                                NOT FOR PUBLICATION WITHOUT THE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-5830-17T4

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

SEAN D. HARRIS, a/k/a
TWIZ TWITTER,

     Defendant-Appellant.
________________________

                    Submitted September 17, 2019 – Decided October 8, 2019

                    Before Judges Yannotti and Currier.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Monmouth County, Indictment No. 09-12-
                    2438.

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

                    Christopher J. Gramiccioni, Monmouth County
                    Prosecutor, attorney for respondent (Monica Lucinda
                    do Outeiro, Assistant Prosecutor, of counsel and on the
                    brief).
PER CURIAM

      Defendant Sean D. Harris appeals from an order entered by the Law

Division on June 29, 2018, which denied his petition for post-conviction relief

(PCR).

      In December 2009, a Monmouth County grand jury returned Indictment

No. 09-12-2438, charging defendant and Phillip Wylie with first-degree murder

of Andre Williams, contrary to N.J.S.A. 2C:11-3(a)(1). Defendant was later

tried before a jury. The trial began on October 12, 2011, and concluded on

January 6, 2012. The jury found defendant guilty of first-degree murder.

      Thereafter, the court denied defendant's motion for a new trial and granted

the State's motion for an extended term. The court sentenced defendant to forty-

five years in State prison, with a thirty-five-year period of parole ineligibility,

and imposed appropriate penalties and assessments.          The court entered a

judgment of conviction dated April 20, 2012.

      Defendant appealed and raised the following arguments:

            POINT I
            THE     PROSECUTOR'S  COMMENTS    IN
            SUMMATION SO FAR EXCEEDED THE BOUNDS
            OF PROPRIETY THAT A MISTRIAL SHOULD
            HAVE BEEN GRANTED.




                                                                           A-5830-17T4
                                        2
            POINT II
            THE ENTIRE TESTIMONY OF ALPHONSO
            EDWARDS, SR. CONSTITUTED INADMISSIBLE
            HEARSAY   AND    SHOULD    HAVE BEEN
            DISALLOWED. (NOT RAISED BELOW).

            POINT III
            THE PROSECUTOR IMPROPERLY QUESTIONED
            A COOPERATING WITNESS ABOUT HIS FEAR OF
            THE DEFENDANT, THUS INTERJECTING THAT
            THE DEFENDANT HAD BAD CHARACTER AND A
            PROPENSITY FOR VIOLENCE.

            POINT IV
            THE PROSECUTOR USED THE "TRUTHFUL
            TESTIMONY" REQUIREMENT OF THE PLEA
            BARGAIN TO BOLSTER THE CO-DEFENDANT'S
            CREDIBILITY; THE CONDUCT CONSTITUTED
            IMPERMISSIBLE "VOUCHING." (NOT RAISED
            BELOW).

            POINT V
            THE   COURT    DOUBLE   COUNTED    THE
            DEFENDANT'S PRIOR RECORD AND RELIED
            UPON IMPROPER CRITERIA IN DETERMINING
            THE DEFENDANT'S SENTENCE OF 45 YEARS, 35
            YEAR TO BE SERVED BEFORE PAROLE.

      We rejected defendant's arguments and affirmed his conviction and

sentence.   State v. Harris, No. A-6339-11 (App. Div. Aug. 27, 2015).

Thereafter, the Supreme Court denied defendant's petition for certification.

State v. Harris, 224 N.J. 123 (2016).




                                                                     A-5830-17T4
                                        3
      In our opinion, we noted that the testimony at trial established that on the

evening of June 7, 1997, Williams left an apartment in Asbury Park that he

shared with his girlfriend, T.C. Harris, slip op. at 2. They planned to meet later

at a concert, but Williams did not arrive and never returned to the apartment.

Ibid. His badly decomposed body was found on June 12, 1997 in a park in

Neptune Township. Ibid. The initial investigation was not fruitful, and it was

closed administratively. Ibid.

      Eventually, the Monmouth County Prosecutor's Office identified six

suspects: defendant, Alphonso Edwards, Jr., Darren Sims, Cedric Smith, Jason

Turner, Antonio Grant, and Wylie. Id. at 3. At the time of the murder, Turner

was sixteen years old, Grant was eighteen, Edwards was nineteen, Sims was

twenty-one, Wylie was twenty-three, Smith was twenty-five, and defendant was

twenty-four. Ibid.

      Edwards, Sims, Smith, Grant, and Wylie later pled guilty to aggravated

manslaughter, and Turner pled guilty to reckless manslaughter. Id. at 8. The

plea agreements required that they give truthful testimony, and they testified at

defendant's trial. Id. at 4, 8. Each had a substantial criminal record. Id. at 8.

Moreover, Edwards, Grant, Sims, and Turner were serving sentences on

unrelated charges at the time of trial. Ibid. In our opinion, we noted that while


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                                        4
there were some inconsistencies in the accounts of these witnesses, "their

testimony corroborated each other in the salient facts: that they tortured and

killed Williams with defendant and followed his directions." Id. at 4.

      On February 25, 2016, defendant filed a pro se petition for PCR. The

court assigned counsel to represent defendant, and counsel thereafter filed an

amended verified petition. Defendant alleged: (1) he was denied the effective

assistance of counsel because his attorney failed to investigate the case

adequately, and because his attorney did not object to the prosecutor's

"vouching" for the cooperating co-defendants; (2) the trial court erred by failing

to address the prosecutor's "misconduct" during summation; (3) his conviction

was against the weight of the evidence; (4) the verdict sheet was "defective" and

precluded the jury from returning a verdict on viable lesser-included offenses;

and (5) he was denied the effective assistance of appellate counsel.

      On June 27, 2018, Judge Vincent N. Falcetano, Jr., heard oral arguments,

and on June 29, 2018, filed a written opinion in which he concluded that

defendant had not presented a prima facie case of ineffective assistance of

counsel or any meritorious claim. The judge decided that defendant was not

entitled to an evidentiary hearing on his petition. The judge entered an order

dated June 29, 2018, denying PCR. This appeal followed.


                                                                          A-5830-17T4
                                        5
      On appeal, defendant argues:

            THIS MATTER MUST BE REMANDED FOR AN
            EVIDENTIARY       HEARING       BECAUSE
            DEFENDANT ESTABLISHED A PRIMA FACIE
            CASE OF TRIAL COUNSEL'S INEFFECTIVENESS
            DUE TO A LACK OF INVESTIGATION.

      We are convinced from our review of the record that defendant's

arguments are entirely without merit.       We affirm the order denying PCR

substantially for the reasons stated by Judge Falcetano in his thorough and well -

reasoned opinion. We add the following.

      As noted, defendant argues that the PCR court erred by failing to conduct

an evidentiary hearing on his petition. However, an evidentiary hearing is only

required if the defendant presents a prima facie case in support of the petition,

the court has determined that there are material issues of fact that cannot be

resolved based on the existing record, and an evidentiary hearing is required to

resolve the claims presented. State v. Porter, 216 N.J. 343, 354 (2013) (citing

R. 3:22-10(b)).

      Here, defendant argues that he presented a prima facie case of ineffective

assistance of counsel, which warranted an evidentiary hearing. To establish

ineffective assistance of counsel, a defendant must satisfy the two-part test




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                                        6
established in Strickland v. Washington, 466 U.S. 668, 693 (1984), and later

adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987).

      Under the test, a defendant first "must show that counsel's performance

was deficient." Strickland, 466 U.S. at 693. Defendant must establish that

counsel's performance "fell below an objective standard of reasonableness" and

"that counsel made errors so serious that counsel was not functioning as the

'counsel' guaranteed the defendant by the Sixth Amendment." Ibid.

      Defendant also must establish "that the deficient performance prejudiced

the defense." Ibid. To establish prejudice, "[t]he defendant must show 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 sufficient to undermine confidence in the outcome" of the matter.

Id. at 698.

      Defendant claims his trial counsel failed to conduct an adequate

investigation of his case. He states that he retained a new attorney while the

case was pending, and his new attorney was "rushed" into trial with only several

weeks to prepare. He claims his attorney erred by failing to seek an adjournment

that would have provided more time in which to prepare for trial.




                                                                             A-5830-17T4
                                         7
      In his opinion, Judge Falcetano observed that when a defendant alleges

trial counsel was ineffective because counsel failed to adequately investigate his

case, the defendant "must assert the facts that an investigation would have

revealed, supported by affidavits or certifications based upon the personal

knowledge of the affiant or the person making the certification." Porter, 216

N.J. at 353 (quoting State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.

1999)).

      Judge Falcetano found that defendant failed to present any credible

evidence to support his claim. The judge noted that at trial, defense counsel

advanced a theory that the case against defendant had been "fixed," and that in

his PCR petition, defendant had claimed his trial counsel failed to present any

evidence to support that theory. The judge noted, however, that defense counsel

had skillfully cross-examined David Gamble, a forensic detective who

processed the victim's clothing and testified for the State.

      The judge pointed out that Gamble had stated on direct examination that

there was a burn mark on the victim's clothes, but during cross-examination,

defense counsel "brought to light the fact that what the forensic detective

testified was a burn mark, was actually a clump of hair that the detective had




                                                                          A-5830-17T4
                                        8
missed." The judge found that this cross-examination "fit squarely into trial

counsel's theory that the case against defendant had been 'fixed.'"

      The judge also pointed out that defendant's trial attorney sought an

adjournment of the trial. The court had postponed the trial for several weeks

and informed counsel that he could make further applications for an adjournment

if the need arose. In addition, at a pre-trial conference held one week before

trial, trial counsel told the court that more time was needed to prepare the case

effectively, but he was prepared to proceed. The court indicated that due to the

anticipated length of the trial, there would be at least one substantial recess

during the trial, and that counsel could make further adjournment requests if

needed.

      Here, defendant has not shown that he was prejudiced by the alleged lack

of time to investigate or prepare for trial. He did not present the PCR court with

an affidavit or certification, based on personal knowledge, setting forth the facts

or evidence a further investigation would have revealed.         Thus, the record

supports the PCR court's conclusion that defendant failed to present a prima

facie case of ineffective assistance of counsel.       The PCR court correctly

determined that defendant was not entitled to an evidentiary hearing.

      Affirmed.


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