                        NOT FOR PUBLICATION WITHOUT THE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-3816-15T1

STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

CECILIA X. CHEN,

     Defendant-Appellant.
____________________________

              Submitted December 14, 2017 – Decided September 6, 2018

              Before Judges Rothstadt and Gooden Brown.

              On appeal from Superior Court of New Jersey,
              Law Division, Monmouth County, Indictment No.
              06-04-0739.

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

              Christopher J. Gramiccioni, Monmouth County
              Prosecutor, attorney for respondent (Lisa
              Sarnoff Gochman, Legal Assistant, of counsel
              and on the brief).

PER CURIAM

        Defendant Cecilia X. Chen appeals from the February 16, 2016

Law Division order denying her petition for post-conviction relief
(PCR) without an evidentiary hearing.   On appeal, defendant raises

the following contentions:

          POINT I:

          THE TRIAL COURT ERRED IN DENYING DEFENDANT'S
          PETITION FOR [PCR] WITHOUT AFFORDING HER AN
          EVIDENTIARY HEARING TO DETERMINE THE MERITS
          OF HER CONTENTION THAT SHE WAS DENIED THE
          RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL.

               A.[1]   TRIAL    COUNSEL    RENDERED
               INEFFECTIVE LEGAL REPRESENTATION BY
               VIRTUE OF HIS FAILURE TO REQUEST THE
               DISMISSAL OF THE INDICTMENT BASED
               UPON THE STATE'S FAILURE TO PRESERVE
               BLOOD AND FOOTPRINT EVIDENCE, TO
               OBJECT TO THE STATE'S USE OF OTHER
               EVIDENCE OBTAINED FROM THE SCENE,
               AND   TO    REQUEST   AN    "ADVERSE
               INFERENCE"     [SPOLIATION]     JURY
               INSTRUCTION.

               B.   APPELLATE   COUNSEL   RENDERED
               INEFFECTIVE LEGAL REPRESENTATION BY
               VIRTUE OF HIS FAILURE TO RAISE THE
               ISSUE REGARDING THE STATE'S FAILURE
               TO PRESERVE EVIDENCE ON DIRECT
               APPEAL.

               C. DEFENDANT IS ENTITLED TO A REMAND
               TO THE TRIAL COURT TO AFFORD HER AN
               EVIDENTIARY HEARING TO DETERMINE
               THE MERITS OF HER CONTENTION THAT
               SHE   WAS   DENIED   THE   EFFECTIVE
               ASSISTANCE OF TRIAL AND APPELLATE
               COUNSEL.

Having considered the arguments and applicable law, we affirm.



1
   We have consolidated parts A and B of defendant's argument for
clarity.

                                2                           A-3816-15T1
       We incorporate herein the facts set forth in State v. Chen,

402   N.J.   Super.      62   (App.      Div.   2008),    in   which   we    remanded

defendant's 2007 convictions for attempted murder, aggravated

assault, and related weapons offenses, and her ten-year prison

sentence, subject to the No Early Release Act, N.J.S.A. 2C:43-7.2.

We    directed     the   trial     court    to    conduct      a   hearing       on   the

admissibility       of     the    identification         evidence      admitted         at

defendant's jury trial and indicated that "[i]f the trial court

conclude[d] that the evidence [was] admissible under the standards

described [in our opinion], the convictions [were] affirmed."

Chen, 402 N.J. Super. at 86-87. Otherwise, "the convictions [would

be] reversed and a new trial . . . held without the unreliable

evidence."       Id. at 87.

       We also incorporate the facts set forth in State v. Chen, 208

N.J. 307, 327 (2011), wherein our Supreme Court affirmed our

decision remanding the case to the trial court, but modified our

approach "to assess the admissibility of identification evidence

when there is suggestive behavior but no police action."                         On the

remand,      the    trial        court     determined       that     the     victim's

identification       was      properly     admitted      and   entered      an     order

upholding defendant's convictions. We affirmed that determination

in State v. Chen, No. A-2710-11 (App. Div. Aug. 20, 2013), and the



                                            3                                    A-3816-15T1
Supreme    Court   denied   defendant's   petition   for   certification.

State v. Chen, 217 N.J. 295 (2014).

     The convictions stemmed from defendant brutally attacking and

stabbing the pregnant wife of her ex-boyfriend, after duping the

victim to gain access to her home.        The victim, who had never seen

her attacker before, fought back, and both women ended up outside,

where a neighbor heard the victim's screams, observed the fighting,

and called the police.      When the neighbor ran to the victim's aid,

the attacker fled.

     Although the police were unable to locate the attacker, they

recovered a blood drop in the snow just outside the front door of

the victim's house and boot prints in the snow around the blood

drop.     However, the bloodstained snow melted before it could be

analyzed, and the police did not attempt to identify the boot

prints because of all the people who responded and trampled the

crime scene.       Nonetheless, the victim told police she did not

believe she had injured her attacker or caused her to bleed.

     The investigation ultimately targeted defendant based on a

telephone conversation three days earlier between defendant and

the victim's husband, during which defendant expressed regret over

their break up several years prior.         The victim later identified

defendant as her attacker from a photo array, after her husband

made the suggestion and showed her photographs of defendant from

                                    4                             A-3816-15T1
her personal website.2   The neighbor also identified defendant as

the attacker from a photo array, after viewing a composite sketch

of the attacker in the newspaper.

     With defendant's consent, police searched defendant's home

and car.   From the search of her car, police recovered a piece of

paper bearing the victim's phone number.   From the search of her

home, police recovered clothing matching the description provided

by the victim.     A coworker of defendant also confirmed that

defendant wore black eyeglasses similar to a pair recovered from

the crime scene. At trial, defendant admitted calling the victim's

husband three days before the attack because she felt badly about

the breakup, but denied leaving her home in Maryland to come to

New Jersey on the date in question to attack the victim.

     In her timely PCR petition, defendant argued, among other

things, that her trial attorney was ineffective for not moving to

dismiss the indictment because of the State's failure to preserve

crime scene evidence, namely, the bloodstained snow and boot

prints. She argued further that her trial attorney was ineffective

for not requesting an adverse inference jury instruction based on

the spoliation of the evidence. She also argued that her appellate



2
   The reliability of the victim's identification following these
actions by a private party were the focus of the appellate
litigation.

                                 5                         A-3816-15T1
counsel was ineffective for failing to raise the spoliation issue

on her direct appeal.

      Following oral argument, without conducting an evidentiary

hearing, the PCR court denied defendant's petition in a February

16,   2016   written    opinion.      First,     Judge   Ronald    L.   Reisner

determined that "defendant's arguments regarding spoliation of

evidence     [were]    procedurally    barred"    because   "[t]here       [was]

sufficient evidence in the trial record . . . such that counsel

could have raised these issues on direct appeal."           Thus, the judge

concluded that "defendant's claims of spoliation and consequential

issues" were "barred under [Rule] 3:22-4."3

      Nonetheless,     the   judge    addressed    the   merits.        Applying

Strickland v. Washington, 466 U.S. 668 (1984), State v. Fritz, 105

N.J. 42 (1987), and Rule 3:22-10(b), the judge determined that



3
  Rule 3:22-4(a) bars any ground for relief not raised in a prior
proceeding unless the court finds

             (1) that the ground for relief not previously
             asserted could not reasonably have been raised
             in any prior proceeding; or

             (2) that enforcement of the bar . . . would
             result in fundamental injustice; or

             (3) that denial of relief would be contrary
             to   a   new   rule . . . under   either   the
             Constitution of the United States or the State
             of New Jersey.


                                       6                                 A-3816-15T1
defendant failed to establish a prima facie case of ineffective

assistance of counsel on any of the grounds raised to warrant an

evidentiary hearing or PCR.           The judge explained that "defendant

offer[ed]    only     conclusory      statements       asserting     that      [trial]

counsel was ineffective for not properly addressing the spoliation

of   evidence    at   the    trial"   or       "request[ing]    an     adverse     jury

instruction."       Further, "[d]efendant [had] not demonstrated that

her appellate counsel performed deficiently because he failed to

raise these issues on direct appeal."

      The judge stated that defendant neither "explain[ed] how this

conduct . . . fell below an objective standard of reasonableness"

nor "demonstrate[d] how the result of the proceedings would have

been different."         Rather, defendant only asserted "that this

evidence    could     have   been   helpful       to   her   defense.       However,

according to the judge, counsel's performance was not deficient

because "[t]he arguments with respect to the snow and boot print

evidence were not . . . sufficiently material to the defense of

innocence or third party guilt, or even reasonable doubt" and

"trial counsel did indeed address this evidence in summations to

the jury."      Thus, "[t]he jury . . . did consider these arguments

and rejected them."

      Further,      in   rejecting      defendant's          claims,     the     judge

explained:

                                           7                                   A-3816-15T1
              There [was] no evidence whatsoever that the
              perpetrator of the attack . . . was cut or
              bleeding, therefore the blood in the snow was
              not that of the attacker. Moreover, even if
              all   the   footprints    would   have   been
              photographed or retained, given the number of
              individuals who arrived at the crime scene,
              there would be no way to connect any of the
              footprints to the shoes worn by the attacker
              as no shoes were ever located or seized for
              any comparative tests.

       Turning to the prejudice prong, the judge concluded that

"defendant     [had]   not     proffered     sufficient      proof   that     prior

counsel's failure to address the spoliation of evidence would have

prejudiced the defendant" because the trial court "would have

likely denied a motion to dismiss the indictment and reject[ed]

the adverse inference charge."               Further, had the jury "been

instructed as to the spoliation," they "could have still rejected

the adverse inference and reached the same conclusion that they

did."    Moreover, "it [was] doubtful that the jury's verdict would

have been different given the overwhelming evidence supporting the

conviction."

       As to appellate counsel, citing Harrington v. Richter, 562

U.S.    86,   90   (2011),   the   judge    pointed   out    that    "[i]t    [was]

difficult     to   establish    ineffective     assistance      when    counsel's

overall performance indicates active and capable advocacy."                      The

judge     found     that     "[h]ere,       appellate       counsel's     overall

performance . . . indicate[d]         capable    advocacy"      because      "[h]is

                                        8                                   A-3816-15T1
post-conviction representation of defendant was so successful that

the New Jersey Supreme Court [had] . . . recognized the need for

a 'Chen[4] hearing' to address whether 'eyewitness identifications

tainted by private suggestive procedures' are admissible."       The

judge entered a memorializing order, and this appeal followed.

      On appeal, defendant argues she established "a prima facie

case that trial counsel's failure to request the dismissal of the

indictment based upon the State's failure to preserve blood and

footprint evidence, . . . failure to object to the State's use of

other evidence obtained from the scene,[5] . . . failure to request

an 'adverse inference' spoliation jury instruction," as well as

"appellate counsel's failure to raise these issues on direct appeal

constituted ineffective assistance of counsel in violation of the

state and federal constitutions."    Defendant asserts a remand is

necessary    for   an   "evidentiary    hearing . . . to   further

substantiate these claims."   We are not persuaded by any of these

arguments and affirm substantially for the reasons expressed by

Judge Reisner in his comprehensive written opinion.    We add only

the following brief comments.


4
    Chen, 208 N.J. at 311.
5
   Because defendant presents no legal argument to support this
contention, she has effectively waived this argument on appeal.
See N.J. Dep't of Envtl. Prot. v. Alloway Twp., 438 N.J. Super.
501, 506 n.2 (App. Div. 2015).

                                 9                          A-3816-15T1
      Even if defendant's claims were not procedurally barred, the

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

an evidentiary hearing.       State v. Cummings, 321 N.J. Super. 154,

170   (App.   Div.   1999).     Rather,   trial   courts   should     grant

evidentiary hearings and make a determination on the merits only

if the defendant has presented a prima facie claim of ineffective

assistance of counsel, material issues of disputed fact lie outside

the record, and resolution of the issues necessitates a hearing.

R. 3:22-10(b); State v. Porter, 216 N.J. 343, 355 (2013).                  We

review a judge's decision to deny a PCR petition without an

evidentiary hearing for abuse of discretion.        State v. Preciose,

129 N.J. 451, 462 (1992).

      To establish a prima facie claim of ineffective assistance

of counsel, the defendant must meet the Strickland-Fritz two-prong

test.   Specifically, the defendant must establish both that: (l)

counsel's performance was so deficient as to "[fall] below an

objective standard of reasonableness"; and (2) the defect in

performance prejudiced defendant's rights to a fair trial such

that there exists a "reasonable probability that, but for counsel's

unprofessional errors, the result of the proceeding would have

been different."     Strickland, 466 U.S. at 688, 694.

      Claims of ineffective assistance of appellate counsel are

guided by the same principles.     State v. Morrison, 215 N.J. Super.

                                   10                               A-3816-15T1
540, 546 (App. Div. 1987).     In addition, an appellate attorney is

not ineffective for failing to raise every issue imaginable. State

v. Gaither, 396 N.J. Super. 508, 515 (App. Div. 2007).         Rather,

appellate counsel is afforded the discretion to construct and

present what he or she deems are the most effective arguments in

support of their client's position.       Id. at 516.

     "[I]n order to establish a prima facie claim, [the defendant]

must do more than make bald assertions that [s]he was denied the

effective    assistance   of   counsel.    [She]   must   allege     facts

sufficient    to     demonstrate   counsel's    alleged    substandard

performance."      Cummings, 321 N.J. Super. at 170.       Indeed, the

defendant must establish, by a preponderance of the credible

evidence, that she is entitled to the requested relief.        State v.

Nash, 212 N.J. 518, 541 (2013).

     We conclude from our review of the record that defendant

failed to make a prima facie showing of ineffective assistance of

counsel under the Strickland-Fritz test, and we discern no abuse

of discretion in the denial of defendant's PCR petition without

an evidentiary hearing.

     Affirmed.




                                   11                              A-3816-15T1
