SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO . A

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- 17T4 STATE OF NEW JERSEY, Plaintiff

- Respondent,

v. RICHARD A. MUNOZ, Defendant

- Appellant.

_ _______________________

Submitted March 6, 2019

– Decided August 23, 2019 Before Judges Fuentes and Moynihan. On appeal from the Superior Court of New Jersey, Law Division, Hudso n County, Indictment No. 11

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- 0230. Joseph E. Krakora, Public Defender, attorney for appellant (Mark Zavotsky, Designated Counsel, on the brief). Esther Suarez, Hudson County Prosecutor, attorney for respondent (Erin M. Campbell, Ass istant Prosecutor, on the brief).
PER CURIAM NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet , this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36

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On March 1 3, 2013, d efendant Richard A. Munoz was tried before a jury over four non

- sequential days on the charges of murder, N.J.S.A. 2C:11

- 3 ( a ) (1) or (2), felony murder, N.J.S.A. 2C:11

- 3 ( a ) (3), first degree robbery, N.J.S.A. 2C:15

- 1, third degree possession of a weapon (knife) for an unlawful purpose,
N.J.S.A. 2C:39

- 4 ( d ) , and fourth degree unlawful possession of a knife , N.J.S.A. 2C:39

- 5 ( d ) . On March 23, 2013, the jury found defendant guilt y of second degree robbery as a lesser included offense of first degree armed robbery, and acquitted him of all of the remaining charges. On May 10, 2013, t he court sentenced defendant to a term of eight years, subject to an eighty

- five percent period of parole ineligibility and three years of parole supervision, as mandated by the No Early Release Act, N.J.S.A. 2C:43

- 7.2. On direct appeal, w e affirmed defendant's conviction and sentence, State
v. Munoz , No. A

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- 12 (App. Div. November 18, 2015), and the Supreme Court denied his petition for certification. State v. Munoz , 224 N.J. 247 (2016). We incorporate by reference the facts we described in our opinion a ffirming defendant's conviction. Munoz , slip op. at 2

- 5. On July 11, 2016, defendant filed a pro se post

- conviction relief (PCR) petition in which he argues the sentence imposed by the court was excessive and
that he did not receive a fair trial. The court assigned counsel to assist defendant3 A

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prosecute the petition. PCR counsel thereafter filed an amended petition arguing defendant received ineffective assistance by both trial and appellate counsel. The matter came for oral argument before Judge Martha T. Mainor on April 27, 2017. PCR counsel argued appellate counsel should have raised on direct appeal that defendant was denied a fair trial based on the trial judge's bias, as evidenced by the judge's comments and interactions with defense counsel in the presence of the jury. Judge Mainor found defendant presented sufficient grounds to warrant an evidentiary hearing pursuant to Rule 3:22

- 10(b). See State v. Preciose , 129 N.J. 451, 462

- 63 (1992). The court conducted the evidentiary hearing on Jun e 22, 2017 . T he State called defendant's appellate counsel as a witness. Defendant did not call any witnesses nor testify on his own behalf. Judge Mainor found no grounds to find ineffective assistance of
counsel and denied defendant 's PCR petition in a n oral opinion delivered from the bench. Defendant now appeals from the order of the Criminal Part raising the following arguments.

POINT I
TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO REQUEST THE JUDGE RECUSE HIMSELF FOR NUMEROUS CONTEMPT THREATS AND T HR EAT UPON DEFENSE4 A

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- 17T4 COUNSEL'S LICENSE TO PRACTICE, ALL WHICH TAINTED THE JURY AND PREVENTED COUNSEL FROM EXERCISING DE F ENDANT 'S CONSTITUTIONAL RIGHT TO CONFRONT THE WITNESS AGAINST HIM.
POINT II
APPELLATE C OUNSEL WAS INEFFECTIVE FOR NOT RAISING DEFENDANT'S CLAIM THAT TRIAL COUNSEL'S F AILURE TO OBJECT TO THE NUMEROUS COURT RULINGS AND INTERJECTIONS THROUGHOUT THE TRIAL PRODUCED A CUMULATIVE EFFECT OF BIAS WARRANTNG A MISTRIAL.
We rej ect these arguments and affirm. This court review s a claim of ineffective assistance of counsel under the two

- prong test established by the United States Supreme Court in Strickland v. Washington , 466 U.S. 668 (1984), and subsequently adopted by our Supre me Court in State v. Fritz , 105 N.J. 42, 58 (1987). First, defendant must demonstrate that defense counsel's performance was deficient. Strickland , 466 U.S. at 687

. Second, he must show there exists "a reasonable probability that, but for counsel's unpr ofessional errors, the result of the proceeding would have been different." Id. at 694. Judge Mainor conducted an evidentiary hearing where she considered the testimony of defendant's appellate counsel and found no legal basis to question
her profes siona l judgment in this case. The record developed at this hearing5 A

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supports Judge Mainor's decision to deny defendant's PCR petition. We thus affirm substantially for the reasons expressed by Judge Mainor in her oral decision delivered on June 22, 2017.
Affi rmed.