Both the Sixth Amendment of the United States Constitution and Article 

1, Paragraph 10 of our State Constitution guarantee the right to effective 

assistance of counsel at all stages of criminal proceedings. Strickland v. 

Washington, 466 U.S. 668, 686; State v. Fritz, 105 N.J. 42, 58 (1987). Our 

Supreme Court has adopted the two-part test articulated in Strickland to 

determine whether a defendant has received ineffective assistance of counsel. 

Fritz, 105 N.J. at 58. A defendant may seek PCR pursuant to this standard if the 

defendant shows (1) "[defendant's] counsel's performance was deficient[,]" and 

(2) this "deficient performance prejudiced the defense." Id. at 52 (quoting 

Strickland, 466 U.S. at 687).

Firstly, a defendant must demonstrate "counsel made errors so serious that 

counsel was not functioning as the 'counsel' guaranteed the defendant by the 

Sixth Amendment." Strickland, 466 U.S. at 687. Reviewing courts employ a 

"strong presumption that counsel's conduct falls within the wide range of 

reasonable professional assistance." Id. at 689. 

Secondly, the defendant must demonstrate "counsel's errors were so 

serious as to deprive the defendant of a fair trial, a trial whose result is reliable." 

Id. at 687. This second prong is particularly demanding and requires "the error 

committed must be so serious as to undermine the court's confidence in the jury's 
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verdict or the result reached." State v. Allegro, 193 N.J. 352, 367 (2008) 

(quoting State v. Castagna, 187 N.J. 293, 315 (2006)). This "is an exacting 

standard." State v. Gideon, 244 N.J. 538, 551 (2021) (quoting Allegro, 193 N.J. 

at 367). "Prejudice is not to be presumed" but must be affirmatively proven by 

the defendant. Gideon, 244 N.J. at 551.

Short of obtaining immediate relief, a defendant may seek to show an 

evidentiary hearing is warranted to develop the factual record in connection with 

an ineffective assistance claim. State v. Preciose, 129 N.J. 451, 462 (1992). 

"Although [Rule] 3:22-1 does not require evidentiary hearings to be held on 

[PCR] petitions, [Rule] 3:22-10 recognizes judicial discretion to conduct such 

hearings." Ibid. The PCR court should grant an evidentiary hearing only if: (1) 

a defendant is able to prove a prima facie case of ineffective assistance of 

counsel; (2) there are material issues of disputed fact that must be resolved with 

evidence outside of the record; and (3) the hearing is necessary to resolve the 

claims for relief. Ibid.; R. 3:22-10(b). In considering the first factor, a PCR 

judge "should view the facts in the light most favorable to a defendant to 

determine whether a defendant" has "demonstrate[d] the reasonable likelihood 

of succeeding under the [Strickland/Fritz test]." Id. at 463. 
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Therefore, to establish a prima facie case of ineffective assistance of counsel, 

a defendant "must do more than make bald assertions" that his counsel's performance 

was substandard. State v. Porter, 216 N.J. 343, 355 (2013) (quoting State v. 

Cummings, 321 N.J. Super. 154, 170 (App. Div. 1999)). "Rather, [a] defendant 

must allege specific facts and evidence supporting his allegations." Porter, 216 N.J. 

at 355. Moreover, "a defendant is not entitled to an evidentiary hearing if the 

'allegations are too vague, conclusory, or speculative.'" Ibid. (quoting State v. 

Marshall, 148 N.J. 89, 158 (1997)). 

Defendant claims his counsel rendered ineffective assistance by turning 

over a flash drive that contained nude photos of the victim pursuant to a 

subpoena. As Judge Deitch correctly found, that claim is procedurally barred 

because it was adjudicated on direct appeal. A petition for PCR is not a 

substitute for a direct appeal. "[A] defendant may not employ [PCR] to assert a 

new claim that could have been raised on direct appeal, Rule 3:22-4, or to 

relitigate a claim already decided on the merits, Rule 3:22-5." State v. Goodwin, 

173 N.J. 583, 593 (2002). Claims that are "identical or substantially equivalent" 

to the claim previously adjudicated are barred. State v. McQuaid, 147 N.J. 464, 

484 (1997). However, courts may review previously adjudicated claims if some 

miscarriage of justice is evident. See, e.g., State v. Nash, 212 N.J. 518, 546 
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(2013) (reviewing a matter previously litigated where newly discovered 

evidence entitled defendant to new trial); State v. Berisha, 458 N.J. Super. 105, 

115 (App. Div. 2019) (reviewing a matter previously litigated that was 

"demonstrably erroneous" because the opinion was inconsistent). 

This issue was specifically adjudicated on direct appeal. McDonough's 

petition for PCR is not a substitute for a motion for reconsideration or a petition 

for certification, which he filed, and our Supreme Court denied. McDonough 

contends both the PCR judge and the Appellate Division failed to appreciate the 

"permeable effect" the flash drive had on the entire trial, and his trial counsel 

should not have used it to invoke the victim's promiscuity. However, a victim's 

promiscuity is a defense to endangering the welfare of a minor, N.J.S.A. 2C:24-

4(a), where an element is that defendant's conduct "would impair or debauch the 

morals of the child. . . " Cf. State v. R.Y., 242 N.J. 48, 65 (2020) 

(acknowledging "the victim's past sexual conduct" could "cast the victim as 

promiscuous or of low moral character" (quoting State v. Garron, 177 N.J. 147, 

165 (2003))). Counsel's strategy in maintaining that position was successful as 

the jury could not reach a verdict on that charge. 

McDonough's reliance upon State v. Ravi, 447 N.J. Super. 261 (App. Div. 

2016) in misplaced. In Ravi, the defendant was convicted of multiple counts of 
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bias intimidation pursuant to N.J.S.A. 2C:16-1(a)(3). Ravi, 447 N.J. Super. at 

266. Following the defendant's conviction, the bias intimidation crimes 

contained in N.J.S.A. 2C:16-1(a)(3) were declared unconstitutional by the 

Supreme Court in State v. Pomianek, 221 N.J. 66 (2015) because one of the 

elements improperly focused "on the victim's perception and not the defendant's 

intent." Ravi, 447 N.J. Super. at 289 (quoting Pomianek, 221 N.J. at 70). 

In contrast, no injustice is evident from the record before us because there 

is no proof the flash drive evidence had a "permeable effect" on the trial. Unlike 

Ravi, the nude photos on the flash drive were not relevant to the charges 

McDonough was ultimately convicted of, and the State only mentioned this 

evidence once during summation. Judge Deitch's finding that McDonough's 

claim regarding counsel's release of the flash drive was procedurally barred was 

correct.

With respect to the failure to investigate a material witness, the trial court 

properly found McDonough had failed to present a certification from the nanny 

or any evidence her testimony would be exculpatory and not cumulative, given 

his confession and the victim's testimony. Likewise, the trial court correctly 

found the significant delay in reaching trial was largely caused by defendant's 

own motions and interlocutory appeal, and he was not denied a speedy trial. The 
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trial court also properly concluded a mistrial was necessary and McDonough 

had voluntarily and knowingly waived his right to testify.

In sum, we affirm Judge Deitch's denial of post-conviction relief and find 

he adequately addressed McDonough's remaining claims in his well-reasoned 

and thorough written opinion. Those claims, therefore, do not merit further 

consideration pursuant to Rule 2:11-3(e)(2). 

Affirmed.