RECORD IMPOUNDED

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0273-18T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

S.P.,

Defendant-Appellant.

_____________________________

Submitted December 19, 2019 – Decided

Before Judges Nugent and DeAlmeida.

On appeal from the Superior Court of New Jersey, Law 

Division, Hudson County, Indictment No. 09-08-1483. 

Joseph E. Krakora, Public Defender, attorney for 

appellant (Amira Rahman Scurato, Designated 

Counsel, on the brief).

Esther Suarez, Hudson County Prosecutor, attorney for 

respondent (Stephanie Davis Elson, 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NOT FOR PUBLICATION WITHOUT THE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 parties in the case and its use in other cases is limited. R. 1:36-3.

February 11, 2020
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A-0273-18T4

Defendant, S.P., appeals from an order that denied his third petition for 

post-conviction relief (PCR). He argues the following points:

POINT I

THE PCR COURT ERRED IN NOT HOLDING AN

EVIDENTIARY HEARING AND IN FINDING THAT 

THE FAILURE TO CALL TWO SPECIFIC 

WITNESSES WAS NOT INEFFECTIVE 

ASSISTANCE OF COUNSEL.

A. The PCR Court Erred in Denying an

Evidentiary Hearing on This PCR Petition

When Defendant Himself Brought Forth

Evidence that PCR Counsel Assigned to 

His First PCR Failed to Investigate.

B. Trial Counsel was Clearly 

Ineffective for Failing to Interview and 

Present Two Specific Witnesses.

For the reasons that follow, we affirm. 

A jury convicted defendant of two counts each of first-degree aggravated 

sexual assault, N.J.S.A. 2C:14-2(a), second-degree sexual assault, N.J.S.A. 

2C:14-2(b), and second-degree endangering the welfare of a child, N.J.S.A. 

2C:24-4(a). For these offenses, a judge sentenced defendant to an aggregate 

thirty-year prison term subject to the No Early Release Act (NERA), N.J.S.A. 

2C:43-7.2; parole supervision for life (PSL), N.J.S.A. 2C:43-6.4; and the 

registration requirements of Megan's Law, N.J.S.A. 2C:7-2. The victims were 
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defendant's minor daughters, C.A. and J.P. Their trial testimony provides the 

context for defendant's third PCR petition and this appeal. We summarized their

testimony in our opinion rejecting defendant's direct appeal: 

C.A. testified that defendant placed his penis into 

her vagina on approximately six or seven occasions 

when she was ten- or eleven-years-old. She explained 

to the jury that on the first occasion they played hideand-seek, he took her into his bedroom, and then

defendant removed her pants and underwear and 

performed the act. She testified that "he got on top of 

me and started humping me." The other incidents 

occurred in the home too. She stated at trial that 

defendant directed her not to tell anyone and offered 

her money to keep the sexual abuse a secret. C.A. 

testified, without objection, that defendant drank beer 

when he performed some of the acts.

. . . . 

J.P. testified that defendant inserted his penis into 

her vagina when she was seven-years-old and repeated 

this conduct three times per week until she was 

approximately ten- or eleven-years-old. J.P. explained 

that most of the acts occurred in her parents' bedroom, 

where defendant directed her to remove her pants and 

underwear, but that defendant also performed these acts 

in a bathroom at a construction site where he had 

worked. J.P. also provided to the jury details of the 

sexual abuse. She testified that he used a condom and 

"moved back and forth," which caused her physical 

pain. J.P. told a friend from school about the sexual 

abuse during the time frame when defendant was 

performing the acts; J.P. informed her mother about 

what had occurred after her mother learned that 

defendant had been sexually assaulting C.A.
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[State v. S.P., No. A-3331-10 (App. Div. Oct. 4, 2013) 

(slip op. at 2-4), certif. denied, 217 N.J. 588 (2014).]

Defendant denied his daughters' allegations. He testified he worked six 

days a week as a landscaper and each working day he worked approximately 

twelve and one-half hours, from 6:30 a.m. to 7:00 p.m. Id. at 7. He claimed he 

never missed work as a result of being hung over and rarely missed work for any 

other reason. Ibid. In addition, he testified he did not spend time alone with the 

victims and never played hide-and-seek with them. Ibid. Defendant called five 

character witnesses, who testified that he was truthful, respectful, and honest. 

Ibid. The jury found the victims credible and convicted defendant of the crimes 

we have enumerated above.

In June 2014, defendant filed his first PCR petition, which the trial court 

denied without an evidentiary hearing. Defendant alleged his trial counsel 

"failed to adequately prepare. Counsel failed to call witnesses." The trial court

found defendant's petition was "factually unsupported, R. 3:22-8." State v. S.P., 

No. A-1886-14 (App. Div. July 7, 2016) (slip op. at 2), certif. denied, 229 N.J. 

160 (2017). On appeal, defendant argued:

POINT I

THE PCR COURT ERRED IN DENYING AN 

EVIDENTIARY HEARING BECAUSE THE 

DEFENDANT HAD ESTABLISHED A 
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REASONABLE LIKELIHOOD THAT HIS CLAIMS 

OF INEFFECTIVE ASSISTANCE OF COUNSEL 

WOULD ULTIMATELY SUCCEED ON THE 

MERITS.

A. Trial Counsel was Ineffective by Failing 

to Conduct an Investigation Prior to Trial 

and, as a Result, Failed to Call Favorable 

Witnesses at Trial.

B. The PCR Court Should have Conducted 

an Evidentiary Hearing on the Defendant's 

Claims.

We affirmed the trial court's denial of defendant's first PCR petition. Ibid. 

We noted defendant had "failed to specifically identify counsel's acts or 

omissions evincing a lack of preparation or supply statements from witnesses 

whose testimony would have aided his defense." Id. at 4. 

Defendant filed a second PCR petition, which the trial court dismissed on 

January 26, 2015, because defendant's appeal from his first PCR petition was 

pending. R. 3:22-6A(2). Defendant filed his third PCR petition—the subject of 

this appeal—on April 5, 2017. He alleged his trial counsel was ineffective 

because he failed to investigate two witnesses and present their testimony at 

trial. This time, he included certifications of the witnesses with his petition.

The first witness (the Construction Site Owner) co-owned the property 

that defendant's daughter, J.P., referred to in her trial testimony as the 
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"construction site" where defendant had sexually assaulted her in a bathroom. 

The Construction Site Owner explained that two houses were located on the site. 

Defendant often worked on the grounds on weekends, setting bricks and stone 

walls, and working on patios and retaining walls. He often brought his daughters 

with him. They played with her children. 

The Construction Site Owner and her husband lived in the larger house. 

Her parents lived in the smaller house—where the sexual assaults allegedly 

occurred in 2003 and 2004—from 2002 to 2008. Not only did her parents live 

in the smaller house where they were present most days and weekends, but there 

were cameras on the property used for security and surveillance. According to 

the Construction Site Owner, "[i]t is simply not possible [to commit such an 

assault] from the layout of the house, and go unnoticed." Moreover, she stated 

the children never showed signs of having been traumatized, such as sadness or 

depression; rather, they were happy, cheerful, playing with each other and with 

the dog. 

The second witness, defendant's co-worker from 1995 to 2009 (the Coworker), confirmed he and defendant did a substantial amount of work on 

weekends at the property defendant's daughter had referred to as the construction 

site. The Co-worker confirmed the site included two homes, the larger occupied
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by the Construction Site Owner, her husband, and their children, the smaller 

occupied by her parents, who passed away in 2007. These parents were at the 

smaller house "mostly every weekend." According to the Co-worker, "[n]one 

of the workers had unrestricted access to [the smaller] house, and would 

therefore be noticed going in[.]" The Co-worker further averred he "was present 

when any work was being done on that house between 2002 and 2004, and never 

saw any of [defendant's] children enter the smaller house[.]" 

The Co-worker "never saw any signs of abuse on [defendant's] children, 

and remember[ed] his daughter [J.P.] always playing with the [Construction Site 

Owner's] children and their dog. [J.P.] never looked down or depressed, or 

showed any type of behavior that would make you think that she was sad or that 

she had been abused." Rather, according to the Co-worker, J.P. was always 

happy and playing with the other children. 

The Co-worker's observations of J.P. were not limited to her activities at 

the construction site. He and defendant shared family activities, such as birthday 

parties. He never witnessed any type of behavior in defendant's children at such 

events that would indicate something was wrong, nor did he ever observe 

defendant demonstrate any behavior that would lead him to believe defendant 

was a threat to the children. 
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Because defendant alleged in his third PCR petition ineffective assistance 

of both his trial counsel and his previous PCR counsel, the trial court assigned 

counsel to assist him. Assigned counsel supplemented defendant's petition and 

submitted a letter-brief to the court. Counsel argued trial counsel had been 

ineffective for failing to interview the "exculpatory witnesses" who had 

provided the certifications. He also argued defendant was entitled to an 

evidentiary hearing because defendant's previous PCR counsel had been 

ineffective for failing to properly investigate defendant's claims and obtain 

statements from the witnesses who had not been presented at trial. He argued 

that previous appellate counsel had also been ineffective and that his petition 

was not time barred. 

The trial court denied defendant's petition in a written opinion. The court 

first considered—and rejected—defendant's argument his first PCR counsel was 

ineffective. The court found PCR counsel made appropriate arguments and 

incorporated by reference other arguments defendant had raised in his petition. 

Concerning PCR counsel's failure to call witnesses, the court noted defendant 

had raised his trial counsel's failure to call witnesses in his pro se brief and PCR 

counsel incorporated the argument by reference in his own brief. Thus, the judge 

who heard the first PCR petition had the opportunity to consider the arguments. 
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Noting that case law does not mandate PCR counsel articulate every argument 

raised by a defendant but permits counsel to incorporate arguments by reference,

and reiterating that PCR counsel incorporated defendant's argument by 

reference, the court concluded PCR counsel had effectively represented 

defendant. 

Turning to defendant's next argument, the court rejected the claims that 

trial counsel had failed to properly investigate and review the case and had 

committed errors that cumulatively denied defendant effective assistance. 

Specifically, defendant alleged trial counsel had failed to investigate and present 

at trial the Construction Site Owner and the Co-worker. The court noted 

defendant had raised the same claims in his first PCR petition and the judge that 

heard the first PCR petition had rejected these claims. Because the claims had 

been heard and rejected previously, and because defendant was not alleging that 

this was new evidence, the court rejected defendant's arguments.

The court did not stop there. Rather, the court noted that even if the 

alleged exculpatory testimony from the Construction Site Owner and the Coworker were considered new evidence, "a complete analysis of the testimony 

and its use, or lack thereof, does not warrant a finding of ineffective counsel." 

The court determined the proffered evidence did not place the integrity of 
10 A-0273-18T4

defendant's conviction in doubt. The court noted defendant failed to provide 

"any explanation or assertion that prior counsel—trial, appellate, or PCR—were 

informed of the two witnesses." Consequently, the court was unable to conclude 

whether the evidence was available at trial or not. The court rejected the 

argument because defendant had not demonstrated the proffered testimony was 

more than merely cumulative, impeaching or contradictory; nor had he shown it 

was discovered after trial and would probably change the jury's verdict. 

Concluding defendant had failed to establish a prima facie case of 

ineffective assistance, the court denied the PCR petition. This appeal followed.

To establish a PCR claim that trial counsel was constitutionally 

ineffective, a defendant must prove two elements: first, that "counsel's 

performance was deficient[,]" that is, "that counsel made errors so serious that 

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

Sixth Amendment"[;] second, that "there is a reasonable probability that, but for 

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

different." Strickland v. Washington, 466 U.S. 668, 687, 694 (1984); accord

State v. Fritz, 105 N.J. 42, 58 (1987). 

To prove the first element, a defendant must "overcome a strong 

presumption that counsel exercised reasonable professional judgment and sound 
11 A-0273-18T4

trial strategy in fulfilling his responsibilities." State v. Nash, 212 N.J. 518, 542 

(2013) (citation omitted). To prove the second element, a defendant must 

demonstrate "how specific errors of counsel undermined the reliability of the 

finding of guilt." United States v. Cronic, 466 U.S. 648, 659 n.26 (1984). 

"A petitioner must establish the right to [post-conviction] relief by a 

preponderance of the credible evidence." State v. Preciose, 129 N.J. 451, 459 

(1992). "To sustain that burden, specific facts must be alleged and articulated"

that would "provide the court with an adequate basis on which to rest its 

decision." State v. Mitchell, 126 N.J. 565, 579 (1992). A petitioner must do 

more than make bald assertions that he was denied effective assistance of 

counsel; he must allege specific facts sufficient to demonstrate counsel's alleged 

substandard performance. State v. Cummings, 321 N.J. Super. 154, 170 (App. 

Div. 1999). For example, "when a petitioner claims his trial attorney 

inadequately investigated his case, he must assert the facts that an investigation 

would have revealed, supported by affidavits or certifications based upon the 

personal knowledge of the affiant or the person making the certification." Ibid. 

This standard applies as well to a defendant's claim of ineffective assistance of 

appellate counsel. State v. Gaither, 396 N.J. Super. 508, 513 (App. Div. 2007).
12 A-0273-18T4

Whether a PCR hearing on an ineffective-assistance-of-counsel petition is 

necessary is a matter within the court's discretion. See Preciose, 129 N.J. at 462; 

see also R. 3:22-10(b) ("A defendant shall be entitled to an evidentiary hearing 

only upon the establishment of a prima facie case in support of post-conviction 

relief, a determination by the court that there are material issues of disputed fact 

that cannot be resolved by reference to the existing record, and a determination 

that an evidentiary hearing is necessary to resolve the claims for relief."). 

Here, we agree with the trial court that defendant failed to establish a 

prima facie case that his trial counsel was ineffective. Specifically, a study of 

the record confirms the trial court's observation that defendant proffered no 

competent evidence trial counsel was made aware of either the names of the 

Construction Site Owner and Co-worker or that they could offer potentially 

exculpatory evidence, assuming their statements can be so construed. In fact, in 

defendant's PCR petition, he refers to the statements of these witnesses as 

"newly discovered evidence." 

Had defendant alleged he had provided trial counsel with the names of the 

Construction Site Owner and Co-worker, or that they could provide exculpatory 

testimony, he might have been entitled to an evidentiary hearing. Indisputably,

"counsel has a duty to make 'reasonable investigations or to make a reasonable 
13 A-0273-18T4

decision that makes particular investigations unnecessary.' A failure to do so 

will render the lawyer's performance deficient." State v. Chew, 179 N.J. 186, 

205 (2004) (quoting State v. Savage, 120 N.J. 594, 617-18 (1990)). Having 

failed to present competent evidence trial counsel was made aware of the 

Construction Site Owner and Co-worker, defendant has failed to present a prima 

facie case that his trial counsel was ineffective for not investigating them and 

presenting their testimony at trial. Preciose, 129 N.J. at 459.

In view of our conclusion that defendant failed to establish a prima facie 

case that his trial counsel was ineffective, we cannot conclude his first PCR 

counsel was ineffective. To be sure, if defendant's first PCR counsel knew trial 

counsel was aware of but did not investigate two witnesses who could provide 

potentially exculpatory testimony, then first PCR counsel was obligated to 

obtain certifications or affidavits from the witnesses. Cummings, 321 N.J. 

Super. at 170. As we have discussed however, there is no evidence trial counsel 

was aware of these witnesses or, for that matter, any evidence they could have 

provided exculpatory testimony. Consequently, even if defendant could 

establish a prima facie case that his first PCR counsel violated Strickland's first 

prong by failing to conduct a reasonable investigation, he could not establish a 

prima facie case of the second Strickland prong, namely, there is a reasonable 
14 A-0273-18T4

probability that, but for the first PCR counsel's inadequate or non-existent 

investigation, the result of the first PCR proceeding would have been different. 

Strickland, 466 U.S. at 694.

Defendant's remaining arguments are without sufficient merit to warrant 

further discussion. R. 2:11-3(e)(2).

Affirmed.