                                NOT FOR PUBLICATION WITHOUT THE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-3001-17T1

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

ANTHONY S. GRANATA a/k/a
TONY GRANATA, ANTHONY S.
GRANATA, JR., ANTHONY S.
GRANATO, ANTHONY GRANATO,
ANTHONY SAL GRANATA,
ANTHONY S. CAPUTO, ANTHONY S.
PANCONE, ANTHONY M. PANCONE,
ANTHONY S. BEUCCI, ANTHONY
NAVARRO, and TONY PANCONE,

          Defendant-Appellant.


                   Submitted September 24, 2019 – Decided September 30, 2019

                   Before Judges Accurso and Rose.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Middlesex County, Indictment No. 10-05-
                   0698.
             Joseph E. Krakora, Public Defender, attorney for
             appellant (Karen A. Lodeserto, Designated Counsel, on
             the brief).

             Gurbir S. Grewal, Attorney General, attorney for
             respondent (Jennifer E. Kmieciak, Deputy Attorney
             General, of counsel and on the brief).

PER CURIAM

      Defendant Anthony Granata appeals from an order dismissing his petition

for post-conviction relief (PCR) following an evidentiary hearing. Defendant

claims his trial counsel was ineffective by failing to call two witnesses at trial.

Because the reasons expressed in the PCR judge's written opinion are supported

by sufficient credible evidence adduced at the hearing, we affirm.

      The circumstances leading to defendant's arrest and conviction are more

fully described in our prior decision affirming the conviction and sentence on

direct appeal. State v. Granata, No. A-5962-11 (App. Div. Sept. 8, 2014) (slip

op. at 1-6), certif. denied, 221 N.J. 219 (2015). Relevant here, Woodbridge

Police Officers executed a search warrant at defendant's home. Defendant was

present in the living room at the time of the search. Another man – who was not

identified by police – was found at the top of the second floor stairs. Officers

seized a loaded 9mm handgun from a dresser in the back of a closet of the master




                                                                            A-3001-17T1
                                         2
bedroom. Drug paraphernalia, and small amounts of cocaine and marijuana

were seized from various locations throughout the house.

        Prior to trial, defendant told his attorney that F.V.1 was the other man

present during execution of the search warrant. F.V., who had known defendant

for thirty years, provided a video-recorded statement to defense counsel's private

investigator confirming his presence in the home. F.V. said defendant was in

the process of renting a bedroom to someone, but F.V. did not know who that

"guy" was or which room he was renting. F.V. did not testify at trial.

        The State's investigation revealed the handgun was registered to a

deceased Highland Park police officer. Police interviewed F.M., who was the

son-in-law of that officer. F.M. said his wife found "a bunch of guns" in her

father's house approximately twelve years after he died. F.M.'s wife and her

aunt "supposedly" turned over all of the firearms to the Highland Park Police

Department.      F.M. had no idea how one of those guns made its way to

defendant's residence. Although F.M. acknowledged he knew F.V., F.M. told

police: he did not give the gun to F.V.; he would have turned over the gun to

police had he known about it; and he never introduced his wife to F.V. F.M. did

not testify at trial.


1
    We use initials to protect the privacy of the witnesses.
                                                                          A-3001-17T1
                                          3
      Following a jury trial, defendant was convicted of all five counts charged

in a Middlesex County indictment, including second-degree possession of a

firearm in the commission of a drug offense, N.J.S.A. 2C:39-4.1, pertaining to

the drugs and handgun seized from his residence. Defendant was sentenced to

an aggregate ten-year prison term with a six-year period of parole ineligibility.

      After the Supreme Court denied certification, defendant filed a PCR

petition.   Defendant raised several arguments challenging his counsel's

effectiveness.   The PCR judge, who also had presided over the trial and

sentencing proceedings, conducted an evidentiary hearing. The judge limited

the hearing to defendant's contention that defense counsel's representation was

deficient for failing to "subpoena two witnesses with potentially exculpatory

evidence to testify, and did not even interview one of them." Those witnesses,

"may have had information that would have persuaded the jury to believe that

someone else may have been in possession of the handgun."

      At the one-day hearing, defendant presented the testimony of his counsel.

Defendant also introduced in evidence the video-recorded statement of F.V. and

the transcript of F.M.'s recorded statement. Defendant did not testify at the

hearing.




                                                                          A-3001-17T1
                                        4
      Having practiced law since 1969, defense counsel testified to his vast

experience as a county and municipal prosecutor, and criminal defense attorney.

Although the trial occurred five years before the hearing, counsel clearly

recalled discussing his strategy with defendant.      That strategy focused on

defendant as "a user, as opposed to an individual who was possessing drugs

with the intent to distribute, even though there were certain indicia that w[ere]

found during the execution of the search warrant[] that would indicate that could

be a possibility."

      Defense counsel acknowledged another aspect of his strategy involved the

"poorly executed investigation[] and search warrant[,]" so "that argument was

better served by not identifying [F.V.] to the jury."        Counsel ultimately

concluded F.V. and F.M. "had utterly nothing to offer [the defense] as a witness

in this trial." Indeed, counsel and defendant discussed the "major concern" that

permeated the case, i.e., "[defendant] said it was not his gun; but, it was . . .

located[] in a part of the house[,] which he was residing in."

      Following the hearing, the PCR judge issued an order and written decision

denying defendant's petition. This appeal followed.

      On appeal, defendant raises a single point for our consideration:

             THE PCR COURT ERRED IN DENYING
             DEFENDANT'S PETITION FOR [PCR] BECAUSE

                                                                          A-3001-17T1
                                        5
            DEFENDANT ESTABLISHED TWO OTHER MEN
            HAD A CONNECTION TO THE RECOVERED GUN
            WHICH WOULD HAVE RAISED REASONABLE
            DOUBT WITH THE JURY.

      Our review of a PCR claim after a court has held an evidentiary hearing

"is necessarily deferential to a PCR court's factual findings based on its review

of live witness testimony." State v. Nash, 212 N.J. 518, 540 (2013). Where an

evidentiary hearing has been held, we should not disturb "the PCR court's

findings that are supported by sufficient credible evidence in the record." State

v. Pierre, 223 N.J. 560, 576 (2015) (citation omitted). We review any legal

conclusions of the trial court de novo. Nash, 212 N.J. at 540-41.

      In seeking post-conviction relief, a defendant must prove counsel was

ineffective by a preponderance of the evidence. State v. Gaitan, 209 N.J. 339,

350 (2012). A defendant must prove counsel's performance was deficient; it

must be demonstrated that counsel's handling of the matter "fell below an

objective standard of reasonableness" and that "counsel made errors so serious

that counsel was not functioning as the 'counsel' guaranteed the defendant by the

Sixth Amendment." Strickland v. Washington, 466 U.S. 668, 687-88 (1984);

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

New Jersey).



                                                                         A-3001-17T1
                                       6
      A defendant must also prove counsel's "deficient performance prejudiced

the defense." Strickland, 466 U.S. at 687. Prejudice is established by showing

a "reasonable probability that, but for counsel's unprofessional errors, the result

of the proceeding would have been different." Id. at 694. Thus, a defendant

must establish that counsel's performance was deficient and the defendant

suffered prejudice in order to obtain a reversal of the challenged conviction. Id.

at 687; Fritz, 105 N.J. at 52.

      In the present matter, the PCR judge soundly recognized defendant failed

to satisfy either prong of the two-part Strickland test. As to the first prong, the

judge reasoned:

              Counsel's decisions are afforded extraordinary
              deference and the decision to call witnesses [is] part of
              trial strategy. If trial strategy does not work, this itself
              does not make counsel ineffective. It was counsel's
              decision to suggest that calling [F.V.] or [F.M.] would
              not have served [d]efendant because both men
              disavowed ownership of the gun. Moreover, . . .
              [d]efendant has failed to offer any additional evidence
              that [F.V.] or [F.M.] would have testified any
              differently than they did in their taped statements.

Regarding the second prong, the judge concluded defendant did not establish

that had F.V. and F.M. testified, "the outcome of the trial would have been

different."



                                                                             A-3001-17T1
                                           7
      We have long recognized trial strategy is clearly within the presumptive

discretion of competent trial counsel. See State v. Coruzzi, 189 N.J. Super. 273,

321 (App. Div. 1983). Strategic decisions are presumed to fall "within the wide

range of reasonable professional assistance." State v. Arthur, 184 N.J. 307, 318-

19 (2005). "Determining which witnesses to call to the stand is one of the most

difficult strategic decisions that any trial attorney must confront." Id. at 320.

The decision is generally informed by the testimony expected to be elicited ; the

possibility of impeachment, both by prior inconsistencies or conflicting

testimony by other witnesses; and the witness's general credibility. Id. at 320-

21. Indeed, we must accord substantial deference to trial counsel's decisions on

which – if any – witnesses to present, which is overcome only if a defendant

shows a strategic decision was based upon a lack of trial preparation. Id. at 323.

      Having reviewed the record, in view of the parties' arguments, we are

satisfied defense counsel properly considered, investigated, and ultimately

rejected – for perfectly valid strategic reasons – calling F.V. and F.M. as defense

witnesses. Counsel's investigator interviewed F.V., whose statements did not

advance defendant's arguments; F.M.'s statement to police clearly indicated he

had no knowledge of the weapon found in defendant's home. We accept the

PCR judge's determination that defendant failed to prove either prong of the


                                                                           A-3001-17T1
                                        8
Strickland standard. We therefore see no reason to disturb his findings, which

are fully supported by the record and are entitled to our deference. State v.

Robinson, 200 N.J. 1, 15 (2009).

      Affirmed.




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                                      9
