                                NOT FOR PUBLICATION WITHOUT THE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-1590-17T3

STATE OF NEW JERSEY,

           Plaintiff-Respondent,

v.

GREGORY WILLIAMS, a/k/a
GREG WILLIAMS, KAREEM
WILLIAMS, and GREGORY
WILLIIAMS,

           Defendant-Appellant.


                    Submitted February 27, 2019 – Decided August 26, 2019

                    Before Judges Alvarez and Nugent.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Union County, Indictment No. 08-12-1023.

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

                    Michael A. Monahan, Acting Union County
                    Prosecutor, attorney for respondent (Frank Lawrence
                    Valdinoto, Special Deputy Attorney General/Acting
                    Assistant Prosecutor, of counsel and on the brief).
PER CURIAM

      Defendant, Gregory Williams, appeals from an order that denied without

an evidentiary hearing his petition for post-conviction relief (PCR). On appeal,

he presents a single argument:

             THIS MATTER MUST BE REMANDED FOR AN
             EVIDENTIARY HEARING BECAUSE DEFENDANT
             ESTABLISHED A PRIMA FACIE CASE OF TRIAL
             COUNSEL'S INEFFECTIVENESS FOR NOT CROSS-
             EXAMINING THE VICTIM REGARDING HIS
             "CROSS-RACIAL" IDENTIFICATION.

We affirm.

      Following a trial that culminated when a jury convicted defendant of first-

degree armed robbery, N.J.S.A. 2C:15-1, and two weapons offenses, the court

sentenced defendant on the robbery count to an extended prison term of forty-

two years subject to the No Early Release Act, N.J.S.A. 2C:43-7.2. The court

merged one of the weapons counts and sentenced defendant on the remaining

count, fourth-degree unlawful possession of a weapon, a knife, N.J.S.A. 2C:39-

5(d), to a concurrent eighteen-month prison term.

      We affirmed defendant's convictions and sentence on direct appeal. State

v. Williams, No. A-4562-11 (App. Div. June 4, 2015) (certif. denied, 223 N.J.

355 (2015)).    Five months after the Supreme Court denied certification,

defendant filed the PCR petition that is the subject of this appeal.

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                                        2
      In our decision affirming defendant's convictions and sentence on direct

appeal, we recounted this action's procedural history and the proofs the parties

presented at trial. There is no need to repeat them here in their entirety.

Relevant to this appeal, the victim, a Hispanic male, and an eyewitness, a black

male, identified defendant, who is black, as the person who approached the

victim on a street corner and robbed him at knifepoint. Defendant contends his

trial counsel was ineffective because he did not cross-examine the victim about

the victim's "cross-racial" identification. Specifically, defendant argues:

            A defendant may be entitled to a special instruction
            regarding "cross-racial" identifications when the
            defendant and the witness are of different races. State
            v. Cromedy, 158 N. J. 112, 132 (1999). Here, the trial
            court included such an instruction in its jury charge
            . . . . However, trial counsel, for some inexplicable
            reason, failed to cross-examine, the victim regarding
            his "cross-racial" instruction . . . , thereby effectively
            negating the salutary impact of the instruction.

      "A petitioner must establish the right to [post-conviction] relief by a

preponderance of the credible evidence." State v. Preciose, 129 N.J. 451, 459

(1992). To sustain that burden, the petitioner must set forth specific facts that

"provide the court with an adequate basis on which to rest its decision[.]" State

v. Mitchell, 126 N.J. 565, 579 (1992).




                                                                          A-1590-17T3
                                         3
      To establish a PCR claim that trial counsel was constitutionally

ineffective, a defendant must prove two elements: first, that "counsel's

performance was deficient," that is, "that counsel made errors so serious that

counsel was not functioning as the 'counsel' guaranteed the defendant by the

Sixth Amendment"; second, that "there is a reasonable probability that, but for

counsel's unprofessional errors, the result of the proceeding would have been

different." Strickland v. Washington, 466 U.S. 668, 687, 694 (1984); accord

State v. Fritz, 105 N.J. 42, 58 (1987). To prove the first element, a defendant

must "overcome a strong presumption that counsel exercised reasonable

professional   judgment    and    sound      trial   strategy   in   fulfilling   his

responsibilities." State v. Nash, 212 N.J. 518, 542 (2013) (citation omitted). To

prove the second element, a defendant must demonstrate "how specific errors of

counsel undermined the reliability of the finding of guilt." United States v.

Cronic, 466 U.S. 648, 659 n.26 (1984).

      Whether a PCR hearing on an ineffective assistance of counsel petition is

necessary is a matter within the court's discretion. See Preciose, 129 N.J. at

462; see also R. 3:22-10(b) ("A defendant shall be entitled to an evidentiary

hearing only upon the establishment of a prima facie case in support of post -

conviction relief, a determination by the court that there are material issues of


                                                                             A-1590-17T3
                                         4
disputed fact that cannot be resolved by reference to the existing record, and a

determination that an evidentiary hearing is necessary to resolve the claims for

relief.").

       We affirm, substantially for the reasons expressed by Judge William A.

Daniel in his decision denying defendant's PCR petition. Defendant's bald,

speculative assertions are insufficient to establish a prima facie case of

ineffective assistance of counsel. State v. Cummings, 321 N.J. Super. 154, 170

(App. Div. 1999). Having failed to establish a prima facie case, defendant was

not entitled to an evidentiary hearing. Preciose, 129 N.J. at 462.

       Affirmed.




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