                                NOT FOR PUBLICATION WITHOUT THE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-1236-18T3

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

TARI D. TURPIN, a/k/a
TARID TURPIN, TARI TURRIN,
and TARI DEMOND TURPIN,

     Defendant-Appellant.
______________________________

                   Submitted January 27, 2020 – Decided July 6, 2020

                   Before Judges Sumners and Geiger.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Hudson County, Indictment No. 14-05-0885.

                   Joseph E. Krakora, Public Defender, attorney for
                   appellant (David J. Reich, Designated Counsel, on the
                   brief).

                   Esther Suarez, Hudson County Prosecutor, attorney for
                   respondent (Erin M. Campbell, Assistant Prosecutor,
                   on the brief).

PER CURIAM
        In the early morning hours of August 25, 2013, defendant was a passenger

on a Port Authority Trans-Hudson (PATH) train when he got into a verbal

argument with two other passengers, D.D.1 and A.M., and then shot them with

a handgun loaded with hollow point bullets.

        In June 2015, a jury found defendant guilty of two counts of aggravated

assault, possession of a gun for an improper purpose, possession of a gun

without a permit, making terroristic threats, possession of hollow point bullets,

and creating a risk of widespread injury or damage.          Defendant was later

sentenced to a twenty-year prison term, subject to the No Early Release Act

(NERA), N.J.S.A. 2C:43-7.2, for the aggravated assault of D.D., and a

consecutive ten-year prison term, subject to NERA, for the aggravated assault

of A.M. Defendant’s conviction and sentences were affirmed on direct appeal.

State v. Turpin, No. A-1745-15T2 (App. Div. June 8, 2017), certif. denied, 231

N.J. 539 (2017).

        On January 8, 2018, a self-represented defendant filed a petition for PCR 2

claiming his trial counsel was ineffective for failing to: (1) appropriately advise


1
    We use the victims' initials to protect their privacy.
2
  As noted infra, defendant's petition was later supplemented by assigned PCR
counsel.
                                                                           A-1236-18T3
                                           2
him to testify in his own defense; (2) impeach D.D. with her most recent

conviction; (3) review discovery with him; (4) defend against the charge of

assault of A.M.; (5) investigate D.D.; and (6) interview witnesses.           On

September 17, the PCR judge, who did not preside over defendant's trial, issued

an order and twelve-page written decision dismissing the petition without an

evidentiary hearing. In denying relief, the judge determined defendant failed to

establish a prima facie case of ineffective assistance of counsel under the two -

prong test of Strickland v. Washington, 466 U.S. 668, 687, 694 (1984) and State

v. Fritz, 105 N.J. 42, 58 (1987), that the performance of trial counsel was

deficient and that, but for the deficient performance, the result would have been

different at trial.

       Before us, defendant contends:

              POINT I

              THE PCR COURT ERRED IN NOT GRANTING
              [DEFENDANT] AN EVIDENTIARY HEARING
              REGARDING HIS CLAIM HIS COUNSEL WAS
              INEFFECTIVE IN ADVISING HIM NOT TO
              TESTIFY.

              POINT II

              THE PCR COURT ERRED IN NOT GRANTING
              [DEFENDANT] AN EVIDENTIARY HEARING
              REGARDING HIS CLAIM HIS COUNSEL WAS
              INEFFECTIVE IN NOT IMPEACHING A KEY

                                                                         A-1236-18T3
                                        3
            WITNESS AGAINST HIM WITH HER RECENT
            CONVICTION     FOR      THIRD-DEGREE
            AGGRAVATED ASSAULT.

            POINT III

            DEFENSE COUNSEL WAS INEFFECTIVE IN
            FAILING TO TAILOR HIS SUMMATION TO THE
            JURY CHARGE KNOWN TO BE FORTHCOMING
            AND IN FAILING TO REQUEST A SEPARATE
            JURY CHARGE CONCERNING CAUSATION.

      Considering these arguments in light of the record and applicable legal

standards, we affirm the PCR judge’s decision as to Points I and II for the

reasons set forth in his written decision. However, as to Point III, although

raised for the first time in this appeal, we conclude defendant established a prima

facie claim and remand for an evidentiary hearing to avoid an unjust result as to

the aggravated assault of A.M. The hearing shall address why counsel did not

argue in summation that defendant's conduct of bringing a loaded handgun onto

a PATH train was not reckless and why counsel failed to request a jury charge

regarding causation.

                                        I.

      Because the PCR judge did not conduct an evidentiary hearing on

defendant's petition, we may review de novo the factual inferences the court has




                                                                           A-1236-18T3
                                        4
drawn from the record. State v. O'Donnell, 435 N.J. Super. 351, 373 (App. Div.

2014).

      The shooting is summarized as follows:

            At about 4:30 a.m., while riding the PATH train from
            New York to Jersey City, defendant and his female
            companion got into an argument with another
            passenger, D.D. During the argument, defendant pulled
            out a gun [out of his pants (shorts) pocket], and then
            returned it to his pocket. He then began to pull the gun
            back out of his pocket, and D.D.'s friend, A.M,
            intervened. According to A.M., he put his left hand
            over the pocket containing the gun, and put his right
            hand on defendant's wrist in an effort to keep him from
            pulling out the gun. Defendant fired the gun, shooting
            off three fingers of A.M.'s left hand but also wounding
            himself in the leg. By this time the train had reached
            Jersey City, and defendant exited the train, still holding
            the gun. He paused, turned, and fired two shots at D.D.,
            hitting her once in the leg and shattering her ankle.

            Defendant fled through the PATH station, discarding
            the gun on a ledge, where it was later recovered by the
            police.    Shortly after the incident, the police
            apprehended defendant a few blocks from the PATH
            station. The shooting set off a panic inside the PATH
            station and resulted in a shutdown of PATH train
            service.

            Virtually the entire incident, including defendant
            committing the shootings and discarding the gun, was
            captured by the PATH system's security video cameras.
            The videos were played for the jury. The State also
            presented testimony from the individual from whom
            defendant obtained the gun, a Glock 9 model loaded
            with hollow point bullets.

                                                                         A-1236-18T3
                                        5
            [Turpin, slip op. at 3-4 (footnote omitted) (internal
            citation omitted).]

                                        II.

      We address defendant's claims in the order presented to us.

                                     A.
                  Counsel’s Advice to Defendant Not to Testify

      In his PCR petition, defendant contended his decision not to testify at trial

was due to trial counsel's ineffective assistance in advising him not to testify.

After considering the trial record and the parties' arguments, the PCR judge

determined the contention was without merit. We agree.

      After the State rested and outside the jury's presence, defense counsel

notified the court defendant was the only defense witness and asked the court to

voir dire him regarding his decision to testify. Counsel stated:

            I've    advised      [defendant]      so    there's   no
            miscommunications that if he testifies[,] he will be
            subject to cross-examination, one, with regard to his
            three prior felony convictions which include, I want to
            say, burglaries or thefts in or about 1999. They will be
            sanitized. And he has a gun conviction in 2005 out of
            [the] State of New York. He received a three with a
            one. That the State would be able to ask him [to] say
            the degree of the crime and the sentence he received.

                  ....



                                                                           A-1236-18T3
                                        6
     Also, I've advised him that he runs the risk and the State
     will, if they want, impeach him with his statement.
     Even though the [c]ourt has suppressed his statement to
     [police] . . . if he testifies[,] he could be impeached with
     that.

     So, at this time, it's [defendant's] decision.

The following colloquy ensued:

     THE COURT: Okay, . . . what you want to do? You
     want to be a witness or not?

     [DEFENDANT]: Yes.

     THE COURT: You want to testify? Okay. . . . I didn't
     hear.

     [DEFENDANT]: Yes.

     THE COURT: All right. And as [your counsel]
     explained to you, I suppressed [the] statement you
     made to the police based upon the law. But if you say
     something that's contradictory to what was said in the
     statement they have the right to impeach you . . . or
     present it to you and then . . . show the jury you said
     something different at a different time. That's what
     impeach means. You understand that?

     [DEFENDANT]: Yes.

     THE COURT: And you also understand that your prior
     convictions, they'll all be . . . sanitized. The jury will
     be made aware of your prior convictions, the date of the
     offense, and the sentence you received and the degree
     of the crime. You understand that?

     [DEFENDANT]: Yes.

                                                                    A-1236-18T3
                                  7
            THE COURT: Okay. All right.

      Immediately after the colloquy, counsel's request for a five-minute break

was granted by the court.     When the proceedings resumed, counsel stated

defendant had changed his mind about testifying. The court then engaged

defendant as follows:

            THE COURT: Okay. . . . [I]t's your decision you do
            not want to testify?

            [DEFENDANT]: Yes.

            THE COURT: That's your decision? . . . [O]f course
            you've consulted with [trial counsel]. He's done a
            wonderful job representing you. But it's your decision
            not his, you understand that?

            [DEFENDANT]: Yes.

            THE COURT: And . . . you don't want to testify. You're
            sure?

            [DEFENDANT]: Yes.

            THE COURT: Okay.

      To offset his representations to the trial court, defendant's affidavit in

support of PCR provides:

            I wanted to testify at trial to explain to the jury how I
            was not the aggressor, yet it [was A.M.] who attacked
            me. We were surrounded by a large group of
            intoxicated individuals on the PATH train that night.

                                                                        A-1236-18T3
                                       8
            The actions that I took were justified to defend myself,
            [my female companion], and her two children. I
            explained this [to] my trial attorney, yet he advised
            against me taking the stand despite my insistence that I
            need to tell the jury what really happened that night
            from my perspective.

      With this record in mind, the PCR judge found counsel was not ineffective

in advising defendant regarding the ramifications of testifying.          The judge

reasoned:

            The record is clearly indicative of two things: first, that
            defendant unequivocally decided to not take the stand
            when pressed, resolutely stood by his position. Second,
            this decision was a strategic one, made easier by the
            risk of impeachment of defendant with his extensive
            array of prior indelible offenses convictions and
            involvements with the criminal justice system.
            Considering this argument under the Strickland lens,
            defendant’s argument must fail because a strategic
            decision agreed-to and affirmed-by a defendant on-the-
            record of his choice in not taking the stand does not
            overcome the strong presumption that counsel's
            conduct fell outside the "wide range of professionally
            competent assistance[.]" 466 U.S. at 690; see also
            Pressler & Verniero, Current N.J. Court Rules, cmt. 1.1
            on R. 3-22-2(a) (2019).

The PCR judge explained that because defendant could not satisfy the first prong

of Strickland, analysis of the second prong was not necessary.

      We discern no basis to disturb the PCR judge's ruling on this issue. Our

examination of defendant's claim and review of the record convinces us


                                                                            A-1236-18T3
                                        9
defendant has not established by a preponderance of evidence a prima facie case

of ineffective assistance of trial counsel when he chose not to testify at his trial

and, thus, there was no need for an evidentiary hearing. See State v. Nash, 212

N.J. 518, 526 (2013) (holding defendant has the burden to establish his or her

right to PCR "by a preponderance of the credible evidence") (quoting State v.

Preciose, 129 N.J. 451, 459 (1992)); Preciose, 129 N.J. at 462 (ruling a court

reviewing a PCR petition based on claims of ineffective assistance of counsel

has the discretion to grant an evidentiary hearing if a defendant establishes a

prima facie showing in support of the requested relief); see also State v.

Cummings, 321 N.J. Super. 154, 170 (App. Div. 1999) (holding the mere raising

of a claim for PCR does not entitle a defendant to an evidentiary hearing). There

were no disputed issues of material facts regarding defendant's decision to

exercise his right not to testify that prevented the PCR judge from resolving

defendant's claim. See State v. Porter, 216 N.J. 343, 354 (2013).

      Defendant contends counsel gave him "extremely poor advice," and

counsel's quick, last minute consultation with him was insufficient to adequately

fulfill the minimal professional norms under our Rules of Professional Conduct.

RPC 1.2(a) requires that "[i]n a criminal case, the lawyer shall consult with his

client and, following consultation, shall abide by the client's decision on . . .


                                                                            A-1236-18T3
                                        10
whether to testify." RPC 1.4(c) requires "[a] lawyer shall explain a matter to

the extent reasonably necessary to make informed decisions . . . ."           Yet,

defendant failed to present any competent evidence, such as a certification, that

these RPCs were violated.

      There was no indication counsel did not properly consult defendant,

thereby rendering defendant's allegations as nothing more than "bald

assertions," and falling short of establishing a prima facie claim of ineffective

assistance. See Cummings, 321 N.J. Super. at 154. It is evident from the trial

record that defendant's decision not to testify was ultimately his choice. The

mere fact defendant chose not to testify and was found guilty is not a reflection

that counsel's advice regarding the potential consequences of testifying

constituted ineffective assistance.

      We add further that even assuming counsel was ineffective in his advice

to defendant regarding defendant's decision not to testify, there is no basis to

conclude defendant was prejudiced under Strickland's second prong due to

counsel's advice.     Defendant's credibility would have been significantly

questioned due to his criminal record, and there is no plausible basis to conclude

his testimony would have altered the jury's verdict.




                                                                          A-1236-18T3
                                       11
                                        B.
                        Counsel’s Failure to Impeach D.D.

      Defendant's PCR petition contended trial counsel was ineffective for not

seeking to impeach D.D.'s credibility by presenting evidence she was convicted

of a third-degree aggravated assault just two weeks prior to the trial. Again, the

PCR judge examined the trial record and determined the contention was without

merit. We agree.

      In the midst of the argument with D.D., defendant pulled out a gun, and

then returned it to his pocket.        D.D. testified that after she attempted to

deescalate the argument with defendant "[m]y friend [A.M.] he comes out of

nowhere. Like, I didn't see which direction he comes from. And he swings at

. . . defendant . . . and its instant[ly], like physical altercation. So, instant fight.

And we hear a shot go off." The bullet shot off three of A.M.'s fingers and

entered defendant's own leg. Surveillance video of the incident shows by this

time the train had reached its Jersey City stop, and after a protracted struggle

over the weapon with A.M., defendant exited the train, still holding the Glock

9. Defendant paused, turned, and fired two shots at D.D., hitting her once in the

leg and shattering her ankle.

      During D.D.'s direct examination, the State preemptively disclosed she

was on probation at the time of the incident due to her conviction of a fourth-

                                                                                A-1236-18T3
                                          12
degree crime but had successfully completed her probation before trial. On

cross-examination, trial counsel attempted to impeach D.D.'s credibility by

pointing out the conviction was for "recklessly using a weapon, specifically, a

knife, to commit an aggravated assault." However, counsel did not have D.D.

reveal to the jury that two weeks prior to trial, she was convicted of third-degree

aggravated assault.

      The PCR judge rejected defendant's claim that counsel was ineffective for

not bringing up D.D.'s two-week old conviction because defendant was not

prejudiced. The judge reasoned:

            [Defendant] fails to more strenuously consider the other
            evidence at trial . . . [D.D.'s] testimony as well as the
            PATH security video recording that captured "virtually
            the entire incident, including defendant committing the
            shooting and discarding the gun." (Turpin, slip op. at
            2). Accordingly, not only is the [c]ourt unmoved that
            trial counsel's decision not to further impeach [D.D.]
            was based solely on a failure to investigate that [S]tate's
            witnesses record, but that further impeachment would
            not have had a modicum of effect in light of the other
            evidence presented to the jury.

      Defendant reiterates his argument that trial counsel's failure to impeach

D.D. using her most recent conviction of aggravated assault was ineffective

assistance of counsel. He argues the conviction was for a higher degree and

there was no reason for trial counsel not to confront D.D. about it, unless he was


                                                                           A-1236-18T3
                                       13
not aware of it. He asserts D.D. depicted herself as a reformed person; having

completed her probation and attending college to study criminal justice. That

portrayal and being a shooting victim, according to defendant, enhanced her

credibility before the jury, which could have been materially negated if the jury

was aware of her most recent and more serious criminal offense. Defendant

posits this would have shown that D.D. and A.M. were the initial aggressors,

establishing his right to defend himself and the shooting of A.M. was an

accident. We are unpersuaded.

      Generally, a criminal defense counsel should impeach an adversarial

witness's credibility based upon the witness's criminal convictions, especially

where, as here, the witness was convicted of a third-degree offense a mere two

weeks prior to her testimony. However, defendant's reliance on State v. Holmes,

290 N.J. Super. 302, 313 (App. Div. 1996) to support his assertion that trial

counsel was ineffective for not seeking to impeach D.D. on her most recent

conviction is unavailing.

      We take no umbrage with defendant's citation to Holmes, where we noted

"[t]he cross-examination of government witnesses regarding prior convictions

is extraordinarily dear to defense counsel. . . . [E]very effort must be made to

make a jury aware of government witnesses' prior conviction." Id. at 312. We


                                                                         A-1236-18T3
                                      14
also do not disagree with our further comment in Holmes, cited by defendant,

that

             [t]he failure of defense counsel to impeach the
             credibility of the State's principal witnesses by reason
             of their prior criminality as well as by reason of their
             hopes and fears as a result of their vulnerable status, is
             impossible to square with the concept of effective
             representation. Under no possible scenario could this
             be viewed as within the range of legitimate decisions as
             to how best to represent a criminal defendant.

             [Id. at 314.]

In Holmes the failure to impeach the State's witness, who committed numerous

violent crimes, was prejudicial because there was "a pitched credibility battle

between defendant and the [eye-witnesses]. The outcome of the case depended

on who the jury believed." Id. at 308-10, 312.

       Defendant, however, has failed to show he was prejudiced, as Strickland's

second prong requires, because counsel failed to impeach D.D.'s credibility by

confronting her concerning her most recent conviction.            Considering the

surveillance video's depiction of the entire incident and D.D.'s testimony that

her friend, A.M., was the instigator of the incident, we join with the PCR judge

in concluding there has been no showing that impeaching D.D.'s credibility

beyond the State's introduction of her fourth-degree conviction with her more

recent third-degree conviction would have resulted in a different trial outcome.

                                                                          A-1236-18T3
                                        15
While the recent conviction could have tarnished D.D.'s credibility, her

testimony proved more helpful to defendant; noting she was drunk and had

engaged defendant in a quarrel before attempting to deescalate the situation once

defendant unveiled the gun, and that A.M.'s actions precipitated the shooting.

And, unlike the defendant in Holmes, defendant did not testify or present

witnesses, thus, he did not present any testimony contradicting D.D.'s testimony.

Hence, the PCR judge fittingly denied defendant's request for an evidentiary

hearing.

                                    C.
      Counsel’s Failure to Tailor His Summation to the Forthcoming Jury
      Charge Regarding Recklessness and Failure to Request a Jury Instruction
      on Causation.

      Defendant's last PCR argument derives from the trial court's jury

instruction and trial counsel's summation as they relate to the shooting of A.M.

He contends trial counsel was ineffective for not tailoring his summation to the

forthcoming jury charge regarding recklessness, and for not requesting a jury

instruction on causation.   Defendant acknowledges the PCR judge did not

address contentions that trial counsel was ineffective for not arguing lack of

recklessness in his summation and not seeking a jury instruction on causation.

Defendant contends even though PCR counsel did not raise these contentions at

oral argument, we can address them because "[t]he points raised . . . are derived

                                                                         A-1236-18T3
                                      16
from statements by . . . defendant in his certifications and pro se brief" and

"that there is sufficient information in the record for this court to address these

points."

      Our review of defendant's self-represented verified PCR petition and

certification, as well as the brief and the undated certification subsequently

prepared by assigned PCR counsel, show neither contended trial counsel failed

to argue to the jury that defendant lacked recklessness in the shooting or to seek

a jury instruction on causation related to the aggravated assault charge against

A.M. See R. 3:22-8 ("The petition shall be verified by defendant and shall set

forth with specificity the facts upon which the claim for relief is based, the legal

grounds of complaint asserted, and the particular relief sought."). Since the

contentions were not raised before the PCR judge, defendant must show plain

error, meaning trial counsel's alleged ineffectiveness was "clearly capable of

producing an unjust result," R. 2:10-2., affecting his "substantial rights," State

v. Chew, 150 N.J. 30, 82 (1997) (quoting United States v. Olano, 507 U.S. 725,

734 (1993)). We therefore review the record relevant to defendant's contentions.

      Prior to summation, counsel moved to dismiss the charge of aggravated

assault of A.M., arguing the indictment only listed the requisite mental state of

"purposely and knowingly" while D.D.'s testimony reflected the serious bodily


                                                                            A-1236-18T3
                                        17
injury caused to A.M. was either reckless, inadvertent, or in self-defense.3 In

denying the motion, the trial judge cited N.J.S.A. 2C:1-8(d)(3), which provides:

            A defendant may be convicted of an offense included
            in an offense charged whether or not the included
            offense is an indictable offense. An offense is so
            included when:

               ....

            (3) It differs from the offense charged only in the
            respect that a less serious injury or risk of injury to the
            same person, property or public interest or a lesser kind
            of culpability suffices to establish its commission.

The judge found "that reckless is a lesser count of culpability." Counsel then

advised the judge he objected to instructing the jury on recklessness.

      During summation, trial counsel stated:

            [T]he [j]udge is going to instruct you on the law. And
            I can only argue the facts that have been presented to
            you. I can't make them up. I can only tell you.

            So, you're going to hear the [j]udge instruct you on
            aggravated assault. And [A.M.'s] own words, even if
            accepted by all of you as true, does not constitute an
            aggravated assault. It doesn't.



3
  N.J.S.A. 2C:12-1(b)(1) provides "[a] person is guilty of aggravated assault if
the person . . . [a]ttempts to cause serious bodily injury to another, or causes
injury purposely or knowingly or under circumstances manifesting extreme
indifference to the value of human life recklessly causes such injury[.]"
(Emphasis added).
                                                                          A-1236-18T3
                                       18
            It's – you heard [A.M.] specifically say I grabbed it – I
            – well, he didn't say he punched him. [D.D.] said he
            punched him. He denied it, even though the video
            shows he did it. I grabbed his pocket. There was a
            struggle.

            Gun went off. That's not purposefully. That's not
            knowingly. That's not aggravated assault which was
            charged in the indictment.

While counsel argued A.M. grabbed the gun in defendant's pocket, he made no

reference to defendant not being reckless.

      The prosecutor, in her summation argued:

            Now, even if you don't believe that defendant shot him
            [A.M.] purposely and knowingly. The [j]udge will still
            tell you that you can find his conduct was so reckless
            that he is still guilty of aggravated assault.

            And I submit to you in determining recklessness. What
            is the conduct of a reasonable person? Did the
            defendant's conduct deviate so much from the standard
            of care by bringing a loaded Glock with hollow point
            bullets on to a PATH train, packed with people. His
            own two infant children. Was that a gross deviation
            that resulted in the serious bodily injury to [A.M.]? I
            submit to you it was.

      After summation, the judge denied counsel's objection to the State's

comments regarding recklessness. The judge thereafter charged the jury that to

find defendant guilty of aggravated assault they must find he "acted purposely

or knowingly or acted recklessly."         The judge gave the jury extensive


                                                                        A-1236-18T3
                                      19
instructions on recklessness. The judge did not include any instruction on

causation, nor was it requested by either party.

      It is apparent that because trial counsel did not argue to the jury

defendant's actions were not reckless, the jury was left to consider the State's

argument that it could find defendant guilty of aggravated assault against A.M.

if he was reckless, and the judge instructed the jury likewise. The State argued

defendant was reckless by merely bringing a loaded gun on a crowded PATH

train. Defendant now argues counsel's failure to address the mental state of

recklessness left him defenseless to the State's summation argument. Defendant

asserts this was compounded by counsel's failure to seek a causation charge4 and



4
  Defendant cites Model Jury Charges (Criminal), "CAUSATION (N.J.S.A.
2C:2-3)" (approved June 2013), which provides when reckless or negligent
conduct is involved:

            Causation has a special meaning under the law. To
            establish causation, the State must prove two elements,
            each beyond a reasonable doubt:

            First, but for the defendant's conduct, the result in
            question would not have happened. In other words,
            without defendant's actions the result would not have
            occurred.

                  ....



                                                                        A-1236-18T3
                                      20
failure to argue A.M. was shot due to his superseding conduct in reaching inside

defendant's pocket for the gun and causing it to fire. If the request had been

made, defendant contends the trial court would have been obliged to grant it.

See State v. Green, 86 N.J. 281, 289-90 (1981) (ruling requests involving

essential and fundamental issues or substantially material matters should be

honored); State v. Belliard, 415 N.J. Super. 51, 70 (App. Div. 2010)

(determining the failure to tailor jury instructions to defense that volitional acts

of others could break the causal chain was plain error).

      While we can find no legal authority that a trial counsel's failure to request

a jury instruction constituted ineffective assistance, our Supreme Court

concluded in State v. O'Neil, 219 N.J. 598, 615-17 (2014) that appellate counsel

can be found ineffective for failing to raise a jury instruction issue. Specifically,

in O'Neil, the Court found the appellate counsel's failure to challenge the lack

of a self-defense jury charge was deficient. Id. at 606, 612-13.



             Second, [for reckless conduct] that the actual result
             must have been within the risk of which the defendant
             was aware. If not, it must involve the same kind of
             injury or harm as the probable result and must also not
             be too remote, too accidental in its occurrence or too
             dependent on another's volitional act to have a just
             bearing on the defendant's liability or on the gravity of
             his/her offense.


                                                                             A-1236-18T3
                                        21
      Given A.M.'s conduct in placing himself into the quarrel between

defendant, defendant's female companion, and D.D., by putting his hand inside

defendant's pocket – after defendant put the gun back in his pocket – to take

control of the gun, coupled with the State's argument that defendant was reckless

for carrying a loaded gun onto a public train, the jury's consideration of A.M.'s

conduct may have resulted in a different outcome on the conviction for

aggravated assault of A.M. had counsel addressed defendant's reckless state of

mind or lack thereof and requested a causation charge. Because we conclude

there is no illuminating theory as to why counsel did not argue a defense to

recklessness during summation and did not request a jury charge regarding

causation, defendant has made a prima facie case of ineffective assistance of

counsel.

      We therefore remand for an evidentiary hearing to determine whether trial

counsel considered arguing defendant was not reckless and why a causation

charge was not requested. If at the hearing, the PCR judge determines defendant

satisfies his claim that counsel's performance fell below professional norms, the

judge should determine the probability of whether the jury's verdict on

aggravated assault against A.M. might have been different.




                                                                         A-1236-18T3
                                      22
      Defendant shall be permitted to supplement the record with any

documentation and legal argument that would have been provided in his PCR

petition. Of course, the State shall have the right to respond. The PCR judge

shall conduct a case management conference within thirty days of this decision

to schedule the remand submissions and hearing. We express no view on the

merits of defendant's contentions.

      Affirmed in part, reversed in part, and remanded for proceedings

consistent with this opinion. We do not retain jurisdiction.




                                                                      A-1236-18T3
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