                        NOT FOR PUBLICATION WITHOUT THE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-3941-15T4

STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

PAUL CIBELLI, JR.,

     Defendant-Appellant.
_______________________________

              Argued May 30, 2018 – Decided July 6, 2018

              Before Judges Koblitz, Manahan and Suter.

              On appeal from Superior Court of New Jersey,
              Law Division, Middlesex County, Indictment No.
              06-01-0106.

              John V. Saykanic           argued    the    cause    for
              appellant.

              Nancy A. Hulett, Assistant Prosecutor, argued
              the cause for respondent (Andrew C. Carey,
              Middlesex County Prosecutor, attorney; Nancy
              A. Hulett, of counsel and on the brief).

              Appellant filed pro se supplemental briefs.

PER CURIAM

        Defendant Paul Cibelli, Jr., appeals from the denial of his

petition for post-conviction relief (PCR) without an evidentiary
hearing.    Defendant also appeals from the ruling denying post-

conviction DNA testing.     We affirm.

     On January 20, 2006, a Middlesex County Grand Jury charged

defendant with first-degree murder, N.J.S.A. 2C:11-3; third-degree

hindering apprehension or prosecution, N.J.S.A. 2C:29-3(b); and

third-degree possession of a weapon for an unlawful purpose,

N.J.S.A. 2C:39-4(d).    A jury convicted defendant of all counts.

Defendant appealed.     We reversed and remanded for a new trial.

State v. Cibelli, No. A-6422-06 (App. Div. June 12, 2009), certif.

denied, 200 N.J. 371 (2009).

     In October 2010, after trial, defendant was found guilty of

all charges.    On January 5, 2011, defendant was sentenced to a

fifty-five year prison term, subject to an eighty-five percent

parole ineligibility period pursuant to the No Early Release Act

(NERA), N.J.S.A. 2C:43-7.2; and a consecutive five-year prison

term for the hindering apprehension charge.     The possession of a

weapon charge was merged with the murder charge.             Defendant

appealed.    We affirmed.    State v. Cibelli, No. A-2454-10 (App.

Div. July 15, 2013) (Cibelli II), certif. denied, 217 N.J. 293

(2014).

     We derive the salient facts from Cibelli II:

                 Silva and defendant moved in with
            defendant's father in the spring of 2005 after
            defendant was laid off from his job.

                                  2                            A-3941-15T4
     On October 6, 2005, having decided to
leave defendant, Silva rented an apartment
where she planned to move the next day. That
evening she went with defendant to rent a U-
Haul truck and arranged to pick it up the
following morning at 8 a.m.

     Defendant and Silva returned home to
pack. Defendant's father woke up around 6:30
a.m. the next morning and went out.     Upon
returning, he noticed that both defendant's
and Silva's cars were in the driveway. Silva
was not home and defendant said that he did
not know where she was.

     Silva's two friends who had agreed to
help her move tried calling her, but she did
not answer her cellphone.    When they called
again later, defendant answered and informed
them that he was unsure of her whereabouts.
They drove to defendant's house and Silva was
not there.   Soon two other friends came to
defendant's home to look for Silva after she
failed to answer their phone calls. Defendant
approached their vehicle and explained that
he did not know where she was.

     Silva's four friends converged on the
police station to report her missing.      The
police drove to defendant's home where he
informed them that he last saw Silva at [1]
a.m., did not know where she was, and that her
cellphone and purse were still upstairs.
Later, the police saw Silva's clothes hanging
in the closet, dirty clothes in the corner of
the room and an open purse with a cellphone
on top, which they took.

     Two days later, on October 9, 2005,
defendant's father called the police to report
him missing. That same day, the New Paltz,
New York Police Department responded to a call
at a motel, where they found defendant in an
incoherent state.   A backpack was recovered
that contained suicide notes and a document

                      3                          A-3941-15T4
entitled last will and testament.   Defendant
agreed to go to the hospital.

     Three days later, Silva's body was found
by an employee of a paper company who was
sorting trash from recyclable papers at a
plant in Philadelphia, Pennsylvania.       The
plant receives garbage from various pick-up
locations in the region. The body was found
in trash bags that also contained a yellow
short-sleeve T-shirt with the words "Corona
Extra Cancun" on it, yellow and blue bath
towels, a Bostitch stapler and a green dowel.
The State presented evidence that it takes
approximately one hour and eighteen minutes
to drive from defendant's house to the plant's
pick-up location.

     Dr. Edward Chmara performed the autopsy
and determined that the cause of death was
asphyxiation by manual strangulation.     The
body also had a fractured left collarbone, a
blunt force injury below the right eye, and
multiple bruises about the head, thorax and
extremities.    The body also had multiple
defensive abrasions on the back of the hands
and a two-inch laceration on the crown of the
head, likely caused by being struck with a
firm, hard item. Dr. Chmara believed the head
would have bled profusely.

     The Chief Medical Examiner of the State
of Delaware testified on defendant's behalf
and offered testimony consistent with Dr.
Chmara about the cause of death. He believed
there would have been blood found in the area
where the head injury took place.

     After the body was found, the FBI's
Evidence Response Team searched defendant's
home and the two cars.    Several items were
seized, including a blue-colored Bathroom
Basics brand bath towel, which was similar in
style, size and fiber content to the towel
recovered with Silva's body.   Photos on the

                      4                          A-3941-15T4
          hard drive of a computer in the home showed
          defendant wearing a yellow T-shirt that said
          "Corona Extra Cancun," and a photo of
          construction work being done on the house
          showed a green handled tool and hammer like
          the Bostitch stapler.     These three items
          resembled the ones found with the body and
          were not found in defendant's house. Police
          seized a tool belt with a sheath labeled
          Bostitch. The Bostitch stapler recovered with
          the body fit into the sheath.

               Laura Cannon, an expert on mitochondrial
          DNA, performed tests on a pubic hair that was
          recovered from the yellow towel found with the
          body. She was on maternity leave at the time
          of trial.    Accordingly, Colleen Kumar, an
          expert on mitochondrial DNA, testified without
          objection, based on a review of Cannon's work
          and    her    own    independent     analysis.
          Kumar agreed with the analysis done by Cannon
          and another done by the FBI. The hair did not
          belong   to   Silva.      According   to   the
          mitochondrial DNA testing, it was consistent
          with defendant's hair.

               A defense forensic scientist testified
          that blood tends to stick and get absorbed
          under floor tiles and wood flooring, which
          makes it difficult to remove.        Even when
          invisible to the naked eye, crime scene
          officers can detect blood and evidence of
          attempts to clean it up.       No trace blood
          evidence was found in the house or in the cars.

          [Slip op. at 2-6.]

     On October 26, 2015, defendant filed a petition for PCR

arguing that he received ineffective assistance of trial and

appellate counsel.   Defendant also moved to compel post-conviction

DNA testing of a head hair found under Silva's nail.    After oral


                                 5                          A-3941-15T4
argument, but without an evidentiary hearing, Judge James F.

Mulvihill denied the PCR in a forty-three page written decision.

This appeal followed.

    On appeal, defendant raises the following arguments:

                            POINT I

         THE CONVICTIONS SHOULD BE VACATED AS DEFENDANT
         WAS DEPRIVED OF HIS SIXTH AMENDMENT AND NEW
         JERSEY STATE CONSTITUTIONAL RIGHT TO EFFECTIVE
         ASSISTANCE OF COUNSEL AND TO HIS FOURTEENTH
         AMENDMENT RIGHT TO DUE PROCESS DUE TO THE
         FAILURE OF TRIAL COUNSEL TO ENSURE THE COURT
         COMPLIED WITH N.J.S.A. 2B:20-8(B) AND 2B:20-
         8(C).

              [A.] THE PCR COURT'S DECISION.

              [B.] THE LAW REGARDING [PCR].

              [C.] THE LAW REGARDING INEFFECTIVE
              COUNSEL (AND DUE PROCESS).

              [D.]   THE   LAW       CONCERNING   JURY
              SELECTION.

              [E.] THE LAW REGARDING "STRUCTURAL
              ERROR."

                            POINT II

         THE CONVICTIONS SHOULD BE VACATED SINCE TRIAL
         COUNSEL INTENTIONALLY AND AGAINST DEFENDANT'S
         WILL ABSENTED HIMSELF FROM THE FIRST FOUR DAYS
         OF JURY SELECTION; U.S. CONST. AMENDS. VI AND
         XIV; N.J. CONST. (1947) ART. 1, PAR. 10.

              [A.] THE PCR COURT'S DECISION.




                                 6                         A-3941-15T4
                  POINT III

THE CONVICTIONS SHOULD BE VACATED DUE TO THE
FAILURE OF COUNSEL TO PROPERLY LITIGATE AT
TRIAL AND RAISE ON APPEAL THE SLEEPING JUROR
ISSUE; U.S. CONST. AMENDS. VI AND XIV; N.J.
CONST. (1947) ART. 1, PAR. 10.

     [A.] THE PCR COURT'S DECISION.

                  POINT IV

THE CONVICTIONS SHOULD BE VACATED DUE TO THE
FAILURE OF COUNSEL (AT TRIAL AND ON APPEAL)
TO PROPERLY LITIGATE THE ISSUE OF JUROR NO.
2'S DISMISSAL; U.S. CONST. AMENDS. VI AND XIV;
N.J. CONST. (1947) ART. 1, PAR. 10.

     [A.] THE PCR COURT'S DECISION.

                   POINT V

THE CONVICTIONS SHOULD BE VACATED DUE TO THE
FAILURE OF TRIAL COUNSEL TO ENSURE THAT THE
JURORS WERE ABLE TO HEAR THE EVIDENCE ADDUCED
AND FAILURE TO MOVE TO QUESTION THEM AS TO
SUCH (OR TO INQUIRE AS TO THE NEED FOR
READBACKS); U.S. CONST. AMENDS. VI AND XIV;
N.J. CONST. (1947) ART. 1, PAR. 10.

     [A.] THE PCR COURT'S DECISION.

                  POINT VI

THE CONVICTIONS SHOULD BE VACATED DUE TO THE
FAILURE OF COUNSEL TO RAISE AND PROPERLY
LITIGATE (AT TRIAL AND ON APPEAL) THE IMPACT
OF THE PROSECUTOR'S PRESS CONFERENCE RELATED
TO THE DEFENDANT'S MID-TRIAL ARREST ON THE
JURY; U.S. CONST. AMENDS. VI AND XIV; N.J.
CONST. (1947) ART. 1, PAR. 10.

     [A.] THE PCR COURT'S DECISION.



                      7                          A-3941-15T4
                             POINT VII

           THE CONVICTIONS SHOULD BE VACATED DUE TO THE
           FAILURE OF COUNSEL TO PROPERLY LITIGATE AT
           TRIAL AND RAISE ON APPEAL THE ALTERNATE JUROR
           SELECTION PROCESS; U.S. CONST. AMENDS. VI AND
           XIV; N.J. CONST. (1947) ART. 1, PAR. 10.

                [A.] THE PCR COURT'S DECISION.

                             POINT VIII

           THE PCR COURT'S ORDER DENYING DNA TESTING
           SHOULD BE REVERSED AND THE COURT SHOULD ORDER
           DNA TESTING ON THE BIOLOGICAL EVIDENCE FOUND
           UNDER   SILVA'S  FINGERNAIL   TO   POSITIVELY
           ELMINATE [SIC] [DEFENDANT] AS THE OFFENDER
           AND, MORE IMPORTANTLY, TO REVEAL THE IDENTITY
           OF THE INDIVIDUAL WHO LEFT THIS HEAD HAIR.

                [A.] THE PCR COURT'S DECISION ON THE
                DNA MOTION.

                [B.] THE CARTER[1] FIRST AND THIRD
                PRONGS – THE MATERIALITY OF THE DNA
                EVIDENCE[,] WHICH WOULD PROBABLY
                CHANGE THE JURY'S VERDICT.

                [C.] THE SECOND PRONG OF THE CARTER
                TEST (THE EVIDENCE WAS DISCOVERED
                SINCE   THE  TRIAL   AND  WAS   NOT
                DISCOVERABLE     BY      REASONABLE
                DILIGENCE).

                [D.] THE NUMEROUS DNA EXONERATIONS.

                              POINT IX

           THE BRADY[2] VIOLATION CONCERNING THE HEAD HAIR
           MANDATES REVERSAL OF DEFENDANT'S CONVICTIONS.


1
    State v. Carter, 85 N.J. 300 (1981).
2
    Brady v. Maryland, 373 U.S. 83 (1963).

                                 8                           A-3941-15T4
                [A.]   RECONSTRUCTION     OF   FACTS
                RELATIVE TO THE DNA BRADY VIOLATION.

                              POINT X

         THE PCR COURT MUST BE REVERSED AND DEFENDANT'S
         CONVICTIONS VACATED AS THE NUMEROUS INSTANCES
         OF PROSECUTORIAL MISCONDUCT, ALONG WITH THE
         NUMEROUS LEGAL ERRORS COMMITTED BY COUNSEL AND
         THE COURT, DEPRIVED DEFENDANT OF HIS FIFTH,
         SIXTH AND FOURTEENTH AMENDMENT DUE PROCESS AND
         NEW JERSEY CONSTITUTIONAL RIGHT TO A FAIR
         TRIAL U.S. CONST. AMEND. VI AND XIV; N.J.
         CONST. ART. 1, PAR. 10.

                [A.] THE PCR COURT'S DECISION.

    Defendant raises the following arguments in his supplemental

pro se brief:

                              POINT I

         THE CONVICTIONS SHOULD BE VACATED DUE TO THE
         FAILURE OF COUNSEL TO CONDUCT A PRE-TRIAL
         INVESTIGATION AND FAILURE TO RETAIN A PRIVATE
         INVESTIGATOR DESPITE DEFENDANT'S REQUESTS;
         U.S. CONST. AMENDS. VI AND XIV; N.J. CONST.
         (1947) ART. I, PAR. 10.

                [A.] THE PCR COURT'S DECISION.

                             POINT II

         THE CONVICTIONS SHOULD BE VACATED DUE TO THE
         FAILURE OF COUNSEL TO DEVELOP THE ALLEGED
         CRIME SCENE AND FAILURE TO MOVE THE COURT,
         DESPITE THE DEFENDANT'S REPEATED REQUESTS, TO
         BRING THE JURY TO THE CIBELLI HOME IN
         VIOLATION OF THE SIXTH AMENDMENT AND DUE
         PROCESS CLAUSE; U.S. CONST. AMENDS. VI AND
         XIV; N.J. CONST. (1947) ART. I, PAR. 10.

                [A.] THE PCR COURT'S DECISION.


                                 9                        A-3941-15T4
                  POINT III

THE CONVICTIONS SHOULD BE VACATED DUE TO: I)
THE FAILURE OF COUNSEL TO SUBJECT THE STATE'S
ALLEGED TIME-OF-DEATH (T.O.D.) OF THE VICTIM
TO ANY MEANINGFUL ADVERSARIAL TESTING AND II)
THE FAILURE TO EFFECTIVELY UTILIZE RETAINED
PATHOLOGIST DR. RICHARD CALLERY TO REFUTE THE
STATE'S T.O.D. IN VIOLATION OF THE SIXTH
AMENDMENT AND DUE PROCESS CLAUSE; U.S. CONST.
AMENDS. VI AND XIV; N.J. CONST. (1947) ART.
I, PAR. 10.

     [A.] THE FAILURE TO      SUBJECT THE
     STATE'S  T.O.D.  TO       ADVERSARIAL
     TESTING.

     [B.] THE FAILURE TO      EFFECTIVELY
     UTILIZE DR. CALLERY.

     [C.] THE PCR COURT'S DECISION.

                  POINT IV

PROSECUTORIAL MISCONDUCT WARRANTS VACATION OF
DEFENDANT'S CONVICTIONS DUE TO THE STATE'S
SUMMATION IN THE FIRST CIBELLI TRIAL WHICH
CONTRIBUTED TO THE REVERSAL OF DEFENDANT'S
CONVICTIONS IN VIOLATION OF UNITED STATES
CONSTITUTIONAL AMENDMENTS SIX AND FOURTEEN AND
ARTICLE I, PARAGRAPH 10 OF THE NEW JERSEY
CONSTITUTION.

     [A.] THE PCR COURT'S DECISION.

     [B.]     THE      LAW     REGARDING
     PROCEDUTORIAL [SIC] MISCONDUCT.

                   POINT V

PROSECUTORIAL MISCONDUCT WARRANTS VACATION OF
DEFENDANT'S CONVICTIONS DUE TO THE FAILURE TO
PROVIDE FULL AND PROPER DISCOVERY (THE
UNDISCLOSED THIRD-PARTY OPINION OF DR. LES
MCCURDY AS TO MTDNA RESULTS); U.S. CONST.

                     10                          A-3941-15T4
AMENDS. VI, XIV; N.J. CONST. (1947), ART. 1,
PAR. 10.

     [A.] THE PCR COURT'S DECISION.

                  POINT VI

PROSECUTORIAL MISCONDUCT WARRANTS A VACATION
OF DEFENDANT'S CONVICTIONS DUE TO THE FAILURE
BY THE STATE TO PROVIDE AN UPDATED EXPERT
WITNESS LIST; U.S. CONST. AMENDS. VI, XIV;
N.J. CONST. (1947), ART. 1, PAR. 10.

                 POINT VII

PROSECUTORIAL MISCONDUCT WARRANTS VACATION OF
DEFENDANT'S CONVICTIONS DUE TO THE FAILURE TO
PROVIDE A PROPER CHAIN OF CUSTODY AS TO THE
PUBIC HAIR; U.S. CONST. AMENDS. VI, XIV; N.J.
CONST. (1947), ART. 1, PAR. 10.

     [A.] THE PCR COURT'S DECISION.

                 POINT VIII

PROSECUTORIAL MISCONDUCT WARRANTS VACATION OF
DEFENDANT'S    CONVICTIONS    DUE   TO    THE
PROSECUTOR'S REPORTING TO THE MEDIA OF THE
DEFENDANT'S MIDTRIAL ARREST; U.S. CONST.
AMENDS. VI, XIV; N.J. CONST. (1947), ART. 1,
PAR. 10.

     [A.] THE PCR COURT'S RULING.

                  POINT IX

PROSECUTORIAL MISCONDUCT MANDATES VACATION OF
DEFENDANT'S CONVICTIONS DUE TO THE STATE'S
CONCOCTING A NEW LOCATION OF THE CRIME SCENE
FOR THE FIRST TIME DURING THE SECOND TRIAL
SUMMATION; U.S. CONST. AMENDS. V, VI, XIV;
N.J. CONST. (1947), ART. 1, PAR. 10.

     [A.] THE PCR COURT'S DECISION.


                     11                         A-3941-15T4
                   POINT X

PROSECUTORIAL MISCONDUCT WARRANTS VACATION OF
DEFENDANT'S CONVICTIONS DUE TO THE STATE'S
CHANGING THEORIES (ON FIVE OCCASIONS) AS TO
THE CRIME SCENE WHEN THE STATE NEVER
ESTABLISHED A CRIME SCENE; U.S. CONST. AMENDS.
VI, XIV; N.J. CONST. (1947), ART. 1, PAR. 10.

     [A.] THE STATE'S FIRST THEORY AS TO
     WHERE THE HOMICIDE OCCURRED – (SILVA
     ASLEEP ON SOFA IN HER BEDROOM WHEN
     STRUCK WITH STAPLER; STAPLER CAUSED
     INDENTATION TO CEILING).

     [B.] THE STATE'S SECOND THEORY AS TO
     WHERE THE HOMICIDE OCCURRED – THE
     HALLWAY    JUST   OUTSIDE    SILVA'S
     BEDROOM.

     [C.] THE STATE'S THIRD THEORY – THE
     HOMICIDE OCCURRED ON THE SECOND
     FLOOR DECK.

     [D.] THE STATE'S FOURTH THEORY – THE
     HOMICIDE OCCURRED NOT FAR FROM THE
     CIBELLI HOME.

     [E.] THE STATE'S FIFTH THEORY – THE
     HOMICIDE OCCURRED ON THE SECOND
     FLOOR DECK OF THE CIBELLI HOME.

     [F.] THE PCR COURT'S DECISION.

                  POINT XI

PROSECUTORIAL MISCONDUCT WARRANTS VACATION OF
DEFENDANT'S CONVICTIONS DUE TO THE STATE'S
OBTAINING THE INDICTMENT ON A PROVEN FALSE
THEORY; U.S. CONST. AMENDS. V, VI, XIV; N.J.
CONST. (1947), ART. 1, PAR. 10.

     [A.] THE PCR COURT'S DECISION.



                     12                          A-3941-15T4
                           POINT XII

         PROSECUTORIAL MISCONDUCT WARRANTS VACATION OF
         DEFENDANT'S CONVICTIONS DUE TO THE STATE
         PROSECUTING THE CASE WITHOUT JURISDICTION;
         U.S. CONST. AMENDS. VI, XIV; N.J. CONST.
         (1947), ART. 1, PAR. 10.

              [A.] THE PCR COURT'S DECISION.

    Defendant raised the following arguments in his reply brief:

                               POINT I

         THE TRIAL COURT ERRED IN         DENYING   THE
         DEFENDANT'S   PCR    PETITION    WITHOUT    AN
         EVIDENTIARY HEARING.

                               POINT II

         JUDGE MULVIHILL IMPROPERLY DENIED DEFENDANT'S
         MOTION FOR POST-CONVICTION DNA TESTING.

    Defendant further raises the following arguments in his pro

se supplemental reply brief:

                               POINT I

         THE PCR COURT ERRED BY FAILING TO VACATE
         DEFENDANT'S CONVICTIONS OR IN THE ALTERNATIVE
         BY DENYING THE DEFENDANT'S PCR PETITION
         WITHOUT AN EVIDENTIARY HEARING.

                               POINT II

         THE DEFENDANT SHOULD BE GRANTED A NEW PCR ORAL
         ARGUMENT IN A DIFFERENT COUNTY OR, IN THE
         ALTERNATIVE, AN EVIDENTIARY HEARING IN A
         DIFFERENT COUNTY (NOT RAISED BELOW).

    We have considered defendant's arguments in light of the

record and the applicable legal principles and conclude they are


                                 13                       A-3941-15T4
without sufficient merit to warrant extended discussion in a

written opinion.    R. 2:22-3(e)(2).    We affirm substantially for

the reasons set forth in the comprehensive, well-reasoned written

opinion of Judge Mulvihill.    We add only the following.

                                  I.

     We commence with the judge's determination that some of

defendant's claims were procedurally barred.    The judge held that

some of defendant's claims were barred per Rule 3:22-4 or Rule

3:22-5 as they either were substantially similar to the issues

previously raised on appeal in Cibelli II or could have been raised

on direct appeal.

     "[A] prior adjudication on the merits ordinarily constitutes

a procedural bar to the reassertion of the same ground as a basis

for post-conviction review."    State v. Preciose, 129 N.J. 451, 476

(1992) (citing R. 3:22-5).    Additionally, a defendant is precluded

from raising an issue on PCR that could have been raised on direct

appeal.   State v. McQuaid, 147 N.J. 464, 483 (1997).   As explained

by our Supreme Court in McQuaid:

                A defendant ordinarily must pursue relief
           by direct appeal, see [Rule] 3:22-3, and may
           not use post-conviction relief to assert a new
           claim that could have been raised on direct
           appeal.    See R. 3:22-4.     Additionally, a
           defendant may not use a petition for post-
           conviction relief as an opportunity to
           relitigate a claim already decided on the
           merits. See R. 3:22-5.

                                 14                          A-3941-15T4
            [Ibid.]

      The application of these standards requires the "[p]reclusion

of   consideration     of   an    argument   presented    in    post-conviction

relief proceedings . . . if the issue raised is identical or

substantially equivalent to that adjudicated previously on direct

appeal."     State v. Marshall, 173 N.J. 343, 351 (2002) (quoting

State v. Marshall, 148 N.J. 89, 150 (1997)).             A PCR claim is based

upon the "same ground" as a claim already raised by direct appeal

when "'the issue is identical or substantially equivalent' to

[the] issue previously adjudicated on its merits."                   McQuaid, 147

N.J. at 484 (quoting Picard v. Connor, 404 U.S. 270, 276-77

(1971)).     However, a procedural rule otherwise barring post-

conviction    relief    may      be   overlooked   to   avoid    a    fundamental

injustice where the deficient representation of counsel affected

"a determination of guilt or otherwise wrought a miscarriage of

justice."    State v. Nash, 212 N.J. 518, 546 (2013) (quoting State

v. Mitchell, 126 N.J. 565, 587 (1992)).

       Defendant raised the argument regarding the jury selection

process on the second direct appeal.           In our decision, we noted:

                 We are troubled by the ad hoc method of
            accumulating jurors used here.     Jurors are
            administratively excused based on physical or
            medical     incapacity,     prior     criminal
            conviction, age or inability to read or
            understand English.     See N.J.S.A. 2B:20-1.
            They may also defer service or seek a hardship

                                        15                                A-3941-15T4
          excuse. N.J.S.A. 2B:20-10(c). We are unaware
          of any precedent, however, for asking jurors
          to volunteer for service on a murder trial at
          a later date. Such a process could skew the
          jury pool by obtaining a disproportionate
          number of retired people, people who are paid
          by their employer to serve on jury duty, or
          people eager to serve on a murder case.
          Whether these categories of jurors are
          inclined to favor the defense or the State is
          unknown.    But a pool should be a random
          selection of eligible jurors. N.J.S.A. 2B:20-
          2.   Arguably, this process might interfere
          with that random selection. Defendant cannot
          demonstrate, however, that he was prejudiced
          in any way by this unorthodox method of pre-
          screening and therefore we do not order a
          third trial.

          [Cibelli II, slip op. at 20-21.]

In comparing the arguments raised by defendant on direct appeal,

the judge found "that the three arguments utilize diverse language,

but focus on the same underlying substantive issue[.]"        As such,

Rule 3:22-5 barred the argument on the PCR.

                                II.

     Although   defendant's   petition   includes   claims   that   were

procedurally barred, we briefly discuss defendant's claims of

ineffective assistance of trial and appellate counsel.

     Defendant argues he received ineffective assistance of trial

and appellate counsel for various reasons, including their failure

to raise the issue of a sleeping juror; to raise the issue of

juror number two's dismissal; to ensure all jurors could hear the


                                 16                             A-3941-15T4
proceedings;    to     raise    the   issue   of    the    prosecutor's      press

conference; and to raise the issue of the alternate juror selection

process.   In his supplemental pro se brief, defendant also argues

he received ineffective assistance due to the failure of trial

counsel to properly investigate; to develop the alleged crime

scene; and to challenge the State's time-of-death theory.

     We recite those legal precepts that inform our review. "Post-

conviction relief is New Jersey's analogue to the federal writ of

habeas corpus."       Preciose, 129 N.J. at 459.          Under Rule 3:22-2(a),

a criminal defendant is entitled to post-conviction relief if

there was a "[s]ubstantial denial in the conviction proceedings

of defendant's rights under the Constitution of the United States

or the Constitution or laws of the State of New Jersey[.]"                        "A

petitioner     must    establish      the   right   to     such   relief     by    a

preponderance of the credible evidence." Preciose, 129 N.J. at 459

(citations omitted).           "To sustain that burden, specific facts"

that "provide the court with an adequate basis on which to rest

its decision" must be articulated.            Mitchell, 126 N.J. at 579.

     Claims of constitutionally ineffective assistance of counsel

are well suited for post-conviction review.               See R. 3:22-4(a)(2);

Preciose, 129 N.J. at 460.         In determining whether a defendant is

entitled to relief on the basis of ineffective assistance of

counsel, New Jersey courts apply the two-prong test articulated

                                       17                                  A-3941-15T4
by the United States Supreme Court in Strickland v. Washington,

466 U.S. 668, 687 (1984), and United States v. Cronic, 466 U.S.

648, 658-60 (1984). Preciose, 129 N.J. at 463; see State v. Fritz,

105 N.J. 42, 49-50 (1987).

     Under the first prong of the Strickland test, a "defendant

must show that [defense] counsel's performance was deficient."

466 U.S. at 687.         Under the second prong, a defendant must

demonstrate "a reasonable probability that, but for counsel's

unprofessional errors, the result of the proceeding would have

been different."    Id. at 694.

     In representing a defendant in a criminal matter, a trial

attorney "has a duty to make reasonable investigations or to make

a   reasonable    decision     that   makes      particular        investigations

unnecessary."       State      v.     Porter,         216    N.J.      343,    353

(2013) (quoting State v. Chew, 179 N.J. 186, 217 (2004)).                        To

support a claim of ineffective assistance of counsel based on an

alleged failure to investigate, a defendant "must do more than

make bald assertions . . . ."               Id. at 355 (quoting State v.

Cummings,   321   N.J.   Super.     154,   170    (App.     Div.    1999)).    The

defendant must "assert the facts that an investigation would have

revealed, supported by affidavits or certifications based upon the

personal    knowledge    of   the   affiant      or   the   person    making   the



                                      18                                  A-3941-15T4
certification."    Id. at 353 (quoting Cummings, 321 N.J. Super. at

170).

     Here, as the judge held, and we agree, defendant's bald

unsupported   allegations    of   ineffective   assistance    are    wholly

without merit.

                                   III.

     The judge also held that appellate counsel's performance did

not fall below an objective standard of reasonableness.

          [R]easonable appellate counsel might have
          focused on the [arguments raised on direct
          appeal] and ignored other potentially valid
          arguments, such as those that [defendant]
          identifies in the instant PCR, because he or
          she believed that the selected arguments had
          a higher likelihood of success. A review of
          the Appellate Division's 2013 opinion affirms
          this finding[.]

     Although defendant is entitled to the effective assistance

of   appellate    counsel,   "appellate   counsel   does     not    have    a

constitutional duty to raise every non[-]frivolous issue requested

by the defendant."     State v. Morrison, 215 N.J. Super. 540, 549

(App. Div. 1987) (citing Jones v. Barnes, 463 U.S. 745, 754

(1983)); see also State v. Gaither, 396 N.J. Super. 508, 516 (App.

Div. 2007) (holding that appellate counsel is not "required to

advance every claim insisted upon by a client on appeal.").

     Upon consideration of the record, we conclude that defendant

has failed to demonstrate that appellate counsel's representation

                                   19                               A-3941-15T4
"fell below an objective standard of reasonableness," Strickland,

466 U.S. at 687-88, and that but for appellate counsel's failure

to raise that argument on direct appeal the outcome of his appeal

of his conviction would have been different.                      State v. Allegro,

193 N.J. 352, 367 (2008).            Because defendant failed to establish

both prongs of the Strickland standard, the judge properly rejected

defendant's claim that his appellate counsel was constitutionally

ineffective.       See Strickland, 466 U.S. at 700.

     In numerous opinions addressing the standard for effective

assistance    of    counsel,    the    courts      have    held     that    effective

representation         is       not         synonymous            with      errorless

representation.       Both     trial       and   appellate    counsel       may    make

decisions in the lens of hindsight that were debatable or even

erroneous.     For    any    error    by    counsel   to     be    constitutionally

significant, it must undermine the fundamental fairness of the

proceeding.    Strickland, 466 U.S. at 693.            The competency standard

enunciated by Strickland is both broad and flexible.                       Ibid.   The

proper test is whether counsel's advice and decisions were within

the range of competence required of attorneys in criminal cases.

While criminal attorneys are expected to fulfill their duty of

competent representation, a conviction should not be overturned

unless there was a breach of that duty that mattered.



                                           20                                 A-3941-15T4
                                         IV.

     We   next      address       defendant's    motion   for     post-conviction

testing. Defendant argues the head hair found under Silva's broken

left-hand fingernail should be DNA tested.                Defendant argues that

a favorable result would provide the basis for a new trial.                      We

disagree.

     In his analysis, the judge noted there were ample biological

samples taken from Silva's body that were analyzed.                     The judge

stated that "[n]one of the[] experts testified that they could

link the biological samples to [defendant] with a reasonable degree

of medical certainty."             This included the head hair defendant

argues    should     have     been    tested.      The    judge    provided    that

"[c]learly, the jury knew that a microscopic analysis of the

disputed head hair failed to identify [defendant] or Ms. Silva as

the hair's source and the jury knew that no nuclear DNA evidence

identified    him    as     Ms.   Silva's     killer."    As    such,   the   judge

concluded that "even if the requested DNA testing demonstrated

that the head hair came from a third-party, such results would be

redundant."      Thus, the judge denied defendant's request to have

the head hair tested for DNA, finding the testing would produce

"repetitive and insignificant" evidence, thus failing to satisfy

the requirements set forth in N.J.S.A. 2A:84A-32a(d)(1)-(8).



                                         21                               A-3941-15T4
     N.J.S.A. 2A:84A-32a "permits '[a]ny person who was convicted

of a crime and is currently serving a term of imprisonment' to

make a motion for DNA testing."    State v. Hogue, 175 N.J. 578, 584

(2003) (alteration in original) (quoting N.J.S.A. 2A:84A-32a(a)).

However, the court "shall not grant the motion for DNA testing

unless" the defendant has established eight requirements.      Under

N.J.S.A. 2A:84A-32a(d), the eight requirements are that:

          (1) the evidence to be tested is available and
          in a condition that would permit the DNA
          testing that is requested in the motion;

          (2) the evidence to be tested has been subject
          to a chain of custody sufficient to establish
          it has not been substituted, tampered with,
          replaced or altered in any material aspect;

          (3) the identity of the defendant        was   a
          significant issue in the case;

          (4) the eligible person has made a prima facie
          showing that the evidence sought to be tested
          is material to the issue of the eligible
          person's identity as the offender;

          (5) the requested DNA testing result would
          raise a reasonable probability that if the
          results were favorable to the defendant, a
          motion for a new trial based upon newly
          discovered evidence would be granted. The
          court in its discretion may consider any
          evidence whether or not it was introduced at
          trial;

          (6) the evidence sought to be tested meets
          either of the following conditions: (a) it was
          not tested previously; (b) it was tested
          previously, but the requested DNA test would
          provide results that are reasonably more

                                  22                         A-3941-15T4
           discriminating and probative of the identity
           of the offender or have a reasonable
           probability of contradicting prior test
           results;

           (7) the testing requested employs a method
           generally   accepted  within the  relevant
           scientific community; and

           (8) the motion is not made solely for the
           purpose of delay.

     One of the key requirements to be satisfied is whether there

is a "reasonable probability" that a motion for a new trial would

be granted if the DNA results proved favorable to the defendant.

N.J.S.A. 2A:84A-32a(d)(5); State v. Armour, 446 N.J. Super. 295,

311-12 (App. Div. 2016).      It is well-settled that to obtain a new

trial   based   on   newly-discovered   evidence,    the   defendant   must

establish the new "evidence is 1) material, and not 'merely'

cumulative, impeaching, or contradictory; 2) that the evidence was

discovered after completion of the trial and was 'not discoverable

by reasonable diligence beforehand'; and 3) that the evidence

'would probably change the jury's verdict if a new trial [was]

granted.'"      State    v.   Ways,     180   N.J.   171,    187    (2004)

(quoting Carter, 85 N.J. at 314).

     Here, there was substantial evidence of defendant's guilt

introduced at trial.     In Cibelli II, slip op. at 13-14, we noted,

"[T]he State presented sufficient evidence to allow a jury to

find, beyond a reasonable doubt, that defendant killed Silva."

                                   23                              A-3941-15T4
Given     the   proposed   new    evidence's     cumulative     nature,     we   are

satisfied that the jury's verdict would not be altered. During

trial, the jury heard testimony that the head hair was neither

from    defendant    nor   from   Silva     —   yet   that    testimony    was   not

sufficient to produce a reasonable doubt in the jurors' minds.

       Finally, even if resubmitting the hair for further testing

produced a favorable result, it would not constitute grounds for

a   new   trial    as,   standing   alone,      it    would   neither     exculpate

defendant nor inculpate another person.               Therefore, as in Armour,

446 N.J. Super. at 314-15, we conclude that defendant failed to

satisfy the factors set forth in N.J.S.A. 2A:84A-32a(d) and the

test in Carter, 85 N.J. at 314.

       Affirmed.




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