                        NOT FOR PUBLICATION WITHOUT THE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-4688-16T2

STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

ALAMEEN F. ADAMS,

     Defendant-Appellant.
_________________________________

              Submitted June 4, 2018 – Decided June 15, 2018

              Before Judges Sabatino and Firko.

              On appeal from Superior Court of New Jersey,
              Law Division, Essex County, Indictment No. 10-
              07-1735.

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

              Gurbir S. Grewal, Attorney General, attorney
              for respondent (Jenny M. Hsu, Deputy Attorney
              General, of counsel and on the brief).

PER CURIAM

        Defendant Alameen F. Adams appeals the trial court's February

14, 2017 order denying his motion for post-conviction relief

("PCR") without an evidentiary hearing.              We affirm.
     After a jury trial in 2011, defendant was found guilty of

murder, first-degree robbery, and other offenses.              The court

sentenced him to a thirty-five-year custodial term on the murder

count with a thirty-year parole disqualifier, along with other

concurrent sentences.    In March 2013, we issued an unpublished

opinion affirming defendant's convictions and sentence, rejecting

arguments different from the ones he now makes in the present PCR

appeal.   State v. Adams, No. A-0727-11 (App. Div. Mar. 26, 2013).

The Supreme Court denied defendant's petition for certification.

State v. Adams, 216 N.J. 7 (2013).

     As described in our prior opinion, this homicide concerned

the shooting of the victim, Ian Morris (also known as "Steve"),

in an apartment building in East Orange. The State's proofs showed

that defendant and two other individuals named Michael Potts and

Abdul Simpkins had been on the nearby street on March 24, 2010.

Potts was looking for someone to sell him marijuana.          Simpkins, a

friend of Potts, suggested that he could ask his supplier, Morris,

who lived down the street, to sell Potts the drugs.                Defendant

approached Simpkins and Potts and conversed with Simpkins out of

Potts' earshot.

     Defendant,   Simpkins,   and       Potts   then   went   to    Morris'

residence.   A surveillance camera showed that defendant entered

the building with Morris at 5:47 p.m. and left the building nine

                                    2                                A-4688-16T2
minutes later at 5:56 p.m.          Around 6:00 p.m., Morris was found

dead in the fifth-floor stairwell with a single gunshot wound to

his head.       There were no eyewitnesses to the actual shooting,

although Potts described defendant's jacket as having a noticeable

bulge in the stomach area, as if he seemed to be trying to hide

something.      No gun was ever recovered or any forensic evidence

tying defendant to the shooting.

      On direct appeal, defendant argued that the jury was tainted

because they may have overheard defense counsel's discussion about

trial strategy in the courthouse hallway.            He also argued that the

court should have charged the jury on the defense of voluntary

intoxication.     We rejected both of those points.          State v. Adams,

No. A-0727-11, slip op. at 5-11.

      In his present PCR petition, defendant contends that his

trial attorney was ineffective in not arguing a theory of third-

party guilt.      Defendant claims in this regard that his counsel

should   have    invoked   the    excited    utterance   hearsay    exception,

N.J.R.E. 803(c)(2), to attempt to get admitted a statement that

the   decedent    allegedly      made   to   his   friend   Kelly   Weekes    an

unspecified number of days before the shooting. In that statement,

the decedent, allegedly in an excited fashion, told Weekes that a

"Dominican" person had pulled a gun on him, that he was "pissed

off" that it had occurred, and that the Dominican would not get

                                        3                              A-4688-16T2
away with it.       After conducting a Rule 104 hearing, the trial

judge decided this hearsay statement was too unreliable to be

presented to the jury.

     After considering the arguments presented in defendant's PCR

petition, Judge Marysol Rosero rejected defendant's claims and

found no necessity for an evidentiary hearing.         She concluded that

the excited utterance rule requires that the utterance be made

"without an opportunity to deliberate or fabricate."         See N.J.R.E.

803(c)(2).      Because of the unspecified time interval between the

statement and the operative events, Judge Rosero ruled that such

an argument for admissibility, even if it had been made, would

have been unavailing.        Judge Rosero also agreed with the trial

judge   that,    even   if   the   hearsay   problem   somehow   could    be

surmounted, the alleged statement was not reliable.         Defendant now

contests the judge's analysis.

     On appeal, defendant raises the following sole point for our

consideration:

           THIS   MATTER  MUST   BE  REMANDED  FOR   AN
           EVIDENTIARY   HEARING    BECAUSE   DEFENDANT
           ESTABLISHED A PRIMA FACIE CASE OF TRIAL
           COUNSEL'S INEFFECTIVENESS FOR FAILING TO
           ESTABLISH THIRD-PARTY GUILT PURSUANT TO THE
           EXCITED UTTERANCE EXCEPTION TO THE HEARSAY
           RULE.

     Our review of this PCR appeal is guided by well-established

principles.       Under the Sixth Amendment of the United States

                                      4                            A-4688-16T2
Constitution,        a    person    accused         of     crimes    is    guaranteed     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.                            Ibid.; 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 54 (quoting State v. Williams, 39

N.J. 471, 489 (1963), overruled on other grounds by, State v.

Czachor, 82 N.J. 392 (1980)).

       In order 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, 462-64 (1992).                        "When determining

the propriety of conducting an evidentiary hearing, the PCR court

should   view    the       facts    in    the       light    most     favorable      to   the

                                                5                                    A-4688-16T2
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.

     We have considered defendant's appeal in light of these legal

standards and the record.      Having done so, we affirm the trial

court's dismissal of defendant's PCR petition, substantially for

the cogent reasons set forth in Judge Rosero's February 14, 2017

oral opinion.    We only add a few amplifying comments.

     We fully agree with Judge Rosero that the victim's alleged

statement to Weekes about the alleged prior incident with the

Dominican was not an admissible excited utterance.        The victim

appears to have had an opportunity to deliberate or fabricate

before making the statement.    See, e.g., State v. Cotto, 182 N.J.

316, 323-29 (2005) (ruling that a time interval of thirty-five to

forty-five minutes was too lengthy in the context provided to meet

the requirements of the rule).    Moreover, we agree with the court

that the probative value of the statement was minimal at best.

     Moreover, given the timing of defendant entering the building

with the victim and hurriedly leaving ten minutes later, the jury

reasonably made a circumstantial inference that defendant was the

victim's shooter.   Although defendant argues that one of the other

people, such as Potts or Simpkins, might have been the trigger

person, or that some unidentified third party in the area might

                                  6                          A-4688-16T2
have entered the building without being caught on camera, that

claim is highly speculative.

       We accordingly concur with Judge Rosero that defendant failed

to present a prima facie case of ineffectiveness of his former

trial counsel.     Because of that failure, an evidentiary hearing

on defendant's petition was unnecessary.     Preciose, 129 N.J. at

462.

       Affirmed.




                                  7                          A-4688-16T2
