                                      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                                NOT FOR PUBLICATION WITHOUT THE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-2417-18T2

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

T.B.,

     Defendant-Appellant.
______________________________

                    Submitted March 4, 2020 — Decided March 19, 2020

                    Before Judges Whipple, Gooden Brown, and Mawla.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Essex County, Indictment No. 16-08-2261.

                    Joseph E. Krakora, Public Defender, attorney for
                    appellant (Ruth Ann Harrigan, Designated Counsel, on
                    the briefs).

                    Theodore N. Stephens II, Acting Essex County
                    Prosecutor, attorney for respondent (Hannah Faye Kurt,
                    Special Deputy Attorney General/Acting Assistant
                    Prosecutor, of counsel and on the brief).

PER CURIAM
        Defendant T.B.1 appeals from a September 5, 2018 order denying his

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

affirm for the reasons expressed in the thorough and well-written opinion of

Judge Richard T. Sules.

        In May 2016, defendant assaulted his then-girlfriend 2 N.P., in her

apartment during an argument. He repeatedly punched and kicked her. He

slammed her head against a wall and burned her face and body with a hot iron.

The victim fled her apartment to a nearby gas station and was taken to the

hospital. There, she detailed the assault for police and medical personnel, and

pictures were taken of her injuries. Her medical records described her as

"awake, alert, [and] oriented to person, place, [and] time." Three days after the

assault, the victim signed a written sworn statement for the police in which she

explained the incident arose from defendant's jealous belief that she was looking

at other men. The victim's father had a key to her apartment and granted police

access to retrieve the iron used in the assault.




1
  We use defendant's and the victim's initials to protect the victim's privacy. R.
1:38-3(c)(12).
2
    After the incident, N.P. married defendant.
                                                                          A-2417-18T2
                                         2
      In July 2016, the State presented its evidence to the grand jury, including

testimony from the officer and a detective who responded and conducted the

investigation, photographs of the victim's injuries, her statement to police, and

a police report. The victim appeared before the grand jury but declined to testify

against defendant. She stated no one forced or pressured her not to testify, but

claimed she was threatened her children may be taken away if she refused to

testify. When the prosecutor asked her "is that why you don't want to proceed

today?" she responded "I don't want to proceed because I choose not to proceed.

That's it."

      Based on the evidence presented, the grand jury indicted defendant on

second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1) (count one); third-

degree aggravated assault, N.J.S.A. 2C:12-1(b)(2) (count two); third-degree

aggravated criminal sexual contact, N.J.S.A. 2C:14-3(a) (count three); third-

degree criminal restraint, N.J.S.A. 2C:13-2(a) (count four); fourth-degree

unlawful possession of a weapon, N.J.S.A. 2C:39-4(d) (count five); and third-

degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d)

(count six). In February 2017, defendant pled guilty to counts one, three, and

six and was subsequently sentenced in April 2017.




                                                                          A-2417-18T2
                                        3
      In September 2017, defendant filed his PCR petition. He argued his

convictions should be vacated because the State intimidated the victim to

proceed with false allegations against him and the indictment should be

dismissed as a result of prosecutorial misconduct.         Defendant submitted a

September 2017 affidavit and a May 2018 certified letter from the victim in

which she claimed she was "sedated and heavily medicated in the hospital from

pain medication, alcohol and drug intoxication" during police questioning. She

certified when she was released from the hospital, she attempted to recant her

statements but the prosecutor "threatened [her] with . . . having [her] children

taken by [the Division of Youth and Family Services3] if [she] didn't cooperate

with moving forward with the allegations . . . ."

      Defendant argued he was entitled to withdraw his plea as a matter of due

process because the prosecutor withheld evidence of the victim's intoxication.

He argued his trial counsel was ineffective because he failed to file motions to

dismiss the indictment, improperly advised defendant to accept the plea, failed

to prepare defendant for trial, failed to discuss potential defenses with defendant,

and had a conflict of interest. Defendant argued the cumulative effect of the



3
 The Division of Youth and Family Services is now known as the Division of
Child Protection and Permanency. L. 2012, c. 16, eff. June 29, 2012.
                                                                            A-2417-18T2
                                         4
errors prejudiced him and required the court to hold an evidentiary hearing to

address his claims.

      In an eighteen-page written decision, Judge Sules denied defendant's

petition. The judge found no prosecutorial misconduct because

            the victim's certifications were submitted after
            [defendant] pled guilty and was sentenced.           In
            reviewing the submissions, they amount to nothing
            more than a reluctance on the part of the [victim] to
            testify against her husband. Nowhere does [the victim]
            deny that the incident occurred or that [defendant] was
            involved. [The victim] merely states that she "did not
            recall" making the statements and vaguely claims that
            the statements were "incorrect" and "not factual."
            However, these general and conclusory assertions are
            not clearly exculpatory nor do they negate [defendant's]
            guilt.

                    Even if [defendant] had proved prosecutorial
            misconduct, he fails to show that such misconduct
            affected the grand jury's fair and impartial decision-
            making process. The grand jury in this case did not
            consider [the victim's] testimony because she refused to
            testify. . . . Indeed, the grand jury indicted [defendant]
            . . . based upon other sufficient evidence including the
            testimony of law enforcement and photographs
            depicting [the victim's] injuries.

      The judge found the victim's medical records objectively proved she was

not "in a medicated and inebriated state" when she gave police her statement.

The judge stated:



                                                                         A-2417-18T2
                                        5
          The emergency room physician's report notes that . . .
          [the victim] appeared alert, awake, and in mild distress.
          Her orientation to person, place, and time was normal
          and her mentation was normal, lucid, and she was able
          to follow commands. . . . The nurse's report had similar
          notes concerning [the victim's] alertness level. . . .
          While [the victim] was administered pain relief
          medications . . . the physician's notes reveal that [she]
          had no adverse reaction to these medications.

                 Even if [the victim] was in a medicated and
          inebriated state when [police] interviewed her,
          [defendant] has failed to show that such a fact directly
          negates his guilt and is clearly exculpatory. . . . The
          fact that [the victim] may have been in an altered state
          of mind during her interview with police does not mean
          that [defendant] did not assault and burn her with a hot
          iron. The State presented sufficient evidence even
          absent [the victim's] recounting of the assault at the
          hospital to [police.] The police recovered the iron and
          they took graphic pictures of [the victim's] injuries
          including her burns, some of which are in the
          distinctive shape of an iron. [The victim] also gave a
          sworn and written statement to the police . . . several
          days after the incident in which she voluntarily
          recounted the circumstances leading up to the assault,
          the nature of her injuries, her relationship with
          [defendant], and that she wanted to obtain a restraining
          order against [him]. . . . [She] does not allege that she
          was in a medicated or inebriated state when she gave
          this statement to the police several days later.
          Accordingly the State was not required to disclose this
          evidence to the grand jury because it did not negate
          [defendant's] guilt and it was not clearly exculpatory.

     Judge Sules rejected the argument that plea counsel was ineffective for

failing to file a motion to dismiss the indictment because the victim's

                                                                      A-2417-18T2
                                     6
certifications were received "well after" defendant's guilty plea and sentence.

The judge found the victim's retraction was not newly discovered evidence

because it was "merely impeaching and contradictory to her original interview

that was conducted by a detective. A jury could still find [defendant] guilty

based on the other medical evidence and photographs as well as the testimony

of law enforcement."

      The judge also rejected defendant's argument there was a conflict of

interest pursuant to RPC 1.7. The judge found no conflict where defendant was

asserting it between defense counsel and a non-client. The judge found no

evidence "there was a significant risk that [plea counsel's] representation of

[defendant] would have been materially limited by the fact that his secretary is

a friend of the victim's family." The judge concluded the relationship between

the secretary and the victim's family did not demonstrate a conflict because

defendant failed to show that plea counsel had a personal interest in the outcome

of his case by virtue of the relationship.

      The judge found it was reasonable for plea counsel not to prepare for the

trial because the plea was entered months before the trial was scheduled.

Moreover, during the plea, defendant advised the court he was satisfied with

counsel's advice and did not require more time to consider the plea agreement.


                                                                         A-2417-18T2
                                         7
The judge concluded there was no basis to withdraw defendant's plea because

he "has not asserted a colorable claim of innocence [and instead] makes a bald

assertion of his innocence, which is not sufficient without specific and credible

facts from the record." Thus, defendant neither demonstrated his plea counsel

was ineffective for permitting him to enter into the plea nor met any of the State

v. Slater factors to withdraw the plea. 198 N.J. 145, 157-58 (2009).

      The judge also concluded plea counsel was not ineffective for failing to

move to suppress the evidence police seized from the apartment because

defendant was arrested in the apartment and the evidence was seized incident to

arrest. The judge also concluded plea counsel was not ineffective for failing to

suppress the victim's statement on the day of the incident because "her statement

recounting the assault to hospital staff would be admissible under the

'Statements for Purposes of a Medical Diagnosis or Treatment' exception to the

hearsay requirement . . . . N.J.R.E. 803(c)(4)."

      Defendant raises the following points on appeal:

            POINT I - THE [PCR] JUDGE ERRED IN HIS
            DETERMINATION THAT TRIAL COUNSEL
            PROVIDED EFFECTIVE ASSISTANCE SINCE
            COUNSEL FAILED TO SEEK DISMISSAL OF THE
            INDICTMENT BASED ON PROSECUTORIAL
            MISCONDUCT AND MOVE TO SUPPRESS
            EVIDENCE, HAD A CONFLICT OF INTEREST


                                                                          A-2417-18T2
                                        8
AND DID NOT ADEQUATELY PREPARE FOR
TRIAL.

    A.   TRIAL COUNSEL FAILED TO MAKE
    PRETRIAL MOTIONS TO SUPPRESS THE
    EVIDENCE AND TO DISMISS THE
    INDICTMENT BASED ON PROSECUTORIAL
    MISCONDUCT.

    B.  TRIAL COUNSEL   FAILED       TO
    ACKNOWLEDGE  HIS  CONFLICT       OF
    INTEREST.

    C.  TRIAL   COUNSEL    FAILED    TO
    PROPERLY PREPARE THE CASE.

POINT II – THE [PCR] JUDGE ERRED BY
DENYING DEFENDANT'S CLAIM THAT HE IS
ENTITLED TO WITHDRAW HIS GUILTY PLEA
SINCE HE DID NOT ENTER INTO IT
KNOWINGLY,      INTELLIGENTLY     OR
VOLUNTARILY.

POINT III - DEFENDANT'S CONVICTIONS
SHOULD BE VACATED AND THE INDICTMENT
SHOULD HAVE BEEN DISMISSED SINCE THE
STATE   ENGAGED      IN    PROSECUTORIAL
MISCONDUCT      BY    INTIMIDATING   THE
WITNESS, [N.P.], AND PRESENTING FALSE,
MISLEADING         AND        INACCURATE
INFORMATION TO THE GRAND JURY.

    A.  THE STATE INTIMIDATED THE
    WITNESS,     [N.P.], COMMITTING
    PROSECUTORIAL MISCONDUCT AT THE
    GRAND JURY HEARING.



                                           A-2417-18T2
                   9
                  B.  THE INDICTMENT SHOULD HAVE
                  BEEN DISMISSED SINCE THE STATE
                  ENGAGED      IN     PROSECUTORIAL
                  MISCONDUCT BY PRESENTING FALSE,
                  MISLEADING     AND     INACCURATE
                  INFORMATION TO THE GRAND JURY.

            POINT IV - THE [PCR] COURT ERRED BY
            DENYING DEFENDANT'S PETITION FOR POST-
            CONVICTION RELIEF WITHOUT AFFORDING
            HIM AN EVIDENTIARY HEARING TO FULLY
            ADDRESS HIS CONTENTION THAT HE FAILED
            TO     RECEIVE    ADEQUATE      LEGAL
            REPRESENTATION FROM TRIAL COUNSEL.

      A PCR court need not grant an evidentiary hearing unless "a defendant

has presented a prima facie [case] in support of post-conviction relief." State v.

Marshall, 148 N.J. 89, 158 (1997) (alteration in original) (quoting State v.

Preciose, 129 N.J. 451, 462 (1992)). "To establish such a prima facie case, the

defendant must demonstrate a reasonable likelihood that his or her claim will

ultimately succeed on the merits." Ibid. The court must view the facts "in the

light most favorable to defendant." Ibid. (quoting Preciose, 129 N.J. at 462-63);

accord R. 3:22-10(b). If the PCR court has not held an evidentiary hearing, we

"conduct a de novo review . . . ." State v. Harris, 181 N.J. 391, 421 (2004).

      To establish ineffective assistance of counsel, defendant must satisfy a

two-prong test:



                                                                          A-2417-18T2
                                       10
            First, the defendant must show that counsel's
            performance was deficient. This requires showing that
            counsel made errors so serious that counsel was not
            functioning as the "counsel" guaranteed the defendant
            by the Sixth Amendment. Second, the defendant must
            show that the deficient performance prejudiced the
            defense. This requires showing that counsel's errors
            were so serious as to deprive the defendant of a fair
            trial, a trial whose result is reliable. Unless a defendant
            makes both showings, it cannot be said that the
            conviction . . . resulted from a breakdown in the
            adversary process that renders the result unreliable.

            [Strickland v. Washington, 466 U.S. 668, 687 (1984);
            State v. Fritz, 105 N.J. 42, 52 (1987) (quoting
            Strickland, 466 U.S. at 687).]

      Counsel's performance is evaluated with extreme deference, "requiring 'a

strong presumption that counsel's conduct falls within the wide range of

reasonable professional assistance . . . .'" Fritz, 105 N.J. at 52 (alteration in

original) (quoting Strickland, 466 U.S. at 688-89).        "To rebut that strong

presumption, a [defendant] must establish . . . trial counsel's actions did not

equate to 'sound trial strategy.'" State v. Castagna, 187 N.J. 293, 314 (2006)

(quoting Strickland, 466 U.S. at 689). "Mere dissatisfaction with a 'counsel's

exercise of judgment' is insufficient to warrant overturning a conviction." State

v. Nash, 212 N.J. 518, 542 (2013) (quoting State v. Echols, 199 N.J. 344, 358

(2009)).



                                                                          A-2417-18T2
                                       11
      To demonstrate prejudice, "'actual ineffectiveness' . . . must [generally] be

proved . . . ." Fritz, 105 N.J. at 52 (quoting Strickland, 466 U.S. at 692-93).

Defendant must show the existence of "'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."         Ibid. (internal citation omitted) (quoting

Strickland, 466 U.S. at 694). Indeed,

            [i]t is not enough for [a] defendant to show that the
            errors had some conceivable effect on the outcome of
            the proceeding. Virtually every act or omission of
            counsel would meet that test and not every error that
            conceivably could have influenced the outcome
            undermines the reliability of the result of the
            proceeding.

            [Strickland, 466 U.S. at 693 (citation omitted).]

In order to establish the Strickland prejudice prong to set aside a guilty plea

based on ineffective assistance of counsel, a defendant must show "'there is a

reasonable probability that, but for counsel's errors, [the defendant] would not

have pled guilty and would have insisted on going to trial.'" State v. DiFrisco,

137 N.J. 434, 457 (1994) (alteration in original) (quoting Hill v. Lockhart, 474

U.S. 52, 59 (1985)). Moreover, "'a [defendant] must convince the court that a

decision to reject the plea bargain'" and "insist on going to trial" would have


                                                                           A-2417-18T2
                                        12
been "'rational under the circumstances.'" State v. Maldon, 422 N.J. Super. 475,

486 (App. Div. 2011) (quoting Padilla v. Kentucky, 559 U.S. 356, 372 (2010)).

That determination should be "based on evidence, not speculation." Ibid.

      We reject defendant's arguments that his counsel was ineffective for

failing to file motions to suppress the evidence seized from the residence and

the victim's statements on the day of the incident, failing to move to dismiss the

indictment, and asserting there was a conflict of interest.4 For the reasons

expressed in Judge Sules' opinion, none of the aforementioned issues

demonstrated "actual ineffectiveness" on plea counsel's part or a reasonable

probability the outcome would have been different based on these claims.

      The record lacks any evidence defendant was pressured into accepting the

plea and his claim in this regard is a bald allegation. Defendant's testimony

during the plea proceeding contradicts this assertion.       Independent of his

ineffective assistance claims, we agree with Judge Sules that defendant's

assertions met none of the Slater factors. Indeed, defendant had no colorable


4
  Defendant asserted a second basis for a conflict of interest, namely, that the
victim's father was "highly involved since he provided keys to the police for a
search of the couple's apartment and drove his daughter to the hospital."
Although the judge's conflict of interest analysis focused on the relationship of
defense counsel's staff with the victim's family, the father's involvement was not
a conflict of interest under the same rationale and because he concluded th e
warrantless search was valid as incident to arrest.
                                                                          A-2417-18T2
                                       13
claim of innocence, his unsupported reasons for withdrawing the plea were

refuted by his objective testimony at the plea hearing confirming it was

voluntary, the plea was pursuant to a negotiated agreement, and defendant does

not refute the withdrawal of the plea would prejudice the State. Our de novo

review of the record convinces us there was no prima facie showing on the PCR

claims raised, entitling defendant to an evidentiary hearing.

      Affirmed.




                                                                      A-2417-18T2
                                      14
