                        NOT FOR PUBLICATION WITHOUT THE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-4085-15T3

STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

DENNIS KERRIGAN,

     Defendant-Appellant.
____________________________

              Submitted October 3, 2017 – Decided October 31, 2017

              Before Judges Reisner and Gilson.

              On appeal from the Superior Court of New
              Jersey,   Law   Division,  Mercer County,
              Indictment No. 08-02-0187.

              Joseph E. Krakora, Public Defender, attorney
              for appellant (Adam W. Toraya, Designated
              Counsel, on the brief).

              Angelo J. Onofri, Mercer County Prosecutor,
              attorney for respondent (Timothy Francis
              Trainor, Assistant Prosecutor, of counsel and
              on the brief).

PER CURIAM

        Defendant Dennis Kerrigan appeals from a March 22, 2016 order

denying his petition for post-conviction relief (PCR) without an

evidentiary hearing.           We affirm substantially for the reasons
explained by Judge Timothy P. Lydon in his thorough written

opinion.

                                       I.

       Defendant lived in a townhouse complex.            In 2010, a jury

convicted him of fourth-degree stalking of the manager of the

complex, N.J.S.A. 2C:12-10(b).         He was sentenced to two years of

probation.

       At trial, the State presented testimony from three witnesses:

the complex's manager, another resident of the townhouse complex,

and a police officer.     In short, the witnesses testified that the

defendant often attended association meetings and often became

loud   and   disruptive   at   those    meetings.   The    witnesses   also

testified that defendant had confronted the manager on several

occasions and had acted aggressively towards her.          The manager and

resident testified that defendant was seen staring at the manager

on numerous occasions and that he often parked his vehicle in the

parking lot next to her office and would sit and stare at her

office.      Indeed, the manager logged over fifty instances where

defendant acted aggressively towards her and others, the majority

of which he either confronted or watched her.

       On a particular occasion, defendant drove his van into the

parking lot next to the manager's office, parked, and stared at

the manager's office.      When the manager came out of her office,

                                       2                           A-4085-15T3
she saw defendant, became frightened, and called the police.                        When

the police arrived, defendant drove away, but later came back and

again began staring at the manager's office.

      On direct appeal, we affirmed defendant's conviction and

sentence   and    the    Supreme      Court    denied        his     petition        for

certification.     State v. Kerrigan, No. A-5162-09 (App. Div. Oct.

14, 2011), certif. denied, 210 N.J. 263 (2012).

      In February 2015, defendant filed a petition for PCR.                      He was

assigned   counsel,     and   the    PCR    court    heard    oral       argument      on

defendant's petition on March 18, 2016.               On March 22, 2016, the

PCR court entered an order denying defendant's petition and issued

a written opinion supporting that order.

      In his PCR petition, defendant argued that his trial counsel

was deficient in failing to: (1) enforce subpoenas; (2) show that

the charges against defendant had no basis and were retaliatory;

(3)   present    evidence     that   defendant      had   filed      a    harassment

complaint against the manager; (4) show that defendant had filed

a complaint with the Internal Affairs Department of the police

department; (5) elicit certain testimony on cross-examination of

the police officer; and (6) bring out certain testimony from the

resident   and   manager.       Judge      Lydon    addressed      each    of     those

contentions in his written opinion.            He found that defendant had

not established prejudice from any of the contentions.                       He also

                                        3                                       A-4085-15T3
found that defendant failed to make a prima facie showing that his

trial counsel was ineffective.

                                   II.

     On    this   appeal,   defendant    makes   one   argument,    which       he

articulates as follows:

            POINT I – THE TRIAL COURT ERRED IN DENYING THE
            DEFENDANT'S   PETITION   FOR   POST-CONVICTION
            RELIEF WITHOUT AFFORDING HIM AN EVIDENTIARY
            HEARING TO FULLY ADDRESS HIS CONTENTION THAT
            HE   FAILED   TO   RECEIVE    ADEQUATE   LEGAL
            REPRESENTATION IN THIS CASE

     Defendant's petition arises from the application of Rule

3:22-2, which permits collateral attack of a conviction based upon

a claim of ineffective assistance of counsel within five years of

the conviction.      See R. 3:22-12(a)(1); see also Strickland v.

Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed.

2d 674, 693 (1984); State v. Fritz, 105 N.J. 42, 58-59 (1987).                  To

establish a claim of ineffective assistance of counsel, a defendant

must satisfy the two-part Strickland test by showing that: (1)

"counsel made errors so serious that counsel was not functioning

as   the    'counsel'   guaranteed       the   defendant   by      the     Sixth

Amendment[,]" and (2) "the deficient performance prejudiced the

defense."    Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064,

80 L. Ed. 2d at 693 (citing U.S. Const. amend. VI); Fritz, supra,




                                     4                                   A-4085-15T3
105 N.J. at 58-59 (adopting the Strickland two-part test in New

Jersey).

       Rule 3:22-10(b) provides that a defendant is only entitled

to an evidentiary hearing if he or she establishes a prima facie

case in support of PCR.       Moreover, there must be "material issues

of disputed fact that cannot be resolved by reference to the

existing record," and the court must determine that "an evidentiary

hearing is necessary to resolve the claims for relief."                State v.

Porter, 216 N.J. 343, 354 (2013) (quoting R. 3:22-10(b)).                      To

establish a prima facie case, a defendant must demonstrate "the

reasonable likelihood of succeeding under the test set forth in

Strickland[.]"       State v. Preciose, 129 N.J. 451, 463 (1992).

      Having reviewed defendant's arguments in light of the law and

the record, we affirm. Defendant essentially repeats the arguments

he   made   before    Judge   Lydon.       Judge   Lydon    detailed   each    of

defendant's arguments, explained why the arguments did not satisfy

either prong of the Strickland test, and explained why defendant

was not entitled to an evidentiary hearing.                We agree with Judge

Lydon's analysis of the facts and the law.

      Affirmed.




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