                     NOT FOR PUBLICATION WITHOUT THE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-3710-15T3

STATE OF NEW JERSEY,

           Plaintiff-Respondent,

     v.

STANFORD YOUGH,

          Defendant-Appellant.
___________________________________

           Submitted October 17, 2017 – Decided October 27, 2017

           Before Judges Fisher and Fasciale.

           On appeal from the Superior Court of New
           Jersey,   Law   Division,  Passaic County,
           Indictment No. 06-04-0402.

           Joseph E. Krakora, Public Defender, attorney
           for appellant (Steven M. Gilson, Designated
           Counsel, of counsel and on the brief).

           Camelia M. Valdes, Passaic County Prosecutor,
           attorney for respondent (Marc A. Festa, Senior
           Assistant Prosecutor, of counsel and on the
           brief).

PER CURIAM

     At   the   conclusion    of   a   2007   jury   trial,    defendant    was

convicted of second-degree robbery and, later that same year,

sentenced as a persistent offender to an extended fifteen-year
prison term, subject to an eighty-five percent period of parole

ineligibility. We reversed his conviction and remanded for a new

trial. State v. Yough, No. A-3832-07 (App. Div. 2010). The Supreme

Court, however, reversed our determination and remanded for our

consideration of other issues we previously found unnecessary to

decide. State v. Yough, 208 N.J. 385 (2011). We then rejected

defendant's      remaining   arguments      and   affirmed   the    judgment       of

conviction. State v. Yough, No. A-3832-07 (App. Div. 2013). And

the    Supreme   Court   denied   defendant's      subsequent      petition      for

certification. 214 N.J. 176 (2013).

       Defendant    filed    a   pro   se   post-conviction        relief     (PCR)

petition in 2014. The judge1 heard argument and denied the PCR

petition for reasons set forth in a thorough oral decision in

2016.

       Defendant appeals, arguing in a single point:

            THIS   MATTER   MUST   BE  REMANDED  FOR   AN
            EVIDENTIARY    HEARING    BECAUSE   DEFENDANT
            ESTABLISHED A PRIMA FACIE CASE OF TRIAL
            COUNSEL'S INEFFECTIVENESS FOR FAILING TO
            INVESTIGATE AN ALIBI DEFENSE.

We find insufficient merit in this argument to warrant further

discussion in a written opinion, R. 2:11-3(e)(2), except to add a

few brief comments.



1
    The PCR judge was also the trial judge.

                                        2                                   A-3710-15T3
     Defendant argued to the PCR judge that he was deprived of the

effective assistance of counsel because his trial attorney failed

to investigate an alibi defense. The robbery occurred in Paterson

at approximately 1:00 a.m., on October 10, 2005, and, as part of

his PCR petition, defendant provided his sister's affidavit. She

asserted that defendant "could not have committed the crime for

which he was convicted" because, during that time frame,

          I would come home from work at late hours
          during the early morning (12:30 a.m. to 1:00
          a.m.) and my brother would be at home to open
          the door and would always be there around the
          same time, he would go to his room and go to
          bed and go [to] work in the morning. He did
          this regularly as part of his routine and I
          know he did this during the month of October
          2005.

     Argument during the PCR hearing revealed that defendant and

his sister shared a home that was approximately 1.3 miles from the

robbery scene. As the judge recognized when he explored the

affidavit's assertions,2 defendant's sister did not directly state

defendant was home when the robbery occurred on October 10, 2005,

only that "during the month of October 2005" he "routine[ly]"

would be at home around that time. Even if the record contained a



2
  Although the PCR petition was filed more than five years from
the entry of the judgment of conviction, the judge did not invoke
the time-bar contained in Rule 3:22-12(a), but instead considered
the merits.


                                3                          A-3710-15T3
sworn statement to suggest that what defendant's sister said in

her affidavit was conveyed to defense counsel prior to trial3 –

the attorney, after all, could not be expected to investigate an

alibi defense that was not suggested by the information provided

by defendant or others – we find no merit in defendant's contention

that the judge should have conducted an evidentiary hearing into

these allegations. We discern from his oral decision that the

judge assumed the truth of defendant's sister's affidavit but

found that acceptance of those assertions at face value did not

present an effective alibi defense. Indeed, like the experienced

trial judge, we agree that even if the attorney knew of this

information he would have reasonably viewed this alleged alibi

defense   as    tactically   unfeasible.        As    the   judge    recognized,

testimony      from   defendant's   sister       in    conformity     with       this

affidavit   would     actually   have       placed    defendant     within     close

proximity of the crime scene without the benefit of a definitive

assertion that she saw him at their home at the time the robbery

occurred.




3
  The only sworn statement that might suggest this fact – the
inclusion in the sister's affidavit of her statement that "[h]is
attorney was asked by him to interview me to be a witness at his
trial" – would not have been admissible.


                                        4                                    A-3710-15T3
      For these reasons and substantially for the reasons set forth

by   the   judge   in   his   cogent   oral   decision,    we   conclude    that

defendant     failed     to    demonstrate     a   prima    facie    case    of

ineffectiveness under the Strickland/Fritz4 test.

      Affirmed.




4
  Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L.
Ed. 2d 674 (1984); State v. Fritz, 105 N.J. 42 (1987).

                                       5                              A-3710-15T3
