                                NOT FOR PUBLICATION WITHOUT THE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
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                                                        SUPERIOR COURT OF NEW JERSEY
                                                        APPELLATE DIVISION
                                                        DOCKET NO. A-1447-18T1

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

NORMAN T. GRAY, a/k/a
NORMAN FUMAN, and
NORMAN GARY,

     Defendant-Appellant.
________________________

                   Submitted April 27, 2020 – Decided June 2, 2020

                   Before Judges Sabatino and Natali.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Cape May County, Indictment No. 12-06-
                   0383.

                   Joseph E. Krakora, Public Defender, attorney for
                   appellant (Louis H. Miron, Designated Counsel, on the
                   brief).

                   Jeffrey H. Sutherland, Cape May County Prosecutor,
                   attorney for respondent (Gretchen A. Pickering, Senior
                   Assistant Prosecutor, of counsel and on the brief).
PER CURIAM

      Defendant Norman T. Gray appeals the trial court's denial of his petition

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

      The matter arises out of defendant’s plea agreement with the State. He and

other codefendants were charged in a multicount indictment arising out of the

shooting death of Khalil Wallace. Among other things, defendant was charged

with first-degree murder, first-degree kidnapping, and first-degree conspiracy.

      The State’s evidence showed that defendant, along with codefendants

Andre Gross and Boris Curwen, traveled together in a van to confront Wallace,

who apparently owed Gross money. According to Curwen, who entered into a

plea agreement with the State as a cooperating witness, Gross told defendant

and Curwen to “pop” Wallace if the encounter went amiss.

      The three men picked up Wallace, and he got into the back seat of the van

on the passenger side. Defendant was in the back seat on the driver’s side.

Defendant was armed, as were Curwen and Gross. Wallace also had a gun, a

nine-millimeter caliber pistol.

      After the van traveled a distance, Gross stopped it. An altercation arose

and shots were fired. According to Curwen, he saw defendant shoot Wallace.



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Wallace died at the scene, and defendant and the others then attempted to

dispose of his body.

      A bullet was lodged in defendant’s arm. His theory is that the bullet was

from a shot fired by Wallace. He claims he had justifiably fired back at Wallace

in self-defense. The ballistics proofs revealed a nine millimeter caliber bullet

found in the back seat cushion of the van, near where defendant had been sitting.

The other defendants had different caliber guns.

      Before trial Gross moved to dismiss the indictment, arguing the State

should have charged the grand jurors with self-defense. Defendant’s trial

attorney joined in that dismissal motion and likewise argued the self-defense

theory to the court. The trial court denied the motion because the evidence

showed that Wallace was not the aggressor, although defense counsel could

attempt to gather more evidence of self-defense to present at trial.

      The State extended to defendant a plea offer in which it would recommend

to the court a sentence of twenty-five years, subject to the parole ineligibility

terms of the No Early Release Act ("NERA"), N.J.S.A. 2C:43-7.2(a). Defendant

rejected that particular plea offer.

      Thereafter, on the day of jury selection, defendant’s lawyer negotiated a

much more favorable deal with the State: a plea to a reduced charge of


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                                        3
aggravated manslaughter, N.J.S.A. 2C:11-4(a)(1), carrying a recommended

twelve-year custodial term subject to a NERA parole disqualifier, plus a

consecutive three years for third-degree failure to dispose of human remains,

N.J.S.A. 2C:22-1(a).

      Defendant accepted this revised plea agreement. At the plea colloquy, he

admitted to the court deliberately shooting Wallace, and made no mention of

self-defense.

      At sentencing, defendant’s attorney renewed his argument that there are

indicia that Wallace may have shot first and been the aggressor. After hearing

that argument, the court imposed a sentence in accordance with the plea

agreement.

      Defendant appealed his sentence as excessive. We affirmed the sentence

in a February 9, 2016 order. We remanded only to have the judgment of

conviction clarify that the third-degree offense was not subject to NERA.

      In his PCR petition, defendant contended his trial attorney was ineffective

in: (1) not more aggressively pursuing a self-defense argument and (2) not

arguing mitigating factors at sentencing that he claims could have made the

third-degree sentence concurrent rather than consecutive.




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                                       4
      The PCR judge, Michael J. Donohue, issued a written opinion on August

9, 2018 denying the petition. The judge found that defendant had not presented

a prima facie claim of trial counsel’s ineffectiveness, and that there was no need

for an evidentiary hearing.

      On appeal, defendant continues to press his two claims of ineffectiveness,

and contends that an evidentiary hearing is required. His brief presents those

points in this fashion:

                   POINT ONE

                   THE INEFFECTIVE ASSISTANCE OF TRIAL
                   COUNSEL DEPRIVED DEFENDANT OF A
                   FAIR OPPORTUNITY TO DEFEND AGAINST
                   THE CHARGES IN THE INDICTMENT AND
                   THUS, DEFENDANT'S PLEA SHOULD BE
                   VACATED OR, IN THE ALTERNATIVE, THE
                   TRIAL COURT SHOULD CONDUCT AN
                   EVIDENTIARY HEARING TO DETERMINE
                   THE BASIS FOR COUNSEL'S FAILING TO
                   PURSUE A SELF-DEFENSE CLAIM AND TO
                   PRESENT EVIDENCE OF MITIGATING
                   FACTORS AT SENTENCING.

                   POINT TWO

                   THE  PCR  COURT   SHOULD    HAVE
                   CONDUCTED AN EVIDENTIARY HEARING
                   TO ADDRESS ALL OF DEFENDANT'S
                   CLAIMS.




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                                        5
      We have carefully considered these arguments in light of the record and

the applicable law.    Having done so, we affirm the PCR court's decision,

essentially for the sound reasons expressed in Judge Donohue's opinion. We

amplify his reasoning with a few short comments.

      A person accused of crimes is guaranteed under the Sixth Amendment the

effective assistance of legal counsel in his defense. Strickland v. Washington,

466 U.S. 668, 687 (1984). To establish a deprivation of that right, a convicted

defendant must satisfy the two-part test enunciated in Strickland by

demonstrating that: (1) counsel's performance was deficient, and (2) the

deficient performance actually prejudiced the accused's defense. Id. at 687; see

also State v. Fritz, 105 N.J. 42, 58 (1987) (adopting the Strickland two-part test

in New Jersey).

      In reviewing such claims, courts apply a strong presumption that defense

counsel "rendered adequate assistance and made all significant decisions in the

exercise of reasonable professional judgment." Strickland, 466 U.S. at 690.

"[C]omplaints 'merely of matters of trial strategy' will not serve to ground a

constitutional claim of inadequacy . . . ." Fritz, 105 N.J. at 42, 54 (1987)

(citations omitted); see also State v. Perry, 124 N.J. 128, 153 (1991); Hill v.

Lockhart, 474 U.S. 52, 59 (1985) (articulating the "reasonable probability" test


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                                        6
where a defendant claims his counsel did not properly advise him before

entering a guilty plea).

      To obtain an evidentiary hearing on a PCR application based upon

ineffective assistance claims, a defendant must make a prima facie showing of

deficient performance and actual prejudice. State v. Preciose, 129 N.J. 451, 462-

63 (1992).    "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) (citing State v. Marshall,

148 N.J. 89, 158 (1997)); see also Preciose, 129 N.J. at 462-63.

      Applying these well-settled standards here, we concur with the PCR judge

that defendant has not mounted a prima facie case that his former attorney was

ineffective. No evidentiary hearing was warranted.

      The record substantiates that trial counsel did, in fact, make reasonable

attempts to pursue a self-defense claim, doing so in the joint motion to dismiss

the indictment, bringing it up again at a pretrial conference, and also at

sentencing.

      Defendant argues, in retrospect, that his counsel should have sought a

court order to have the bullet lodged in his arm surgically removed and then see

if a ballistics test matched that bullet with Wallace’s nine millimeter gun. Even


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                                       7
if, for the sake of discussion, such if such a hypothesized match were made, that

would not disprove the State’s theory of defendant's guilt, supported by

Curwen’s eyewitness testimony that defendant fired at Wallace first. Indeed,

Wallace could have fired back and hit defendant after he was already wounded.

      Given the overall circumstances, it is highly speculative that defendant

would have succeeded in proving self-defense. There is no entitlement to PCR

based on such speculation. State v. Porter, 216 N.J. 343, 355 (2013) (quoting

Marshall, 148 N.J. at 158) ("[A] defendant is not entitled to an evidentiary

hearing if the 'allegations are too vague, conclusory, or speculative[.]'").

      We also do not lose sight of the fact that defendant’s trial attorney

negotiated a much better deal for him, with an aggregate custodial term of fifteen

years, as compared to either the life sentence he faced at a jury trial, or the

State’s earlier plea offer to recommend a twenty-five-year sentence.

      As the PCR judge also correctly found, there is no merit to defendant's

claim of ineffectiveness at sentencing. The record bears out that trial counsel

did argue that mitigating factor twelve, N.J.S.A. 2C:44-1(b)(12), (cooperation

with law enforcement) applied, noting that defendant offered to help the police

find the missing guns.       Counsel also argued for concurrent rather than

consecutive sentences. Under State v. Yarbough, 100 N.J. 627 (1985), the body-


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                                         8
disposal count is clearly a separate offense involving a discrete course of

conduct following the homicidal shooting. The consecutive sentences were

manifestly appropriate, and defense counsel could not have done more to

prevent their imposition.

      All other arguments presented on appeal lack sufficient merit to warrant

discussion. R. 2:11-3(e)(2).

      Affirmed.




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