                             RECORD IMPOUNDED

                        NOT FOR PUBLICATION WITHOUT THE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-0791-15T2


STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

KEVIN WRIGHT,

        Defendant-Appellant.

_______________________________________________________________


              Submitted June 6, 2017 – Decided August 7, 2017

              Before Judges Yannotti and Sapp-Peterson.

              On appeal from Superior Court of New Jersey,
              Law Division, Bergen County, Indictment No.
              06-08-1412.

              Joseph E. Krakora, Public Defender, attorney
              for appellant (Lee March Grayson, Designated
              Counsel, on the brief).

              Gurbir S. Grewal, Bergen County Prosecutor,
              attorney for respondent (Suzanne E. Cevasco,
              Assistant Prosecutor, of counsel and on the
              brief).


PER CURIAM
     Defendant Kevin Wright appeals from the May 12, 2015 Law

Division order denying his first petition for post-conviction

relief (PCR).       The PCR judge denied the petition without first

conducting an evidentiary hearing.            We affirm.

                                      I.

     A     Bergen   County    jury    returned     an   indictment      charging

defendant with first-degree aggravated sexual assault, N.J.S.A.

2C:14-2(a)(2)(c)     (count     one);      second-degree   aggravated     sexual

contact, N.J.S.A. 2C:14-3(a) (count two); third-degree endangering

the welfare of a child, N.J.S.A. 2C:24-4(a) (count three); and

fourth-degree child abuse under N.J.S.A. 9:6-3 (count four).                   The

charges,    which    occurred    at     defendant's     home,   arose    out    of

defendant's sexual assault of the teenaged daughter of the woman

with whom he had a dating relationship.             Defendant, on occasion,

cared for the victim and her sister while their mother was at

work.    The three of them also occasionally slept at defendant's

home.

     Defendant pled not guilty to the charges and proceeded to

trial. The jury acquitted defendant of the first-degree aggravated

sexual assault charge, but convicted him of two counts of third-

degree   aggravated    sexual     contact.       The    jury    also   convicted

defendant of the endangerment charge and child abuse.                  The court

sentenced defendant to a five-year probationary term, conditioned

                                         2                               A-0791-15T2
upon concurrent 250-day custodial sentences on each conviction,

at   the   Bergen    County      Jail.      The   court    additionally      imposed

community supervision for life, pursuant to Megan's Law, N.J.S.A.

2C:7-2, as well as the requisite fines and penalties.

       Defendant filed a direct appeal challenging the trial court's

evidentiary     rulings        on   fresh      complaint    evidence      and     the

admissibility       of   the    victim's    prior   statement     to   her    uncle.

Defendant also alleged reversible error in the court's failure to

give the appropriate limiting instructions on the fresh complaint

testimony and the repeated references to his incarcerated status.

Additionally, defendant claimed reversible errors in the court's

jury instructions.          Finally, defendant alleged that his trial

counsel was ineffective in failing to object to the trial court's

failure to properly charge the jury on fresh complaint or to

request a limiting instruction on the fact that the jury had been

made   aware   of    defendant's     incarceration.          In   an   unpublished

opinion, we affirmed defendant's conviction.                   State v. Wright,

Docket No. A-1470-08 (App. Div. Sept. 1, 2011) (slip op. at 8).

       Defendant filed a pro-se PCR petition, alleging ineffective

assistance of trial counsel in failing to proffer evidence showing

the victim's motive.           The court subsequently appointed counsel to

represent him.           Assigned counsel filed a brief on behalf of

defendant, urging that the trial court denied defendant his right

                                           3                                 A-0791-15T2
to a fair trial due to its improper charges to the jury, defendant

was provided ineffective assistance of counsel, the cumulative

effect of the errors about which defendant complained rendered his

trial unfair, defendant was entitled to an evidentiary hearing,

and post-conviction relief should not be denied to him based upon

any procedural considerations.

     In an oral opinion the PCR court found that based upon a

review of the record, it was clear defense counsel "was aware of

the right to include the fresh complaint charge within the jury

charges[,]" and that "counsel made a strategic decision not to

include the fresh complaint charge."   In addition, the PCR court

noted that had it found that trial counsel had been ineffective,

defendant would not be entitled to post-conviction relief because

he failed to demonstrate that but for trial counsel's deficient

performance, the outcome of the trial would have been different

had the proper instruction been included.

     Addressing defense counsel's failure to request a limiting

instruction regarding the repeated references during the trial to

defendant's incarceration, the PCR court determined that defense

counsel made the strategic choice to use his incarcerated status

to the defendant's advantage, putting forth evidence before the

jury that the victim's mother visited defendant in jail and

assisted in posting defendant's bail, implying that such conduct

                                 4                         A-0791-15T2
on the part of the victim's mother was inconsistent with the mother

believing her daughter's allegations.

     Finally, the PCR court determined that defendant was not

entitled to an evidentiary hearing because he failed to raise

genuinely disputed issues warranting a hearing.            The present

appeal followed.

     On appeal defendant raises the following arguments for our

consideration:

          POINT I: THE ORDER DENYING POST-CONVICTION
          RELIEF SHOULD BE REVERSED AND THE CASE
          REMANDED FOR A FULL EVIDENTIARY HEARING
          BECAUSE THE DEFENDANT MADE A PRIMA FACIE
          SHOWING OF INEFFECTIVE ASSISTANCE OF COUNSEL
          UNDER THE STRICKLAND/FRITZ TEST.

          A.     TRIAL COUNSEL WAS INEFFECTIVE BECAUSE HE
                 DID NOT REQUEST A JURY CHARGE ON THE
                 FRESH COMPLAINT TESTIMONY.

          B.     TRIAL COUNSEL WAS INEFFECTIVE BECAUSE HE
                 DID NOT REQUEST A LIMITING INSTRUCTION
                 REGARDING THE DEFENDANT'S INCARCERATION.

          C.     THE PCR COURT ERRED BY NOT GRANTING AN
                 EVIDENTIARY HEARING.

                           II.

     "Post-conviction   relief   is   New   Jersey's   analogue   to   the

federal writ of habeas corpus."       State v. Goodwin, 173 N.J. 583,

593 (2002) (quoting State v. Preciose, 129 N.J. 451, 459 (1992)).

          It is well-settled that to set aside a
          conviction based upon a claim of ineffective
          assistance of counsel, a petitioner must


                                  5                               A-0791-15T2
              prove, by a preponderance of the evidence,
              that (1) counsel performed deficiently, and
              made errors so serious that he or she was not
              functioning as counsel guaranteed by the Sixth
              Amendment;   and   (2)    defendant   suffered
              prejudice   as   a   result.   Strickland   v.
              Washington, 466 U.S. 668, 687, 694, 104 S. Ct.
              2052, 2064, 2068, 80 L. Ed. 2d 674, 693, 698
              (1984); [] Preciose, [supra,] 129 N.J. [at]
              459 (reciting preponderance of the evidence
              standard of proof); State v. Fritz, 105 N.J.
              42, 58 (1987) (adopting Strickland standard).

              [State v. L.A., 433 N.J. Super. 1, 13 (App.
              Div. 2013).]

New Jersey has adopted Strickland's two-prong test.          Fritz, supra,

105 N.J. at 58.

       Under the first prong of the Strickland test, a defendant

must demonstrate "counsel's representation fell below an objective

standard of reasonableness."        Id. at 688, 104 S. Ct. at 2064, 80

L. Ed. 2d at 693.        This requires a showing that counsel was so

deficient, "counsel was not functioning as the counsel guaranteed

by the Sixth Amendment. . . ."            State v. Gaitan, 209 N.J. 339,

349-50 (2012) (citation and internal quotation marks omitted),

cert. denied, 568 U.S. 1192, 133 S. Ct. 1454, 185 L. Ed. 2d 361

(2013).     Thus, "[t]his test requires [a] defendant to identify

specific acts or omissions that are outside the wide range of

reasonable professional assistance . . . ."           State v. Jack, 144

N.J.   240,    249   (1996)   (citation   and   internal   quotation     marks

omitted).      "The test is not whether defense counsel could have

                                      6                                A-0791-15T2
done better, but whether he [or she] met the constitutional

threshold for effectiveness."        State v. Nash, 212 N.J. 518, 543

(2013).

     To meet the second prong, "[a] 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."

Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed.

2d at 698.    "A reasonable probability is a probability sufficient

to undermine confidence in the outcome."          Ibid.   A defendant must

affirmatively prove prejudice to the defense.           Id. at 693, 104 S.

Ct. at 2067, 80 L. Ed. 2d at 697.          Unless a defendant satisfies

both prongs, "it cannot be said that the conviction . . . resulted

from a breakdown in the adversary process that renders the result

unreliable."    Id. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693.

     A PCR analysis is conducted with "a strong presumption that

counsel's    conduct   falls    within   the   wide   range    of     reasonable

professional assistance[.]"        State v. Arthur, 184 N.J. 307, 319

(2005) (quoting Strickland, supra, 466 U.S. at 689, 104 S. Ct. at

2065, 80 L. Ed. 2d at 694-95).            Furthermore,        trial    strategy

failure alone is an insufficient basis to assert ineffective

assistance of counsel.         State v. Bey, 161 N.J. 233, 251 (1999)

(holding that "[m]erely because a trial strategy fails does not



                                     7                                   A-0791-15T2
mean that counsel was ineffective"), cert. denied, 530 U.S. 1245,

120 S. Ct. 2693, 147 L. Ed. 2d 964 (2000).

     Moreover, a defendant is not automatically entitled to an

evidentiary hearing to address his contentions by simply raising

a PCR claim.      State v. Cummings, 321 N.J. Super. 154, 170 (App.

Div.) (citing Preciose, supra, 129 N.J. at 462), certif. denied,

162 N.J. 199 (1999).       An evidentiary hearing is required only when

(1) a defendant establishes a prima facie case in support of PCR,

(2) the court determines that there are disputed issues of material

fact that cannot be resolved by review of the existing record, and

(3) the court determines that an evidentiary hearing is required

to resolve the claims asserted.             State v. Porter, 216 N.J. 343,

354 (2013) (quoting R. 3:22-10(b)); see also R. 3:22-10.

     "A   prima    facie    case   is       established   when   a     defendant

demonstrates 'a reasonable likelihood that his or her claim,

viewing the facts alleged in the light most favorable to the

defendant, will ultimately succeed on the merits.'"                  Porter, 216

N.J. at 355 (quoting R. 3:22-10(b)).             In other words, there are

"material issues of disputed fact which cannot be resolved by

reference to the existing record." State v. Pyatt, 316 N.J. Super.

46, 51 (App. Div. 1998), certif. denied, 158 N.J. 72 (1999).                 Mere

bald assertions are not enough.         Cummings, supra, 321 N.J. Super.

at 170.

                                        8                                A-0791-15T2
       Defendant argues that the trial counsel's failure to request

limiting instructions on the fresh complaint testimony and the

fact    of   his   incarceration    following       his    arrest    constituted

ineffective assistance of counsel.             We reject these contentions

in both instances, although for different reasons.

       We first address the absence of the limiting instruction on

the use of fresh complaint evidence.             Defendant claims that "the

jury may have viewed the fresh complaint evidence as corroborative

of     the   [victim's]    testimony,       resulting     in   the   defendant's

conviction."       The fresh complaint doctrine "allows the admission

of evidence of a victim's complaint of sexual abuse, otherwise

inadmissible as hearsay, to negate the inference that the victim's

initial silence or delay indicates that the charge is fabricated."

State v. R.K., 220 N.J. 444, 455 (2015).

       Statements qualify as fresh complaint evidence if they are

"made spontaneously and voluntarily, within a reasonable time

after the alleged assault, to a person the victim would ordinarily

turn to for support."       Ibid.   However, evidence and facts elicited

from such testimony are "not to be used 'to corroborate the

victim's allegations concerning the crime.'"               Id. at 456 (quoting

State v. Bethune, 121 N.J. 137, 146 (1990)).                   Rather, only the

bare    minimum    facts   "to   identify     the   subject     matter   of   the

complaint" are admitted.         Ibid.       Thus, courts are "required to

                                        9                                A-0791-15T2
charge the jury that fresh[]complaint testimony is not to be

considered as substantive evidence of guilt, or as bolstering the

credibility of the victim; it may only be considered for the

limited purpose of confirming that a complaint was made."              Ibid.

     The trial court inquired of defense counsel whether counsel

would be making a fresh complaint argument during summation.

Defense counsel responded, "No judge."           Hence, as the PCR judge

observed, "it seems clear defense counsel was aware of the right

to include the fresh complaint charge within the jury charges."

The PCR judge then concluded, as the State urged, the decision not

to include a fresh complaint charge in the jury instructions was

a strategic decision.

     During oral argument before the PCR judge, the State urged

that the decision not to seek a limiting instruction was strategic

because   defense   counsel   spent    a   lot   of   time   during    cross-

examination of the uncle inquiring about what the uncle did after

his niece confided in him and that the uncle testified that he

went away for the weekend.     The State argued that defense counsel

used this testimony to attack the victim's credibility and, under

those circumstances,

           [w]hy then ask for a limiting instruction
           later that's only going to remind the jury oh,
           by the way, this testimony could hurt the
           defendant, when you already damaged the
           State's witness.     You already helped the

                                  10                                  A-0791-15T2
          defendant with this testimony.      It's all
          strategic.   And we don't need the testimony
          of defense counsel to then say well, yeah, it
          was strategic.

     PCR counsel urged that resolution of this issue called for

an evidentiary hearing and to resolve this issue without such

hearing would, in essence, "be doing the very thing the Appellate

Division has already opined can't be done[.]"

     In our review of the record, it is not apparent that the

failure to request a limiting instruction at the time the victim's

uncle testified or as part of the court's final instructions to

the jury was a strategic decision by defense counsel.        As PCR

counsel noted before the PCR judge, this issue was raised in

defendant's direct appeal and we declined to address it because

it implicated matters outside of the record.    See State v. Wright,

supra, Docket No. A-1470-08 (App. Div. Sept. 1, 2011) (slip op.

at 15).   The PCR judge determined that this was a strategic

decision on the part of defense counsel, but did so without the

benefit of any additional evidence, e.g., a certification from

trial counsel or testimony from trial counsel.    In the absence of

such additional evidence, we decline to draw such an inference.

Thus, we assume defendant has satisfied the first prong under

Strickland, namely, that the failure to request the limiting

instruction on fresh complaint did not reflect the exercise of


                               11                            A-0791-15T2
reasonable professional judgment.         Strickland, supra, 466 U.S.     at

690, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695.

     As   the    record   reveals,   however,    during   his   testimony,

defendant acknowledged that he occasionally cared for the victim

and her sister while their mother worked.         He was doing so on the

evening of the incident.      Defendant denied telling police during

questioning that he laid down next to the victim, during which his

erect penis rubbed up against her.              As we concluded in our

unpublished opinion, this evidence, if credited by the jury,

"constituted compelling evidence of each of the offenses for which

he was convicted[,]" independent of the fresh complaint evidence.

State v. Wright, supra, Docket No. A-1470-08 (App. Div. Sept. 1,

2011) (slip op. at 13).        Consequently, there is no reasonable

probability that but for trial counsel's failure to request the

limiting instruction, the result of the trial would have been

different.      Strickland, supra, 466 U.S. at 694, 104 S. Ct. at

2068, 80 L. Ed. 2d at 698.

     We turn to defendant's contentions that he was prejudiced by

the numerous references throughout the trial to his incarcerated

status and that his counsel's failure to request a limiting

instruction constituted ineffective assistance of counsel.                We

disagree.



                                     12                            A-0791-15T2
     In his opening statement, defense counsel advised the jury

that it would hear testimony that the victim's mother never

believed her daughter's allegations against defendant.                            Defense

counsel    presented      evidence     that         the   victim's     mother     visited

defendant while incarcerated, assisted in posting his bail, and

continued to date him and support him against the charges until

defendant started dating another woman.                     The PCR judge reasoned

that although counsel initially objected to the State's line of

questioning,       which       included         a    reference       to     defendant's

incarcerated      status,       defense         counsel       "capitalized        on     any

references of defendant being in the county jail[,]" and "used

this to his advantage[.]"            We agree.

     Here,   the       references     to    defendant's         incarceration          could

hardly be deemed surprising to the jury as they knew he had been

arrested and charged with the crimes.                     Moreover, defense counsel

ably used his own references to defendant's incarceration to show

that the victim's mother continued to support defendant, and only

believed    the    victim's      allegations          after     defendant        had    been

released   from       prison   and   dating         another     woman.      This       usage

demonstrates      a    strategic      trial         decision,    one      that    is     not

incompetent or unreasonable.           In addition, even if defense counsel

had been unreasonable, defendant fails to show how the verdict

would have been different.

                                           13                                      A-0791-15T2
     Finally, the PCR judge found that an evidentiary hearing was

not warranted, concluding that defendant failed to present a prima

facie case of ineffective assistance of counsel.            We agree.

     Neither    defense   counsel's      failure   to   request   a   limiting

instruction    on   the   fresh   complaint    testimony    nor   references

throughout the trial to defendant's incarcerated status, prior to

making bail, raise materially disputed facts that but for these

omissions the outcome of the trial for defendant would have been

different.     Therefore, the court did not abuse its discretion in

declining to conduct an evidentiary hearing.

     Affirmed.




                                    14                                 A-0791-15T2
