                        NOT FOR PUBLICATION WITHOUT THE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-3586-14T2

STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

MUMEEN A. STARKS,

        Defendant-Appellant.

____________________________

              Submitted February 1, 2017 – Decided July 24, 2017

              Before Judges Carroll and Gooden Brown.

              On appeal from the Superior Court of New
              Jersey, Law Division, Essex County, Indictment
              No. 08-07-2240.

              Joseph E. Krakora, Public Defender, attorney
              for appellant (William P. Welaj, Designated
              Counsel, on the brief).

              Carolyn A. Murray, Acting Essex County
              Prosecutor, attorney for respondent (Camila A.
              Garces,      Special      Deputy      Attorney
              General/Acting   Assistant    Prosecutor,   of
              counsel and on the brief).

PER CURIAM
     Defendant appeals from a December 2, 2014 order, denying his

first petition for post-conviction relief (PCR).      Having reviewed

the record in light of the applicable legal principles, we affirm.

                                   I.

     Following a jury trial, defendant was convicted of murder,

N.J.S.A.   2C:11-3(a)(1)(2);   second-degree    aggravated      assault,

N.J.S.A. 2C:12-1(b)(1); second-degree unlawful possession of a

firearm, N.J.S.A. 2C:39-5(b); and second-degree possession of a

firearm for an unlawful purpose, N.J.S.A. 2C:39-4(a).          Defendant

was sentenced on December 7, 2009, to an aggregate term of life

in prison, subject to the No Early Release Act (NERA), N.J.S.A.

2C:43-7.2.1

     The   convictions   stemmed   from   defendant   firing    several

gunshots at approximately 10:30 p.m. on April 18, 2008, into a

vehicle occupied by Tynesha Morris and her cousin, Theo Stewart,

following a verbal altercation with Morris.      Stewart was struck

by two of the bullets and died as a result of his gunshot wounds.

At trial, the State presented eyewitness testimony from Morris,

her cousin, Frank Parker, and their mutual friend, Demetrius


1
  Following the trial, defendant pled guilty to third-degree
unlawful taking of a means of conveyance, N.J.S.A. 2C:20-10, and
second-degree eluding, N.J.S.A. 2C:29-2(b), and was simultaneously
sentenced. Those offenses occurred five days after the homicide,
were charged in a separate indictment, and are not part of this
appeal.

                                   2                             A-3586-14T2
Heyward.     Parker and Heyward testified to recognizing defendant

from the neighborhood.     Heyward saw defendant pull out a gun and

fire three to four shots within two feet of him.            Parker heard the

gunshots and saw defendant running from the scene. Morris observed

defendant holding a gun immediately after the shots were fired.

Defendant    was   described    as    wearing   a   black    hoodie   with    a

distinctive multi-colored design.

     Defendant filed a direct appeal, asserting the following

arguments:

            POINT I: THE TRIAL JUDGE ERRED IN DENYING THE
            DEFENDANT'S REPEATED REQUESTS FOR A MISTRIAL,
            A REQUEST BASED ON THE INCLUSION OF NUMEROUS
            INSTANCES OF PREJUDICIAL TESTIMONY.

            POINT II: THE TRIAL JUDGE ERRED IN DENYING THE
            DEFENDANT'S REQUEST TO HAVE THE JURY CHARGED
            ON PASSION/PROVOCATION MANSLAUGHTER AS A
            LESSER OFFENSE OF MURDER.

            POINT III:    THE        DEFENDANT'S    SENTENCE    IS
            EXCESSIVE.

We affirmed defendant's convictions and sentence, State v. Starks,

No. A-2802-09 (App. Div. Oct. 24, 2011), and our Supreme Court

denied defendant's petition for certification.              State v. Starks,

210 N.J. 109 (2012).

     On June 26, 2012, defendant filed a timely pro se petition

for PCR and was later assigned counsel who filed a supporting

brief.   In the brief, defendant argued that his trial counsel was


                                       3                              A-3586-14T2
ineffective for: (1) failing to present an alibi defense; (2)

failing to advise defendant about his right to testify at trial;

(3) failing to inform the judge that a juror had been sleeping;

and (4) failing to object to an erroneous stipulation.                Defendant

also argued that he was denied a fair trial because of the trial

court's mishandling of a jury question and the cumulative effect

of the errors.     In addition, defendant argued that he was denied

the effective assistance of appellate counsel.

     Following    oral    argument,   Judge   Verna      G.   Leath    rejected

defendant's claim that his "appellate counsel's performance was

deficient or that there was a reasonable probability that but for

counsel's   deficient     performance     (which   was   not   established),

defendant's conviction[s] would have been overturned."                Based on

trial counsel's performance at trial as well as the fact that

defendant's convictions and sentence were affirmed on appeal,

Judge   Leath    also    rejected   defendant's     assertion     that      "the

cumulative effect of trial counsel's errors rendered his trial

unfair."

     Judge Leath did, however, grant defendant's request for an

evidentiary hearing limited to defendant's claims regarding trial

counsel's failure to call alibi witnesses, to advise defendant of

his right to testify, and to object to an erroneous stipulation

entered without defendant's consent.        Regarding the sleeping juror

                                      4                                 A-3586-14T2
claim,   Judge     Leath   considered    defendant's    averment       in   his

supporting certification that trial counsel took no action when

he informed him that he observed one of the jurors who later became

the   foreperson    nodding   off   during   the   course   of   the    trial.

However, Judge Leath precluded its exploration at the evidentiary

hearing, finding that such testimony would not elucidate the issue

since there was nothing in the record "to indicate if or when a

juror was sleeping" and nothing to indicate whether a juror's eyes

were closed to enhance the "ability to focus" which "is not

uncommon in . . . trials[.]"

      The evidentiary hearing commenced on September 12, 2013, at

which time Judge Leath conducted a preliminary voir dire of trial

counsel focused solely on defendant's waiver of the attorney-

client privilege in order to pursue his ineffective assistance of

counsel claim.      Prior to the hearing, the prosecuting attorney

disclosed to Judge Leath and PCR counsel that, three days prior,

he had spoken to trial counsel briefly to prepare him to testify

for the State at the upcoming evidentiary hearing and specifically

discussed with trial counsel the alibi witnesses he spoke with and

his investigator's attempts to locate them.             At PCR counsel's

request, Judge Leath sought to ascertain whether trial counsel

violated the attorney-client privilege during that five-minute

conversation with the prosecuting attorney by discussing the case

                                     5                                 A-3586-14T2
outside the presence of defendant and PCR counsel.2      Judge Leath

also permitted PCR counsel to cross-examine trial counsel on that

specific issue.

     During the voir dire, there were inconsistencies between

trial   counsel's   recollection   of   the   conversation   and   the

prosecuting attorney's account, prompting defendant to move to

disqualify the prosecuting attorney in order to call him as a

witness to undermine trial counsel's credibility.        Defendant's

application to disqualify the prosecuting attorney was denied by

Judge Leath who found that defendant "failed to show a compelling

and legitimate need" for disqualification because the prosecuting

attorney was "willing to stipulate as to what the conversation

. . . was about."

     Over defendant's objection, the case was then transferred to

Judge Robert H. Gardner to continue the evidentiary hearing.       PCR

counsel opposed the transfer, arguing that because credibility was


2
  See ABA Comm. on Ethics & Prof'l Responsibility, Formal Opinion
10-456 (July 14, 2010) (addressing disclosure of information to a
prosecutor by a criminal defense lawyer whose former client claims
ineffective assistance of counsel and providing that "[o]utside
judicial proceedings, . . . the lawyer may not voluntarily disclose
any information, even non-privileged information, relating to the
defendant's representation without the defendant's informed
consent.") available at
https://www.americanbar.org/content/dam/aba/images/crsj/DPDPRP/e
thics_opinion_10_456.authcheckdam.pdf.



                                   6                          A-3586-14T2
a key factor, Judge Leath was in a better position to assess PCR

counsel's credibility from the inconsistencies elicited during the

preliminary voir dire.        Judge Gardner overruled PCR counsel's

objection to the transfer.       Judge Gardner explained that the case

was assigned to Judge Leath while he was assigned to the Family

Part.     However, once he returned to the Criminal Division, the

Criminal Presiding Judge transferred the case to him presumably

because he had presided over the trial.       Noting that there was no

prejudice to defendant because there was no testimony elicited on

the substantive PCR claims, Judge Gardner proceeded to conduct the

evidentiary hearing over the course of three days.

     Six witnesses testified at the evidentiary hearing.              Trial

counsel    and   his    investigator   testified   for   the   State,   and

defendant, his mother, his sister and his grandfather testified

for the defense.       Defendant's mother, sister and grandfather, all

of whom resided with defendant, testified consistent with their

respective certifications that defendant was at home on the night

of the homicide.        Defendant's mother testified that defendant

returned home at approximately 7:00 p.m. and stayed home for the

rest of the night.       She specifically recalled checking on him at

approximately 11:00 p.m. and 2:00 a.m. and he was asleep with his

one-year-old     daughter.       Although   she    never   provided     the

information to the authorities when defendant was arrested and

                                       7                           A-3586-14T2
charged, she provided the information to an investigator and

expected to be called as a witness at defendant's trial.               However,

despite attending most of the trial proceedings, she was never

called to the stand.

     Defendant's grandfather could not specify what time defendant

returned home.        However, he testified that defendant was home

before dinner, which was usually about 7:00 p.m., and stayed home

with his daughter the rest of the night.                  Although he never

provided   the      information    to    the   authorities   and   was     never

interviewed, he too expected to testify at defendant's trial but

was never called.         Defendant's sister testified that she saw

defendant at home at 3:40 p.m. when she returned home from school.

She testified that defendant asked her to babysit his daughter,

but she refused.        Although she could not specify exactly where

defendant was in the house between the hours of 10:00 p.m. and

11:00 p.m., she testified that defendant was home all day and

night and she wanted to testify to that effect but was never

interviewed    or    called   as   a    witness.    Nonetheless,    she       also

acknowledged     that   she   never     provided   the   information     to   the

authorities once she became aware of defendant's arrest.

     Defendant testified that he told his trial attorney, William

Strauss, that he was at home at the time in question and that all

the members of his household could vouch for him being there.

                                         8                               A-3586-14T2
Defendant acknowledged that the notice of alibi and the defense

witness list included the names he provided.   Defendant testified

he did not know that Strauss was not going to call the alibi

witnesses until Strauss began his summation.    When he confronted

Strauss about it, Strauss responded that "he had the case won, he

didn't need to call them."      In his supporting certification,

defendant averred that when he confronted Strauss about not calling

the alibi witnesses, Strauss stated that "because they were my

family, the jury would not believe them."

     Defendant also testified that he wanted to testify at his

trial.   However, rather than prepare him to testify or explain the

ramifications of testifying, Strauss simply "told [him] not to"

and defendant accepted it because he did not know that he could

go against his attorney's advice.     Defendant conceded, however,

that during the trial, he answered in the affirmative when Judge

Gardner asked him whether his attorney had explained all the

ramifications of testifying or remaining silent and whether the

decision to remain silent was his choice.

     Defendant testified further that he did not become aware of

the trial stipulation agreed to by Strauss regarding the hoodie

until 2012 when he was reading his trial transcripts.    According

to defendant, he would not have agreed to such a stipulation.      On

cross-examination, when defendant was asked whether he recalled

                                 9                          A-3586-14T2
Strauss   stating   on   the   record    during   the   trial   that   he   was

stipulating to the hoodie to avoid the State calling the arresting

officer to testify that defendant was wearing the hoodie when he

was arrested on other charges, defendant denied hearing that

colloquy despite being present.

     Strauss, an experienced defense attorney who tried over sixty

cases for the Public Defender's Office over twenty-five years,

testified that he did in fact speak with defendant about his case

on multiple occasions, and that defendant advised him of several

family members with whom he resided as well as his girlfriend who

could provide the basis for an alibi defense.                   According to

Strauss, while the case was pending, he, defendant's mother and

three of his sisters discussed providing an alibi for defendant

in the courthouse hallway after a status conference.            In addition,

Strauss testified that he had weekly telephonic conversations with

defendant's mother.      Based on these conversations, Strauss filed

a notice of alibi in anticipation of cooperation by the family

members and requested his investigator, Michael Petrillo, to take

statements from the witnesses to support an alibi defense.                    To

corroborate his testimony, both the notice of intent to rely on

alibi as a defense and the request for investigation were admitted

into evidence at the evidentiary hearing.



                                    10                                 A-3586-14T2
     Petrillo    confirmed      that   he    was   requested   by   Strauss    to

interview defendant's girlfriend and eight of defendant's family

members, including defendant's mother, grandfather and sister, to

support an alibi defense. He obtained a statement from defendant's

mother that defendant was home on the night in question and that

she checked on him repeatedly during the night.                  Petrillo also

spoke with defendant's grandfather but did not take a statement

from him.      None of the other witnesses provided by defendant

responded or cooperated despite Petrillo's and Strauss' requests

and representations by defendant's mother and family members that

the witnesses would cooperate.

     Strauss testified that when he started the trial, he intended

to call the alibi witnesses.           However, he "felt that during the

trial [he] was making some headway with some of the [State's]

witnesses" and he did not believe that the alibi witnesses would

"help us win the case."         Further, Strauss testified that because

he did not have statements from the alibi witnesses, other than

defendant's mother, he was unable to assess whether there was

consistency    among    them,   and    was    concerned   that   none   of    the

purported     alibi    witnesses      had    notified   the    authorities     of

defendant's alibi when he was arrested and charged.                  Regarding

defendant's mother, Strauss ultimately decided against using her

as an alibi witness.       In addition to the fact that she would be

                                       11                               A-3586-14T2
subject to impeachment based on her relationship to defendant, he

had additional concerns about her credibility.          Specifically, her

statement that it was impossible for defendant to be out of the

house on the night in question because he had a small child was

inconsistent with defendant being arrested about a week later

driving his girlfriend's car.

      Strauss testified that "[h]aving a family member or a friend

testify to an alibi is not . . . airtight."          According to Strauss,

in his experience, "if you put on an alibi that has any weakness

you risk having the burden [of proof] shift from the State to the

defendant" because "the jury's going to wonder . . . [w]hy are you

putting on this alibi that doesn't really stand up?"               Strauss

believed that "you're better off attacking . . . why [the State]

didn't prove their case as opposed to putting on an alibi and risk

losing . . . credibility[.]"        Strauss testified that he explained

to   defendant    why   he   was   resting   without   calling   the     alibi

witnesses.    When defendant protested that he had eight witnesses

compared to the State's three witnesses, Strauss "tried to explain

to   him   that   the   number     of   witnesses   doesn't   overcome      the

credibility issues."         Strauss characterized his decision to not

present an alibi defense as a strategic one, explaining that

because there were three eyewitnesses who knew defendant from the

past and placed him at the scene, "it was almost irrefutable that

                                        12                             A-3586-14T2
he was present at the scene.     And to put on an alibi in the face

of that . . . , the jury would have not reacted well to that at

all."

      Strauss testified further that he did explain to defendant

the advantages and disadvantages of testifying at the trial.

Strauss acknowledged that defendant had no prior criminal record,

lived approximately three miles away from the homicide scene, and

would have denied being at the scene if he had testified. However,

he explained to defendant that since "[t]he strategy is to concede

that you were at the scene. . . . [I]f you get on the stand and

testify to an alibi when the strategy is that none of these people

saw what they claimed they saw then that just puts . . . our case

at risk."    According to Strauss, his discussion with defendant was

"very civil" and defendant "agreed with" the strategy.            Strauss

testified that nonetheless "prior to going out on the record [he]

made it clear to [defendant] it's his decision whether to testify

or not.    It's his right.   And based upon that he . . . had to come

out in court and he had to tell the court what his choice was."

      Regarding the hoodie, Strauss acknowledged entering into a

stipulation with the prosecutor that the hoodie admitted into

evidence at trial was the hoodie defendant was wearing at the time

of   his   arrest.   Strauss   explained   that   by   agreeing   to   the

stipulation, he avoided any testimony by the arresting officer

                                  13                              A-3586-14T2
concerning the circumstances of defendant's arrest, including the

location and the ensuing eluding charge.         Strauss testified that

he told defendant what he was doing and why he was doing it and

defendant said "fine."    However, instead of instructing the jury

that the parties agreed that the hoodie "was what [defendant] was

wearing at the time of his arrest[,]" the court              erroneously

instructed the jury that "[t]he parties agree[d] that this [was]

the hoodie in this particular case."             Strauss testified that

although he was aware at the time that the court had misread the

stipulation, as a matter of trial strategy, he did not object and

call attention to the issue because he did not want to "highlight

over and over this [hoodie]." In addition, Strauss did not request

a curative instruction because "what the judge told the jury,

while we didn't agree with that stipulation, was not inconsistent

with my argument to the jury that my client was merely present at

the time of the homicide."

     Following   the   evidentiary    hearing,    Judge   Gardner    denied

defendant's petition in a written opinion.         Preliminarily, Judge

Gardner found the testimony of "trial counsel and his investigator

. . . to be credible and the facts testified to by [defendant] and

his family not to be consistent or credible."        Judge Gardner noted

that while Petrillo "testified consistently with . . . Strauss and

corroborated trial counsel's version of how the investigation

                                 14                                 A-3586-14T2
unfolded[,]" defendant's family members were neither "consistent"

nor "credible."    In rejecting defendant's contention that Strauss

did   not   adequately   investigate,   prepare,   and    produce     alibi

witnesses at trial, Judge Gardner explained:

            Mr. Strauss is an attorney of extensive
            experience.    He clearly and consistently
            articulated his reasons for not pursuing the
            alibi defense in his testimony. Mr. Strauss'
            reasons for not calling the family as alibi
            witnesses was a strategic decision based on
            their lack of cooperation and his inability
            to have their statements taken so as to
            determine their testimony and how they would
            be perceived on the stand. Additionally, he
            felt that the alibi testimony they would give
            would not provide a uniform story to bolster
            the arguments that [defendant] was not at the
            location at the time of the incident.     His
            decisions were clearly grounded in a choice
            of trial strategy by an experienced trial
            attorney. Mr. Strauss testified that, in his
            determination, the alibi that [defendant]
            wanted him to argue to the jury was not going
            to factually be a "perfect alibi" due to the
            lack   of   cooperation    of   corroborating
            witnesses. It was Mr. Strauss' trial strategy
            to argue that [defendant] was at or near the
            location, but that the identification made by
            the eyewitnesses was faulty.     This [c]ourt
            does not find that the strategy chosen by
            trial counsel was unreasonable given the
            circumstances.

      Next, Judge Gardner evaluated defendant's claim that he did

not knowingly and voluntarily waive his right to testify at trial

because trial counsel failed to properly advise him of his right

and failed to properly prepare him to testify.           Citing State v.


                                  15                                A-3586-14T2
Savage, 120 N.J. 594, 631 (1990), certif. denied, 228 N.J. 35

(2016), Judge Gardner noted that while "'counsel's responsibility

includes   advising   a   defendant   of   the   benefits   inherent    in

exercising that right and the consequences inherent in waiving

it'" our Supreme Court has stated that "'to ensure that counsel

meets that obligation, it may be the better practice for a trial

court to inquire of counsel whether he or she had advised a . . .

defendant[] of his right to testify.'"            Ibid.     In rejecting

defendant's argument, Judge Gardner accepted Strauss' testimony

that he did, in fact, speak with defendant about testifying at

trial.   In addition, Judge Gardner pointed out that

           the [c]ourt conducted a voir dire of
           [defendant] about his right to testify and the
           positive and negative aspects of doing so
           . . . . [Defendant] stated under oath that he
           had spoken to his attorney, discussed the
           matter and had elected not to testify. . . .
           Therefore, whether or not [defendant] spoke
           with his attorney is of no moment.        This
           [c]ourt conducted the voir dire of [defendant]
           and he acknowledged his waiver of the right
           to testify.

    Finally, Judge Gardner evaluated defendant's contention that

the "[c]ourt misread the stipulation regarding the hoodie . . .

[and] mistakenly led the jury to believe he was the shooter."

Judge Gardner explained:

           [Defendant] contends that while it does appear
           that trial counsel stipulated that . . . the
           hoodie, was the same hoodie that [defendant]

                                 16                              A-3586-14T2
    was wearing when he was arrested, it does not
    appear that . . . trial counsel stipulated
    that this was the hoodie worn by the shooter
    in this particular case.     This allegation
    should have been raised by appellate counsel
    on the direct appeal as the issue was wholly
    contained within the trial record. R. 3:22-
    3; 3:22-4. However, no such claim was made
    in the appeal.

         Even if this claim was not procedurally
    barred, this claim fails substantively as
    well. Trial counsel's strategic and tactical
    decisions will not ordinarily provide the
    basis for a finding of ineffective assistance
    of counsel, even if they are miscalculations.
    State v. Castagna, 187 N.J. 293, 314-15
    (2006).   A stipulation such as one in this
    case is within the realm of trial counsel's
    strategic decision. Mr. Strauss testified at
    the PCR hearing that although he was aware at
    the time that the court had misread the
    stipulation, he, as a matter of trial
    strategy, did not object and call attention
    to the issues regarding the hoodie to the
    jury.   Further, [defendant] was in court at
    the time and lacks an explanation for why he
    did not bring up the topic with Mr. Strauss
    at the time it happened. . . .

         Even assuming such a strategic decision
    to stipulate to the hoodie in question amounts
    to ineffective assistance of counsel, however,
    it is highly unlikely that without the
    stipulation the outcome of the case would have
    been different. Thus, [defendant] has failed
    to show that trial counsel was ineffective or
    that but-for the alleged ineffectiveness of
    counsel, the outcome of the case would have
    been different.

Judge Gardner concluded that

    the trial strategy, decision making, and
    performance of Mr. Strauss was not deficient

                         17                          A-3586-14T2
              pursuant to Strickland v. Washington[, 466
              U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674
              (1984)]. Even if this [c]ourt were to assume
              that the performance of trial counsel and
              appellate counsel were deficient, the evidence
              of guilt of [defendant] that was produced at
              trial was overwhelming.       Therefore, this
              [c]ourt finds that there is no reasonable
              probability that trial or appellate counsels'
              performance would have changed the ultimate
              result in this case.

       This   appeal   followed.   On   appeal,   defendant   raises   the

following arguments for our consideration.

              POINT I: THE TRIAL COURT ERRED IN DENYING THE
              DEFENDANT'S PETITION FOR POST CONVICTION
              RELIEF FOLLOWING AN EVIDENTIARY HEARING SINCE
              THE DEFENDANT FAILED TO RECEIVE ADEQUATE LEGAL
              REPRESENTATION FROM TRIAL COUNSEL IN SEVERAL
              DIFFERENT RESPECTS, WHILE THE FACTUAL FINDINGS
              MADE BY THE TRIAL COURT UNDERLYING ITS DENIAL
              WERE NOT SUPPORTED BY THE RECORD ESTABLISHED
              AT THE HEARING.

                   A.3 THE TRIAL COURT ERRED IN
                   DENYING   THAT   ASPECT    OF   THE
                   DEFENDANT'S   PETITION   FOR   POST
                   CONVICTION RELIEF MAINTAINING HE
                   DID NOT RECEIVE ADEQUATE LEGAL
                   REPRESENTATION FROM TRIAL COUNSEL
                   AS A RESULT OF TRIAL COUNSEL'S
                   FAILURE TO THOROUGHLY INVESTIGATE
                   AND PRESENT AN ALIBI DEFENSE ON THE
                   DEFENDANT'S BEHALF.

                   B.   THE TRIAL COURT ERRED IN
                   DENYING   THAT   ASPECT   OF  THE
                   DEFENDANT'S   PETITION  FOR  POST
                   CONVICTION RELIEF MAINTAINING HE
                   DID NOT RECEIVE ADEQUATE LEGAL
                   REPRESENTATION FROM TRIAL COUNSEL

3
    Defendant's sub-parts have been renumbered for clarity.

                                   18                             A-3586-14T2
     AS A RESULT OF COUNSEL'S FAILURE TO
     THOROUGHLY DISCUSS WITH HIS CLIENT
     ALL     RELEVANT      RAMIFICATIONS
     ASSOCIATED   WITH    THE   DECISION
     WHETHER OR NOT TO TESTIFY, AS A
     RESULT OF WHICH THE DEFENDANT DID
     NOT TESTIFY IN HIS OWN DEFENSE.

     C.   THE TRIAL COURT ERRED IN
     DENYING    THAT   ASPECT    OF   THE
     DEFENDANT'S    PETITION   FOR   POST
     CONVICTION RELIEF MAINTAINING HE
     DID NOT RECEIVE ADEQUATE LEGAL
     REPRESENTATION FROM TRIAL COUNSEL
     AS A RESULT OF TRIAL COUNSEL'S
     FAILURE TO OBJECT TO THE TRIAL
     COURT'S ERRONEOUS RECITATION OF A
     STIPULATION TO THE JURY DURING ITS
     CHARGE, AND BY FAILING TO REQUEST AN
     IMMEDIATE CURATIVE INSTRUCTION TO
     AMELIORATE       THE       RESULTING
     PREJUDICIAL     IMPACT     TO    THE
     DEFENDANT.

POINT II: 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    DID   NOT    RECEIVE   ADEQUATE    LEGAL
REPRESENTATION FROM TRIAL COUNSEL AS A RESULT
OF TRIAL COUNSEL'S FAILURE TO INFORM THE COURT
A JUROR HAD BEEN SLEEPING DURING THE COURSE
OF THE TRIAL.

POINT III: THE POST CONVICTION RELIEF JUDGE
ERRED IN DENYING POST CONVICTION RELIEF
COUNSEL'S REQUEST TO RETURN THE EVIDENTIARY
HEARING TO THE POST CONVICTION RELIEF JUDGE
WHO ORIGINALLY PRESIDED OVER LEGAL ARGUMENT
WHICH RESULTED IN ORDERING AN EVIDENTIARY
HEARING, AND WHO ALSO THEREFORE HEARD PARTIAL
TESTIMONY FROM TRIAL COUNSEL.




                     19                          A-3586-14T2
                                  II.

     Claims   of   ineffective   assistance   of    counsel   (IAC)   are

generally governed by the standards set forth in Strickland v.

Washington, supra, and United States v. Cronic, 466 U.S. 648, 104

S. Ct. 2039, 80 L. Ed. 2d 657 (1984), and adopted by this Court

in interpreting the New Jersey Constitution.        See State v. Allah,

170 N.J. 269, 283 (2002); State v. Fritz, 105 N.J. 42, 58 (1987).

To be entitled to a new trial based on IAC, a defendant must make

a two-part showing:

          First, the defendant must show that counsel's
          performance was deficient. This requires
          showing that counsel made errors so serious
          that counsel was not functioning as the
          "counsel" guaranteed the defendant by the
          Sixth Amendment. Second, the defendant must
          show that the deficient performance prejudiced
          the defense.     This requires showing that
          counsel's errors were so serious as to deprive
          the defendant of a fair trial, a trial whose
          result is reliable. Unless a defendant makes
          both showings, it cannot be said that the
          conviction . . . resulted from a breakdown in
          the adversary process that renders the result
          unreliable.

          [Fritz, supra, 105 N.J. at 52 (quoting
          Strickland, supra, 466 U.S. at 687, 104 S. Ct.
          at 2064, 80 L. Ed. 2d at 693).]

Defendant bears the burden of proving both elements of an IAC

claim by a preponderance of the evidence.          State v. Gaitan, 209

N.J. 339, 350 (2012), cert. denied, ___ U.S. ___, 133 S. Ct. 1454,

185 L. Ed. 2d 361 (2013).

                                  20                             A-3586-14T2
       In determining whether defense counsel's representation was

deficient,    "'[j]udicial     scrutiny   .    .     .    must     be    highly

deferential,' and must avoid viewing the performance under the

'distorting effects of hindsight.'"       State v. Norman, 151 N.J. 5,

37 (1997) (quoting Strickland, supra, 466 U.S. at 689, 104 S. Ct.

at 2065, 80 L. Ed. 2d at 694). Because of the inherent difficulties

in evaluating a defense counsel's tactical decisions from his or

her perspective during trial, "a court must indulge a strong

presumption that counsel's conduct falls within the wide range of

reasonable professional assistance; that is, the defendant must

overcome   the   presumption   that,   under   the       circumstances,      the

challenged action 'might be considered sound trial strategy.'"

Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed.

at 694-95 (quoting Michel v. Louisiana, 350 U.S. 91, 101, 76 S.

Ct. 158, 164, 100 L. Ed. 83, 93 (1955)).

       In determining whether defense counsel's alleged deficient

performance prejudiced the defense, "[i]t is not enough for the

defendant to show that the errors had some conceivable effect on

the outcome of the proceeding."        Id. at 693, 104 S. Ct. at 2067,

80 L. Ed. 2d at 697. Rather, defendant bears the burden of showing

that "there is a reasonable probability that, but for counsel's

unprofessional errors, the result of the proceeding would have

been   different.    A   reasonable    probability        is   a   probability

                                  21                                    A-3586-14T2
sufficient to undermine confidence in the outcome."         Id. at 694,

104 S. Ct. at 2068, 80 L. Ed. 2d at 698; see also State v. Harris,

181 N.J. 391, 432 (2004), cert. denied, 545 U.S. 1145, 125 S. Ct.

2973, 162 L. Ed. 2d 898 (2005).

     We review the PCR court's findings of fact based on "live

witnesses   testimony"   to   determine   whether   such   findings   are

supported by sufficient credible evidence in the record.           State

v. Nash, 212 N.J. 518, 540 (2013).        However, we review the PCR

court's conclusions of law under a de novo standard.        Id. at 540-

41; see also Harris, supra, 181 N.J. at 420-21.               For mixed

questions of law and fact, we give deference to the supported

factual findings of the PCR court, but review de novo the PCR

court's application of any legal rules to such factual findings.

Harris, supra, 181 N.J. at 416 (citing State v. Marshall, 148 N.J.

89, 185, cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed.

2d 88 (1997)).   "[W]here no evidentiary hearing has been held, we

'may exercise de novo review over the factual inferences drawn

from the documentary record by the [PCR judge].'" State v. Reevey,

417 N.J. Super.    134, 146-47 (App. Div. 2010) (alteration in

original) (quoting Harris, supra, 181 N.J. at 421), certif. denied,

206 N.J. 64 (2011).      Indeed, "[a]ssessing IAC claims involves

matters of fact, but the ultimate determination is one of law[.]"

Harris, supra, 181 N.J. at 419.

                                  22                             A-3586-14T2
     Judged by these standards, we conclude that trial counsel's

performance was not deficient and we affirm substantially based

upon Judge Gardner's well-reasoned written opinion.                     Contrary to

defendant's assertions, we are satisfied that Judge Gardner's

factual   findings       based     upon    his   credibility      assessments       are

supported by sufficient credible evidence in the record to warrant

our deference, and we concur with his conclusions of law. Notably,

we reject defendant's contention that Judge Gardner erred in

overruling     defendant's        objection      to    the   transfer   of    the   PCR

proceedings from Judge Leath.              Although defendant "believed trial

counsel's credibility had been adversely impacted" during the

preliminary voir dire, rendering Judge Leath better suited to

evaluate trial counsel's credibility, a factual inconsistency

between       trial     counsel's       and      the     prosecuting      attorney's

recollection of a five-minute conversation does not rise to the

level of a credibility finding.               We agree with Judge Gardner that

there   was    no     prejudice    to     defendant     because   trial      counsel's

testimony about the substantive PCR claims occurred before Judge

Gardner who had the "opportunity to hear and see the witness[]"

and make his own credibility findings.                 State v. Gamble, 218 N.J.

412, 425 (quoting State v. Johnson, 42 N.J. 146, 161 (1964)).

     As a whole, we find the claims defendant offers to establish

IAC lacking in sufficient merit to require more than limited

                                           23                                  A-3586-14T2
comments in a written opinion.         R. 2:11-3(e)(2).     Those comments

are as follows.        It is well established that "[i]n matters of

trial strategy, we accord great deference to the decisions of

counsel[.]" State v. Biegenwald, 126 N.J. 1, 56 (1991). Moreover,

          [S]trategic choices made after thorough
          investigation of law and facts relevant to
          plausible      options      are      virtually
          unchallengeable; and strategic choices made
          after less than complete investigation are
          reasonable precisely to the extent that
          reasonable professional judgments support the
          limitations on investigation. In other words,
          counsel has a duty to make reasonable
          investigations or to make a reasonable
          decision that makes particular investigations
          unnecessary. In any ineffectiveness case, a
          particular decision not to investigate must
          be directly assessed for reasonableness in all
          the circumstances, applying a heavy measure
          of deference to counsel's judgments.

          [Strickland, supra, 466 U.S. at 690-91, 104
          S. Ct. at 2066, 80 L. Ed. 2d 695.]

     Defendant    argues     that     "[t]rial   counsel,     in   essence,

intentionally ignored a defense which the defendant believed was

substantiated    not    merely   by   himself,   but   by   numerous     other

individuals[,]" and "despite the defendant's desire to testify at

trial, counsel . . . failed to call him as a witness[.]"                 It is

axiomatic that one of the most difficult strategic decisions that

any trial attorney must confront is determining which witnesses

to call to the stand.      State v. Arthur, 184 N.J. 307, 320 (2005).



                                      24                               A-3586-14T2
          A trial attorney must consider what testimony
          a witness can be expected to give, whether the
          witness's testimony will be subject to
          effective impeachment by prior inconsistent
          statements or other means, whether the witness
          is likely to contradict the testimony of other
          witnesses the attorney intends to present and
          thereby undermine their credibility, whether
          the trier of fact is likely to find the witness
          credible, and a variety of other tangible and
          intangible factors.

          [Id. at 320-21.]

Therefore, like other aspects of trial representation, a defense

attorney's decision concerning which witnesses to call to the

stand is "an art," and a court's review of such a decision should

be "highly deferential."   Strickland, supra, 466 U.S. at 689, 693,

104 S. Ct. at 2065, 2067, 80 L. Ed. 2d at 694, 697.         Moreover,

"[c]ounsel's fear that a weak alibi could cause more harm than

good is the type of strategic decision that should not be second

guessed on appeal."   State v. Drisco, 355 N.J. Super. 283, 291

(App. Div. 2002), certif. denied, 178 N.J. 252 (2003).          Here,

trial counsel's decision to withhold an alibi defense from the

jury was entitled to highly deferential review by the PCR court,

a standard to which the PCR court abided in concluding that there

was a reasonable basis for trial counsel's strategic decision.

     Even assuming trial counsel was deficient in failing to call

the proffered witnesses, we are unable to find prejudice to the

defense such that there is a "reasonable probability" the outcome

                                25                            A-3586-14T2
of defendant's trial would have been different, or "the factfinder

would have had a reasonable doubt respecting guilt."                       Strickland,

supra, 466 U.S. at 695, 104 S. Ct. at 2068-69, 80 L. Ed. 2d at

698.    In making a prejudice finding, the PCR court must consider

"the totality of the evidence before the judge or jury" and "a

verdict or conclusion only weakly supported by the record is more

likely to have been affected by errors than one with overwhelming

record support."      Id. at 695-96, 104 S. Ct. at 2069, 80 L. Ed. 2d

at   698-99.       Here,    as    Judge     Gardner     noted,    the   verdict     had

overwhelming support in the trial record.                  Cf. State v. Pierre,

223 N.J. 560 (2015) (reversing denial of defendant's petition for

PCR and finding that his attorney was deficient in failing to

present evidence, including the testimony of absent witnesses,

that could have reinforced defendant's alibi and defendant was

prejudiced because there was sparse evidence implicating him in

the crimes).

       Defendant    argues        further      that    Judge     Gardner    erred     in

determining    that    his       voir   dire    with   defendant     regarding      his

election to testify or remain silent was dispositive of defendant's

IAC claim that trial counsel failed to sufficiently discuss the

decision with him.         However, Judge Gardner's ruling comports with

State v. Ball, 381 N.J. Super. 545, 557 (App. Div. 2005), where

we held "that regardless of whether defendant was advised by

                                          26                                   A-3586-14T2
counsel," the trial judge's explanation of defendant's right to

testify and the possible consequences of his choice, as occurred

here, defeats an IAC claim and cures any alleged deficiency in

counsel's performance in that regard.

     Defendant also argues that "contrary to the trial court's

conclusion, the effect of the misread stipulation guaranteed the

outcome of the case to the defendant's detriment, and trial

counsel's failure to take appropriate action could not possibly

have been characterized as constituting sound trial strategy."        We

disagree.

                 The quality of counsel's performance
            cannot be fairly assessed by focusing on a
            handful of issues while ignoring the totality
            of counsel's performance in the context of the
            State's evidence of defendant's guilt. As a
            general rule, strategic miscalculations or
            trial mistakes are insufficient to warrant
            reversal "except in those rare instances where
            they are of such magnitude as to thwart the
            fundamental guarantee of [a] fair trial."

            [Castagna,    supra,   187   N.J.   at   314-15
            (alteration      in    original)     (citations
            omitted).]

This is not such an instance.

     Additionally, defendant asserts that an evidentiary hearing

was warranted to further address his claim that trial counsel was

ineffective for failing to take action when he informed him that

a juror was sleeping during the course of the trial.          The mere


                                   27                          A-3586-14T2
raising of a claim for PCR does not entitle the defendant to an

evidentiary hearing.        State v. Cummings, 321 N.J. Super. 154, 170

(App. Div.), certif. denied, 162 N.J. 199 (1999).               Rather, trial

courts should grant evidentiary hearings only if the defendant has

presented a prima facie claim of ineffective assistance, material

issues of disputed fact lie outside the record, and resolution of

the issues necessitate a hearing.            R. 3:22-10(b); State v. Porter,

216 N.J. 343, 355 (2013).              "Rule 3:22-10 recognizes judicial

discretion to conduct such hearings."            State v. Preciose, 129 N.J.

451, 462 (1992).   Here, we discern no abuse of discretion in Judge

Leath's    rejection   of    defendant's       self-serving     claim   without

granting an evidentiary hearing as defendant's vague assertions

in   essence   amounted      to    uncorroborated     "bald     assertions[.]"

Cummings, supra, 321 N.J. Super. at 170.

     The purpose of the constitutional guarantee of effective

assistance of counsel "is simply to ensure that criminal defendants

receive a fair trial."        Strickland, supra, 466 U.S. at 689, 104

S. Ct. at 2065, 80 L. Ed. 2d at 694; see also Waters v. Thomas,

46 F.3d 1506, 1512 (11th Cir. 1995) (en banc) ("The test [of

ineffective assistance] has nothing to do with what the best

lawyers would have done.           Nor is the test even what most good

lawyers would have done. . . .           We are not interested in grading

lawyers'    performances;         we   are    interested   in    whether     the

                                       28                               A-3586-14T2
adversarial    process   at    trial,    in   fact,   worked    adequately.")

(quoting White v. Singletary, 972 F.2d 1218, 1220-21 (11th Cir.

1992), cert. denied, 514 U.S. 1131, 115 S. Ct. 2008, 131 L. Ed.

2d 1008 (1995)), cert. denied, 516 U.S. 856, 116 S. Ct. 160, 133

L. Ed. 2d 103 (1995).         Thus, "[t]he test is not whether defense

counsel   could   have   done     better,     but     whether   he   met   the

constitutional threshold for effectiveness."              Nash, supra, 212

N.J. at 543.

    A review of the complete record shows that trial counsel made

an objectively reasonable decision regarding his overall strategy

in defending the charges against defendant and that he conducted

this defense in a reasonably effective manner.            Therefore, we are

satisfied that trial counsel's representation of defendant fell

"within the wide range of reasonable professional assistance" to

which an accused is entitled and that defendant received a "fair

trial." Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065,

80 L. Ed. 2d at 694.

    Affirmed.




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