SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0756-18T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

VICTOR CODY,

Defendant-Appellant.

_____________________________

Submitted April 21, 2020 – Decided May 22, 2020

Before Judges Yannotti, Currier and Firko.

On appeal from the Superior Court of New Jersey, Law 

Division, Essex County, Indictment No. 12-11-2741.

Joseph E. Krakora, Public Defender, attorney for 

appellant (Andrew P. Slowinski, Designated Counsel, 

on the brief).

Theodore N. Stephens II, Acting Essex County 

Prosecutor, attorney for respondent (Barbara A. 

Rosenkrans, Special Deputy Attorney General/Acting 

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NOT FOR PUBLICATION WITHOUT THE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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Defendant Victor Cody appeals the June 1, 2018 Law Division order 

denying his petition for post-conviction relief (PCR), claiming he received 

ineffective assistance of trial and appellate counsel. We affirm.

I.

We briefly summarize the relevant facts. Defendant was convicted of 

second-degree conspiracy to commit robbery, N.J.S.A. 2C:5-2 and N.J.S.A. 

2C:15-1(b); first-degree robbery, N.J.S.A. 2C:15-1; fourth-degree unlawful 

possession of a weapon, N.J.S.A. 2C:39-5(d); and third-degree possession of a 

weapon with an unlawful purpose, N.J.S.A. 2C:39-4(d), following a jury trial. 

The convictions arose from the robbery of Surjit Singh, an attendant at a gas 

station in Newark.

The trial court imposed a sentence of thirty-years imprisonment with an

eighty-five percent period of parole ineligibility, pursuant to the No Early 

Release Act (NERA), N.J.S.A. 2C:43-7.2, and five years of parole supervision 

upon release. The judge also imposed a discretionary extended term for 

persistent offenders. We affirmed defendant's convictions and sentence. State 

v. Cody, No. A-5204-13 (App. Div. June 20, 2016). The Supreme Court denied 

defendant's petition for certification. State v. Cody, 228 N.J. 503 (2017).
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Thereafter, on April 10, 2017, defendant filed a pro se petition for PCR 

alleging ineffective assistance of trial and appellate counsel and seeking an 

evidentiary hearing. In his petition, defendant raised the following issues:

POINT I

APPELLATE COUNSEL WAS CONSTITUTIONALLY DEFICIENT FOR FAIL[ING] TO 

RAISE AND CHALLENGE THE INADMISSIBLE 

EVIDENCE ADMITTED AGAINST APPELLANT 

THAT WAS ILLEGALLY SEIZED FROM 

PETITIONER DUE TO "FRUITS OF SUCH AN 

UNLAWFUL ARREST," WHICH VIOLATED BOTH 

THE UNITED STATES AND NEW JERSEY 

CONSTITUTIONS['] GUARANTEE [AND] THE 

RIGHT TO BE FREE FROM UNREASONABLE 

SEARCHES AND SEIZURES. U.S. CONST.

AMEND. IV, N.J. CONST. ART.1, 7.

POINT II

TRIAL COUNSEL WAS INEFFECTIVE DURING 

THE PLEA NEGOTIATIONS WHEN HE 

MISADVISED PETITIONER THAT THE VIDEO 

AND CLOTHING EVIDENCE WOULD NOT BE 

USED AGAINST HIM AT TRIAL.

Specifically, defendant asserted: (1) appellate counsel failed to argue that 

the evidence seized by the police officers effectuating his arrest, without a 

warrant and absent probable cause, should have been excluded and was not 

subject to a "good faith exception"; and (2) trial counsel was ineffective for 
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misinforming defendant that evidence obtained from him at the time of arrest 

would not be used against him at trial, leading to his rejection of a plea offer.

In support of his first contention, defendant argued that the Newark police 

officers had reasonable suspicion to stop the gold Nissan he was riding in and 

being operated by co-defendant Arthur Armstrong, but did not have probable 

cause to arrest him. An off-duty fireman, Tashon Brown, was in the gas station's 

convenience store when the robbery took place. Brown followed defendant and 

co-defendant, his brother Joseph Cody, and observed them removing their 

clothing and entering the Nissan driven by Armstrong. Brown called the police 

and gave them the license plate number and the location of the vehicle. 

Defendant claimed the evidence seized as a result of his arrest should have been 

suppressed and appellate counsel's failure to raise this argument on appeal 

constituted ineffective assistance.

Additionally, defendant asserted that his trial counsel was ineffective 

during plea negotiations because counsel advised defendant that video evidence 

would only be admissible for "show-up identification" and no other purpose at 

trial. He also claimed trial counsel led him to believe that evidence obtained at 

the time of his arrest would be inadmissible at trial because none of the witnesses 

described the clothing he wore, and the $1319 in cash found on him was almost 
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double the amount Singh said was stolen. According to defendant, if his trial 

counsel had not misled him on these proofs, he likely would have accepted the 

ten-year plea deal offered by the State instead of proceeding to trial.

Defendant was assigned PCR counsel. In addition to defendant's 

arguments, PCR counsel argued that trial counsel was ineffective for failing to 

call defendant's friend, Kim Burks, as a witness to explain the source of the 

money found on defendant and failing to object to jury instructions after the jury 

advised the trial court they were deadlocked. PCR counsel supplemented 

defendant's argument that appellate counsel was ineffective for not raising the 

above claims on appeal.

On April 16, 2018, the PCR court heard oral argument and reserved 

decision. On June 1, 2018, the PCR court issued a comprehensive, twenty-fivepage written opinion denying defendant's petition without an evidentiary 

hearing. The PCR court considered the merits of each of defendant's claims and 

found defendant failed to demonstrate that either his trial counsel or appellate 

counsel was ineffective.

The PCR court held that defendant "failed to establish a prima facie case 

in support of any claim" and "an evidentiary hearing would not aid this court in 

its decision to deny all of [defendant's] claims." The PCR court further 
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determined that some of defendant's claims were raised, addressed on the merits, 

and rejected on direct appeal.

Ultimately, the PCR court concluded defendant failed to demonstrate that 

either his trial counsel or appellate counsel was ineffective. More specifically, 

the PCR court found the restraint on defendant's liberty "arose to an 

investigative detention, rather than a custodial arrest," pursuant to Terry v. Ohio, 

392 U.S. 1 (1968). The PCR court noted that "[s]ome restraint of a suspect's 

liberty is inherent in a 'show-up'" and the detention was no longer than 

reasonably necessary to facilitate the identification process, which lasted fifteen

minutes. Therefore, the PCR court determined that defendant failed to establish 

his trial counsel was ineffective for failing to move to suppress the show-up 

identifications under Rule 3:5A.

The PCR court found defendant was not arrested until Singh identified 

him and Joseph Cody as the perpetrators. The PCR court determined that, at 

that point, the officer had probable cause to arrest defendant and the cash was 

properly seized incident to the arrest. Defendant's clothing was observed under 

the plain view exception, being visibly displayed inside the vehicle on the front 

passenger floor, when defendant and the two occupants were removed.
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The PCR court recounted that defendant fully understood the State's plea 

offer, which set forth a cutoff date. The only outstanding motion at the time the 

plea offer was made was a Wade1 motion challenging Singh's identification. On 

the pretrial memorandum signed and initialed by defendant, the PCR court found 

he acknowledged that if convicted, the sentence would be life imprisonment,

with a seventeen-year period of parole ineligibility.

The PCR court noted that had Burks testified at trial, she may have 

explained why defendant had a large sum of cash on him at the time of his arrest, 

however, her proffered explanation would not "add up." In her certification, 

Burks stated she received money from an insurance settlement and gave 

defendant $1000 to buy clothing. Singh testified only $600 to $700 was stolen 

from him. Addressing trial counsel's decision not to call Burks as a witness, the 

PCR court found that a jury could have considered the testimony as

arguably inculpatory. If [Victor Cody] needed money 

from [Burks] to buy clothing, then he had a motive to 

obtain money from any source, including [the gas 

attendant], by any method, including armed 

robbery. . . . Since her proffered testimony "cuts both 

ways"—it is consistent with both innocence and guilt—

trial counsel's decision to not use it falls within the wide 

range of presumptively reasonable professional 

assistance.

 

1

 United States v. Wade, 388 U.S. 218 (1967).
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. . . .

While larger dollar bills would be consistent with a cash 

out, lower denominations would be consistent with 

robbery proceeds.

[(Internal citation omitted).]

Moreover, the PCR court concluded that appellate counsel's failure to 

raise these claims on direct appeal did not rise to the level of ineffective 

assistance of counsel. On appeal, defendant raises the following points:

POINT I

THE PCR COURT SHOULD HAVE HELD THAT 

DEFENDANT'S RIGHT TO EFFECTIVE 

ASSISTANCE OF COUNSEL WAS VIOLATED BY 

HIS ATTORNEY'S FAILURE TO FILE A MOTION 

TO SUPPRESS ALL EVIDENCE OBTAINED AS 

THE RESULT OF AN UNLAWFUL ARREST. (U.S.

CONST., AMEND. IV, AMEND. VI; N.J. CONST.

ART. I, ¶ 10).

(a) Defendant Is Entitled To Relief Under 

Controlling Legal Principles Governing 

Petitions for Post-Conviction Relief 

Pursuant to Rule 3:22-2 et seq.

(b) Defendant Was Arrested When He Was 

Stopped, Frisked, Handcuffed, Isolated, 

Placed in the Squad Car and Transported to 

the Gas Station By Police.

POINT II
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THE PCR COURT SHOULD HAVE HELD THAT 

DEFENDANT ESTABLISHED A PRIMA FACIE 

CASE OF INEFFECTIVE ASSISTANCE DURING 

PLEA NEGOTIATIONS.

POINT III

THE PCR COURT SHOULD HAVE HELD THAT 

DEFENDANT ESTABLISHED A PRIMA FACIE 

CASE OF INEFFECTIVE ASSISTANCE DUE TO 

TRIAL COUNSEL'S FAILURE TO CALL KIM 

BURKS AS A WITNESS.

POINT IV

APPELLATE COUNSEL WAS INEFFECTIVE IN 

FAILING TO RAISE THE FOURTH AMENDMENT 

VIOLATIONS ON DIRECT APPEAL.

POINT V

THE PCR COURT ERRED BY DENYING 

DEFENDANT'S REQUEST FOR AN EVIDENTIARY 

HEARING.

II.

We first turn to defendant's contention that he was denied effective 

assistance of trial counsel because his attorney did not file a motion to suppress 

evidence obtained at the time of the stop. Defendant argues he was under arrest, 

not merely detained, because he was placed against the car, patted down, 

handcuffed, and subjected to a show-up identification. We disagree.
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To prevail on a claim of ineffective assistance of counsel, a defendant 

must meet the two-prong test established in Strickland v. Washington, 466 U.S. 

668, 687 (1984), and adopted by our Supreme Court in State v. Fritz, 105 N.J. 

42, 58 (1987). The first prong of the Strickland test requires a defendant to show 

that his or her attorney's performance was deficient. Strickland, 466 U.S. at 687.

To do so, a defendant must establish that counsel's alleged acts or 

omissions fell "outside the wide range of professionally competent assistance." 

Id. at 690. This requires a showing "that counsel made errors so serious that 

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

Sixth Amendment." Id. at 687.

To satisfy the second prong of Strickland, the defendant "must show that 

the deficient performance prejudiced the defense." Ibid. The defendant must 

establish "a reasonable probability that, but for counsel's unprofessional errors, 

the result of the proceeding would have been different." Id. at 694. "These 

standards apply to claims of ineffective assistance at both the trial level and on 

appeal." State v. Guzman, 313 N.J. Super. 363, 374 (App. Div. 1998) (citations

omitted).

The test also applies to defendants who reject plea offers and go to trial, 

alleging that their decision was due to an attorney's ineffective counseling. 
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However, in these cases, specific instances of attorney ineffectiveness existed, 

such as assuring a client that the plaintiff had no proof of their case. Lafler v. 

Cooper, 566 U.S. 156, 161 (2012).

Defendant bears the burden of establishing a prima facie case. State v. 

Gaitan, 209 N.J. 339, 350 (2012). "[W]e consider [a] [defendant's] contentions 

indulgently and view the facts asserted . . . in the light most favorable to him." 

State v. Cummings, 321 N.J. Super. 154, 170 (App. Div. 1999).

In order to be entitled to an evidentiary hearing, the defendant must 

establish a prima facie claim of ineffective assistance of counsel, that there are 

material issues of disputed fact that cannot be resolved by reference to the 

existing record, and that an evidentiary hearing is necessary to resolve the claims 

for relief. R. 3:22-10(b). An evidentiary hearing shall not be granted "if an 

evidentiary hearing will not aid the court's analysis of the defendant's 

entitlement to post-conviction relief" or "if the defendant's allegations are too 

vague, conclusory or speculative." R. 3:22-10(e).

We review the legal conclusions of a PCR court de novo. State v. Harris, 

181 N.J. 391, 420 (2004) (citing Mickens-Thomas v. Vaughn, 355 F.3d 294, 303 

(3d Cir. 2004); Hakeen v. Beyer, 990 F.2d 750, 758 (3d Cir. 1993)). The de 

novo standard of review applies to mixed questions of fact and law. Ibid. Where 
12 A-0756-18T2

an evidentiary hearing has not been held, it is within our authority "to conduct a 

de novo review of both the factual findings and legal conclusions of the PCR 

court . . . ." Id. at 421. We apply that standard here.

Having carefully considered defendant's arguments, we affirm 

substantially for the reasons expressed by the PCR judge in his well-reasoned 

written opinion. We add the following comments.

Defendant's contention that the PCR court erred in rejecting the claim that 

his trial counsel was ineffective for not filing a motion to suppress evidence 

lacks merit. Here, Brown was in the gas station's convenience store when the 

robbery took place. He followed defendant and co-defendant Joseph Cody and 

saw them enter the Nissan. Brown called the police and provided them with the 

license plate number and the location of the vehicle.

The police stopped the Nissan and ordered defendant and his brother out 

of the car. The PCR court noted that defendant failed to comply with the 

officer's commands to show his hands until the officer produced a service 

weapon. Defendants were brought back to the gas station for a show-up 

identification. Singh identified defendant and his brother as the perpetrators of 

the robbery and assault fifteen minutes after the acts were committed. 
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According to Singh, defendant held him while Joseph Cody struck him with a 

metal object.

We are convinced the PCR court properly rejected defendant's argument 

and denied the petition. The record supports the PCR court's finding that 

defendant and his brother were not arrested until after Singh identified them as 

the perpetrators. They were stopped and detained on reasonable suspicion 

pending the identification procedure. The PCR court aptly found that the 

detention was no longer than reasonably necessary to facilitate the identification 

process.

We also reject defendant's argument that the PCR court erred in rejecting 

the claim that his trial counsel was ineffective by failing to accurately inform 

him of the severe sentence he faced if he turned down the plea offer. Defendant 

asserted that if his attorney had been forthright about incriminating evidence 

being admitted at trial, he would have accepted the State's plea offer and not 

proceeded to trial. He claims his attorney told him that the evidence obtained 

after his arrest would not be used against him at trial because none of the 

witnesses had described the perpetrator's clothing.

Where it is claimed that trial counsel's mistaken advice regarding potential 

sentencing exposure caused a defendant to reject a plea offer and proceed to 
14 A-0756-18T2

trial, the defendant establishes prejudice under the second prong of the 

Strickland standard by demonstrating that he would have accepted the plea offer 

if he had been aware of his sentencing exposure, that his guilty plea would have 

been accepted by the court, and that the conviction and sentence he would have 

received under the plea offer would have been less severe than those resulting 

from the trial. Lafler, 566 U.S. at 161.

As the PCR court correctly found here, defendant "fully understood the 

full extent of the plea offer before he decided to reject it." Page three of the pretrial memorandum was executed on the plea cutoff date and stated the only 

outstanding pretrial motion was the Wade hearing. Additionally, the PCR court 

noted there was no prejudice concerning defendant's understanding as to 

whether he could continue to litigate the suppression of physical evidence seized 

because "those motions lacked merit." The PCR court concluded that 

defendant's clothing was properly obtained pursuant to the plain view doctrine. 

The record supports the court's finding.

There is also no merit to defendant's contention that his trial counsel 

should have called Burks as a witness. The record supports the PCR court's 

finding that trial counsel reasonably decided, as a matter of trial strategy, not to 

call Burks because the $1000 that she allegedly gave defendant would not have 
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explained where defendant got the other $319 found on his person. We discern 

no error.

Finally, defendant contends the PCR court wrongly rejected his claim that 

his appellate counsel was ineffective by not raising the alleged Fourth 

Amendment violations on direct appeal. We are unpersuaded by this argument. 

The PCR court determined appellate counsel was not obligated to raise a 

meritless argument, including that the investigative detention violated 

defendant's Fourth Amendment rights. The PCR court held that appellate 

counsel was not required to assert "contentions that are palpably and clearly 

unmeritorious." State v. Kyles, 132 N.J. Super. 397, 401 (App. Div. 1975). We 

are convinced that the PCR court correctly determined that defendant had not 

been denied the effective assistance of appellate counsel.

For these reasons, we conclude that defendant failed to establish a prima 

facie claim of ineffective assistance of trial counsel and appellate counsel. As 

to defendant's remaining arguments, we are convinced from our review of the 

record that they are without sufficient merit to warrant discussion in a written 

opinion. R. 2:11-3(e)(2).
16 A-0756-18T2

Accordingly, an evidentiary hearing was not necessary to resolve 

defendant's petition, and we affirm the PCR court's denial of defendant's petition 

for PCR.

Affirmed.