                        NOT FOR PUBLICATION WITHOUT THE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-3133-13T1
                                                  A-0373-15T1

STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

VERNON J. PARKER,

        Defendant-Appellant.

________________________________________________________________

              Submitted October 11, 2016 – Decided July 31, 2017

              Before Judges Espinosa and Guadagno.

              On appeal from Superior Court of New Jersey,
              Law Division, Essex County, Indictment Nos.
              09-03-0830 and 09-04-1087.

              Joseph E. Krakora, Public Defender, attorney
              for appellant (Mark Zavotsky, Designated
              Counsel, on the briefs).

              Carolyn A. Murray, Acting Essex County
              Prosecutor, attorney for respondent (Frank J.
              Ducoat, Special Deputy Attorney General/
              Acting Assistant Prosecutor, of counsel and
              on the briefs).

PER CURIAM
     A jury convicted defendant in July 2010, on one count of

second-degree endangering the welfare of a child (EWC), N.J.S.A.

2C:24-4(a), pertaining to his stepson, X.R.     Pursuant to a plea

agreement, defendant then entered guilty pleas to a second count

of second-degree EWC pertaining to his stepdaughter, B.R., and to

one count of official misconduct, N.J.S.A. 2C:30-2, charged in an

unrelated indictment.    He was sentenced to three concurrent terms

of eight years in accord with the plea agreement.    Defendant did

not file a timely direct appeal.

     In December 2013, he filed a motion for post-conviction relief

(PCR) in which he alleged, inter alia, that his three attorneys

failed to file a direct appeal on his behalf.         Following an

evidentiary hearing, the PCR judge denied defendant's petition.

Defendant filed an appeal from that denial in March 2014 and a

direct appeal in June 2014.   We stayed his appeal from the denial

of his PCR so it could be heard and decided with his direct appeal.

We now affirm both his convictions and the denial of his PCR

petition.

     In his appeal from his convictions, defendant presents the

following arguments for our consideration:

               POINT I

               DEFENDANT'S DENIAL OF HIS MOTION TO
               DISMISS COUNT 21 OF THE INDICTMENT
               WAS IN ERROR BECAUSE THE CHARGE OF

                                  2                         A-3133-13T1
              ENDANGERING THE WELFARE OF A CHILD
              FAILED TO GIVE THE DEFENDANT NOTICE
              OF WHAT HE NEEDED TO DEFEND.

              POINT II

              THE TRIAL COURT ERRED WHEN IT DENIED
              TRIAL COUNSEL'S REQUEST TO ADMIT THE
              DYFS[1] REPORT USED IN REFERENCE TO
              X.R.'S TESTIMONY INTO EVIDENCE AS A
              RECORDED RECOLLECTION BECAUSE IT
              WAS APPARENT THE TESIMONY [SIC]
              GIVEN WAS UNTRUSTWORTHY.

              POINT III

              DEFENDANT'S MOTION FOR AQUITTAL
              [SIC] MADE AFTER THE STATE PRESENTED
              ITS CASE WAS DENIED IN ERROR.

              POINT IV

              THE TRIAL JUUDGE [SIC] ERRED IN
              DENYING DEFENDANT'S MOTION FOR A
              MISTRIAL FOR THE COURT HAVING
              ALLOWED     REPEATED    INCULPATORY
              ALLEGATIONS     AGAINST   DEFENDANT
              WITHOUT NOTICE OR A HEARING SO HE
              MAY BE GIVEN THE OPPORUTNITY [SIC]
              TO DEFEND AGAINST THEM WITHOUT
              HAVING TO RELENQUISH HIS FIFTH
              AMENDMENT      RIGHT    OF     SELF
              INCRIMINATION.

              POINT V

              DEFENDANT IS ENTITLED TO WITHDRAW
              HIS PLEA BECAUSE THE NATURE AND
              STRENGH [SIC] OF HIS CLAIM OUTWEIGH
              THE STATE'S INTEREST IN PRESERVING
              THE PLEA.


1
   The Division of Youth and Family Services (DYFS) is now the
Division of Child Protection and Permanency.

                               3                       A-3133-13T1
               POINT VI

               DEFENDANT IS ENTILTED [SIC] TO HAVE
               HIS CONVICTION VACATED BECAUSE THE
               SINGLE CHARGE GIVEN TO THE JURY ON
               SIX DIFFERENT COUNTS OF ENDANGERING
               THE WELFARE OF A CHILD CONFUSED THE
               JURY AND INVITED THEM TO INTERCHANGE
               THE PROOFS OFFERED BETWEEN THE
               COUNTS TO ESTABLISH THE ELEMENTS OF
               THE CRIME.

               POINT VII

               UNDER THE DOCTRINE OF CUMULATIVE
               ERROR A NEW TRIAL SHOULD BE ORDERED
               PURSUANT TO STATE v. ORECCHIO, 16
               N.J. 125, 129 (1954).

     Defendant's arguments in Points III and VII lack sufficient

merit to warrant discussion.   R. 2:11-3(e)(2).    His argument in

Point V, that he should be permitted to withdraw his guilty plea,

is not properly before this court because he has not filed a motion

in the trial court to withdraw his guilty plea pursuant to Rule

3:21-1.   We conclude further that the remaining arguments in

defendant's direct appeal lack merit.

     Defendant presents the following arguments in his appeal from

the denial of his PCR petition:

               POINT I

               DEFENDANT   WAS  DENIED   EFFECTIVE
               ASSISTANCE OF COUNSEL ENTITLING HIM
               TO POST CONVICTION RELIEF.

                    A.   FAILURE TO FILE A DIRECT
               APPEAL UPON REQUEST OF DEFENDANT.

                                  4                         A-3133-13T1
                     B.   DEFENDANT WAS EFFECTIVELY
                DEPRIVED FROM TESTIFYING FOR HIS OWN
                DEFENSE AT TRIAL.

                     C.   COUNSEL WAS INEFFECTIVE
                FOR FAILING TO MOVE EXCULPATORY DYFS
                REPORTS INTO EVIDENCE AT TRIAL.

      Because defendant was provided with the opportunity to pursue

a direct appeal, which we now decide, his first allegation of

ineffective assistance of counsel is moot.

                                I.

      Indictment No. 09-03-830 charged defendant, a former Newark

police officer, with twenty-two counts that alleged abuse of his

stepchildren.   He was convicted on count twenty-one.       The jury

acquitted him on counts one, two, four, five and fourteen and

could not reach a verdict on counts three, six through thirteen

and fifteen through twenty.2    Defendant's first argument in his

direct appeal is that the trial judge erred in failing to dismiss

count twenty-one, which   alleged that, in August 2007, defendant

           knowingly cause[d] X.R. . . . harm that would
           make X.R. an abused, abandoned, or neglected
           child as defined in Title 9 or a child upon
           whom   cruelty  has   been   inflicted   while
           [defendant] had a legal duty or had assumed
           the responsibility of caring for X.R., to wit:
           by punching said child in the face while
           wearing boxing gloves



2
    Count twenty-two was dismissed before trial.

                                 5                           A-3133-13T1
     The evidence presented to the grand jury regarding this count

can be summarized as follows:

     Detective Miranda Mathis, an Essex County Prosecutor's Office

detective, testified before the grand jury.   During the course of

her testimony, she read a written statement X.R. had given to a

West Orange Police detective in August 2007.     In the statement,

X.R., who was fourteen years old, said he was required to explain

to his football coach why he had been absent from practice.        He

stated he was home alone during the day and invited a fourteen-

year-old female friend to come to his house.     They were sitting

on the bed in his mother and stepfather's bedroom, watching a

movie when his stepfather got home from work and found them in the

bedroom.   X.R. stated defendant "got mad as soon as he walked in"

and ordered his friend to get out.     Defendant called for X.R.'s

mother to come to the bedroom and she started screaming at him

because his friend was in the house without her permission. X.R.'s

mother started hitting his legs with a thin leather belt.       X.R.

stated,

           Then my stepfather punched me in the face and
           left a bruise on my right cheek and bottom
           lip.   He then grabbed me around the neck,
           leaving a mark on my throat. He also punched
           me in my chest, kicked me in my legs and back.
           He told me to get out and go to my room and
           that is where I went until the next morning.



                                 6                          A-3133-13T1
     When asked if he had any pain at the time of the interview,

X.R.'s only complaint was that his back was "a little sore."      He

declined medical attention.   He was not afraid to be in his house

but said, "I'm just afraid when my stepfather gets mad and he hits

on me."

     The grand jury also had before it a series of photographs of

X.R. taken by the West Orange Police Department four days after

the incident. Detective Mathis described them as depicting "injury

to the young man's lip, face, neck and to some degree, back."

     No evidence was presented to the grand jury that defendant

was wearing boxing gloves at the time he punched X.R. Nonetheless,

the indictment returned by the grand jury states he "punch[ed]

said child in the face while wearing boxing gloves."

     Defendant filed a pretrial motion to dismiss various counts

of the indictment, including count twenty-one.      He argued the

count failed to provide him with notice of "the essential factual

ingredients of the offense" and, further, should be dismissed

because there was no evidence presented in the grand jury that

defendant punched X.R. with a boxing glove.   The State countered

that the lack of evidence regarding the boxing glove was not a

fatal error because "boxing gloves" are not an essential element

of the crime charged, and offered to remove the language from the

charge at trial.   The court denied the motion, finding the count

                                7                          A-3133-13T1
was not "manifestly deficient or palpably defective" because the

State was otherwise able to state and provide evidence of the

essential elements of EWC under N.J.S.A. 2C:24-4(a) and the factual

distinction of being punched with boxing gloves was "gratuitous,"

and "certainly not an element of the crime."

     An abuse of discretion standard applies to our review of a

trial court's denial of a motion to dismiss an indictment.     State

v. Saavedra, 222 N.J. 39, 55 (2015).   We find none here.

     The essential elements of the offense charged in count twenty-

one are:

           1.   That [the victim] was a child.

           2.   That defendant knowingly caused the child
           harm that would make the child abused or
           neglected;

           3.   That defendant knew that such conduct
           would cause the child harm that would make the
           child abused or neglected.

           4.   That defendant had a legal duty for the
           care   of   the   child    or   had   assumed
           responsibility for the care of the child.

           [Model Jury Charge (Criminal), "Endangering
           the Welfare of a Child, Abuse or Neglect
           (Second Degree)" (2015).]

     Defendant does not allege that the State failed to present

evidence to support any of these elements before the grand jury.

Defendant's sole challenge to this count of the indictment is the



                                 8                           A-3133-13T1
lack of proof regarding the use of a boxing glove.           This challenge

lacks merit.

     A trial court "should not disturb an indictment if there is

some evidence establishing each element of the crime to make out

a prima facie case."      State v. Morrison, 188 N.J. 2, 12 (2006).

Dismissing     an   indictment   is    appropriate    only   "when   it     is

'manifestly deficient or palpably defective,' and then only when

the grounds for the dismissal can be described as the 'clearest

and plainest.'"      State v. Mason, 355 N.J. Super. 296, 298 (App.

Div. 2002) (citations omitted).

     The count itself "identif[ies] and explain[s] the criminal

offense so that the accused may prepare an adequate defense."

State v. Branch, 155 N.J. 317, 324 (1998).           The State alleged the

essential elements of the offense charged and presented adequate

evidence of each element.        The reference to the boxing gloves in

the count was mere surplusage; the failure to present evidence to

support that allegation does not constitute grounds for dismissal.

See State v. Ogar, 229 N.J. Super. 459, 471 (App. Div. 1989).

                                      II.

     At trial, X.R. stated he was four or five years old when

defendant began to live with his mother, sister and him.                    He

testified that when he got into trouble, defendant would tell X.R.

to strip down and take off his clothes and then proceed to hit

                                       9                             A-3133-13T1
X.R. with his work belt, leaving marks on his legs, back and

sometimes X.R.'s arms when he tried to "block the hits."        X.R.

stated this happened on more than one occasion, whenever he got

in trouble in school.    Defendant told X.R. not to tell anyone

about how he had received the marks.     X.R. stated he refrained

from hanging out with his friends or seeing his biological father

when he had bruises from being hit and lacked a good excuse for

explaining them.   He never confided in his father about being hit

because he had a temper and X.R. was "scared" about "how everything

will play out in the end."   As X.R. got older, defendant stopped

using a belt to hit him and used an open hand or clenched fist.

     Describing the August 2007 incident when defendant walked in

on him with a female friend, X.R. testified he and the girl "almost

had sexual intercourse but . . . didn't get to that point."        He

stated defendant started yelling and hit him.     Defendant called

X.R.'s mother upstairs and, after the girl left, defendant started

to hit X.R. again. According to X.R., defendant put on "UFC gloves

that had a lot of padding around the knuckles" and struck him

repeatedly.   When the beating stopped, X.R.'s face was swollen;

he "had a busted lip" and "a mark around [his] neck."    X.R. said

the mark around his neck was caused when defendant tried "to choke

[him] with [his] shirt, jacking up on [his] shirt and it pushing

up on [his] neck."   His appearance did not improve the following

                                10                          A-3133-13T1
day.    Defendant told him to stay home and not go to football

practice.

       X.R. returned to football practice the third day after the

incident.    When asked to account for his absence from practice,

X.R. told his coach "the whole story."    This was the first time

he had ever told anyone outside his home the truth about what

happened in his house.

       The next day, two detectives from the West Orange Police

Department contacted X.R. and brought him to the police station,

where he gave a statement and a detective took photographs of him.

X.R. had not had an opportunity to review the statement.    But he

testified he "told em' what happened in the household . . . when

it took place; how it took place," and that it was a truthful

account.

       X.R. testified that, on occasion, his mother communicated

instructions to him from defendant on how to explain his injuries.

The assistant prosecutor asked him if there was any discussion

regarding the August 2007 incident "about what version of facts

to give to the Division of Youth and Family Services."   When X.R.

answered, "[y]es" and began to explain, "Well, I was told from my

mother that was from him, to say that I tried to --," defense

counsel objected.   Following a sidebar discussion, the trial judge

instructed the jury that the questions and answers regarding what

                                11                          A-3133-13T1
X.R.'s mother told him to say were stricken as hearsay and were

not to be considered by the jury.

     On cross-examination, X.R. was asked about a statement he

made to the police – that the August 2007 incident was the only

time he received a bruise from defendant.        He explained he said

that "because [he] knew DYFS would get involved" and admitted that

was a lie.     Counsel did not question X.R. about the account he

gave to DYFS.

     Defense counsel later sought to admit the DYFS report of the

caseworker's    interview   with   X.R.   following   the   August   2007

incident, marked D-2, and another DYFS report, D-3, into evidence.

Counsel contended, erroneously, that D-2 had been used to impeach

X.R., and that the documents were admissible "to rebut any claim

of recent fabrication."       The trial court ruled that neither

document was admissible.

     During deliberations, the jury sent the court a note, asking

for a read-back of X.R.'s testimony and to see the DYFS "report

taken at the time of [X.R.]'s injury related to Count 21."            The

trial judge clarified that the jury wanted a readback of X.R.'s

entire testimony and advised the jury they would be given that.

The trial judge denied the request for the DYFS report, explaining

to the jury that the report was not admitted into evidence but



                                   12                            A-3133-13T1
that the jury would have any testimony about the DYFS report in

the readback.

                                   III.

      In Point II of defendant's arguments in his direct appeal,

defendant argues the trial court erred in denying the admission

of the DYFS records that were marked for identification only at

trial.    We disagree.

     He first contends the reports were admissible as a past

recollection    recorded    pursuant     to   N.J.R.E.   803(c)(5).       This

argument is entirely lacking in merit.          For this hearsay exception

to apply, the statement must "concern[] a matter about which the

witness is unable to testify fully and accurately because of

insufficient present recollection."             N.J.R.E. 803(c)(5).        The

record    offers   no    support   for    the    premise   that   X.R.     had

"insufficient present recollection" to allow him "to testify fully

and accurately."    Ibid.

     Defendant also argues the reports should have been admitted

pursuant to N.J.R.E. 612 as a writing used to refresh a witness's

memory.   This argument is equally unavailing because the document

was not used to refresh X.R.'s memory and, again, the record fails

to show his memory required refreshing.

     A trial court abuses its discretion when it applies an

erroneous legal standard in making a decision, and when it makes

                                    13                                A-3133-13T1
an evidentiary ruling that is not grounded on reasonable, credible

evidence in the record.      See State v. R.D., 169 N.J. 551, 559

(2001).   There was no abuse of discretion here.

                                  IV.

     After the State rested, defendant made a motion for a mistrial

on the ground that there had been cumulative error in the trial.

Defendant argues the trial judge erred in denying the motion. We

disagree.3

     "A mistrial is an extraordinary remedy that should be used

only to prevent a manifest injustice."       State v. Goodman, 415 N.J.

Super. 210, 234 (App. Div. 2010), certif. denied, 205 N.J. 78

(2011).      We apply a deferential standard in reviewing a trial

judge's denial of a motion for a mistrial, and will not disturb a

trial court's ruling "absent an abuse of discretion that results

in a manifest injustice."      State v. Jackson, 211 N.J. 394, 407

(2012) (quoting State v. Harvey, 151 N.J. 117, 205 (1997), cert.

denied, 528 U.S. 1085, 120 S. Ct. 811, 145 L. Ed. 2d 683 (2000)).

     Counsel argued there had been an "aggregate of errors,"

specifically     the   introduction    of   statements   attributed    to



3
   Although defendant's point heading alleges error in the trial
judge's denial of his motion for a mistrial, his argument also
contends his motion for a new trial – which was made to preserve
an appellate challenge to the jury verdict – should have been
granted. To the extent this issue is raised, it also lacks merit.

                                  14                            A-3133-13T1
defendant during the direct examination of X.R. and his sister,

B.R., without a hearing pursuant to N.J.R.E. 104(c) to determine

"the evidentiary quality of the statements."            The trial judge

noted he had ruled on objections to such statements when made

during the trial and rejected the argument that a R. 104(c) hearing

was required for every statement attributed to a defendant.

      Defendant argues that the testimony of X.R. and B.R. included

statements attributable to him that characterized him as a bad

person and were akin to each, unfairly bolstering the credibility

of   each   other's   testimony.   The   case   for   such   prejudice   is

substantially undermined by the fact the jury did not convict

defendant of any charge that he abused B.R.

      In his brief, defendant identifies five instances in which

statements were attributable to defendant. He asserts his "counsel

objected to a number of statements, and her             objections were

sustained" but he "could not overcome the prejudicial nature of

the repetitive inadmissible statements made against him."         We note

that defendant has not identified any part of the record where a

Rule 104(c) hearing was requested or any adverse evidentiary ruling

on these objections that he contends was error.         In at least some

instances, the trial judge gave curative instructions to the jury.

Defendant has not contended that any additional curative action

was requested or required.

                                   15                             A-3133-13T1
     Instead, he argues the statements "were not tested by notice

or a hearing and were therefore improperly used against" him.            As

to "notice," there is no contention that the State failed to honor

its discovery obligations here or that defendant was surprised by

any of the statements attributed to him.

     Defendant has not identified what about the statements should

have been tested at a hearing.      Ordinarily, a Rule 104(c) hearing

is conducted to make the preliminary legal determination as to

whether a defendant's statement to police is admissible.              See,

e.g., State v. W.B., 205 N.J. 588, 602 (2011).          Because N.J.R.E.

104(c)

          is only operative "[w]here by virtue of any
          rule of law a judge is required in a criminal
          action to make a preliminary determination as
          to the admissibility of a statement by the
          defendant,". . . 104(c) hearings will be
          required in such cases only where some "rule
          of law" requires a preliminary finding by the
          judge.

          [Biunno, Weissbard & Zegas, Current N.J. Rules
          of Evidence, comment 6 on N.J.R.E. 803(b)(6)
          (2017).]

     No rule of law has been cited that required a preliminary

determination by the trial judge as to the admissibility of the

statements complained of on appeal.

     In sum, defendant argues that, notwithstanding rulings and

cautionary   instructions   given    by   the   trial   judge   following


                                 16                               A-3133-13T1
objections that are not challenged on appeal, the trial judge

committed reversible error by not conducting a Rule 104(c) hearing.

The trial judge's evidentiary rulings regarding the statements in

question are reviewed for abuse of discretion, R.D., supra, 169

N.J. at 559, and we find none.

                                 V.

     In Point VI of his direct appeal brief, defendant challenges

the jury instruction, arguing the trial judge committed reversible

error.   We disagree.

     Counts one, two, eighteen, nineteen, twenty and twenty-one

each charged defendant with second-degree EWC.     Defense counsel

objected "to clumping all of the counts" that alleged corporal

punishment, arguing that the grouping of the counts might lead the

jury to believe "they must be identical in their results" and

invited "the jury to use the proofs of one in determining a

separate offense charged in a different count."

     In denying defendant's request, the trial judge stated, "The

only thing that's being grouped together is that . . . the law

applicable to these six charges is identical."     The trial judge

declined to "read the identical charge six times for each and

every separate count," and stated he would make it clear that the

jury needed to consider each count separately.    The trial judge's

final charge to the jury on the six EWC counts stated:

                                 17                         A-3133-13T1
           It is alleged that on various dates between
           1998 through 2007, [defendant] did knowingly
           cause [B.R.] . . . and [X.R.] . . . harm that
           would make [B.R.] and [X.R.] an abused child
           as defined in Title 9, or a child upon whom
           cruelty has been inflicted while [defendant]
           had a legal duty, or had assumed the
           responsibility of caring for [B.R.] and
           [X.R.].

           Each count represents the abuse of [B.R.] and
           [X.R.] individually, as well as the harm
           inflicted by defendant on said child. Counts
           1 and 2 allege that the defendant caused
           [B.R.] and [X.R.] to strip naked and beat them
           with a belt; while Counts 18 through 21 allege
           that defendant caused [B.R.] and [X.R.] harm
           by punching, choking, slapping and other acts
           of physical abuse.

     The trial judge also stated to the jury:

           There are 21 offenses charged in the
           indictment.   They are separate offenses by
           separate counts in the indictment.    In your
           determination of whether the [S]tate has
           proven the defendant guilty of the crimes
           charged in the indictment beyond a reasonable
           doubt, the defendant is entitled to have each
           count considered separately by the evidence
           which is relevant and material to that
           particular charge, based on the law as I give
           it to you.

     The trial judge then provided instructions to the jury on the

law governing the second-degree endangering the welfare of a child

counts, including reading the statutory language, explaining the

elements   the   State   must   prove   to   support   a   guilty   verdict,

providing any necessary definitions, and identifying any relevant

exceptions the jury may consider.             Finally, the trial judge

                                   18                                A-3133-13T1
instructed the jury that the verdict "must be unanimous," meaning

that all of the jurors "must agree if a defendant is guilty or not

guilty on each charge."

     Generally, "a defendant is not 'entitled to have the jury

instructed in his own words.'" State v. Pigueiras, 344 N.J. Super.

297, 317 (App. Div. 2001) (quoting State v. Pleasant, 313 N.J.

Super. 325, 333 (App. Div. 1998), aff'd o.b., 158 N.J. 149 (1999),

certif. denied, 171 N.J. 337 (2002)).

           A party is entitled only to a charge that is
           accurate and that does not, on the whole,
           contain prejudicial error. As such, the test
           is to examine the charge in its entirety, to
           ascertain whether it is either ambiguous and
           misleading   or   fairly   sets  forth   the
           controlling legal principles relevant to the
           facts of the case.

           [State v. LaBrutto, 114 N.J. 187, 204 (1989)
           (citation omitted).]

     The   jury    instructions   here   accurately   set   forth   the

controlling legal principles and contained no prejudicial error.

Moreover, because defendant was only convicted on one count, the

potential for prejudice articulated by defense counsel plainly was

not realized.     Defendant's challenge to the jury charge therefore

provides no grounds for reversal.

                                  VI.

     We next turn to defendant's appeal from the denial of his PCR

petition. He argues he was denied the effective assistance of

                                  19                           A-3133-13T1
counsel   because     "he       was    unduly    coerced      into    foregoing     his

constitutional right to testify on his behalf" and "for failing

to move exculpatory DYFS reports into evidence at trial."                       We are

not persuaded by either of these arguments.

     To prevail on a claim of ineffective assistance of counsel,

defendant must meet the two-prong test of establishing both that:

(l) "counsel's performance was deficient" and he or she made errors

so egregious that counsel was not functioning effectively as

guaranteed    by    the     Sixth       Amendment       to    the     United    States

Constitution;      and    (2)    the    defect     in     performance     prejudiced

defendant's rights to a fair trial such that there exists "a

reasonable probability that, but for counsel's unprofessional

errors, the result of the proceeding would have been different."

Strickland v. Washington, 466 U.S. 668, 687, 694, l04 S. Ct. 2052,

2064, 2068, 80 L. Ed. 2d 674, 693, 698 (1984); State v. Fritz, l05

N.J. 42, 52 (l987).

                                          A.

     The PCR judge conducted an evidentiary hearing regarding

defendant's   claim      that     he    was     coerced      into    refraining    from

testifying at his trial.

     The record from defendant's trial revealed the trial judge

engaged in a thorough colloquy with defendant after defense counsel

advised the court that defendant had decided not to testify.                        The

                                          20                                   A-3133-13T1
trial   judge   explained   it   was    defendant's   "absolute   right    to

testify, if [he] want[ed], and then . . . [he] would naturally be

subjected   to     cross-examination."         Defendant    replied,       "I

understand."     When the trial judge asked defendant, "And it's your

decision not to testify?," defendant replied, "That's correct."

The judge also reviewed the options regarding an instruction to

the jury if he chose not to testify and asked defendant if he had

discussed those options with counsel.           Defendant stated he had

done so and asked the trial judge to instruct the jury regarding

his constitutional right to remain silent.

     Defendant testified at the PCR hearing that he wanted to

testify at trial regarding his lack of a criminal record but was

advised against doing so by his trial counsel.         He stated she told

him it was "better to be thought not smart than proven not smart"

and she coerced him to not testify.          Specifically, he stated it

was his understanding that his trial counsel refused to question

him if he chose to testify.

     Defendant's trial counsel testified defendant never told her

that he wanted to testify at trial.          She said she reviewed with

him his right to testify, the positives and negatives of testifying

and the possible instructions that could be given to the jury at

defendant's election.



                                       21                           A-3133-13T1
      The PCR judge found defendant's trial counsel "credible as

to her testimony regarding [defendant's] election not to testify"

and rejected defendant's claim he was coerced into refraining from

testifying.      The   PCR   judge's    evaluation     of   the   witness's

credibility is entitled to our deference, State v. Pierre, 223

N.J. 560, 576 (2015), and her conclusion that defendant was not

coerced has ample support in the record.

                                   B.

      Defendant describes the DYFS report4 requested by the jury in

deliberations as "exculpatory to the foundation of the single

endangering charge the defendant was convicted of."               Defendant

does not elaborate as to the exculpatory value of the DYFS report

and    this     characterization        appears   to        be    a     gross

mischaracterization.     The PCR judge found the report was not

clearly exculpatory and constituted inadmissible hearsay, and

concluded the decision not to move the record into evidence was a

matter of sound trial strategy.          As we have concluded in our

consideration of defendant's direct appeal, defendant's argument

to the contrary lacks merit.

      Defendant's convictions and the denial of his PCR petition

are affirmed.



4
    Only one DYFS report was requested by the jury.

                                   22                                 A-3133-13T1
