                        NOT FOR PUBLICATION WITHOUT THE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-3199-15T4

STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

JUAN TOMAS-AGUILAR,

     Defendant-Appellant.
___________________________

              Submitted September 19, 2017 – Decided October 13, 2017

              Before Judges Hoffman and Gilson.

              On appeal from Superior Court of New Jersey,
              Law Division, Monmouth County, Indictment No.
              11-05-0816.

              Joseph E. Krakora, Public Defender, attorney
              for appellant (Monique Moyse, 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 Juan Tomas-Aguilar appeals from an April 18, 2016

order     denying    his   petition     for   post-conviction      relief    (PCR)

without an evidentiary hearing. We affirm because defendant failed
to show a prima facie case of ineffective assistance of his trial

counsel.

                                      I.

     In 2011, a jury convicted defendant of first-degree robbery,

N.J.S.A. 2C:15-1; third-degree possession of a weapon for an

unlawful    purpose,   N.J.S.A.   2C:39-4(d);        fourth-degree      unlawful

possession    of   a   weapon,    N.J.S.A.         2C:39-5(d);      third-degree

possession of cocaine, N.J.S.A. 2C:35-10(a)(1); and fourth-degree

resisting arrest, N.J.S.A. 2C:29-2(a)(2). Defendant was sentenced

to an aggregate term of twelve years in prison, with eighty-five

percent of that time ineligible for parole as prescribed by the

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

     Defendant's convictions arose out of the robbery of a taxi

driver. The taxi driver testified that he agreed to take defendant

from Point Pleasant to Asbury Park for $28.               When they arrived in

Asbury Park, defendant asked the driver for change for a $100 bill

and the driver pulled out five $20 bills. According to the driver,

defendant pulled out a knife and held it to his throat. The driver

asked two women who were walking by to call the police. A struggle

ensued and the driver managed to disarm defendant.                   Defendant,

however, took the five $20 bills and fled as the police were

arriving.     Following   a   short       chase,    the    police   apprehended



                                      2                                  A-3199-15T4
defendant.      When arrested, defendant was found to be in possession

of five $20 bills and cocaine.

      Defendant testified in his own defense and claimed that he

had fallen asleep in the taxi.           He went on to explain that when

the driver tried to wake him up, they got into an altercation and

he ran off when the police arrived because he knew he possessed

drugs.

      During deliberations, the jury submitted several questions

to the judge.      In one question, the jury asked for a transcript

of defendant's testimony.        In response, the trial judge informed

the jury that they could have a read back of the testimony, but

that it would take approximately one hour.           Defense counsel did

not object to that response and the jurors sent out a note stating

that they did not need to hear the read back.         The jury also asked

for clarification on the charge of unlawful possession of a weapon.

The     judge   responded   by   repeating    his   earlier   instructions

concerning possession of a weapon and used an example of a person

holding a beer mug and using it to hit another person over the

head.    Again, there was no objection to the trial judge's response

and Juror No. 1 confirmed that the judge's explanation answered

their question.

      Defendant filed a direct appeal, and we affirmed.          State v.

Juan Tomas-Aguilar, No. A-5559-11 (App. Div. May 27, 2014) (slip

                                     3                             A-3199-15T4
op. at 8).     On his direct appeal, defendant argued that the trial

judge   erred    in     responding    to        the    jury's   questions    during

deliberations.        We rejected those arguments holding that the trial

judge's responses were appropriate under the circumstances and

there was no plain error.            Id. at 6.         The Supreme Court denied

defendant's request for certification.                  State v. Tomas-Aguilar,

220 N.J. 99 (2014).

      In 2015, defendant filed a PCR petition, he was assigned

counsel, and the PCR court heard oral argument on the petition.

On   January    26,    2016,   the   PCR       court   denied   the   petition   and

defendant's request for an evidentiary hearing.                  The court issued

a written opinion in support of its decision.                   On April 18, 2016,

the court filed an amended order to correct the identification of

the indictment number.         Defendant now appeals the denial of his

PCR petition.

                                       II.

      On appeal, defendant argues:

             POINT ONE – MR. TOMAS-AGUILAR IS ENTITLED TO
             AN EVIDENTIARY HEARING ON HIS CLAIM THAT HIS
             ATTORNEY RENDERED INEFFECTIVE ASSISTANCE OF
             COUNSEL

      Defendant asserts that his trial counsel was ineffective

because counsel failed to properly prepare for and investigate the

charges and failed to make appropriate objections.                     With regard


                                           4                                A-3199-15T4
to the investigation allegation, defendant asserts that his trial

counsel only started preparing for trial a few days before the

trial and failed to request DNA testing on the knife.

      With regard to the failure to object, defendant contends that

his trial counsel should have objected to the trial judge's

responses to the jury concerning both the request for a read back

and the request for clarification on the possession of a weapon

charge.

      Defendant's petition arises from the application of Rule

3:22-2, which permits collateral attack of a conviction based upon

a claim of ineffective assistance of counsel within five years of

the conviction.    See R. 3:22-12(a)(1); see also Strickland v.

Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed.

2d 674, 693 (1984); State v. Fritz, 105 N.J. 42, 58 (1987).        To

establish a claim of ineffective assistance of counsel, a defendant

must satisfy the two-part Strickland test by showing: (1) "counsel

made errors so serious that counsel was not functioning as the

'counsel' guaranteed the defendant by the Sixth Amendment[,]" and

(2)   "the   deficient   performance   prejudiced   the   defense."

Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed.

2d at 693 (quoting U.S. Const. amend. VI); Fritz, supra, 105 N.J.

at 58-59 (adopting the Strickland two-part test in New Jersey).



                                 5                          A-3199-15T4
      Rule 3:22-10(b) provides that a defendant is only entitled

to an evidentiary hearing if he or she establishes a prima facie

case in support of PCR.     Moreover, there must be "material issues

of disputed fact that cannot be resolved by reference to the

existing record," and the court must determine that "an evidentiary

hearing is necessary to resolve the claims for relief."                 State v.

Porter, 216 N.J. 343, 354 (2013) (quoting R. 3:22-10(b)).                       To

establish a prima facie case, a defendant must demonstrate "the

reasonable likelihood of succeeding under the test set forth in

Strickland."    State v. Preciose, 129 N.J. 451, 463 (1992).

     Here, defendant failed to establish a prima facie showing

under the Strickland test.        Defendant first contends that his

trial counsel failed to adequately prepare for trial, including

having the knife tested for DNA.          Defendant argues that his trial

counsel only started to prepare four days before trial.                 He fails

to make any showing, however, that four days was an inadequate

amount of time to prepare.        In other words, defendant makes a

conclusory     allegation   without       any    factual     support.        Such

unsupported    claims   cannot   establish       a   prima   facie   claim      of

ineffective assistance of counsel.              See State v. Cummings, 321

N.J. Super. 154, 170 (App. Div.)("[I]n order to establish a prima

facie claim, a petitioner must do more than make bald assertions



                                      6                                  A-3199-15T4
that he was denied the effective assistance of counsel."), certif.

denied, 162 N.J. 199 (1999).

     Defendant    also   argues   that     trial     counsel   should    have

conducted DNA testing on the knife.             He speculates that such

testing would not have revealed his DNA on the knife.           Again, that

allegation is speculation and cannot support a prima facie showing

of ineffective assistance of counsel.          Moreover, as the PCR judge

noted, trial counsel may well have had strategic reasons for not

having the knife tested for DNA.

     Moreover, defendant has made no showing that the alleged

inadequate investigation by trial counsel prejudiced his defense.

Defendant must establish "a reasonable probability that, but for

counsel's unprofessional errors, the result of the proceedings

would have been different."       Strickland, supra, 466 U.S. at 694,

104 S. Ct. at 2068, 80 L. Ed. 2d at 698.

     Defendant    also   contends       that   his    trial    counsel   was

ineffective in failing to object to the court's responses to

questions posed by the jury during deliberation. On direct appeal,

we held that the trial court did not err in responding to the

questions posed by the jury.         Indeed, we held that under the

circumstances of this case, the trial judge's responses were

appropriate.     Accordingly, even if trial counsel had objected,

there is no basis for defendant to claim that there was any

                                    7                               A-3199-15T4
resulting prejudice to his defense.     Defendant must affirmatively

prove prejudice to the defense.       Strickland, supra, 486 U.S. at

694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698.    Here, defendant has

failed to make such an affirmative showing of prejudice.

     Affirmed.




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