                                NOT FOR PUBLICATION WITHOUT THE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-4710-17T4

STATE OF NEW JERSEY,

           Plaintiff-Respondent,

v.

ESTEBAN MORALES, a/k/a
CLAUDIO GONZALEZ,
STEVEN MORALES, B, BRANDON,
and KNOWLEDGE,

     Defendant-Appellant.
________________________________

                    Submitted May 2, 2019 – Decided June 21, 2019

                    Before Judges Simonelli and Whipple.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Ocean County, Indictment No. 12-02-0292.

                    Joseph E. Krakora, Public Defender, attorney for
                    appellant (Adam W. Toraya, Designated Counsel, on
                    the brief).

                    Bradley D. Billhimer, Ocean County Prosecutor,
                    attorney for respondent (Samuel Marzarella, Chief
                    Appellate Attorney, of counsel; Cheryl L. Hammel,
                    Assistant Prosecutor, on the brief).
PER CURIAM

      Defendant Esteban Morales appeals from an April 10, 2018 order denying

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

Defendant raises the following arguments on appeal:

            POINT I

            THE TRIAL COURT ERRED IN DENYING THE
            DEFENDANT'S    PETITION    FOR    POST
            CONVICTION RELIEF WITHOUT AFFORDING
            HIM AN EVIDENTIARY HEARING TO FULLY
            ADDRESS HIS CONTENTION THAT HIS
            ATTORNEY WAS INEFFECTIVE IN FAILING TO
            PRESENT MITIGATING FACTORS AT THE TIME
            OF SENTENCE.

            POINT II

            THE COURT MISAPPLIED ITS DISCRETION IN
            APPLYING [RULE] 3:22-4, AS A PROCEDURAL
            BAR AGAINST DEFENDANT'S FILING FOR POST
            CONVICTION RELIEF IN THIS CASE.

      Having reviewed the record in its entirety and having considered all of

defendant's arguments, we affirm for the well-reasoned and thorough thirty-two

page written opinion of Judge Guy P. Ryan. In particular, we agree with the

court that Rule 3:22-4 bars defendant's claims. Defendant argues his counsel

was ineffective for failing to argue mitigating factor twelve at sentencing. See

N.J.S.A. 2C:44-1(b)(12). Specifically, defendant contends he was entitled to


                                                                        A-4710-17T4
                                       2
credit for cooperating with the police.    Defendant could have raised these

arguments in his direct appeal, State v. Esteban Morales, No. A-0039-15 (App.

Div. Jan. 12, 2016), where we affirmed defendant's sentence as not manifestly

or unduly punitive.

      Moreover, defendant did not establish a prima facie case of ineffective

assistance of counsel warranting an evidentiary hearing. The trial court has the

discretion to conduct an evidentiary hearing. R. 3:22-10; State v. Preciose, 129

N.J. 451, 462 (1992). In order to obtain an evidentiary hearing on a PCR

application based upon an ineffective assistance claim, a defendant must make

a prima facie showing of deficient performance and actual prejudice. Preciose,

129 N.J. at 462-63.     "When determining the propriety of conducting an

evidentiary hearing, the PCR court should view the facts in the light most

favorable to the defendant." State v. Jones, 219 N.J. 298, 311 (2014); see also

Preciose, 129 N.J. at 462-63.       However, "bald assertions" of deficient

performance are insufficient. State v. Porter, 216 N.J. 343, 355 (2013) (quoting

State v. Cummings, 321 N.J. Super. 154, 170 (App. Div. 1999)). Rather, a

defendant must demonstrate a reasonable likelihood of success on the merits. R.

3:22-10(b). Here, after our review of the record, we discern no error in the

court's exercise of discretion to deny an evidentiary hearing, because neither


                                                                        A-4710-17T4
                                       3
defendant's assertion he cooperated with police nor his lawyer's ineffective

performance in connection with that assertion find any support in the record.

      Affirmed.




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