                                NOT FOR PUBLICATION WITHOUT THE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-3209-17T4

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

JAQUAN L. LEE, a/k/a JAQUAN
JULIUS LEE, JACQUAN LEE,
JAQUEAN J. LEE, JAKWAN J.
LEE, JAKWAN LARRY LEE,
and JAKWAM L. LEE,

     Defendant-Appellant.
_____________________________

                   Submitted June 1, 2020 – Decided July 21,2020

                   Before Judges Ostrer and Susswein.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Union County, Indictment No. 07-12-1019.

                   Joseph E. Krakora, Public Defender, attorney for
                   appellant (Karen A. Lodeserto, Designated Counsel, on
                   the briefs).

                   Lyndsay V. Ruotolo, Acting Union County Prosecutor,
                   attorney for respondent (Michele C. Buckley, Special
             Deputy Attorney General/Acting Assistant Prosecutor,
             of counsel and on the briefs).

PER CURIAM

      Defendant Jaquan Lee appeals from the trial court's order denying his

petition for post-conviction relief after an evidentiary hearing. Lee collaterally

challenges his conviction of multiple counts of first-degree robbery and weapons

offenses. He was ultimately sentenced, after remand, to an aggregate thirty-

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

Narrowing his claim of ineffective assistance of counsel on appeal, he contends

that his trial counsel, as a result of her inexperience, (1) failed to adequately

explain the ramifications of a mid-trial disclosure that incriminating DNA,

which a report previously attributed to Lee's co-defendant, Tony Lee Canty,

actually belonged to Lee, and (2) failed to adequately counsel Lee about the plea

offer that the State resurrected mid-trial after the DNA mix-up came to light.1

We affirm.




1
  Defendant does not address the trial court's rejection of his claims that his trial
attorney was ineffective in other aspects of her defense. Therefore, we deem
those claims waived. See Sklodowsky v. Lushis, 417 N.J. Super. 648, 657 (App.
Div. 2011) (holding that an issue not briefed on appeal is deemed waived).
                                                                             A-3209-17T4
                                         2
                                          I.

         We assume the reader's familiarity with the facts underlying Lee's

conviction, which we reviewed in our opinion on his direct appeal. See State v.

Lee, No. A-2842-10 (App. Div. August 12, 2013). In summary, the State

presented evidence that one night, Lee, Canty, and a third person robbed at

gunpoint three groups of persons. One of Lee's former girlfriends testified she

drove Lee and the others from one robbery to another.            A second former

girlfriend testified she loaned Lee the car, which matched the victims'

description, including its license plate number. Lee was arrested attempting to

flee from the stopped car when the police approached. Inside the car were

various items taken in the robberies along with items that separately linked Lee

to the vehicle. Lee matched the physical description the victims gave, including

wearing a distinctive Detroit Lions cap. One of the victims identified Lee in

court.

         On top of this evidence, the State disclosed before trial that Canty's DNA

was found on one of the stolen cellphones and a Detroit Lions jacket that police

seized from the vehicle. However, as the State neared the end of its case, it

came to light that, as a result of a transposed number, the State's DNA report




                                                                           A-3209-17T4
                                          3
had mistakenly identified Canty as the DNA contributor. In fact, the DNA on

the items belonged to Lee. 2

       As a result of this late disclosure, Lee's trial counsel asked the court to

exclude the DNA evidence, or grant a mistrial. She argued it prejudiced her

defense, although she did not explain what she would have done differently.

The court stated there were "no grounds for a mistrial." After an extensive

colloquy with counsel, the court permitted the State's DNA expert to testify that

buccal samples were taken from both defendants; the State tested items that were

likely to yield good DNA samples; and Canty was excluded from the DNA

samples taken from the phone and jacket found in the vehicle. The expert was

silent on whether the DNA from the samples matched Lee's DNA. Lee's trial

attorney did not cross-examine the expert. Although the parties contended

before the PCR court that the attorneys entered into a stipulation regarding the

DNA, we have found no evidence in the trial transcript of such a stipulation, and

neither party identified the point in the trial when the alleged stipulation was

presented to the jury.

       The parties agree that in the midst of discussions about how to handle the

DNA mix-up, the assistant prosecutor advised Lee's trial attorney that he would


2
    We did not address the DNA evidence in our previous opinion.
                                                                          A-3209-17T4
                                        4
permit Lee to accept the State's pre-trial plea offer. As before, the State offered

to recommend a ten-year sentence, subject to NERA, in return for Lee's guilty

plea and testimony against Canty, if needed. How counsel communicated the

offer and how she responded to the DNA mix-up is the focus of Lee's remaining

claims of ineffective assistance.

      In brief, Lee alleged his attorney never informed him the plea offer was

back on the table; by contrast, his trial attorney asserted she told him, and he

rejected it. Although Lee and his attorney presented different versions of what

they said in discussions following the disclosure, PCR counsel emphasized their

point of agreement – that trial counsel was rushed and ineffectively counseled

defendant about the DNA mix-up, and the revived plea offer.

      In his PCR petition, defendant contended that his trial attorney discussed

the DNA development for only several minutes in a hallway off the courtroom,

within earshot of two sheriff's officers. He contended he did not understand

everything she said to him. He said in his certification that he asked her if she

could ask the State to revive its pre-trial plea offer of a ten-year term, subject to

NERA. He said, to his "knowledge she never did because she never discussed

it with me."




                                                                             A-3209-17T4
                                         5
      At the evidentiary hearing, Lee amplified his version of events.         He

realized the DNA mix-up damaged his case. He could no longer argue there was

no forensic evidence tying him to the stolen items; and he feared jurors might

speculate that his DNA was found on the items, because only Canty would

explicitly be excluded.    Nonetheless, he contended he did not understand

everything his counsel told him in the hallway. He said he did not "recall" that

she conveyed the revived plea offer during their discussion. He clarified that it

was only after they returned to counsel table that he asked her, "what 's up with

the State's plea offer?" He admitted he did not explicitly say he wanted to accept

it, but he asserted that his inquiry implied that he would accept it. He said his

attorney just "blew [him] off." He insisted he would have accepted the plea

offer, including testifying against Canty, if necessary. He asserted that he

declined the pre-trial plea offer because of the lack of forensic evidence against

him, not a disinclination to testify against Canty.

      Lee's trial attorney supported his claim of ineffective assistance by

contending that she needed more time to explain adequately the significance of

the DNA mix-up, and the reasons why she advised him to accept the revived

plea offer. Although she had been in practice for seventeen years, and second -

chaired several criminal cases as an associate of a respected attorney, she never


                                                                          A-3209-17T4
                                        6
tried a case solo, let alone a first-degree criminal case. She said she was given

one week to prepare for trial, and, as a result of her inexperience, she did not

assert herself sufficiently. She claimed she did not present a vigorous argument

in support of a mistrial, and she did not insist on an adjournment, so she could

have a fulsome opportunity to discuss the developments in the case, including

the revived plea offer.

      Regarding her hallway conference with Lee, she said, "I am sure that he

could not totally understand everything that I was explaining to him or the

ramifications of what I was explaining to him."         She blamed herself for

discussing such an important matter under time pressure, in a hallway, within

possible earshot of sheriff's officers.

      She testified that before trial, she and Lee discussed at length the State's

plea offer and she urged him to accept it, but he declined.        At a pre-trial

conference, the trial judge informed Lee that if convicted he could face what

would be tantamount to a life sentence. Trial counsel recalled telling Lee that

she did not think there was a great likelihood of a consecutive sentence, and that

Lee's exposure was likely in the 20-25 years range. She acknowledged she was

wrong.




                                                                          A-3209-17T4
                                          7
      However, the DNA mix-up weakened the defense and strengthened the

argument for accepting the State's revived plea offer. She testified that she

should have taken more time to explain to Lee that they lost a major theme of

the defense – the absence of forensic evidence incriminating him and the

presence of evidence incriminating Canty. She said she should have counseled

him, with regard to the plea offer, that he needed to consider what was best for

himself. However, she insisted that she conveyed the plea offer to Lee in the

discussion in the hallway, and he rejected it. She also said she ineffectively

argued for the mistrial, and should have rejected the alleged stipulation

regarding the DNA evidence. 3

      In PCR counsel's summation, she did not rest the petition for relief on the

claim that trial counsel failed to disclose the revived plea offer. Rather, she

argued that the circumstances surrounding the discussion led to confusion, and

trial counsel was obliged to have a more fulsome discussion of the ramifications

of the DNA mix-up, and the pros and cons of the revived plea offer. When PCR

counsel recalled Lee's assertion that he was never told of the revived plea offer,



3
   As she recalled the stipulation, it permitted discussion that the DNA excluded
Canty, "but then [there would be] this wall of silence as to how or in what way"
it involved Lee. "[I]t certainly opened the door to a negative inference. I never
should have stipulated to it. It was harmful."
                                                                          A-3209-17T4
                                        8
the PCR judge interrupted to reject it. Noting Lee's motive to avoid a thirty-

five-year sentence, the court concluded Lee had "no credibility on that point . . .

I don't believe him at all." When the judge asked PCR counsel if she was

suggesting that trial counsel was "lying when she . . . [told] . . . him the deals

are back on the table," PCR counsel conceded, "I'm not saying she's lying , I'm

just saying there was a lot of confusion because of what happened . . . ."

      The PCR judge credited the attorney's version of events and rejected

Lee's.4   The court found that despite trial counsel's assertions of her own


4
   We note that Lee and his trial counsel testified on separate days before
different judges. The first judge fell ill after Lee testified. The second judge
completed the hearing pursuant to Rule 1:12-3(b). Lee's PCR counsel did not
object, nor did she ask the second judge to recall Lee. See R. 1:12-3(c) (stating
that a substituted judge, in order to fairly discharge his judicial duties, "shall
make such disposition as the circumstances warrant, . . . in a case tried without
a jury, by directing the recall of any witness"). We asked counsel to file
supplemental briefs to address whether the trial court was obliged, sua sponte,
to recall Lee. Cf. Fed. R. Civ. P. 63, and Advisory Committee Note to Fed. R.
Civ. P. 63 (stating a substitute judge "risk[s] error to determine the credibility
of a witness not seen or heard who is available to be recalled"). We appreciate
counsel's additional submissions. We conclude that, whether PCR counsel's
failure to request Lee's recall was strategic or an oversight, the court's decision
to proceed without recalling Lee does not amount to plain error, particularly
under the circumstances of this case. PCR counsel did not hinge the petition on
the judge believing Lee over his trial counsel. The thrust of PCR counsel's
argument was that the plea discussion, assuming it occurred, was
constitutionally inadequate. Therefore, not recalling Lee does not raise a
reasonable doubt the PCR court reached a result it "otherwise might not have
reached," or denied Lee a "fair [hearing] and a fair decision on the merits." State
v. Macon, 57 N.J. 325, 336, 338 (1971); R. 2:10-2.
                                                                             A-3209-17T4
                                        9
inadequacies, she provided effective assistance of counsel. He noted that she

moved for a mistrial, but the trial judge found no basis for granting one.

      The PCR judge also found that Lee received the "opportunity . . . to

reconsider the extraordinarily favorable 10-year plea offer that had been given

to him prior to trial." The court concluded that extensive discussion of the offer

was not needed to explain it to defendant, as it was the same offer that trial

counsel had discussed several times before trial, and Lee was "adamant in not

taking it." The PCR court noted that the trial "court granted a short recess to

allow the defendant to reconsider the exact same plea offer. . . . There was

nothing new."

      The judge acknowledged trial counsel's testimony that the circumstances

prevented a full discussion. But, he found "the opportunity to discuss was a fair

and reasonable one and Mr. Lee was adamant in his assertions of innocence and

was unwilling to take the renewed 10-year plea offer which occurred in the

middle of trial. . . . He made the decision, which he is entitled to, to reject the

plea and go forward."

      On appeal, Lee presents the following points for our consideration:

            POINT I

            THE PCR COURT ERRED                     IN DENYING
            DEFENDANT'S PETITION                    FOR   POST-

                                                                             A-3209-17T4
                                       10
            CONVICTION    RELIEF    BECAUSE    TRIAL
            COUNSEL    ADMITTED    SHE    WAS    TOO
            INEXPERIENCED TO HANDLE HIS TRIAL AND
            DID NOT SPEND SUFFICIENT TIME EXPLAINING
            THE DNA ISSUE WITH DEFENDANT.

            POINT II

            THE PCR COURT ERRED IN DENYING
            DEFENDANT'S    PETITION    FOR  POST-
            CONVICTION   RELIEF    BECAUSE  TRIAL
            COUNSEL ADMITTED SHE WAS INEFFECTIVE
            REGARDING HER DISCUSSIONS OF THE RE-
            EXTENDED PLEA OFFER WITH DEFENDANT.

                                       II.

      Mindful of the PCR judge's opportunity to hear and see live witnesses,

"we will uphold the PCR court's findings that are supported by sufficient

credible evidence in the record." State v. Nash, 212 N.J. 518, 540 (2013). We

review de novo issues of law. Id. at 540-41. Applying that standard of review,

we affirm the PCR court's order.

      To prevail on a claim of ineffective assistance of counsel, Lee was obliged

to satisfy the two-prong Strickland test by showing: (l) his counsel's

performance was deficient, and she made errors that were so egregious she was

not functioning effectively as guaranteed by the Sixth Amendment to the United

States Constitution; and (2) "there is a reasonable probability that, but for

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

                                                                         A-3209-17T4
                                      11
different." Strickland v. Washington, 466 U.S. 668, 687, 694 (1984); see also

State v. Fritz, 105 N.J. 42, 52 (1987).

      The right to effective assistance of counsel extends to the plea bargaining

process. Lafler v. Cooper, 566 U.S. 156, 162 (2012). "In the context of a guilty

plea, counsel is required to give a defendant information sufficient 'to make a

reasonably informed decision whether to accept a plea offer.'" Shotts v. Wetzel,

724 F.3d 364, 376 (3d Cir. 2013) (quoting United States v. Day, 969 F.2d 39,

43 (3d Cir. 1992)).

      "Adequate assistance of an attorney is measured according to whether the

counsel has professional skills comparable to other practitioners in the field."

State v. Davis, 116 N.J. 341, 351 (1989). "'Reasonable competence' does not

require the best of attorneys, but certainly not one so ineffective as to make the

idea of a fair trial meaningless." Ibid. "The test is not whether defense counsel

could have done better, but whether he [or she] met the constitutional threshold

for effectiveness." Nash, 212 N.J. at 543. A defendant must overcome a strong

presumption that counsel exercised "reasonable professional judgment."

Strickland, 46 U.S. at 690. "No particular set of detailed rules for counsel's

conduct can satisfactorily take account of the variety of circumstances faced by




                                                                          A-3209-17T4
                                          12
defense counsel or the range of legitimate decisions regarding how best to

represent a criminal defendant." Id. at 688-89.

      When a defendant claims his attorney's ineffective assistance caused him

to reject a plea offer, the defendant must prove that "but for counsel's deficient

performance there is a reasonable probability he [or she] and the trial court

would have accepted the guilty plea." Lafler, 566 U.S. at 174. A court should

not upset a conviction "solely because of [a defendant's] post hoc assertions . . .

about how he would have pleaded but for his attorney's deficiencies." Lee v.

United States, 582 U.S. ___, ___, 137 S. Ct. 1958, 1967 (2017). Rather, a court

must consider "contemporaneous evidence to substantiate a defendant's

expressed preferences." Ibid.

      Although Lee complains that his trial counsel spent insufficient time

explaining the DNA mix-up to him, the evidence reflects that he understood the

significance of the mix-up. His claim that he inquired about the plea offer at

counsel table reflects that he understood the mix-up was a significant, negative

development.     Even if one credits his statement that he may not have

"understood everything that [his attorney] was explaining to [him]," he

understood his defense was weakened. Otherwise, he would not have inquired

whether the plea was still a possibility. Although counsel "could have done


                                                                           A-3209-17T4
                                       13
better," Nash, 212 N.J. at 543, by requesting and spending additional time to

discuss the DNA development at greater length, trial counsel successfully

conveyed the import of the development. Thus, we do not conclude trial counsel

was ineffective by providing what she views now as a rushed explanation of the

DNA mix-up and how she intended to respond.

      We also reject the argument that trial counsel was ineffective in reviewing

the revived plea offer. As we have noted, the PCR court credited Lee's trial

attorney's version of events: she disclosed the revived plea offer during the

hallway discussion, and Lee rejected it. We are obliged to defer to the PCR

judge's fact-finding. The PCR judge did not observe Lee's demeanor when he

testified, because he testified before a different judge. But, the PCR judge, in

effect, characterized Lee's testimony as "post hoc assertions" of what he might

have done. Furthermore, Lee never flatly denied that counsel raised the plea

offer in the hallway conference. He said he did not understand everything trial

counsel said in the hallway discussion, and he did not "recall" her mentioning

the revived plea offer. And, although he claims he inquired about the plea offer

at counsel table, he did not expressly say he wanted to accept it.

      As noted, on appeal, Lee does not directly challenge the trial court's

finding that trial counsel communicated the plea offer. Had trial counsel failed


                                                                         A-3209-17T4
                                       14
to communicate the offer at all, her ineffectiveness would not be open to debate.

Missouri v. Frye, 566 U.S. 134, 145 (2012). Rather, Lee argues that his trial

counsel was ineffective because she rushed; she did not secure more time; and

she did not convey in sufficient depth the reasons why she believed Lee should

have accepted the plea agreement.

      The PCR court found that a more extensive discussion was not required

to satisfy the constitutional right to effective assistance, because Lee understood

the pros and cons of the plea offer; he rejected it pre-trial; he understood the

DNA development; and he rejected the plea offer mid-trial. Essentially, the PCR

court found that trial counsel was not deficient; and Lee suffered no prejudice.

We shall not disturb the PCR court's conclusion.

      As trial counsel testified, she and Lee reviewed the plea offer during

extended discussions before trial. The plea offer that the State revived after the

DNA mix-up was the same one Lee had rejected. He was familiar with it; and

he was familiar with trial counsel's argument. Although there was an additional

factor favoring the plea offer in trial counsel's mind – the DNA mix-up – Lee

understood the ramifications of that development, too.

      We do not minimize the potential value of a more extensive discussion.

A more experienced and assertive attorney may have asked for more time. She


                                                                           A-3209-17T4
                                       15
may have gotten some, but that is by no means certain. Trial counsel testified

that if she had more time, she would have encouraged Lee to think about what

was best for him – implying that testifying against Canty was the main stumbling

block. Whether more time might have led Lee to make a different decision is

not the test. Nor is the test whether the trial attorney could have done a better

job. The question is whether she provided the minimal level of competence

required by the Constitution. We shall not disturb the PCR court's determination

that she did.

      Affirmed.




                                                                         A-3209-17T4
                                      16
