                                NOT FOR PUBLICATION WITHOUT THE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-5728-17T2

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

STEVEN J. BRIZAK,

     Defendant-Appellant.
_______________________

                    Argued September 11, 2019 – Decided October 1, 2019

                    Before Judges Koblitz, Whipple and Mawla.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Cumberland County, Indictment No. 11-04-
                    0338.

                    Jay V. Surgent argued the cause for appellant (Weiner
                    Law Group, LLP, attorneys; Jay V. Surgent, on the
                    brief).

                    Andre R. Araujo, Assistant Prosecutor, argued the
                    cause for respondent (Jennifer Webb-McRae,
                    Cumberland County Prosecutor, attorney; Andre R.
                    Araujo, of counsel and on the brief).

PER CURIAM
      Defendant, Steven J. Brizak, appeals from the July 27, 2018 order denying

his petition for post-conviction relief (PCR) without an evidentiary hearing.

Defendant was convicted of first-degree robbery, N.J.S.A. 2C:15-1(a)(2), and

related charges for robbing a CVS pharmacy with a starter pistol and taking the

controlled dangerous substance hydrocodone, an opioid used to treat severe

pain. He received an aggregate ten-year prison sentence, subject to eighty-five

percent parole ineligibility under the No Early Release Act, N.J.S.A. 2C:43-7.2.

After reviewing the record in light of the contentions advanced on appeal, we

reverse and remand for an evidentiary hearing.

      After reviewing the facts elicited at trial, which we need not repeat here,

we affirmed on direct appeal, without addressing defendant's Point VII, the

claim of ineffective assistance of counsel, and we remanded for resentencing

only. State v. Brizak, No. A-3461-12 (App. Div. Sept. 11, 2015) (slip op. at 14,

16-17). Our Supreme Court denied defendant's petition for certification. State

v. Brizak, 224 N.J. 123 (2016). After resentencing, we affirmed the sentence

without briefing at a sentencing-only calendar by order of July 1, 2016.

      Defendant raises the following issues on appeal from the denial of PCR:

            POINT I: THE COURT BELOW ERRED IN
            DENYING THE PETITION FOR [PCR] RELIEF
            (AND AN EVIDENTIARY HEARING) AS
            DEFENDANT WAS DENIED HIS STATE AND

                                                                           A-5728-17T2
                                       2
FEDERAL    CONSTITUTIONAL    RIGHT  TO
EFFECTIVE TRIAL COUNSEL AS GUARANTEED
BY THE SIXTH AMENDMENT TO THE UNITED
STATES CONSTITUTION AND BY ARTICLE I,
PARAGRAPH 10 OF THE NEW JERSEY
CONSTITUTION AND DENIED HIS FOURTEENTH
AMENDMENT RIGHT TO DUE PROCESS DUE TO
THE FAILURE TO INVESTIGATE AND PRESENT
ALIBI WITNESSES AT TRIAL.

POINT II:  THE COURT BELOW ERRED IN
DENYING PCR RELIEF AS DEFENDANT WAS
DENIED HIS RIGHT TO EFFECTIVE ASSISTANCE
OF TRIAL COUNSEL AS GUARANTEED BY THE
SIXTH AMENDMENT AND BY ARTICLE I,
PARAGRAPH 10 OF THE NEW JERSEY
CONSTITUTION AND DENIED HIS FOURTEENTH
AMENDMENT RIGHT TO DUE PROCESS DUE TO
THE FAILURE TO INVESTIGATE AND PRESENT
CHARACTER WITNESSES AT TRIAL.

POINT III: THE COURT BELOW ERRED IN
DENYING PCR RELIEF AS DEFENDANT WAS
DENIED HIS RIGHT TO EFFECTIVE TRIAL
COUNSEL AS GUARANTEED BY THE SIXTH
AMENDMENT AND ARTICLE I, PARAGRAPH 10
OF THE NEW JERSEY CONSTITUTION AND
DENIED HIS FOURTEENTH AMENDMENT RIGHT
TO DUE PROCESS DUE TO TRIAL COUNSEL'S
FAILURE TO HIRE AN EXPERT AS TO THE BOOT
PRINT LEFT AT THE SCENE.

POINT IV: THE COURT BELOW ERRED IN
DENYING PCR RELIEF AS DEFENDANT WAS
DENIED HIS RIGHT TO EFFECTIVE ASSISTANCE
OF TRIAL COUNSEL AS GUARANTEED BY THE
SIXTH AMENDMENT AND BY ARTICLE I,
PARAGRAPH 10 OF THE NEW JERSEY

                                           A-5728-17T2
                   3
             CONSTITUTION    AND    DENIED    OF   HIS
             FOURTEENTH AMENDMENT RIGHT TO DUE
             PROCESS DUE TO TRIAL COUNSEL'S FAILURE
             TO HIRE AN EXPERT AS TO THE PARTIAL PRINT
             ON THE STARTER PISTOL

             POINT V: THE COURT BELOW ERRED IN
             DENYING PCR RELIEF AS DEFENDANT WAS
             DENIED HIS RIGHT TO EFFECTIVE ASSISTANCE
             OF TRIAL COUNSEL AS GUARANTEED BY THE
             SIXTH AMENDMENT AND BY ARTICLE I,
             PARAGRAPH 10 OF THE NEW JERSEY
             CONSTITUTION        AND   DENIED    OF  HIS
             FOURTEENTH AMENDMENT RIGHT TO DUE
             PROCESS BY TRIAL COUNSEL'S FAILURE TO
             REALIZE THAT THE NEW JERSEY SUPREME
             COURT’S DECISION IN STATE V. HENDERSON,
             208 N.J. 208 (2011) WOULD NOT BE APPLICABLE
             UNTIL SEPTEMBER OF 2012 (SIX MONTHS
             AFTER THE FEBRUARY 16, 2012 ARGUMENT).

             POINT VI: THE COURT BELOW ERRED IN
             DENYING PCR RELIEF AS DEFENDANT WAS
             DENIED HIS RIGHT TO EFFECTIVE ASSISTANCE
             OF TRIAL COUNSEL AS GUARANTEED BY THE
             SIXTH AMENDMENT AND BY ARTICLE I,
             PARAGRAPH 10 OF THE NEW JERSEY
             CONSTITUTION    AND    DENIED    OF   HIS
             FOURTEENTH AMENDMENT RIGHT TO DUE
             PROCESS DUE TO TRIAL COUNSEL'S FAILURE
             TO OBTAIN A WADE[1] EVIDENTIARY HEARING
             DESPITE THE FACT THAT DETECTIVE
             KIRCHNER (WHO ADMINISTERED THE ARRAY)
             KNEW THAT THE BRIZAK BROTHERS WERE
             SUSPECTS.


1
    United States v. Wade, 388 U.S. 218 (1967).
                                                           A-5728-17T2
                                       4
POINT VII: THE COURT BELOW ERRED IN
DENYING PCR RELIEF AS DEFENDANT WAS
DENIED HIS RIGHT TO EFFECTIVE ASSISTANCE
OF TRIAL COUNSEL AS GUARANTEED BY THE
SIXTH AMENDMENT AND BY ARTICLE I,
PARAGRAPH 10 OF THE NEW JERSEY
CONSTITUTION    AND    DENIED    OF   HIS
FOURTEENTH AMENDMENT RIGHT TO DUE
PROCESS DUE TO TRIAL COUNSEL'S FAILURE
TO OBTAIN AN EXPERT WITNESS REGARDING
THE PHOTO ENHANCEMENTS [OF] SUSPECTS.

POINT VIII: THE COURT BELOW ERRED IN
DENYING PCR RELIEF AS DEFENDANT WAS
DENIED HIS RIGHT TO EFFECTIVE ASSISTANCE
OF TRIAL COUNSEL AS GUARANTEED BY THE
SIXTH AMENDMENT AND BY ARTICLE I,
PARAGRAPH 10 OF THE NEW JERSEY
CONSTITUTION     AND    DENIED   OF   HIS
FOURTEENTH AMENDMENT RIGHT TO DUE
PROCESS DUE TO TRIAL COUNSEL'S FAILURE
TO CONSULT AN "IDENTIFICATION" EXPERT
WITNESS IN THIS IDENTIFICATION CASE.

POINT IX: THE COURT BELOW ERRED IN
DENYING PCR RELIEF AS DEFENDANT WAS
DENIED HIS RIGHT TO EFFECTIVE ASSISTANCE
OF TRIAL COUNSEL AS GUARANTEED BY THE
SIXTH AMENDMENT AND BY ARTICLE I,
PARAGRAPH 10 OF THE NEW JERSEY
CONSTITUTION    AND    DENIED    OF   HIS
FOURTEENTH AMENDMENT RIGHT TO DUE
PROCESS DUE TO TRIAL COUNSEL'S FAILURE
TO PROPERLY CROSS-EXAMINE THE STATE'S
WITNESSES (INCLUDING THE EYEWITNESS).

POINT X: THE COURT BELOW ERRED IN
DENYING PCR RELIEF AS DEFENDANT WAS

                                            A-5728-17T2
                    5
           DENIED HIS RIGHT TO EFFECTIVE ASSISTANCE
           OF TRIAL COUNSEL AS GUARANTEED BY THE
           SIXTH AMENDMENT AND BY ARTICLE I,
           PARAGRAPH 10 OF THE NEW JERSEY
           CONSTITUTION    AND    DENIED    OF   HIS
           FOURTEENTH AMENDMENT RIGHT TO DUE
           PROCESS DUE TO TRIAL COUNSEL'S FAILURE
           TO ORDER THE GRAND JURY TRANSCRIPT
           THEREBY DEPRIVING DEFENDANT OF A
           MOTION TO DISMISS THE INDICTMENT ON THE
           GROUNDS THAT NO DEFINITIONS OF THE
           ELEMENTS OF THE CRIME (SUCH AS
           "PURPOSELY" AND "KNOWINGLY") WERE
           GIVEN TO THE GRAND JURORS; INSTEAD, THE
           ASSISTANT PROSECUTOR SIMPLY READ THE
           PROPOSED    INDICTMENT;    IN  ADDITION,
           DETECTIVE         HARRIS        TESTIFIED
           INACCURATELY AND MISLEADINGLY TO THE
           GRAND JURY AS TO THE BOOT PRINT.

           POINT XI: THE COURT BELOW ERRED IN
           DENYING PCR RELIEF AS DEFENDANT WAS
           DENIED HIS RIGHT TO EFFECTIVE ASSISTANCE
           OF TRIAL COUNSEL AS GUARANTEED BY THE
           SIXTH AMENDMENT AND BY ARTICLE I,
           PARAGRAPH 10 OF THE NEW JERSEY
           CONSTITUTION AND DENIED HIS FOURTEENTH
           AMENDMENT RIGHT TO DUE PROCESS DUE TO
           TRIAL COUNSEL'S FAILURE TO PROPERLY FILE
           THE NOTICE OF MOTION FOR BAIL PENDING
           APPEAL IN THE APPELLATE DIVISION
           (NECESSITATING REFILING IN THE PROPER
           FORMAT).

     "[PCR] is New Jersey's analogue to the federal writ of habeas corpus."

State v. Preciose, 129 N.J. 451, 459 (1992). Pursuant to Rule 3:22-2(a), a


                                                                    A-5728-17T2
                                    6
criminal defendant is entitled to post-conviction relief if there was a

"[s]ubstantial denial in the conviction proceedings of defendant's rights under

the Constitution of the United States or the Constitution or laws of the State of

New Jersey."

      To establish a prima facie claim of ineffective assistance of counsel, the

defendant is obliged to show not only the particular manner in which counsel's

performance was deficient, but also that the deficiency prejudiced his right to a

fair trial. Strickland v. Washington, 466 U.S. 668, 687 (1984); State v. Fritz,

105 N.J. 42, 60-61 (1987).

      A PCR petitioner asserting that his trial attorney inadequately investigated

a potential witness "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." State v. Porter,

216 N.J. 343, 353 (2013) (quoting State v. Cummings, 321 N.J. Super. 154, 170,

(App. Div. 1999)). "Even a suspicious or questionable affidavit supporting a

PCR petition 'must be tested for credibility and cannot be summarily rejected.'"

Id. at 355 (quoting State v. Allen, 398 N.J. Super. 247, 258 (App. Div. 2008)).

      When petitioning for PCR, the defendant must establish "by a

preponderance of the credible evidence" entitlement to the requested relief.


                                                                          A-5728-17T2
                                        7
State v. Nash, 212 N.J. 518, 541 (2013) (quoting Preciose, 129 N.J. at 459).

However, the mere raising of a claim for PCR does not entitle the defendant to

an evidentiary hearing. Cummings, 321 N.J. Super. at 170. Rather, PCR courts

should grant evidentiary hearings and make a determination on the merits only

if the defendant presents a prima facie claim of relief, material issues of disputed

facts lie outside the record, and resolution of the issues necessitates a hearing.

R. 3:22-10(b); see also Porter, 216 N.J. at 355.

      When determining whether to grant an evidentiary hearing, the PCR court

must consider the facts in the light most favorable to the defendant. Preciose,

129 N.J. at 462-63. We review a court's decision to deny a PCR petition without

an evidentiary hearing for abuse of discretion. State v. Brewster, 429 N.J. Super.

387, 401 (App. Div. 2013). Applying these principles, we conclude the PCR

court mistakenly exercised its discretion by denying defendant's request for an

evidentiary hearing. As our Supreme Court stated in Porter:

            Certain factual questions, "including those relating to
            the nature and content of off-the-record conferences
            between defendant and [the] trial attorney," are critical
            to claims of ineffective assistance of counsel and can
            "only be resolved by meticulous analysis and weighing
            of factual allegations, including assessments of
            credibility." These determinations are "best made"
            through an evidentiary hearing.



                                                                            A-5728-17T2
                                         8
            [Porter, 216 N.J. at 355 (quoting State v. Pyatt, 316 N.J.
            Super. 46, 51 (App. Div. 1998)).]

      Defendant raises the following eleven claims of ineffective assistance of

counsel, claiming trial counsel failed to: (1) take statements from and present

as alibi witnesses defendant's family members and coworkers who were with

him or on the phone with him on the day of and during the robbery; (2) call five

witnesses to testify about defendant's "good repute" as well as any one of

nineteen additional character witnesses; (3) hire an expert to "affirmatively

prove" that defendant's seized boots "did not match the boot prints left [at the

pharmacy] by the perpetrator"; (4) hire an expert to testify that law enforcement

could have taken "additional steps" to obtain better prints from the starter pistol

and that the fingerprint and palm print recovered did not match defendant; (5)

object when the judge improperly applied the State v. Henderson, 208 N.J. 208

(2011), standard to defendant's motion for a Wade hearing; (6) obtain a Wade

hearing; (7) obtain an expert to testify about the enhancement of defendant's and

his brother's Department of Motor Vehicle photos used in the photo array shown

to the eyewitness; (8) consult with and retain an identification expert; (9)

properly cross-examine the State's witnesses, including the eyewitness; (10)

order the grand jury transcript, which would have shown that the State presented

improper testimony of the lead detective regarding the boot print; and (11)

                                                                           A-5728-17T2
                                        9
properly file the notice of motion for bail pending appeal, necessitating the

refiling of the motion.

      Defendant presented to the PCR court a certification from an expert

opining that the footprint near the scene of the robbery was not made by the

boots seized from defendant. The expert also opined that the partial fingerprint

found on the starter pistol recovered from the bushes near the pharmacy was not

left by defendant's hand. At trial, the State introduced evidence that this forensic

evidence was inconclusive, not exculpatory.

      Defendant also presented affidavits from character witnesses. The State

presented a certification from defendant's privately-retained defense counsel

mistakenly stating that character evidence could not have been introduced

because defendant did not testify. Further, the State claimed that defendant's

admissions to drug involvement in the presentence report demonstrates that the

State could have introduced evidence of defendant's drug involvement to rebut

evidence of good character.

      Additionally, defendant presented certifications from several witnesses

who spoke to or saw defendant at about the same time on Christmas evening

2010 when the robbery occurred. In his certification, trial counsel alleged it was




                                                                            A-5728-17T2
                                        10
trial strategy not to present these witnesses, who defendant categorizes as "alibi"

witnesses.

      The PCR court found defendant's witnesses would not have overcome the

strength of the eyewitness identification, and "surmise[ed]" that trial counsel

must have discussed these trial decisions with defendant.     Our Supreme Court

has stated that often a defendant "must develop a record at a hearing at which

counsel can explain the reasons for his conduct and inaction and at which the

trial judge can rule upon the claims including the issue of prejudice." Preciose,

129 N.J. at 462 (quoting State v. Sparano, 249 N.J. Super. 411, 419 (App. Div.

1991)).

      An evidentiary hearing was necessary to assess credibility and further

develop the facts underlying the actions and strategies of defendant's trial

attorney in connection with defendant's claims of ineffective assistance and his

allegations that an expert forensic witness, character witnesses, and witnesses

who had contact with defendant should have been called to testify in his defense.

Trial counsel's certification, with a mistaken legal interpretation, was

insufficient to rebut the conflicting certifications presented by potential defense

witnesses. See R. 3:22-10(b). Given the State's burden of proof, the PCR court




                                                                           A-5728-17T2
                                       11
misapplied its discretion in reasoning that the strength of the witness's

identification overwhelmed the benefit of these witnesses to defendant.

      Finding merit in defendant's claim that an evidentiary hearing was

necessary to test the claims regarding the expert witness, character witnesses,

and "alibi" witnesses, we do not reach defendant's other arguments. We express

no view on the ultimate success of defendant's PCR application after the court

has the opportunity to review the credibility of the witnesses presented by

defendant and the State.

      Reversed and remanded for an evidentiary hearing. We do not retain

jurisdiction.




                                                                          A-5728-17T2
                                     12
