                                NOT FOR PUBLICATION WITHOUT THE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-3659-17T4

STATE OF NEW JERSEY,

           Plaintiff-Respondent,

v.

ANTWIONE A. PARSLEY, a/k/a
ANTOINE A. PARSLEY,

           Defendant-Appellant.


                    Submitted February 27, 2019 – Decided May 8, 2019

                    Before Judges Alvarez and Nugent.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Salem County, Indictment No. 11-04-0229.

                    Joseph E. Krakora, Public Defender, attorney for
                    appellant (Suzannah Brown, Designated Counsel, on
                    the brief).

                    John T. Lenahan, Salem County Prosecutor, attorney
                    for respondent (David M. Galemba, Assistant
                    Prosecutor, of counsel and on the brief).

PER CURIAM
      Defendant Antwione Parsley appeals the June 13, 2017 order denying his

petition for post-conviction relief (PCR). For the reasons stated by Judge Linda

L. Lawhun in her comprehensive written decision, we affirm.

      Defendant was convicted of fourth-degree aggravated assault, N.J.S.A.

2C:12-1(b)(4); second-degree possession of a firearm for an unlawful purpose,

N.J.S.A. 2C:39-4(a); second-degree unlawful possession of a handgun, N.J.S.A.

2C:39-5(b); and second-degree possession of a weapon by a certain person,

N.J.S.A. 2C:39-7(b)(1). The jury was unable to reach a verdict on three other

counts, including first-degree attempted murder; those charges were

subsequently dismissed. On March 20, 2012, defendant was sentenced to an

aggregate of nine years subject to the No Early Release Act, N.J.S.A. 2C:43-7.2.

Defendant was subsequently resentenced on May 15, 2015, on a remand for

merger.

      The underlying facts are as follows. Defendant had accused the victim of

having provided the authorities with information regarding his illegal activities.

Defendant ended the argument by throwing a bicycle and a stroller at the victim,

and telling him he was "about to clear the street." The victim heard defendant

make a phone call during which he told someone to "bring Roscoe," which he

understood to be a reference to defendant's handgun. Later on, the victim saw


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defendant's car, was told to "watch out," and saw defendant standing behind a

school bus between two houses and pointing a gun in his direction. The victim

and another person fled the area when they heard gunshots.

      When the incident occurred, the Salem County Prosecutor's Office had

coincidentally been intercepting defendant's cell phone communications

pursuant to a warrant, related to an ongoing narcotics investigation as well as an

investigation related to another shooting. Approximately half an hour after the

shooting, the victim called defendant.       Defendant was recorded making

reference to the fact that the person defendant had been shooting at was not the

victim, but someone else. Some of the intercepted conversations were played to

the jury. All had been obtained pursuant to an electronic wiretap warrant.

      Now on appeal, defendant raises the following two points:

            POINT I
            THE PCR COURT ERRED IN DENYING
            [DEFENDANT'S]    PETITION   FOR   POST-
            CONVICTION      RELIEF    BECAUSE    HE
            ESTABLISHED INEFFECTIVE ASSISTANCE OF
            COUNSEL WITH RESPECT TO HIS CLAIM THAT
            HE WAS PREJUDICED BY TRIAL COUNSEL'S
            FAILURE TO MOVE FOR A STAY OF HIS TRIAL
            PENDING     THE    OUTCOME     OF   HIS
            INTERLOCUTORY APPEAL OF THE DENIAL OF
            HIS MOTION TO CHANGE VENUE.




                                                                          A-3659-17T4
                                        3
            POINT II
            THE PCR COURT ERRED IN DENYING
            [DEFENDANT'S]    PETITION    FOR   POST-
            CONVICTION     RELIEF     WITHOUT     AN
            EVIDENTIARY    HEARING     BECAUSE    HE
            ESTABLISHED A PRIMA FACIE CASE OF
            INEFFECTIVE ASSISTANCE OF COUNSEL WITH
            RESPECT TO HIS CLAIM THAT HE WAS
            PREJUDICED BY TRIAL COUNSEL'S FAILURE TO
            MOVE TO SUPPRESS EVIDENCE OBTAINED
            THROUGH THE WIRETAP OF [DEFENDANT'S]
            PHONE BASED ON FAILURE OF LAW
            ENFORCEMENT TO MINIMIZE NON-PERTINENT
            CALLS.

      In determining whether an attorney's representation is effective, we ask

whether (1) "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) if the error in the

representation prejudiced the outcome of defendant's 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 (1984).

      We agree with Judge Lawhun that defendant's bare allegations were

simply insufficient to have made out a prima facie case for PCR that would have

warranted an evidentiary hearing, much less relief. See State v. Cummings, 321

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

                                                                           A-3659-17T4
                                         4
      Defendant's first point alleges he was substantially prejudiced by trial

counsel's failure to seek a stay of the trial pending the outcome of his application

for leave to take an interlocutory appeal of the denial of his change of venue

motion. Judge Lawhun reviewed the documentation counsel provided in support

of the original motion, four articles regarding defendant's criminal activities.

We agree that they do not mention these charges and are not stories likely to

have influenced potential jurors.     Furthermore, the trial judge who denied

defendant's motion for a change of venue, although he concluded defendant

failed to establish "presumptively prejudicial publicity" or a "realistic likelihood

of prejudice," also stated in the order that he would revisit the issue should "voir

dire establish[] sufficient juror bias due to pretrial publicity" or that "a change

of location is 'necessary to overcome the realistic likelihood of prejudice

resulting from pretrial publicity.'" If defendant's application for leave to take an

interlocutory appeal was denied because the application for change of venue

lacked merit, certainly a request for a stay would have been denied as well. This

issue falls short of meeting Strickland's requirements.

      Defendant's second point also lacks merit. The admission of wiretap

evidence in this case did not violate the statutory requirement that, in order to

protect the privacy of our citizens, authorities executing a wiretap warrant must


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                                         5
minimize the hours of interception and attempt to terminate interception of non-

relevant calls. See State v. Catania, 85 N.J. 418, 422-23 (1981). The remedy

for failure to minimize hours of coverage, and to terminate surveillance of non-

relevant phone calls, is the suppression of the items. See Wiretap Act, N.J.S.A.

2A:156A-1.

      The conversations about which defendant complains relate to his request

for a ride out of the area where the shooting took place. Nothing would lead us

to conclude they were not relevant to the charges, or otherwise require

suppression. In the absence of even minimal facts that would have supported a

suppression motion, counsel did not err by failing to file one.

      Affirmed.




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