                                NOT FOR PUBLICATION WITHOUT THE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-1276-17T4

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

ALEXANDER ALFARO,

     Defendant-Appellant.
_______________________________

                    Submitted November 19, 2019 – Decided December 10, 2019

                    Before Judges Fisher and Accurso.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Essex County, Indictment No. 08-09-2688.

                    Joseph E. Krakora, Public Defender, attorney for
                    appellant (Andrew Robert Burroughs, 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
      Defendant was convicted in 2011 of murder, felony murder, conspiracy to

commit robbery, and armed robbery, for his participation – along with five co-

defendants – in the events on a Newark playground on the evening of August 4,

2007, that left three dead and only one survivor. Defendant was sentenced to an

aggregate prison term of 212 years. The evidence upon which defendant was

convicted was outlined in our opinion disposing of defendant's direct ap peal –

we rejected all the arguments he then raised – and need not be repeated here.

State v. Alfaro, No. A-6163-10 (App. Div. Nov. 12, 2013), certif. denied, 217

N.J. 623 (2014).

      The judge who presided over the lengthy trial also ruled on defendant's

post-conviction relief (PCR) petition. To assist in his determination of the issues

raised, the judge conducted a two-day evidentiary hearing in January 2017,

during which defendant's trial and appellate counsel both testified, as did the

two assistant prosecutors who represented the State at trial; defendant did not

testify. By way of his March 10, 2017 written decision, the judge rejected all

defendant's ineffective-assistance-of-counsel arguments in denying the PCR

petition.

      Defendant appeals, arguing the judge erred in rejecting his claims that he

was denied the effective assistance of counsel because his trial counsel: (1)


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                                        2
failed to convey the State's plea offer, and (2) failed to seek the removal of a

juror. He argues the judge also erred in rejecting his ineffectiveness claim

because his appellate counsel did not: (3) argue in the direct appeal that he was

prejudiced by testimony about his tattoos; (4) argue in the direct appeal that the

judge erred in precluding testimony about when defendant obtained a tattoo in

light of the prosecution's suggestion that the dice tattoo 1 memorialized the

murders; and (5) failed to argue either in this court on direct appeal or in seeking

certification in the Supreme Court that State ex rel. P.M.P., 200 N.J. 166 (2009),2

should be applied retroactively so as to be applicable in this case. We find

insufficient merit in these arguments to warrant further discussion in a written

opinion, R. 2:11-3(e)(2), and affirm substantially for the reasons set forth by




1
  The tattoo was described as a pair of dice in flames showing the numbers one
and three. On cross-examination, defendant was asked what the numbers stood
for and he said "13," but equivocated when asked whether it reflected his
membership in the MS-13 gang. The prosecutor then asked whether it referred
"to the victims . . . [t]hree dead, one alive"? Defendant denied this.
2
   The Court held in P.M.P., 200 N.J. at 178, that the issuance of juvenile
complaints and a judicially approved arrest warrant triggered the critical stage
in the proceeding, and, therefore, questioning the juvenile in the absence of
counsel requires suppression of his subsequent statements. Defendant was
sixteen at the time of the crimes; his custodial statements, which were admitted
in evidence, were made prior to the Court's P.M.P. decision.
                                                                            A-1276-17T4
                                         3
Judge Michael L. Ravin in his thorough and well-reasoned written decision. We

add only the following few comments.

      In rejecting the first argument, the judge determined from the testimony

provided by one of the assistant prosecutors that there were "no substantive plea

negotiations," only "plea chatter." Moreover, the judge found "there was no

realistic possibility of the parties reaching a plea agreement," because "the State

would not accept a plea agreement that did not include [defendant] testifying

against his codefendants," and, according to defense counsel, defendant "would

not testify against his codefendant[s] for fear of repercussions." Also, because

of the strength of the State's case, both assistant prosecutors testified at the PCR

hearing that the State "had little interest in a plea agreement." We agree with

the PCR judge, based on his findings derived from the testimony he found

credible, that there was no evidence of trial counsel acting below professional

norms in this regard.

      Defendant's second argument concerns trial counsel's decision not to seek

a juror's removal. The testimony revealed that this juror stated during jury

selection that she had never been accused of an offense; this statement proved

untruthful because it was later learned that the juror had been so accused on

three occasions. The PCR judge concluded that the reason for not seeking the


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                                         4
juror's removal represented a sound strategic approach to the situation.

Strickland v. Washington, 466 U.S. 668, 689 (1984); State v. Pierre, 223 N.J.

560, 579 (2015). The prior charges against the juror were revealed to be minor

in nature and, in the view of defendant's trial attorney, the juror was "treated

harshly by [the prosecution] when questioned about her criminal history" during

voir dire.    We have been presented with no principled reason for second-

guessing the PCR judge's finding that defense counsel's strategy was objectively

reasonable.

      We also agree with Judge Ravin's analysis as to the third and fourth

arguments. There is no doubt that the prosecution had a right to elicit testimony

regarding defendant's tattoos – defendant does not dispute this – and there was

no abuse of discretion in the rulings that precluded testimony about when

defendant obtained the dice tattoo to rebut a suggestion that the tattoo was

intended to memorialize the killings. Even if there was a legitimate argument

to be made about the tattoo questioning, we agree with the judge that this

evidence "played an insignificant role in [defendant's] conviction, partic ularly

given the strength of the State's evidence," so that appellate counsel's decision

not to pursue this on appeal could not be held to be ineffective.




                                                                         A-1276-17T4
                                        5
      We lastly turn to the fifth argument, in which defendant contends appellate

counsel was ineffective in failing to seek the Supreme Court's determination as

to whether P.M.P. was correctly held inapplicable here because it represented a

new rule that was only entitled to prospective application. In an interlocutory

appeal pursued by both defendant and co-defendant Baskerville, we rejected

defendant's arguments that P.M.P. should have been applied even though

defendant's statement was given to police on August 10, 2007, and P.M.P. was

decided by the Supreme Court nearly two years later, on July 29, 2009. State v.

Baskerville, Nos. 4209-09 and 4410-09 (App. Div. Oct. 19, 2010) (slip op. at

22-28). The Supreme Court thereafter denied defendant's motion for leave to

appeal our ruling. Then, in defendant's direct appeal, we considered and rejected

arguments that the statements should have been excluded for other reasons.

Alfaro, slip op. at 12-15. The Court denied certification. 217 N.J. 286.

      It may be true that appellate counsel did not argue in defendant's petition

for certification of our decision on the direct appeal that P.M.P. should have

been applied here. But that argument was presented to the Supreme Court in

defendant's earlier motion for leave to appeal our 2010 interlocutory decision.

The Supreme Court denied that motion, thereby declining the opportunity to




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                                       6
consider the very argument that defendant now claims his appellate counsel

should have reasserted in the later certification petition.

      We are also mindful that the Court had another opportunity to consider

P.M.P.'s retroactivity after we held in an unrelated published decision that: "(1)

P.M.P. announced a new rule; (2) its purpose is not furthered by retroactive

application; (3) law enforcement officials, in good faith, have relied upon the

old rule in conducting custodial interrogations of juveniles; and (4) without

doubt, retroactive application would have a significant impact upon the

administration of justice." State v. Hodge, 426 N.J. Super. 321, 325 (App. Div.

2012). When Hodge was later convicted, he appealed and we affirmed by way

of an unpublished opinion, State v. Hodge, No. A-1177-13 (App. Div. Apr. 29,

2016), which was followed by the Supreme Court's denial of certification, 228

N.J. 426 (2016).

      As can be seen, the Supreme Court twice declined the opportunity to

consider our holdings that P.M.P. should only apply prospectively. So, it seems

highly likely that the Court would not have granted certification to consider that

issue had appellate counsel included such an argument in defendant's petition

for certification after we decided the direct appeal. We conclude – as did the




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                                         7
PCR judge – that appellate counsel was not ineffective for failing to urge – for

the second time – his argument that P.M.P. should be given retroactive effect.

      Affirmed.




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