                                      RECORD IMPOUNDED

                                NOT FOR PUBLICATION WITHOUT THE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-5544-17T4

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

ANTHONY MASSENBURG,
a/k/a RICHARD ANDERSON,
FREDDRICK CONEY,
ANTHONY LONEY, RONALD A.
MASSENBURG, and TONY
MASSENBURG,

     Defendant-Appellant.
_____________________________

                    Submitted October 21, 2019 – Decided November 8, 2019

                    Before Judges Fasciale and Rothstadt.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Essex County, Indictment No. 10-09-2200.

                    Joseph E. Krakora, Public Defender, attorney for
                    appellant (Kisha M. S. Hebbon, Designated Counsel, on
                    the brief).

                    Theodore N. Stephens II, Acting Essex County
                    Prosecutor, attorney for respondent (Emily M. M. Pirro,
            Special Deputy Attorney General/Acting Assistant
            Prosecutor, of counsel and on the briefs).

            Appellant filed a pro se supplemental brief.

PER CURIAM

      Defendant appeals from a June 29, 2018 order denying his petition for

post-conviction relief (PCR). After conducting an evidentiary hearing, Judge

Martin Cronin entered the order and rendered a twenty-four page written

opinion.   Defendant primarily maintains that his trial counsel rendered

ineffective assistance. We affirm.

      Defendant was charged with committing various crimes arising out of a

home invasion. A jury found him guilty of attempted murder and two counts of

aggravated sexual assault, among other lesser offenses. 1 The sentencing judge


1
   The indictment charged defendant with first-degree conspiracy to commit
murder, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:11-3 (Count One); second-degree
conspiracy to commit aggravated assault, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:12-
1(b) (Count Two); first-degree attempted murder, N.J.S.A. 2C:5-1 and N.J.S.A.
2C:11-3 (Count Three); second-degree aggravated assault, N.J.S.A. 2C:12-
1(b)(1) (Count Four); second-degree possession of a weapon without a carry
permit, N.J.S.A. 2C:39-5(b) (Count Five); second-degree possession of a
weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) (Counts Six, Ten and
Nineteen); second-degree conspiracy to commit aggravated sexual assault,
N.J.S.A. 2C:5-2 and N.J.S.A. 2C:14-2(a)(4) (Count Seven); first-degree
aggravated sexual assault, N.J.S.A. 2C:14-2(a)(4) (Counts Eight and Thirteen);
third-degree aggravated criminal sexual contact, N.J.S.A. 2C:14-3(a) (Count
Nine); third-degree making terroristic threats, N.J.S.A. 2C:12-3(b) (Count


                                                                      A-5544-17T4
                                       2
imposed an aggregate prison term of sixty years, subject to the No Early Release

Act, N.J.S.A. 2C:43-7.2. We affirmed the convictions, but remanded for the

judge to consider "all relevant aggravating and mitigating factors." State v.

Massenburg, No. A-2009-12 (App. Div. Jan. 12, 2015) (slip op. at *1). The

Supreme Court denied certification. State v. Massenburg, 221 N.J. 566 (2015).

The judge re-imposed the same sentence, which we affirmed.               State v.

Massenburg, A-4150-15 (App. Div. Aug. 31, 2016) (slip op. at *1).             The

Supreme Court then denied defendant's second petition for certification. State

v. Massenburg, 229 N.J. 143 (2017).

      In his PCR petition, defendant primarily argued that trial counsel failed to

investigate his alibi defense; produce testimony from an alibi witness; dispute

evidence found at the scene; move to strike testimony; communicate sufficiently

with him; advise him of his right to testify at trial; move to suppress an

identification; and move to suppress physical evidence. He contended that

cumulatively, these alleged errors deprived him of his right to counsel. After


Eleven); third-degree criminal restraint, N.J.S.A. 2C:13-2 (Counts Twelve and
Fourteen); second-degree conspiracy to commit burglary, N.J.S.A. 2C:5-2 and
N.J.S.A. 2C:18-2(a)(1) (Count Fifteen); second-degree burglary, N.J.S.A.
2C:18-2(b)(1) (Count Sixteen); fourth-degree possession of a weapon for an
inappropriate purpose, N.J.S.A. 2C:39-5(d) (Count Seventeen); and third-degree
possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d) (Count
Eighteen). The jury acquitted him on Counts One, Two, Nine, and Fifteen.
                                                                          A-5544-17T4
                                        3
the hearing, the PCR judge denied the petition saying that "[t]o [defendant], the

truth may be altered or shaped to satisfy his needs at any given time."

      On appeal, defendant argues:

            POINT I
            THE [PCR JUDGE] ERRED IN DENYING
            DEFENDANT'S PETITION FOR [PCR] BECAUSE
            THERE    WAS    SUFFICIENT    EVIDENCE
            PRESENTED DURING THE EVIDENTIARY
            HEARING TO PROVE THAT DEFENDANT WAS
            DENIED THE RIGHT TO THE EFFECTIVE
            ASSISTANCE OF COUNSEL.

            A. The Prevailing Legal Principles Regarding Claims
            Of Ineffective Assistance Of Counsel, Evidentiary
            Hearings And Petitions For [PCR].

            B. Trial Counsel Rendered Ineffective Legal
            Representation By Virtue Of His Failure To Investigate
            And Present Taynona Love As An Alibi Witness To
            The Jury.

            C. Trial Counsel Rendered Ineffective Legal
            Representation By Virtue Of His Failure To
            Sufficiently Communicate With Defendant And To
            Honor Defendant's Desire To Testify At Trial.2

We conclude that these arguments lack sufficient merit to warrant discussion in

a written opinion. R. 2:11-3(e)(2). We affirm substantially for the reasons set



2
  Defendant additionally submitted a pro se supplemental brief on June 7, 2019,
which raised the same argument relating to his trial counsel's failure to inform
him of his right to testify.
                                                                          A-5544-17T4
                                       4
forth by Judge Cronin in his well-reasoned decision, and we add the following

brief remarks.

      Three witnesses testified at the PCR hearing: an alleged alibi witness,

defendant, and his trial counsel. The PCR judge disbelieved defendant and

found his trial counsel credible. As to the alibi witness, the PCR judge, like the

trial judge, concluded that the witness was "equivocal concerning any specific

facts," and that she testified "inconsistently."

      As the PCR judge noted, defendant admitted at the hearing that his

certification in support of his petition was false, that trial counsel followed up

on potential alibi witnesses, and that trial counsel considered his investigator's

interview of the alibi witness. The PCR judge held that trial counsel sufficiently

investigated defendant's alibi, and concluded defendant failed to meet

Strickland's two-prong test.

      The PCR judge also found that trial counsel cautioned defendant not to

testify because of defendant's criminal history, which included multiple prior

convictions.     The PCR judge noted that even the trial judge, in denying

defendant's new trial motion, acknowledged that defendant was "not a novice to

the criminal justice system." Along those lines, the trial judge stated "[t]o

suggest that [defendant] did not understand his right to testify or remain silent


                                                                          A-5544-17T4
                                         5
defies logic." We conclude the judge's findings are supported by the record, and

his legal conclusions are unassailable.

      Affirmed.




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