                        NOT FOR PUBLICATION WITHOUT THE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.




                                       SUPERIOR COURT OF NEW JERSEY
                                       APPELLATE DIVISION
                                       DOCKET NO. A-2385-15T3

STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

RAHEEM W. HARRITY, a/k/a MALIK
E. COX, RAHEEM WAFEA HARRITY,
KEITH WILLIAM, RASHEEN HARRISON,
KEITH WILLIAMS, LAMAR BATH, LAMAR
COX, LAMAR HARRISON, LAMAR D.
HARRITY, RASHEEN E. HARRISION and
MARK ANDERSON,

        Defendant-Appellant.

_______________________________

              Submitted July 5, 2017 – Decided October 19, 2017

              Before Judges Nugent and Accurso.

              On appeal from Superior Court of New Jersey,
              Law Division, Camden County, Indictment No.
              07-09-3169.

              Joseph E. Krakora, Public Defender, attorney
              for appellant (Anthony J. Veccio, Designated
              Counsel, on the brief).

              Mary Eva Colalillo, Camden County Prosecutor,
              attorney   for   respondent   (Maura    Murphy
              Sullivan, Assistant Prosecutor, of counsel and
              on the briefs).
          Appellant filed a pro se supplemental brief.

PER CURIAM

     Defendant appeals from a January 8, 2016 order that denied

his petition for post-conviction relief (PCR).     The trial court

entered the order after conducting an evidentiary hearing on some

of the issues defendant raised in his PCR petition.        For the

following reasons, we affirm.

     In June 2010, a jury found defendant guilty of two counts of

aggravated manslaughter, one count of conspiracy, and two weapons

offenses, for killing two victims in a drive-by shooting.        The

trial court merged the conspiracy count and one weapons offense

at sentencing, and sentenced defendant to serve an aggregate prison

term of life plus thirty years on the remaining counts.

     The proofs the State developed at trial to establish defendant

was the drive-by shooter included the co-defendant's testimony,

testimony of a man who heard defendant admit the shooting shortly

after it occurred, and abundant circumstantial evidence.         The

facts the State established are comprehensively detailed in our

decision on defendant's direct appeal.   We affirmed his conviction

and sentence, State v. Harrity, No. A-3060-10 (App. Div. Aug. 26,

2013), and the Supreme Court denied defendant's petition for

certification, State v. Harrity, 217 N.J. 294 (2014).


                                 2                          A-2385-15T3
     A month after the Supreme Court denied defendant's petition

for certification, defendant filed a PCR petition in which he

raised the following arguments:1

                             POINT I

          TRIAL COUNSEL PERFORMANCE WAS INADEQUATE FOR
          PRESENTING A THIRD PARTY GUILT[Y] DEFENSE,
          WITHOUT INTERVIEWING WITNESSES DANYEL MORTON,
          ANGELIMAR   VARGAS,    ANTHONY    HARRIS,   THE
          PETITIONER AND KEVIN KELLEJAN TO ASSURE, THE
          POSSIBILITY OF CREATING REASONABLE DOUBT AS
          TO, THE PETITIONER'S GUILT EXIST WITHIN THE
          AFOREMENTIONED DEFENSE, THEREBY, DEPRIVING
          THE PETITIONER OF HIS RIGHTS TO HAVE DUE
          PROCESS   AND   ASSISTANCE    OF   COUNSEL   IN
          VIOLATIONS OF ART I. PARA 10 OF THE N.J. CONST
          AND AMENDMENTS V, XIV AND VI OF THE U.S. CONST.

                             POINT II

          TRIAL COUNSEL PERFORMANCE WAS DEFICIENT FOR
          FAILING TO REQUEST A 104 AND/OR 401 HEARING
          CONCERNING THE ADMISSIBILITY AND/OR RELEVANCY
          OF THIRD PARTY GUILT EVIDENCE, THEREBY
          DEPRIVING THE PETITIONER OF HIS RIGHTS TO HAVE
          DUE PROCESS AND ASSISTANCE OF COUNSEL IN
          VIOLATIONS OF ART I. PARA 10 OF THE N.J. CONST
          AND AMENDMENTS V, XIV AND VI OF THE U.S. CONST.

                            POINT III

          TRIAL COUNSEL PERFORMANCE WAS INADEQUATE FOR
          FAILING TO INTERVIEW PETITIONER'S ALIBI
          WITNESS, THEREBY, DEPRIVING THE PETITIONER[]
          OF HIS RIGHTS TO HAVE DUE PROCESS AND
          ASSISTANCE OF COUNSEL IN VIOLATIONS OF ART I.
          PARA 10 OF THE N.J. CONST AND AMENDMENT V,
          XIV, AND VI OF THE U.S. CONST.


1
   All point headings enumerated in this opinion are taken verbatim
from defendant's PCR petition and briefs.

                                   3                        A-2385-15T3
                  POINT IV

TRIAL COUNSEL PERFORMANCE WAS DEFICIENT FOR
FAILING TO INTRODUCE THE PETITIONER'S ALIBI
WITNESS, THEREBY, DEPRIVING THE PETITIONER OF
HIS RIGHTS TO HAVE DUE PROCESS AND ASSISTANCE
OF COUNSEL IN VIOLATIONS OF ART I. PARA 10 OF
THE N.J. CONST AND AMENDMENT V, XIV AND VI OF
THE U.S. CONST.

                   POINT V

TRIAL COUNSEL PERFORMANCE WAS INADEQUATE FOR
FAILURE TO INTERVIEW REBUTTAL WITNESS (WESLEY
HUNTER), THEREBY, DEPRIVING PETITIONER OF HIS
RIGHTS TO HAVE DUE PROCESS AND ASSISTANCE OF
COUNSEL IN VIOLATIONS OF ART I. PARA 10 OF THE
N.J. CONST AND AMENDMENT V, XIV AND VI OF THE
U.S. CONST.

                  POINT VI

TRIAL COUNSELS PERFORMANCE WAS DEFICIENT FOR
FAILURE TO INTRODUCE REBUTTAL WITNESS (WESLEY
HUNTER), THEREBY, DEPRIVING PETITIONER OF HIS
RIGHTS TO HAVE DUE PROCESS AND ASSISTANCE OF
COUNSEL IN VIOLATIONS OF ART I. PARA 10 OF THE
N.J. CONST AND AMENDMENT V, XIV, AND VI OF THE
U.S. CONST.

                  POINT VII

TRIAL COUNSEL PERFORMANCE WAS DEFICIENT FOR
FAILING TO OBJECT TO INFLAMMATORY AND/OR
UNCHARGED OTHER CRIMES EVIDENCE TESTIMONY OF
ANGELIMAR VARGAS CONCERNING, HER SISTER
(MARANGELIE VARGAS) ALLEGEDLY BEING SHOT,
THEREBY, DEPRIVING THE PETITIONER OF HIS
RIGHTS TO HAVE DUE PROCESS AND ASSISTANCE OF
COUNSEL IN VIOLATIONS OF ART I. PARA 10 OF THE
N.J. CONST AND AMENDMENT V, XIV AND VI OF THE
U.S. CONST.




                      4                          A-2385-15T3
                  POINT VIII

TRIAL COUNSEL PERFORMANCE WAS INADEQUATE FOR
FAILURE TO REQUEST THE TRIAL COURT TO PROVIDE
THE   JURY   WITH   A   CURATIVE   INSTRUCTION
PERTAINING TO THE UNCHARGED OTHER CRIMES
EVIDENCE   TESTIMONY   OF   ANGELIMAR   VARGAS
CONCERNING, HER SISTER (MARANGELIE VARGAS)
ALLEGEDLY BEING SHOT, THEREBY, DEPRIVING THE
PETITIONER OF HIS RIGHTS TO HAVE DUE PROCESS
AND ASSISTANCE OF COUNSEL IN VIOLATIONS OF ART
I. PARA 10 OF THE N.J. CONST AND AMENDMENT V,
XIV, AND VI OF THE U.S. CONST.

                   POINT IX

TRIAL COUNSEL PERFORMANCE WAS INADEQUATE FOR
FAILING   TO  OBJECT   TO   THE   PROSECUTOR'S
INFLAMMATORY CLOSING REMARKS CONCERNING THE
POSSIBILITY OF ANGELIMAR VARGAS BEING SHOT,
THEREBY, DEPRIVING THE PETITIONER OF HIS
RIGHTS TO HAVE DUE PROCESS AND ASSISTANCE OF
COUNSEL IN VIOLATIONS OF ART I. PARA 10 OF THE
N.J. CONST AND AMENDMENT V, XIV, AND VI OF THE
U.S. CONST.

                   POINT X

TRIAL COUNSEL PERFORMANCE WAS DEFICIENT FOR
FAILURE TO REQUEST THE TRIAL COURT TO PROVIDE
THE   JURY   WITH   A   CURATIVE    INSTRUCTION
PERTAINING TO THE PROSECUTOR'S INFLAMMATORY
CLOSING REMARKS, CONCERNING, THE POSSIBILITY
OF ANGELIMAR VARGAS BEING SHOT, THEREBY,
DEPRIVING THE PETITIONER OF HIS RIGHTS TO HAVE
DUE PROCESS AND ASSISTANCE OF COUNSEL IN
VIOLATIONS OF ART I. PARA 10 OF THE N.J. CONST.
AND AMENDMENT V, XIV AND VI OF THE U.S. CONST.

                   POINT XI

TRIAL COUNSEL PERFORMANCE WAS DEFICIENT FOR
FAILING TO REQUEST A 104 AND/OR 403 HEARING
FOR THE PURPOSE TO EXCLUDE PREJUDICIAL
TESTIMONY OF ANGELIMAR AND MARRANGELIE VARGAS,

                      5                           A-2385-15T3
THEREBY DEPRIVING THE PETITIONER OF HIS RIGHTS
TO HAVE DUE PROCESS AND ASSISTANCE OF COUNSEL
IN VIOLATIONS OF ART I. PARA 10 OF THE N.J.
CONST. AND AMENDMENTS V, XIV AND VI OF THE
U.S. CONST.

                  POINT XII

TRIAL COUNSEL PERFORMANCE WAS INADEQUATE FOR
FAILING TO OBJECT TO THE ADMISSION OF
IRRELEVANT AND/OR INFLAMMATORY TESTIMONY OF
MS. DESIREE KING, THEREBY, DEPRIVING THE
PETITIONER OF HIS RIGHTS TO HAVE DUE PROCESS
AND ASSISTANCE OF COUNSEL IN VIOLATIONS OF ART
I. PARA 10 OF THE N.J. CONST. AND AMENDMENT
V, XIV AND VI OF THE U.S. CONST.

                  POINT XIII

TRIAL COUNSEL PERFORMANCE WAS DEFICIENT FOR
FAILURE TO REQUEST THE TRIAL COURT TO PROVIDE
THE   JURY   WITH   A  CURATIVE    INSTRUCTION
CONCERNING,     THE     IRRELEVANT      AND/OR
INFLAMMATORY TESTIMONY OF MS. DESIREE KING,
THEREBY, DEPRIVING THE PETITIONER OF HIS
RIGHTS TO HAVE DUE PROCESS AND ASSISTANCE OF
COUNSEL IN VIOLATIONS OF ART I. PARA 10 OF THE
N.J. CONST. AND AMENDMENT V, XIV AND VI OF THE
U.S. CONST.

                  POINT XIV

TRIAL COUNSEL PERFORMANCE WAS DEFICIENT FOR
FAILING TO REQUEST A 104 AND/OR 401 HEARING
CONCERNING THE ADMISSIBILITY AND/OR RELEVANCY
OF   MS.  DESIREE    KING  TESTIMONY    THEREBY
DEPRIVING THE PETITIONER OF HIS RIGHTS TO HAVE
DUE PROCESS AND ASSISTANCE OF COUNSEL IN
VIOLATIONS OF ART. 1 PARA 10 OF THE N.J. CONST.
AND AMENDMENTS V, XIV AND VI OF THE U.S. CONST.

                   POINT XV

TRIAL COUNSEL PERFORMANCE WAS INADEQUATE FOR
FAILING TO REQUEST A 104 HEARING CONCERNING

                      6                           A-2385-15T3
THE PROSECUTION'S IMPROPER PLACEMENT OF A
PROVISION IN THE PETITIONER'S CO-DEFENDANT
(ANTHONY   HARRIS)   PLEA   AGREEMENT,   WHICH
PREVENTED HIM FROM TESTIFYING IN FAVOR OF THE
PETITIONER, THEREBY DEPRIVING THE PETITIONER
OF HIS RIGHTS TO HAVE DUE PROCESS, COMPULSORY
PROCESS TO OBTAIN WITNESSES IN HIS FAVOR AND
THE ASSISTANCE OF COUNSEL IN VIOLATIONS OF ART
I. PARA 10 OF THE N.J. CONST. AND AMENDMENTS
V, XIV AND VI OF THE U.S. CONST.

                  POINT XVI

TRIAL COUNSEL PERFORMANCE WAS INADEQUATE FOR
FAILURE TO FILE A MOTION FOR DISMISSAL OF THE
PETITIONER INDICTMENT DUE TO, THE PROSECUTIONS
DELIBERATE DELAY TO FORMALLY CHARGE THE
PETITIONER FOR REASON TO GAIN TACTICAL
ADVANTAGE   OVER   HIM  BY   ESTABLISHING   AN
CONDITIONAL PLEA AGREEMENT WITH WITNESS
(ANTHONY HARRIS) THAT, PREVENTED MR. HARRIS
FROM TESTIFYING IN FAVOR OF THE PETITIONER,
THEREBY DEPRIVING THE PETITIONER OF HIS RIGHTS
TO HAVE DUE PROCESS, COMPULSORY PROCESS TO
OBTAIN WITNESSES IN HIS FAVOR AND THE AND
ASSISTANCE OF COUNSEL IN VIOLATIONS OF ART I.
PARA 10 OF THE N.J. CONST. AND AMENDMENTS V,
XIV AND VI OF THE U.S. CONST.

                 POINT XVII

TRIAL COUNSEL PERFORMANCE WAS DEFICIENT FOR
FAILING TO OBJECT TO THE ADMISSION OF NEW
JERSEY STATE POLICE DNA ANALYST, SHARON FRECK
TOOTELL   TESTIMONY    REGARDING,   THE   WORK
PERFORMED BY ANOTHER FORENSIC SCIENTIST,
THEREBY DEPRIVING THE PETITIONER OF HIS RIGHTS
TO BE CONFRONTED WITH THE WITNESS AGAINST HIM;
AND TO HAVE DUE PROCESS AND ASSISTANCE OF
COUNSEL IN VIOLATIONS OF ART I. PARA 10 OF THE
N.J. CONST. AND AMENDMENTS V, XIV AND VI OF
THE U.S. CONST.




                      7                          A-2385-15T3
                 POINT XVIII

TRIAL COUNSEL PERFORMANCE WAS INADEQUATE FOR
FAILING TO OBJECT TO, THE TRIAL COURTS
DECISION TO CHARGE THE JURY WITH THE LESSER
INCLUDED OFFENSE OF AGGRAVATED MANSLAUGHTER
WITHOUT A RATIONAL BASIS TO SUPPORT SAID
CHARGE, THEREBY DEPRIVING THE PETITIONER OF
HIS RIGHTS TO HAVE DUE PROCESS AND ASSISTANCE
OF COUNSEL IN VIOLATIONS OF ART I. PARA 10 OF
THE N.J. CONST. AND AMENDMENTS V, XIV AND VI
OF THE U.S. CONST.

                  POINT XIX

APPELLATE COUNSEL PERFORMANCE WAS DEFICIENT
FOR FAILING TO RAISE ON DIRECT APPEAL, TRIAL
COUNSEL'S INEFFECTIVENESS FOR PRESENTING A
THIRD   PARTY    GUILT[Y]   DEFENSE    WITHOUT,
INTERVIEWING    WITNESSES,    DANYEL    MORTON,
ANGELIMAR   VARGAS,    ANTHONY    HARRIS,   THE
PETITIONER AND KEVIN KELLEJAN, TO ASSURE, THE
POSSIBILITY OF CREATING REASONABLE DOUBT AS
TO, THE PETITIONER'S GUILT EXIST WITHIN THE
AFOREMENTIONED DEFENSE, THEREBY, DEPRIVING
THE PETITIONER OF HIS RIGHTS TO HAVE DUE
PROCESS   AND   ASSISTANCE    OF   COUNSEL   IN
VIOLATIONS OF ART I. PARA 10 OF THE N.J. CONST.
AND AMENDMENTS V, XIV AND VI OF THE U.S. CONST.

                   POINT XX

APPELLATE COUNSEL PERFORMANCE WAS INADEQUATE
FOR FAILING TO RAISE ON DIRECT APPEAL, TRIAL
COUNSEL'S INEFFECTIVENESS FOR FAILING TO
REQUEST A 104 AND/OR 401 HEARING CONCERNING
THE ADMISSIBILITY AND/OR RELEVANCY OF THIRD
PARTY GUILT EVIDENCE, THEREBY DEPRIVING THE
PETITIONER OF HIS RIGHTS TO HAVE DUE PROCESS
AND ASSISTANCE OF COUNSEL IN VIOLATIONS OF ART
I. PARA 10 OF THE N.J. CONST AND AMENDMENTS
V, XIV AND VI OF THE U.S. CONST.




                      8                           A-2385-15T3
                  POINT XXI

APPELLATE COUNSEL'S PERFORMANCE WAS DEFICIENT
FOR FAILING TO RAISE ON DIRECT APPEAL, TRIAL
COUNSEL'S INEFFECTIVENESS FOR FAILURE TO
OBJECT TO, INFLAMMATORY AND/OR UNCHARGED OTHER
CRIMES EVIDENCES TESTIMONY OF ANGELIMAR VARGAS
CONCERNING HER SISTER (MARANGELIE VARGAS)
ALLEGEDLY BEING SHOT, THEREBY, DEPRIVING THE
PETITIONER OF HIS RIGHTS TO HAVE DUE PROCESS
AND ASSISTANCE OF COUNSEL IN VIOLATIONS OF ART
I. PARA 10 OF THE N.J. CONST. AND AMENDMENTS
V, XIV AND VI OF THE U.S. CONST.

                  POINT XXII

APPELLATE COUNSEL PERFORMANCE WAS INADEQUATE
FOR FAILURE TO RAISE ON DIRECT APPEAL, TRIAL
COUNSEL INEFFECTIVENESS FOR FAILURE TO REQUEST
THE TRIAL COURT TO PROVIDE THE JURY WITH A
CURATIVE   INSTRUCTION   PERTAINING   TO   THE
UNCHARGED OTHER CRIMES EVIDENCE TESTIMONY OF
ANGELIMAR VARGAS CONCERNING, HER SISTER
(MARANGELIE VARGAS) ALLEGEDLY BEING SHOT,
THEREBY, DEPRIVING THE PETITIONER OF HIS
RIGHTS TO HAVE DUE PROCESS AND ASSISTANCE OF
COUNSEL IN VIOLATIONS OF ART I. PARA 10 OF THE
N.J. CONST. AND AMENDMENT V, XIV, AND VI OF
THE U.S. CONST.

                 POINT XXIII

APPELLATE COUNSEL PERFORMANCE WAS DEFICIENT
FOR FAILURE TO RAISE ON DIRECT APPEAL TRIAL
COUNSEL'S INEFFECTIVENESS FOR FAILING TO
OBJECT TO THE PROSECUTOR'S INFLAMMATORY
CLOSING REMARKS, CONCERNING THE POSSIBILITY OF
MS. ANGELIMAR VARGAS BEING SHOT, THEREBY,
DEPRIVING PETITIONER OF HIS RIGHTS TO HAVE DUE
PROCESS   AND   ASSISTANCE    OF   COUNSEL   IN
VIOLATIONS OF ART I. PARA 10 OF THE N.J. CONST.
AND AMENDMENT V, XIV, AND VI OF THE U.S. CONST.




                      9                           A-2385-15T3
                  POINT XXIV

APPELLATE COUNSEL PERFORMANCE WAS INADEQUATE
FOR FAILING TO RAISE ON DIRECT APPEAL, TRIAL
COUNSEL INEFFECTIVENESS FOR FAILURE TO REQUEST
THE TRIAL COURT TO PROVIDE THE JURY WITH A
CURATIVE   INSTRUCTION   PERTAINING   TO   THE
PROSECUTOR'S INFLAMMATORY CLOSING REMARKS
CONCERNING, THE POSSIBILITY OF ANGELIMAR
VARGAS BEING SHOT, THEREBY, DEPRIVING THE
PETITIONER OF HIS RIGHTS TO HAVE DUE PROCESS
AND ASSISTANCE OF COUNSEL IN VIOLATIONS OF ART
I. PARA 10 OF THE N.J. CONST. AND AMENDMENT
V, XIV, AND VI OF THE U.S. CONST.

                  POINT XXV

APPELLATE COUNSEL PERFORMANCE WAS INADEQUATE
FOR FAILING TO RAISE ON DIRECT APPEAL, TRIAL
COUNSEL'S INEFFECTIVENESS FOR FAILING TO
REQUEST A 104 AND/OR 403 HEARING FOR THE
PURPOSE TO EXCLUDE PREJUDICIAL TESTIMONY OF
MS. ANGELIMAR AND MARANGELIE VARGAS'S, THEREBY
DEPRIVING THE PETITIONER OF HIS RIGHTS TO HAVE
DUE PROCESS AND ASSISTANCE OF COUNSEL IN
VIOLATIONS OF ART. 1 PARA 10 OF THE N.J. CONST.
AND AMENDMENTS V, XIV AND VI OF THE U.S. CONST.

                  POINT XXVI

APPELLATE COUNSEL PERFORMANCE WAS DEFICIENT
FOR FAILING TO RAISE ON DIRECT APPEAL, TRIAL
COUNSEL'S INEFFECTIVENESS FOR FAILING TO
OBJECT TO THE ADMISSION OF IRRELEVANT AND/OR
INFLAMMATORY TESTIMONY OF MS. DESIREE KING
THEREBY, DEPRIVING THE PETITIONER OF HIS
RIGHTS TO HAVE DUE PROCESS AND ASSISTANCE OF
COUNSEL IN VIOLATIONS OF ART I. PARA 10 OF THE
N.J. CONST. AND AMENDMENT V, XIV, AND VI OF
THE U.S. CONST.

                 POINT XXVII

APPELLATE COUNSEL PERFORMANCE WAS INADEQUATE
FOR FAILING TO RAISE ON DIRECT APPEAL, TRIAL

                     10                           A-2385-15T3
COUNSEL'S INEFFECTIVENESS FOR FAILING TO
REQUEST THE TRIAL COURT TO PROVIDE THE JURY
WITH A CURATIVE INSTRUCTION CONCERNING THE
IRRELEVANT AND/OR INFLAMMATORY TESTIMONY OF
MS. DESIREE KING THEREBY, DEPRIVING THE
PETITIONER OF HIS RIGHTS TO HAVE DUE PROCESS
AND ASSISTANCE OF COUNSEL IN VIOLATIONS OF ART
I. PARA 10 OF THE N.J. CONST. AND AMENDMENT
V, XIV AND VI OF THE U.S. CONST.

                POINT XXVIII

APPELLATE COUNSEL PERFORMANCE WAS INADEQUATE
FOR FAILING TO RAISE ON DIRECT APPEAL, TRIAL
COUNSEL'S FAILURE TO REQUEST A 104 AND/OR 401
HEARING CONCERNING THE ADMISSIBILITY AND/OR
RELEVANCY OF MS. DESIREE KING TESTIMONY,
THEREBY DEPRIVING THE PETITIONER OF HIS RIGHTS
TO HAVE DUE PROCESS AND ASSISTANCE OF COUNSEL
IN VIOLATIONS OF ART. 1 PARA 10 OF THE N.J.
CONST. AND AMENDMENTS V, XIV AND VI OF THE
U.S. CONST.

                 POINT XXIX

APPELLATE COUNSEL PERFORMANCE WAS DEFICIENT
FOR FAILING TO RAISE ON DIRECT APPEAL, TRAIL
COUNSEL'S INEFFECTIVENESS FOR FAILURE TO
REQUEST   A   104  HEARING   CONCERNING   THE
PROSECUTION'S   IMPROPER   PLACEMENT   OF   A
PROVISION IN THE PETITIONER'S CO-DEFENDANT
(ANTHONY HARRIS) PLEA AGREEMENT, WHICH,
PREVENTED HIM FROM TESTIFYING IN FAVOR OF THE
PETITIONER, THEREBY DEPRIVING THE PETITIONER
OF HIS RIGHTS TO HAVE DUE PROCESS, COMPULSORY
PROCESS TO OBTAIN WITNESSES IN HIS FAVOR AND
THE AND ASSISTANCE OF COUNSEL IN VIOLATIONS
OF ART. 1 PARA 10 OF THE N.J. CONST. AND
AMENDMENTS V, XIV AND VI OF THE U.S. CONST.

                  POINT XXX

APPELLATE COUNSEL PERFORMANCE WAS INADEQUATE
FOR FAILING TO RAISE ON DIRECT APPEAL, TRIAL
COUNSEL INEFFECTIVENESS FOR FAILURE TO FILE A

                     11                          A-2385-15T3
MOTION FOR DISMISSAL OF THE PETITIONER
INDICTMENT DUE TO, THE PROSECUTIONS DELIBERATE
DELAY TO FORMALLY CHARGE THE PETITIONER FOR
REASON TO GAIN TACTICAL ADVANTAGE OVER HIM BY
ESTABLISHING AN CONDITIONAL PLEA AGREEMENT
WITH WITNESS (ANTHONY HARRIS) THAT, PREVENTED
MR. HARRIS FROM TESTIFYING IN FAVOR OF THE
PETITIONER, THEREBY DEPRIVING THE PETITIONER
OF HIS RIGHTS TO HAVE DUE PROCESS, COMPULSORY
PROCESS TO OBTAIN WITNESSES IN HIS FAVOR AND
THE AND ASSISTANCE OF COUNSEL IN VIOLATIONS
OF ART. 1 PARA 10 OF THE N.J. CONST. AND
AMENDMENTS V, XIV AND VI OF THE U.S. CONST.

                  POINT XXXI

APPELLATE COUNSEL PERFORMANCE WAS INADEQUATE
FOR FAILING TO RAISE ON DIRECT APPEAL, THE
TRIAL COURT ABUSE OF DISCRETION FOR ADMITTING
INFLAMMATORY AUTOPSY PHOTOS OF ALEJANDRO SOTO,
THEREBY DEPRIVING THE PETITIONER OF HIS RIGHTS
TO HAVE DUE PROCESS AND ASSISTANCE OF COUNSEL
IN VIOLATIONS OF ART. 1 PARA 10 OF THE N.J.
CONST. AND AMENDMENTS V, XIV AND VI OF THE
U.S. CONST.

                 POINT XXXII

APPELLATE COUNSEL PERFORMANCE WAS DEFICIENT
FOR FAILING TO RAISE ON DIRECT APPEAL, THE
TRIAL COURTS ABUSE OF DISCRETION FOR FAILING
TO DISMISS COUNT THREE OF THE INDICTMENT
AND/OR THE INDICTMENT IN IT'S ENTIRETY, FOR
FAILURE TO ALLEGE THE NAME OF CO-CONSPIRATOR
PETITIONER ALLEGEDLY CONSPIRED WITH, THEREBY
DEPRIVING THE PETITIONER OF HIS RIGHTS TO HAVE
DUE PROCESS AND ASSISTANCE OF COUNSEL IN
VIOLATIONS OF ART. 1 PARA 10 OF THE N.J. CONST.
AND AMENDMENTS V, XIV AND VI OF THE U.S. CONST.

                 POINT XXXIII

APPELLATE COUNSEL PERFORMANCE WAS INADEQUATE
FOR FAILURE TO RAISE ON DIRECT APPEAL, THE
TRIAL COURT'S ERROR FOR FAILING TO FASHION A

                     12                           A-2385-15T3
REQUESTED ORDER TO SANITIZE 404(B) OTHER
CRIMES EVIDENCES TESTIMONY CONCERNING, THE
PETITIONER'S ALLEGED ATTEMPT TO PURCHASE AN
AK-47 ASSAULT RIFLE, THEREBY DEPRIVING THE
PETITIONER OF HIS RIGHTS TO HAVE DUE PROCESS
AND ASSISTANCE OF COUNSEL IN VIOLATIONS OF
ART. 1 PARA 10 OF THE N.J. CONST. AND
AMENDMENTS V, XIV AND VI OF THE U.S. CONST.

                 POINT XXXIV

APPELLATE COUNSEL PERFORMANCE WAS INADEQUATE
ON DIRECT APPEAL FOR FAILING TO DEMONSTRATE
THE POSSIBLE CONTAMINATION OF DNA EVIDENCE
AND/OR MALFUNCTION OF MS. JENNIFER THAYER'S
EQUIPMENT WHILE PERFORMING HER DNA ANALYSIS
THEREBY, DEPRIVING THE PETITIONER OF HIS
RIGHTS TO BE CONFRONTED WITH THE WITNESSES
AGAINST HIM; AND TO HAVE DUE PROCESS AND
ASSISTANCE OF COUNSEL IN VIOLATIONS OF ART I.
PARA 10 OF THE N.J. CONST. AND AMENDMENTS V,
XIV AND VI OF THE U.S. CONST.

                 POINT XXXV

APPELLATE COUNSEL PERFORMANCE WAS DEFICIENT
FOR FAILING TO FILE ON DIRECT APPEAL, A MOTION
FOR   RECONSIDERATION    OF   THE    APPELLATE
DIVISION'S OPINION CONCERNING THE APPELLATE
DIVISION'S MISINTERPRETATION OF CASE LAW
AND/OR FACTS OF THE PETITIONER'S CASE THEREBY,
DEPRIVING PETITIONER OF HIS RIGHTS TO HAVE DUE
PROCESS AND ASSISTANCE OF COUNSEL IN VIOLATION
OF ART. 1 PARA 10 OF THE N.J. CONST. AND
AMENDMENTS V, XIV AND VI OF THE U.S. CONST.

(A) THE APPELLATE DIVISION THAT, DEFENSE
COUNSEL FAILURE TO SPECIFICALLY OBJECT TO
404(B) OTHER CRIMES EVIDENCE (AK-47 TESTIMONY)
WAS A TACTICAL DECISION WHICH CONTRIBUTED TO
REASON FOR SUPPORTING THE TRIAL COURT'S
OMISSION TO PROVIDE THE JURY WITH AN LIMITING
INSTRUCTION CONCERNING SAID 404(B) EVIDENCE
WAS ERROR, DUE TO THE FACT, THE RECORD
ESTABLISHED DEFENSE COUNSEL REQUESTED THE

                     13                          A-2385-15T3
         TRIAL COURT TO PROVIDE THE JURY WITH AN
         LIMITING INSTRUCTION PERTAINING TO THE 404(B)
         EVIDENCE IN QUESTION.

    The court appointed counsel for defendant, and counsel filed

a brief in which he raised these arguments:

    POINT I

         STANDARDS OF INEFFECTIVE ASSISTANCE OF COUNSEL.

    POINT II

         MR. HARRITY'S TRIAL COUNSEL WAS INEFFECTIVE
         FOR FAILING TO CONDUCT A PROPER INVESTIGATION.

    POINT III

         MR. HARRITY'S TRIAL COUNSEL DID NOT PRESENT
         MR. HARRITY'S ALIBI WITNESS.

    POINT IV

         MR. HARRITY'S TRIAL COUNSEL'S FAILURE TO
         ATTEMPT TO PREVENT OR ASK THE TRIAL COURT TO
         REMEDY SEVERAL INSTANCES OF PROSECUTORIAL
         MISCONDUCT DEPRIVED MR. HARRITY OF HIS RIGHT
         TO A FAIR TRIAL.

                A.   MR. HARRITY'S TRIAL COUNSEL SHOULD
                     HAVE OBJECTED TO THE PROSECUTOR'S
                     SUGGESTION THAT ANGELIMAR VARGAS
                     MIGHT HAVE BEEN SHOT.

                B.   MR. HARRITY'S TRIAL ATTORNEY SHOULD
                     HAVE   ASKED    FOR    A   CURATIVE
                     INSTRUCTION AFTER ANGELIMAR VARGAS
                     SAID HER SISTER WAS SHOT.

                C.   MR. HARRITY'S TRIAL ATTORNEY SHOULD
                     HAVE OBJECTED TO THE PROSECUTOR'S
                     DECISION TO INTRODUCE DESIREE KING
                     AS A WITNESS.


                                14                         A-2385-15T3
     POINT V

           MR. HARRITY'S TRIAL COUNSEL SHOULD         HAVE
           OBJECTED TO INADMISSIBLE HEARSAY.

     POINT VI

           THE CUMULATIVE EFFECT OF ALL OF MR. HARRITY'S
           TRIAL     COUNSEL'S    ERRORS     CONSTITUTED
           INEFFECTIVE ASSISTANCE OF COUNSEL.

     The trial court granted defendant an evidentiary hearing as

to trial counsel's failure to interview alibi witnesses and present

their testimony at trial.       Following the hearing, the court

delivered an oral opinion from the bench on January 8, 2016, and

denied defendant's PCR petition.      As previously noted, defendant

appealed from the implementing order.

         During the PCR hearing, defendant testified his defense at

trial was he was not present when the victims were shot.              He

intended to establish his alibi through the testimony of Ashley

Petty.    Defendant was aware Petty had testified before the grand

jury.    His plan, and, according to him, his trial attorney's

strategy, was to produce her as an alibi witness.            His trial

attorney filed a notice of alibi with the court and defendant

never changed his mind about presenting Petty's testimony.

     Defendant claimed Petty had been subpoenaed for his trial and

physically appeared in court.      Nonetheless, his attorney never

called her as a witness.     According to defendant, at trial, the


                                 15                            A-2385-15T3
State rested its case on a Friday.    His trial attorney then rested

without calling any witnesses.      As defendant was being taken to

the county jail, he told his trial counsel he wanted to talk to

her.   He was taken to the "bullpen" and then told he was going to

be transported to the jail.   When he said his attorney was coming

to speak with him, he was told his attorney left.             He    was

transported to county jail without speaking with his attorney.

       When he returned to court on Monday, defendant said to his

attorney, "[y]ou rested the case.     Why did you rest the case?    You

[did not] call my alibi witness."     Defendant claimed his attorney

seemed surprised.   She said, "Alibi?"   Defendant replied, "[y]eah,

. . . the one you gave the notice of alibi, the one you subpoenaed."

The attorney said, "oh, yeah, . . . I was supposed to call her."

When defendant told the attorney to "[g]o out there and call her,"

she said, "I rested my case already.       I can't call her."      When

defendant said "unrest your case," his attorney replied, "I can't."

Defendant angrily replied, "[t]hat . . . just got me convicted.

You . . . just got me convicted . . . because you argued that I

wasn't there.   You argued I wasn't at the scene of the crime.       My

alibi witness. . . .    [t]hat go[es] hand-in-hand with my alibi

witness."    Defendant claims his attorney responded that he was

right.



                                 16                           A-2385-15T3
       Defendant did not discuss the issue with his attorney between

the time the jury returned its verdict and the time he was

sentenced.    His reason for not again raising the issue was he felt

his attorney had spoken, and his attorney said there was nothing

that could be done, so in his mind there was nothing more to say.

       Defendant's trial attorney testified to a different account

of events.     The attorney was experienced; she had been admitted

to the practice of law since 2001 and ninety-percent of her

practice was criminal law.    She was a former prosecutor.

       According to the attorney, she had extensive discussions with

defendant concerning the proposed alibi witness.   She had reviewed

material in discovery that suggested to her Ashley Petty was a

"concocted alibi witness."      From her review of the grand jury

transcripts, she did not believe Petty would be a credible alibi

witness.     Petty had testified before the grand jury that on May

27, the day of the shootings, she had been with defendant on and

off.    She also gave testimony that could be viewed as helpful to

the State.

       Defendant's trial counsel recalled telling defendant if an

alibi witness is not strong and cannot say "you were at this

particular place at this particular time," then "a lot of times

it can come off in front of a jury as sort of an ali-lie witness."

Counsel explained she made the strategic recommendation not to

                                 17                          A-2385-15T3
call Petty.     Nonetheless, had defendant insisted upon presenting

Petty's testimony, counsel would have called Petty as a witness.

     During        cross-examination,            defendant's        trial        counsel

elaborated on her strategic decision.                   She did not think Petty

would help defendant's case.              She pointed out that despite her

testimony    before    the    grand       jury,    defendant       was   nonetheless

indicted.2

     As    previously       noted,    the      court    denied     defendant's        PCR

petition.    In an oral decision delivered from the bench on January

8, 2016, the court rejected defendant's arguments that trial

counsel had failed to investigate four witnesses.                   The court noted

defendant had failed to provide affidavits or certifications for

many of the witnesses.            Defendant did produce a statement from

Anthony    Harris,    but    the     statement,        according    to     the    court,

"mirrored    the     testimony       he   gave    at    trial,     which    was      that

[defendant's brother] was not involved in the deaths."                      In short,

defendant failed to show an investigation of Harris would have

revealed anything Harris had not previously told investigators.

Harris's     statements      to    investigators         were      provided       during

discovery.



2
  Although Petty testified before a grand jury in June 2004, the
indictment containing the charges on which defendant was tried was
returned in September 2007.

                                          18                                     A-2385-15T3
     The    court     determined,     from    reviewing    trial     transcripts,

defense    counsel     reasonably     argued    that    descriptions      of   the

shooters given by witnesses fit defendant's brother and Harris.

The court determined defense counsel had clearly challenged the

identification of defendant as a perpetrator, a reasonable trial

strategy.

     After recounting the PCR testimony given by defendant and his

trial     counsel,    the     court   found     trial     counsel's     testimony

"exceedingly credible."           The court found "reasonable that given

the weight of evidence and direct contradiction of Ashley Petty's

grand jury testimony, defense counsel . . . strategically decide[d]

not to call her as an alibi witness." The court determined defense

counsel's    decision       was    sound.      The   court    also     determined

defendant's testimony at the PCR hearing was not credible.

     Further, the court found defendant had "failed to show how

his representation was prejudiced by this decision or how his

outcome would have been different had Ms. Petty been called as a

witness and subjected to cross-examination."

     Next,    the     court    rejected     defendant's    argument     that   the

prosecutor's misconduct in making unduly prejudicial statements

during his summation deprived defendant of a fair trial.                       The

court     concluded     that      several    fleeting     statements     by    the



                                       19                                 A-2385-15T3
prosecutor, even if improper, did not prevent defendant from

receiving a fair trial.

     The court rejected some of defendant's other arguments based

on their having been decided on direct appeal.            Lastly, the court

concluded   that   defendant's   counsel    on   direct    appeal   was   not

ineffective for failure to raise certain meritless arguments, and

for deciding to seek certification from the Supreme Court rather

than file a motion for reconsideration with the Appellate Division.

     Having concluded defendant failed to establish a prima facie

ineffective-assistance-of-counsel          claim,   the     court     denied

defendant's petition.

     On appeal, defendant argues:

            THE TRIAL COURT ERRED IN FINDING THAT
            DEFENDANT WAS NOT DENIED EFFECTIVE ASSISTANCE
            OF COUNSEL WHERE TRIAL COUNSEL FAILED TO
            ADEQUATELY   INVESTIGATE  DEFENDANT'S   ALIBI
            DEFENSE AND FAILED TO CALL THAT WITNESS TO
            TESTIFY AT TRIAL.

     In a pro se supplemental brief, defendant argues:

                                 POINT I

            THE TRIAL COURT ERRED IN FINDING THAT THE
            PETITIONER['S]   TRIAL    COUNSEL    WAS   NOT
            INEFFECTIVE FOR FAILING TO INTRODUCE THE
            PETITIONER'S ALIBI WITNESS IN THE PETITIONER'S
            DEFENSE.

                                 POINT II

            THE TRIAL COURT ERRED IN FINDING THAT THE
            PETITIONER FAILED TO ESTABLISH A PRIMA FACIE

                                   20                                A-2385-15T3
           CLAIM FOR INEFFECTIVE ASSISTANCE OF APPELLATE
           COUNSEL FOR FAILING TO FILE A MOTION OF
           RECONSIDERATION TO THE APPELLATE DIVISION
           CONCERNING     THE     APPELLATE     DIVISION
           MISINTERPRETATION OF THE FACTS REGARDING THE
           PETITIONER'S CASE.

                                 POINT III

           THE TRIAL COURT ERRED BY FAILING TO RENDER AN
           OPINION CONCERNING INEFFECTIVE ASSISTANCE OF
           TRIAL AND APPELLATE COUNSEL CLAIMS RAISED IN
           THE PETITIONER'S AMENDED VERIFIED PETITION AND
           LISTED IN THE PETITIONER'S P.C.R. COUNSEL'S
           BRIEF.

     To prove trial counsel was ineffective, a defendant must

satisfy the Strickland two-part test by demonstrating "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;" and "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, 104 S. Ct. 2052,

2064, 2068, 80 L. Ed. 2d 674, 693, 698 (1984); accord, State v.

Fritz, 105 N.J. 42, 58 (1987).      When defendants establish a prima

facie claim of ineffective assistance of counsel, they are entitled

to a hearing on their claims.       R. 3:22-10(b); State v. Preciose,

129 N.J. 451, 462 (1992).




                                    21                              A-2385-15T3
       The decision of which witnesses to call at trial is generally

a strategic determination within counsel's discretion.                 State v.

Coruzzi, 189 N.J. Super. 273, 323 (App. Div.), certif. denied, 94

N.J. 531 (1983).        In fact, our Supreme Court has recognized that

"[d]etermining which witnesses to call to the stand is one of the

most difficult strategic decisions that any trial attorney must

confront."      State v. Arthur, 184 N.J. 307, 320 (2005).                      The

attorney must consider, among other things, "whether the witness's

testimony     will   be    subject   to    effective    impeachment   by     prior

inconsistent statements or other means, . . .               whether the trier

of fact is likely to find the witness credible, and a variety of

other tangible and intangible factors."                Id. at 321.    For these

reasons, "a defense attorney's decision concerning which witnesses

to call to the stand is 'an art,' and a court's review of such a

decision    should    be    'highly    deferential.'"        Ibid.    (citation

omitted).     "As a general rule, strategic miscalculations or trial

mistakes are insufficient to warrant reversal except in those rare

instances where they are of such magnitude as to thwart the

fundamental guarantee of [a] fair trial."              State v. Castagna, 187

N.J.   293,    314-15     (2006)     (alteration   in    original)    (citation

omitted).




                                          22                               A-2385-15T3
       Here, defendant's trial counsel made a strategic decision not

to call Petty as a trial witness.     Counsel evaluated Petty's grand

jury testimony, considered her testimony in view of the State's

proofs and the discovery material the State had provided, and

determined the jury would not find Petty credible.           Defense

counsel's ultimate decision not to call Petty as a witness was a

strategic decision based on the "art" of defense, and is entitled

to our "highly deferential" review.      Arthur, supra, 184 N.J. at

321.    Even if defense counsel's strategy is in hindsight deemed

to be a miscalculation, it certainly does not warrant reversal,

as it does not fall into a rare instance where the miscalculation

is "of such magnitude as to thwart the fundamental guarantee of

[a] fair trial."    Castagna, supra, 187 N.J. at 315 (alteration in

original) (citation omitted).    Accordingly, we reject defendant's

claim that his trial counsel's failure to call Petty constituted

ineffective assistance.

       We have considered defendant's remaining arguments in light

of the record and prevailing legal principles and have found them

to be without sufficient merit to warrant further discussion.        R.

2:11-3(e)(2).

       Affirmed.




                                 23                           A-2385-15T3
