                                NOT FOR PUBLICATION WITHOUT THE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-1105-17T1

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

FLORENCE ACQUAIRE,

     Defendant-Appellant.
________________________

                   Submitted December 5, 2019 – Decided December 23, 2019

                   Before Judges Nugent and DeAlmeida.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Passaic County, Indictment No. 03-10-0185.

                   Joseph E. Krakora, Public Defender, attorney for
                   appellant (Steven M. Gilson, Designated Counsel, on
                   the brief).

                   Gurbir S. Grewal, Attorney General, attorney for
                   respondent (Sarah D. Brigham, Deputy Attorney
                   General, of counsel and on the brief).

PER CURIAM
      Defendant, Florence Acquaire, appeals from an order that denied without

an evidentiary hearing her second petition for post-conviction relief (PCR). We

affirm.

      At the conclusion of a bench trial, a judge convicted defendant of two

counts each of healthcare claims fraud, attempted theft by deception, and theft

by deception. For those crimes, the judge sentenced defendant to an aggregate

seven-year prison term and ordered her to pay restitution. Her conviction was

affirmed on appeal. State v. Acquaire, No. A-2932-05 (App. Div. Oct. 31,

2007), certif. denied, 194 N.J. 268 (2008). Defendant's first PCR petition was

denied. State v. Acquaire, No. A-1742-09 (App. Div. Jul. 13, 2011) (slip op. at

1), certif. denied, 209 N.J. 98 (2012).

      Significantly, in her first PCR petition, defendant argued that "her trial

counsel was ineffective for recommending a non-jury trial [and] for not asking

the trial judge to recuse himself." Id. at 5. Defendant certified in support of her

first PCR petition that her trial counsel should have moved to have the trial judge

recuse himself. Defendant also certified that had she known of the judge's "legal

difficulties," she would not have consented to a bench trial.

      In response, defendant's trial counsel filed a certification addressing her

claim that had she known the trial judge "was under investigation by the


                                                                           A-1105-17T1
                                          2
Advisory Committee on Judicial Conduct," she would not have agreed to a non-

jury trial. Trial counsel asserted the alleged conduct that was the subject of the

investigation was not "remotely related to the issues in [defendant]'s case and

those charges had no bearing on [the judge's] ability to fairly try [defendant's]

case." Moreover, counsel asserted there was nothing that occurred during the

trial that gave any indication the judge was prejudiced or biased against

defendant.

      We affirmed the order that denied defendant's first PCR petition. In doing

so, we rejected defendant's arguments concerning waiver of a jury trial.

      Four years after the Supreme Court denied certification with respect to her

first PCR petition, defendant filed her second PCR petition. This appeal is from

the trial court order that denied her second PCR petition. Defendant argues a

single point:

             THIS MATTER MUST BE REMANDED FOR AN
             EVIDENTIARY      HEARING       BECAUSE
             DEFENDANT ESTABLISHED A PRIMA FACIE
             CASE OF TRIAL COUNSEL'S INEFFECTIVENESS
             FOR FAILING TO ADVISE DEFENDANT NOT TO
             WAIVE HER CONSTITUTIONAL RIGHT TO A
             JURY TRIAL.

      In a thorough, well-reasoned written decision that denied defendant's

second PCR petition, Judge Sohail Mohammed determined the trial record


                                                                           A-1105-17T1
                                        3
established defendant knowingly and voluntarily waived her right to a jury trial.

Judge Mohammed noted the argument defendant now raises was disposed of in

her first PCR petition. See R. 3:22-5 ("A prior adjudication upon the merits of

any ground for relief is conclusive . . . ."). The judge also determined defendant

failed in her second PCR petition to establish a prima facie case that her counsel

was ineffective for failing to advise her not to waive a jury trial and for not

informing her about the investigation pending against the trial judge.

      We affirm, substantially for the reasons expressed by Judge Mohammed

in his written opinion. We add that, as the State argues, defendant's petition is

untimely, Rule 3:22-12(a)(2), yet another ground for denying it.

      In short, defendant's second PCR petition is procedurally barred and

substantively devoid of merit.

      Affirmed.




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