                                 NOT FOR PUBLICATION WITHOUT THE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-0754-18T2

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

JOSEPH CODY, a/k/a JOSE
CODY, JOSIE L. CODY,
JOISE CODY and LEE 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 (Amira Rahman Scurato, 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).
            Appellant filed a pro se supplemental brief.

PER CURIAM

      Defendant Joseph Cody appeals the May 29, 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 from the record. 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 blunt object under inappropriate circumstances,

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.

      After eleven hours of deliberations, the jury reported they were at an

impasse. The trial court, who was also the PCR court, instructed the jury to

continue its deliberations, gave the instruction approved in State v. Czachor, 82

N.J. 392 (1980), and provided a written copy of the jury charge over the

objection of defense counsel. The jury also heard readbacks of Singh and

Lorraine Bellamy's testimony.


                                                                         A-0754-18T2
                                        2
      Following a guilty verdict on all counts, the trial court imposed a sentence

of twenty-five 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 under N.J.S.A. 2C:43-

7.1(b). We affirmed defendant's convictions and sentence. State v. Cody, No.

A-5005-13 (App. Div. June 20, 2016). The Supreme Court denied defendant's

petition for certification. State v. Cody, 228 N.J. 503 (2017).

      Thereafter, on April 11, 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

            TRIAL COUNSEL WAS CONSTITUTIONALLY
            DEFICIENT FOR FAILURE TO MOTION THE
            TRIAL COURT FOR A MOTION TO SUPPRESS
            THE INADMISSIBLE EVIDENCE SEIZED FROM
            PETITIONER DUE TO "FRUITS OF SUCH AN
            UNLAWFUL ARREST," WHICH VIOLATED BOTH
            THE UNITED STATES AND NEW JERSEY
            CONSTITUTIONS['] GUARANTEE [OF] THE
            RIGHT TO BE FREE FROM UNREASONABLE
            SEARCHES AND SEIZURES. U.S. CONST. AMEND
            IV; N.J. CONST. ART. 1, 7.

            POINT II


                                                                          A-0754-18T2
                                        3
              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.

      In his petition, defendant argued that the Newark police officers had

reasonable suspicion to stop the gold Nissan he was a passenger 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 Victor Cody, and observed them enter the Nissan.

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 th is

argument on appeal constituted ineffective assistance.

      Additionally, defendant asserted that his trial counsel was ineffective

during plea negotiations because he advised defendant that the surveillance

video would only be admissible for "show-up identification evidence" 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. According to defendant,


                                                                          A-0754-18T2
                                        4
if Victor's trial counsel had not misled them 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 the following points:

            POINT I

            PETITIONER WAS DENIED THE EFFECTIVE
            ASSISTANCE     OF       COUNSEL       CONSTI-
            TUTIONALLY GUARANTEED TO HIM PRE-
            TRIAL,  AT    TRIAL     AND    ON     APPEAL,
            NECESSITATING GRANTING HIS PETITION FOR
            POST-CONVICTION RELIEF.         U.S. CONST.
            AMENDS. VI, XIV; N.J. CONST. ART. 1, PAR. 10.

            A.    Trial And Appellate Counsels' Failure To
                  Address The Trial Court Not Making The
                  Required Inquiry Of The Clearly Deadlocked
                  Jury "Whether Further Deliberations Would
                  Likely Result In A Verdict" Resulted In
                  Ineffectiveness Of Trial And Appellate Defense
                  Counsel.

            B.    Appellate Counsel's Failure To Raise The Trial
                  Court's Sua Sponte And Unasked For Intrusion
                  Into Jury Deliberations Resulted In The
                  Conviction's Affirmance By The Appellate
                  Division And In Ineffective Assistance Of
                  Counsel.

            C.    Trial Counsel's Failure To File And Argue A
                  Motion To Suppress Resulted In The Admittance
                  Of The Distinctive Shirt And Other Items Into

                                                                       A-0754-18T2
                                      5
                    Evidence And In Ineffective Assistance Of
                    Counsel.

               D.   Counsel's Failure To Move To Suppress All
                    Evidence And Identifications Of The Defendants
                    And Appellate Counsel's Failure To Raise This
                    Issue On Appeal, Resulted In Ineffectiveness Of
                    Counsel.

               E.   Trial Counsel's Lack Of Substantial Interaction
                    With The Petitioner, Failure To File Motions,
                    And Failure To Pursue An Exculpatory
                    Explanation For The Recovered Money, Resulted
                    In Ineffective Assistance Of Counsel.

               F.   The Petitioner Adopts The Points And
                    Arguments Submitted On Behalf Of The Co-
                    Defendant, [Victor] Cody.

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

decision. On June 1, 2018, the PCR court issued a comprehensive, twenty-five

page written opinion denying defendant's petition without an evidentiary

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

found he failed to demonstrate either his trial counsel or appellate counsel was

ineffective.

      The PCR court held 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 determined



                                                                         A-0754-18T2
                                        6
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 any 'show-up'" and the detention was no longer than

reasonably necessary to facilitate the identification process, lasting 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 Victor Cody as the perpetrators. Singh stated defendant "struck him in

the eye with some type of object." At that point, the PCR court determined the

officer had probable cause to arrest defendant. A passerby, Bellamy, observed

the robbery and physically described defendant and his brother as they ran from

the scene of the crime. Surveillance video showed two men—one "wore a

hooded coat while the other wore a shirt with a distinctive cross pattern on the


                                                                            A-0754-18T2
                                         7
back . . . ." Defendant's clothing matched the description given by Bellamy to

the police.    The PCR court found the officers had "sufficient objective

justification to remove" defendant from the Nissan and his "clothing remained

visible on the front passenger floorboard" in plain view.

      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 ERRED IN DENYING THE
              DEFENDANT'S PETITION FOR PCR WITHOUT
              AFFORDING HIM AN EVIDENTIARY HEARING
              TO FULLY ADDRESS HIS CONTENTION THAT HE
              FAILED TO RECEIVE ADEQUATE LEGAL
              REPRESENTATION AT THE TRIAL AND
              APPELLATE LEVELS.

              A.   RELEVANT CASE LAW.

              B.   INEFFECTIVE ASSISTANCE OF COUNSEL
              OCCURRED WHEN TRIAL COUNSEL OBJECTED
              TO THE ISSUE OF THE COURT'S IMPROPER
              RESPONSE    TO   THE   JURY'S QUESTION
              REGARDING     BEING   DEADLOCKED  AND
              APPELLATE COUNSEL FAILED TO RAISE THE
              ISSUE ON APPEAL.

              C.  THE PCR COURT WAS FACTUALLY
              INCORRECT IN DENYING PCR FOR THE REASON
              THAT THE MATTER HAD BEEN PREVIOUSLY
              RAISED ON DIRECT APPEAL WHEN PCR

                                                                           A-0754-18T2
                                       8
            COUNSEL CLEARLY SHOWED THAT THE ISSUE
            HAD    NOT   BEEN    RAISED   DUE  TO
            INEFFECTIVENESS OF PRIOR COUNSEL.

      In his pro se supplemental brief, defendant raises the following additional

points:

            POINT I

            TRIAL COUNSEL WAS INEFFECTIVE FOR
            FAILING   TO  OBJECT    TO  THE    JURY
            INSTRUCTIONS FOLLOWING THE JURY'S
            QUESTION REGARDING BEING DEADLOCKED
            WHICH VIOLATED THE PETITIONER'S FEDERAL
            AND STATE CONSTITUTIONAL RIGHT TO A
            FAIR TRIAL.

            POINT II

            APPELLATE COUNSEL WAS INEFFECTIVE FOR
            FAILING TO RAISE THAT THE TRIAL COURT
            IMPROPERLY    HANDLED      THE    JURY'S
            QUESTIONS PERTAINING TO THEM BEING
            DEADLOCKED     WHICH   VIOLATED     THE
            PETITIONER'S   FEDERAL    AND     STATE
            CONSTITUTIONAL RIGHT TO A FAIR TRIAL.

            POINT III

            TRIAL COUNSEL'S FAILURE TO PROPERLY
            CONSULT WITH PETITIONER, TO FILE
            MOTIONS,   AND    TO    PURSUE     [AN]
            EXCULPATORY DEFENSE FOR THE MONEY
            RECOVERED THAT WAS IN DISPARITY WITH
            WHAT WAS TAKEN FROM THE VICTIM
            CONSTITUTED INEFFECTIVE ASSISTANCE OF
            COUNSEL WHICH VIOLATED THE PETITIONER'S

                                                                         A-0754-18T2
                                       9
            FEDERAL AND STATE CONSTITUTIONAL RIGHT
            TO A FAIR TRIAL.


            POINT IV

            THE CUMULATIVE EFFECT OF TRIAL AND
            APPELLATE COUNSEL'S ERRORS DEPRIVED
            PETITIONER OF HIS RIGHT TO EFFECTIVE
            ASSISTANCE OF COUNSEL AND A FAIR TRIAL
            UNDER THE SIXTH AND FOURTEENTH
            AMENDMENT[S] WHICH VIOLATED THE
            PETITIONER'S   FEDERAL     AND     STATE
            CONSTITUTIONAL RIGHT[S] TO A FAIR TRIAL.

                                        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 s uppress

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.

      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. 466 U.S. at 687.



                                                                           A-0754-18T2
                                       10
      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.

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, 164 (2012).

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

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


                                                                          A-0754-18T2
                                       11
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

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.




                                                                           A-0754-18T2
                                       12
      Having    carefully   considered      defendant's   arguments,   we    affirm

substantially for the reasons expressed by the PCR court in its 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 Victor 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. 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.

According to Singh, co-defendant Victor Cody held him while defendant struck

him in the face 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


                                                                            A-0754-18T2
                                       13
pending the identification procedure.       The PCR court aptly found that the

detention was no longer than reasonably necessary to facilitate the identificatio n

process.

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

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 certain incriminating

evidence that could be admitted at trial, he would have accepted the State's plea

offer and not proceeded to trial. He claims Victor Cody's attorney told them that

the evidence obtained after their arrest would not be used against them 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

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 164.


                                                                           A-0754-18T2
                                       14
       The PCR court concluded that defendant's clothing was properly obtained

pursuant to the plain view doctrine. Bellamy reported seeing defendant and his

brother to Brown and described the clothing (one defendant wore a dark blue

jacket and the other a white shirt or sweatshirt). Brown observed the defendants

hastily remove their clothing. The record supports the court's finding.

       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.

       In his pro se supplemental brief, defendant argues that his trial counsel

was ineffective for not objecting to the modified Allen1 charge, approved by our

Supreme Court in Czachor. When the jurors reported they had reached an


1
    Allen v. United States, 164 U.S. 492 (1896).
                                                                          A-0754-18T2
                                       15
impasse, the trial court instructed them to continue their deliberations and gave

them a Czachor instruction. Defendant contends his trial counsel was ineffective

because counsel failed to object and request the court inquire whether further

deliberations would result in a verdict. And, defendant asserts that the trial court

should not have provided the jury with written instructions. He also contends

appellate counsel was ineffective for failing to raise these issues on appeal.

Defendant's arguments are without merit.

      In Czachor, our Court disapproved the charge for a deadlocked jury that

had been sanctioned by the Supreme Court of the United States in Allen. 82

N.J. at 402. The Court held in Czachor that the conventional Allen charge was

unduly coercive and did not "permit jurors to deliberate objectively, freely, and

with an untrammeled mind." Ibid. Before a trial court gives a jury a Czachor

charge, it should inquire whether further deliberations would be fruitful,

however, that is not always required.

      In this case, the trial court provided the jury with the charge approved by

the Court in Czachor, and set forth in our Model Jury Charges (Criminal). The

record shows that the trial court did not coerce the jury into reaching a verdict.

Defense counsel objected to the instruction but, at that point, the jury had only

been deliberating eleven hours.       The jury continued its deliberations and


                                                                            A-0754-18T2
                                        16
returned a verdict. Defendant has not shown that the result here would have

been different if the judge had questioned the members of the jury before giving

the Czachor charge. Appellate counsel also was not ineffective in failing to raise

this issue on appeal. We are satisfied that the PCR court's determination was

not erroneous.

      Defendant further argues that the PCR court erred by finding that the issue

regarding the trial court's response to the jury's note had been raised on direct

appeal. Our opinion on the appeal indicates that defendant did raise that issue

in his pro se supplemental brief. Cody, slip. op. at 4. Co-defendant Victor Cody

also raised the issue in his appeal. The appeals were consolidated and addressed

in one opinion. We rejected Victor Cody's contention that the trial judge erred

by providing the Czachor instruction. Id. at 32. Therefore, the issue was

adjudicated.

      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, including that his trial attorney was

ineffective for not consulting with him, failed to file motions, pursue an

exculpatory defense, and cumulative errors at trial, we are convinced from our




                                                                          A-0754-18T2
                                       17
review of the record that they are without sufficient merit to warrant discussion

in a written opinion. R. 2:11-3(e)(2).

      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.




                                                                          A-0754-18T2
                                         18
