                            NOT FOR PUBLICATION WITHOUT THE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-0750-16T2

STATE OF NEW JERSEY,

       Plaintiff-Respondent,

v.

VEANZEIL R. ROBERTS,
a/k/a PUN, KING PUNISHER,
and BOO-BOO,

     Defendant-Appellant.
____________________________

                Submitted October 11, 2018 – Decided January 17, 2019

                Before Judges Simonelli and DeAlmeida.

                On appeal from Superior Court of New Jersey, Law
                Division, Bergen County, Indictment No. 05-12-2152.

                Joseph E. Krakora, Public Defender, attorney for
                appellant (Andrew P. Slowinski, Designated Counsel,
                on the brief).

                Dennis Calo, Acting Bergen County Prosecutor,
                attorney for respondent (Annmarie Cozzi, Special
                Deputy Attorney General/Acting Senior Assistant
                Prosecutor, of counsel and on the brief; John J. Scaliti,
                Legal Assistant, on the brief).
PER CURIAM

      Defendant Veanzeil R. Roberts appeals from the August 23, 2016 Law

Division order, which denied his petition for post-conviction relief (PCR)

without an evidentiary hearing. We affirm.

      Following a jury trial, on March 31, 2010, defendant was convicted of

first-degree attempted murder, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3(a);

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

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

degree possession of a weapon under circumstances not manifestly appropriate

for its lawful use, N.J.S.A. 2C:39-5(d); and first-degree conspiracy to commit

murder, N.J.S.A. 2C:11-3(a)(1),(2) and N.J.S.A. 2C:5-2. On June 18, 2010, the

trial court sentenced defendant to a twenty-year term of imprisonment with an

eighty-five percent period of parole ineligibility pursuant to the No Early

Release Act, N.J.S.A. 2C:43-7.2.

      The charges against defendant stemmed from his involvement in the

egregiously brutal stabbing of Monica Penalba. The State's theory of culpability

depended on establishing defendant as a member of the Latin Kings, a

notoriously violent street gang. The State characterized defendant's role in the

gang as an "enforcer." According to the State, defendant and another individual,


                                                                        A-0750-16T2
                                       2
who was not a member of the gang at the time, savagely attacked and attempted

to kill Penalba to prevent her from reporting to law enforcement authorities the

kidnapping and murder of one man and the kidnapping and aggravated assault

of another man. Gang members committed the crimes against these men in

retaliation for robbing a high-ranking Latin Kings member of drugs and money.

The evidence showed that as an enforcer in the Latin Kings, defendant used

violence, brutality, and murder as means of retaliating against those who dared

to steal from gang leaders. The evidence also showed that the gang used these

same ruthless measures to protect those who enforced the leaders' orders, by

killing, or in this case, attempting to kill, those who may have witnessed the

initial retaliatory acts.

      Defendant appealed his conviction, challenging the admission of evidence

of his gang affiliation, including the testimony of Oscar Giorgi, and the State's

graphic presentation of Penalba's testimony regarding the nature and extent of

her injuries. Defendant also challenged his sentence. We affirmed, State v.

Roberts, No. A-2268-10 (App. Div. Aug. 6, 2014), and our Supreme Court

denied defendant's petition for certification, State v. Roberts, 220 N.J. 573

(2015).




                                                                         A-0750-16T2
                                       3
      On February 5, 2016, defendant filed a pro se PCR petition, arguing that

trial counsel rendered ineffective assistance by failing to object to the gang

affiliation evidence, Giorgi's testimony that the gang sustained itself by selling

drugs, and evidence of the nature and extent of Penalba's injuries, and failing to

request a limiting instruction on the gang affiliation evidence. The PCR judge

denied the petition, finding defendant failed to establish a prima facie case of

ineffective assistance of counsel.

      On appeal, defendant raises the following contentions:

            POINT I

            THE PCR COURT SHOULD HAVE HELD THAT
            DEFENDANT'S        RIGHT  TO  EFFECTIVE
            ASSISTANCE OF COUNSEL WAS VIOLATED BY
            TRIAL COUNSEL'S FAILURE TO REQUEST A
            LIMITING       INSTRUCTION   ON     THE
            PROSECUTION'S USE OF GANG AFFILIATION
            EVIDENCE. [(U.S. CONST., AMEND. VI; N.J.
            CONST., ART. I, ¶ 10).]

            (a) Trial Counsel's Failure to Request a Limiting
            Instruction Satisfies the First Prong of the
            Strickland/Fritz[1] Standard.

            (b) Trial Counsel's Failure to Request a Limiting
            Instruction Satisfies the Second Prong of the
            Strickland/Fritz Standard.


1
  Strickland v. Washington, 466 U.S. 668 (1984); State v. Fritz, 105 N.J. 42
(1987).
                                                                          A-0750-16T2
                                        4
            (c) Defense Counsel Was Ineffective in Failing to
            Object to the Testimony of Oscar G[i]orgi.

            (d) Defense Counsel [W]as Ineffective in Failing to
            Object to Excessively Graphic Evidence of the Victim's
            Injuries.

            (e) The PCR Court Should Have Granted
            Defendant's Petition on the Grounds of Cumulative
            Error.

      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, 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).        To establish a prima facie claim of

ineffective assistance of counsel, the defendant

            must satisfy two prongs. First, he must demonstrate
            that counsel made errors "so serious that counsel was
            not functioning as the 'counsel' guaranteed the
            defendant by the Sixth Amendment." An attorney's
            representation is deficient when it "[falls] below an
            objective standard of reasonableness."

                   Second, a defendant "must show that the
            deficient performance prejudiced the defense." A
            defendant will be prejudiced when counsel's errors are
            sufficiently serious to deny him "a fair trial." The

                                                                         A-0750-16T2
                                        5
            prejudice standard is met if there is "a reasonable
            probability that, but for counsel's unprofessional errors,
            the result of the proceeding would have been different."
            A "reasonable probability" simply means a "probability
            sufficient to undermine confidence in the outcome" of
            the proceeding.

            [State v. O'Neil, 219 N.J. 598, 611 (2014) (alteration in
            original) (citations omitted) (quoting Strickland, 466
            U.S. at 687-88, 694).]

"[I]n order to establish a prima facie claim, [the defendant] must do more than

make bald assertions that he was denied the effective assistance of counsel. He

must allege facts sufficient to demonstrate counsel's alleged substandard

performance."    Cummings, 321 N.J. Super. at 170.           The defendant must

establish, by a preponderance of the credible evidence, that he is entitled t o the

requested relief. State v. Nash, 212 N.J. 518, 541 (2013).

      We review a judge'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).       However, where no evidentiary hearing was

conducted, "we may review the factual inferences the court has drawn from the

documentary record de novo." State v. Blake, 444 N.J. Super. 285, 294 (App.

Div. 2016). We also review de novo the trial court's conclusions of law. Ibid.

Applying the above standards, we discern no reason to reverse.



                                                                           A-0750-16T2
                                        6
      "In analyzing trial counsel's performance, [we] examine the law as it stood

at the time of counsel's actions, not as it subsequently developed." State v.

Goodwin, 173 N.J. 583, 597 (2002) (emphasis added). There cannot be a

cognizable ineffective assistance claim when there is not yet a recognizable legal

basis for actions the defendant claims counsel should have taken. See State v.

Fisher, 156 N.J. 494, 501 (1998).

      At the time of defendant's trial, res gestae was an independent basis for

admitting other crimes or wrongs evidence. 2

            Acts introduced as res gestae were not subject to a
            [Rule] 404(b) analysis because . . . [they] were
            considered to be a part of the subject matter of the
            action being tried. As an exception to Rule 404(b),
            such evidence only needed to satisfy the evidence rules
            relating to relevancy and the Rule 403 [3] balance test.

            [Biunno, Weissbard & Zegas, Current N.J. Rules of
            Evidence, cmt. 7 on N.J.R.E. 404(b) (2018).]

2
  State v. Rose, 206 N.J. 141 (2011) and State v. Goodman, 415 N.J. Super. 210
(App. Div. 2010), on which defendant relies, were decided after defendant's
conviction. Thus, they do not apply. Even if they applied, we agree with our
prior opinion that the gang affiliation evidence was admissible under Rule
404(b) and State v. Cofield, 127 N.J. 328 (1992). See State v. Roberts, No. A-
2268-10 (App. Div. Aug. 6, 2014) (slip op. at 45-51).
3
  Rule 403 provides: "Except as otherwise provided by these rules or other law,
relevant evidence may be excluded if its probative value is substantially
outweighed by the risk of (a) undue prejudice, confusion of issues, or misleading
the jury or (b) undue delay, waste of time, or needless presentation of cumulative
evidence."
                                                                          A-0750-16T2
                                        7
      "In contrast to other-crimes evidence . . . res gestae evidence relates

directly to the crime for which a defendant is being tried, rather than involving

a separate crime." State v. L.P., 338 N.J. Super. 227, 235 (App. Div. 2001).

The admission of res gestae evidence "serves to paint a complete picture of the

relevant criminal transaction." Ibid. (quoting State v. Martini, 131 N.J. 176, 242

(1993)). "Thus, evidence of conduct occurring 'during the same time frame as

the crime charged in the indictment will not be excluded if the evidence

establishes the context of the criminal event, explains the nature of, or presents

the full picture of the crime to the jury.'" Ibid. (quoting State v. Cherry, 289

N.J. Super. 503, 522 (App. Div. 1995)). "Instructing the jury on the limited uses

of other-crimes evidence is unnecessary when evidence of uncharged conduct is

admitted as part of the res gestae of the crime." Ibid.; see also State v. Burden,

393 N.J. Super. 159, 170 (App. Div. 2007) (holding that "[n]o limiting

instruction is necessary when the 'other crimes' evidence was related to res

gestae").

      Under this framework, the gang affiliation evidence was admissible as res

gestae evidence and no limiting instruction was necessary.        The testimony

concerning defendant's association with the Latin Kings was relevant to

establishing a motive for his attack on Penalba and his role as an enforcer. The


                                                                          A-0750-16T2
                                        8
evidence painted a complete picture of the relevant criminal transaction;

established the context of the criminal event; explained the nature of; and

presented the full picture of the crime to the jury.

      Further, the probative value of the gang affiliation evidence was not

outweighed by its apparent prejudice. This evidence explained why the events

occurred as they did and defendant's motive for planning and committing the

charged crimes. There was no less prejudicial evidence to prove those facts.

See State v. Oliver, 133 N.J. 141, 151 (1993) (holding that "[a]n important factor

in weighing the probative value of other-crime evidence is whether other, less-

inflammatory evidence can prove the same fact in issue"). Accordingly, defense

counsel was not ineffective in failing to object to the gang affiliation evidence

and request a limiting instruction.

      In addition, defense counsel was not ineffective for failing to object to

Giorgi's testimony that the gang supported itself by selling drugs. Rule 404(b)

excludes evidence of other crimes "to prove the disposition of a person in order

to show that such person acted in conformity therewith." However, Rule 404(b)

"applies only to other acts of the defendant; thus, evidence that includes

references to bad conduct by the defendant's accomplices does not implicate this

rule." Biunno, Weissbard & Zegas, Current N.J. Rules of Evidence, cmt. 7 on


                                                                          A-0750-16T2
                                         9
N.J.R.E. 404(b) (2018) (emphasis added); see also State v. Figueroa, 358 N.J.

Super. 317, 326 (App. Div. 2003) (finding a statement that did not implicate

defendant "was not other crimes evidence as to him").

      Defendant relies on State v. Mazowski, 337 N.J. Super. 275 (App. Div.

2001) and State v. Bryant, 237 N.J. Super. 102 (App. Div. 1988) to support his

argument that Giorgi's testimony should have been excluded under Rule 404(b).

However, these cases involve instances where the evidence of criminality

related specifically to the defendants who were being charged. Mazowski, 337

N.J. Super. at 283-84 (evidence that the defendant was a drug addict was not

admissible to show he had a motive to commit crimes); Bryant, 237 N.J. Super.

at 108 (testimony that an individual observed the defendant selling drugs was

not admissible where the defendant was convicted of weapons charges).

      Giorgi's testimony clearly differs from the evidence presented in

Mazowski and Bryant. Giorgi did not testify that defendant sold drugs. Rather,

he made a general reference to "some" members of the Latin Kings who

volunteered to sell drugs, but made no reference to defendant and did not

specifically implicate defendant in the sale of drugs. Thus, Giorgi's testimony

did not constitute other crimes evidence as to defendant. See Figueroa, 358 N.J.

Super. at 326.


                                                                        A-0750-16T2
                                      10
      Lastly, defendant argues that defense counsel was ineffective for failing

to object to evidence regarding the nature and extent of Penalba's injuries. The

complained-of evidence included Penalba's testimony about the surgeries on her

eyes and arm after the attack; the showing of her scars to the jury; her

demonstration of what occurred in the back of her car during the stabbing;

photographs showing what she looked like before and after the attack; and the

prosecutor's display of the clothing Penalba was wearing during the attack.

      Demonstrative or illustrative evidence is "evidence that replicates the

actual physical evidence, or demonstrates some matter material to the case."

Rodd v. Raritan Radiologic Assocs., PA, 373 NJ. Super. 154, 165 (App. Div.

2004) (citations omitted). "There is nothing inherently improper in the use of

demonstrative or illustrative evidence." State v. Scherzer, 301 N.J. Super. 363,

434 (App. Div. 1997). Nevertheless, relevant demonstrative evidence may be

excluded if "the risk of . . . undue prejudice, confusion of issues, or misleading

the jury" substantially outweighs its probative value. N.J.R.E. 403; accord State

v. Feaster, 156 N.J. 1, 82-83 (1998).

      Defense counsel was not ineffective for failing to object to the

complained-of evidence because any challenge would have failed. "The failure

to raise unsuccessful legal arguments does not constitute ineffective assistance


                                                                          A-0750-16T2
                                        11
of counsel." State v. Worlock, 117 N.J. 596, 625 (1990); see Strickland, 466

U.S. at 688.

      First, defense counsel objected when the prosecutor asked Penalba to

come down from the witness stand, lie on the floor, and re-enact what occurred

in her car during the assault. Thus, defendant's argument that counsel failed to

object to this evidence is without merit.

      Second, the showing of Penalba's scars was proper. To convict defendant

of aggravated assault the State had to prove beyond a reasonable doubt that

defendant attempted to or caused serious bodily injury to Penalba, "or cause[d]

such injury purposely or knowingly or under circumstances manifesting extreme

indifference to the value of human life recklessly causes such injury[.]" N.J.S.A.

2C:12-1(b)(1). Serious bodily injury is defined as "bodily injury which creates

a substantial risk of death or which causes serious, permanent disfigurement, or

protracted loss or impairment of the function of any bodily member or organ[.]"

N.J.S.A. 2C:11-1(b).

      Penalba's showing of the scarring on her body was highly probative

because it demonstrated that the brutal attack caused permanent disfigurement.

Moreover, this evidence was not unduly prejudicial, as Penalba merely pointed

to the various parts of her body with permanent scarring from the attack. In


                                                                          A-0750-16T2
                                       12
addition, Penalba's testimony about her multiple surgeries following the attack,

including surgeries intended to salvage the functioning of her right eye, was

directly relevant to the element of seriously bodily injury, and the State used it

to prove that the attack caused both permanent disfigurement and loss or

impairment of the function of her eye. This was clearly admissible.

      Third, the prosecutor's display of the clothing Penalba was wearing at the

time of the attack was also relevant, as it was used to corroborate Penalba's

testimony about her injuries by demonstrating the holes and blood on the

clothing that resulted from the multiple stab wounds to her body. Such evidence

has been deemed admissible. See Feaster, 156 N.J. at 83-84 (holding victim's

blood-stained clothing was admissible, despite the claim that the evidence was

highly inflammatory and cumulative).

      Further, photographs of a victim are admissible if relevant unless "their

probative value is so significantly outweighed by their inherently inflammatory

potential as to have a probable capacity to divert the minds of the jurors from a

reasonable and fair evaluation of the basic issue of guilt or innocence." State v.

Johnson, 120 N.J. 263, 297 (1990) (quoting State v. Thompson, 59 N.J. 396, 421

(1971)); State v. Micheliche, 220 N.J. Super. 532, 545 (App. Div. 1987). The

presence of blood and gruesome details in photographs do not provide automatic


                                                                          A-0750-16T2
                                       13
grounds for exclusion. State v. DiFrisco, 137 N.J. 434, 500 (1994); see also

State v. Belton, 60 N.J. 103, 109 (1972).

      The State used before and after photographs of Penalba to establish that

defendant's conduct was purposeful, an element of attempted murder, N.J.S.A.

2C:11-3(a)(1), (2) and N.J.S.A. 2C:5-1(a)(1), and caused Penalba to suffer

serious bodily injury, an element of aggravated assault, N.J.S.A. 2C:12-1(b)(1).

Because this evidence was critical to the State's case, the photographs were

highly probative. See DiFrisco, 137 N.J. at 500; see also State v. Conklin, 54

N.J. 540, 544-45 (1969) (holding that photographs depicting the actual condition

of bodies found and the nature and extent of injuries inflicted were admissible).

Furthermore, defendant does not allege that the photographs were gruesome, and

fails to specify how they were "excessively graphic or inflammatory" or how

their presentation to the jury was unfairly prejudicial. See Strickland 466 U.S.

at 694 (holding that "[t]he defendant must show that . . . but for counsel's

unprofessional errors, the result of the proceeding would have been different").

      For the foregoing reasons, defense counsel did not err in failing to object

to the complained-of evidence, because all of it was admissible. Moreover, even

if defense counsel erred in failing to object to the evidence, defendant failed to




                                                                          A-0750-16T2
                                       14
demonstrate any prejudice resulting therefrom that would have changed the

outcome. O'Neil, 219 N.J. at 611.

     Affirmed.




                                                                  A-0750-16T2
                                    15
