                             RECORD IMPOUNDED


                        NOT FOR PUBLICATION WITHOUT THE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-0956-16T3
STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

JAMAL S. COLEY, a/k/a
JAMALL BELL,

     Defendant-Appellant.
_____________________________

              Submitted February 26, 2018 – Decided June 22, 2018

              Before Judges O'Connor and Vernoia.

              On appeal from Superior Court of New Jersey,
              Law Division, Union County, Indictment Nos.
              09-12-1117 and 09-12-1118.

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

              Michael A. Monahan, Acting Union County
              Prosecutor, attorney for respondent
              (Izabella M. Wozniak, Special Deputy
              Attorney General/Acting Assistant
              Prosecutor, of counsel and on the brief).

PER CURIAM
    Defendant Jamal Coley appeals from an August 15, 2016 order

denying his petition for post-conviction relief (PCR) without an

evidentiary hearing.   For the reasons that follow, we affirm.

    In 2011, a jury convicted defendant of first-degree

aggravated sexual assault while using a weapon, N.J.S.A. 2C:14-

2(a)(4); first-degree aggravated sexual assault in the course of

committing a robbery, N.J.S.A. 2C:14-2(a)(3); second-degree

sexual assault with the use of force or coercion but without

causing serious injury, N.J.S.A. 2C:14-2(c)(1); first-degree

armed robbery, N.J.S.A. 2C:15-1; third-degree unlawful

possession of a handgun, N.J.S.A. 2C:39-5(b); and second-degree

possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-

4(a).   In a separate proceeding, the same jury convicted

defendant of second-degree certain persons not to have weapons,

N.J.S.A. 2C:39-7(b).

    At the time of sentencing, the judge noted defendant had

eleven prior indictable convictions.   On the basis of a 1997

conviction for sexual assault, for which defendant was serving a

sentence of community supervision for life, the judge granted

the State's motion for a mandatory extended term of imprisonment

pursuant to N.J.S.A. 2C:43-6.4(e).   After the appropriate

mergers, defendant was sentenced to life in prison without

eligibility for parole on the ground he was a repeat offender

                                2                            A-0956-16T3
and had committed the first-degree aggravated sexual assault

with a weapon.    On the second indictment, the judge sentenced

defendant to a consecutive term of ten years in prison with five

years of parole ineligibility.

    We affirmed defendant's convictions and sentence on direct

appeal, State v. Coley, No. A-3393-11 (App. Div. Oct. 22, 2014)

(slip op. at 1), and the Supreme Court denied his petition for

certification, State v. Coley, 221 N.J. 285 (2015).

    The facts underlying defendant's convictions are set forth

in our opinion.    For context, we set forth the evidence adduced

at trial salient to the issues on appeal.

    Police officers Michael Carreto and Joe Pevonis were on

patrol in Elizabeth when they looked down an alley and saw a

woman, L.S., hunched over and defendant behind her engaging in

what appeared to be sexual intercourse.     The officers ordered

them to stop and to put up their hands.     Defendant put his hand

over a fence and dropped a shiny object.

    L.S. approached the officers with a terrified look on her

face and repeatedly whispered to them "he's got a gun." Officer

Carreto recognized L.S. as a prostitute he had previously

encountered, and subsequently found a .177 caliber BB gun in the

area where he saw defendant drop an object.     Defendant was then

placed under arrest.

                                 3                          A-0956-16T3
    L.S. told the officers she had been soliciting a customer

in a truck when defendant surprised her from behind.   Defendant

pushed her to the side, struck the man in the truck with his

gun, and took the man's money.   The man drove away and defendant

demanded money from L.S.   When he discovered she had only a few

dollars, he forcibly pulled her into the alleyway.   At gunpoint,

he ordered her to perform fellatio on him and then penetrated

her vaginally several times.   He then turned her around, forced

her up against the fence, and was about to penetrate her anally

when the police arrived.

    L.S. informed the police defendant had attempted to place a

condom on his penis but discarded it in the area.    One of the

officers found a used condom on the ground, which was presented

as evidence at defendant's trial.    Although defendant's DNA was

not found on the condom or on the handgun retrieved from the

other side of the fence, the victim's DNA was found on both

items.

    In addition to L.S. and the police officers, an inmate who

had shared a jail cell with defendant after defendant was

arrested testified.   The inmate reported that defendant said he

robbed a man in a truck and raped a white woman.

    While testifying, the inmate acknowledged he had a lengthy

criminal record, and also admitted he initially hoped to be

                                 4                          A-0956-16T3
released from jail earlier than otherwise in exchange for

revealing defendant's admissions.   However, he stated he did not

in fact receive any benefit for his testimony, and was motivated

to testify against defendant because he did not like rapists.

Defendant did not testify and did not present any witnesses.

    In 2015, defendant filed a PCR petition alleging

ineffective assistance of trial counsel.   Appointed PCR counsel

submitted a brief on defendant's behalf, in which he argued

trial counsel was ineffective because trial counsel failed to

confront the inmate with letters the inmate had written just

before trial.   Defendant claimed the content of such letters

would have negatively impacted the inmate's credibility.

    In a written opinion, the PCR judge, who was also the trial

judge, found the content of the two letters innocuous.     In the

letters the inmate merely asked defendant about the status of

the case or referenced unrelated topics.   As the judge noted,

"At no point in either letter . . . does [the inmate] mention

any quid pro quo with the State or an intention to receive any

kind of benefit for offering testimony in [defendant's] case.

The topic of [the inmate's] testimony is not mentioned at all in

the letters."   The PCR judge found defendant failed to make any

showing how confronting the inmate with the letters on cross-

examination would have altered the outcome of the trial.

                                5                           A-0956-16T3
    The PCR judge also observed trial counsel effectively

attacked the inmate's credibility by drawing out on cross-

examination the inmate had been convicted of larceny, receiving

stolen property, and other crimes involving fraud.    The judge

determined that "[t]rial counsel ably and effectively

established that [the inmate] had a history of untruthfulness

and lying."

    Defendant also contended trial counsel pressured him into

waiving his right to testify.    The PCR judge determined the

record refuted such argument.    When the State rested, trial

counsel advised the judge defendant was relinquishing his right

to testify.    Defendant was placed under oath and questioned by

the judge about his decision.    The judge was satisfied defendant

exercised his right to remain silent freely, knowingly, and

voluntarily.

    Defendant alleged trial counsel failed to meet with or

review any of the discovery with him, and did not prepare for

trial.   The PCR judge rejected these contentions, finding them

to be nothing but vague, bald assertions unsupported by any

evidence.     Citing State v. Marshall, 148 N.J. 89 (1997), the

judge noted he need not hold a hearing because "the defendant's

allegations are too vague, conclusory, or speculative to

warrant" one.    Id. at 158.   In addition, the judge noted

                                  6                           A-0956-16T3
defendant did not show how any of these alleged deficiencies

prejudiced him and adversely affected the outcome of the trial.

On August 15, 2016, the judge entered an order denying

defendant's petition for PCR.

    On appeal, defendant presents the following for our

consideration.

         POINT I: THE TRIAL COURT ERRED IN DENYING
         THE DEFENDANT'S PETITION FOR POST CONVICTION
         RELIEF WITHOUT AFFORDING HIM AN EVIDENTIARY
         HEARING TO FULLY ADDRESS HIS CONTENTION THAT
         HE FAILED TO RECEIVE ADQUEATE LEGAL
         REPRESENTATION AT THE TRIAL LEVEL.

                 A. THE PREVAILING LEGAL PRINCIPLES
                 REGARDING CLAIMS OF INEFFECTIVE
                 ASSISTANCE OF COUNSEL, EVIDENTIARY
                 HEARINGS AND PETITITONS FOR POST
                 CONVICTION RELIEF.

                 B. TRIAL COUNSEL DID NOT
                 ADEQUATELY REPRESENT THE DEFENDANT
                 ARISING OUT OF HIS FAILURE TO
                 THOROUGHLY DISCUSS WITH HIS CLIENT
                 ALL RELEVANT RAMIFICATIONS
                 ASSOCIATED WITH THE DECISION
                 WHETHER OR NOT TO TESTIFY, AS A
                 RESULT OF WHICH THE DEFENDANT DID
                 NOT TESTIFY IN HIS OWN DEFENSE.

                 C. THE DEFENDANT DID NOT RECEIVE
                 ADEQUATE LEGAL REPRESENTATION FROM
                 TRIAL COUNSEL AS A RESULT OF TRIAL
                 COUNSEL'S FAILURE TO EFFECTIVELY
                 CROSS-EXAMINE [THE INMATE], A
                 CRITICAL WITNESS UTILIZED BY THE
                 STATE AT TRIAL.




                                 7                        A-0956-16T3
    On appeal, defendant reprises the arguments asserted before

the PCR judge, although he elaborates on the argument trial

counsel was ineffective because he allegedly pressured defendant

into waiving his right to testify.   Defendant maintains he

informed counsel he hired L.S. to have sexual relations with him

and, thus, the sexual act was consensual.   Defendant claims

counsel told him the jury would understand L.S. agreed to have

sex with him and thus defendant's testimony was unnecessary.

    Defendant contends that, when the State rested, his

attorney failed to call any witnesses and, had he known that was

going to occur, he would have insisted upon testifying so the

jury would have heard his version of the events.   Defendant

admits his attorney told him several times that, if he were to

testify, he would lose the case.

    Defendant's argument is resoundingly refuted by the record.

Before defendant waived his right to testify, in defendant's

presence defense counsel stated he was not calling any witnesses

other than defendant in the event defendant wanted to testify.

By the time defendant decided not to testify, all of the State's

witnesses had testified, and it would have been patently obvious

there was no evidence L.S. had consented to the sexual act.

Defendant knew or should have known that if he wanted the jury

to believe the act was consensual, he was going to have to

                               8                          A-0956-16T3
testify to such fact.    In addition, defendant knew in advance of

his decision to not testify that his attorney was not going to

call any witnesses, with the exception of defendant if he wanted

to testify.

       The Sixth Amendment to the United States Constitution and

Article I, Paragraph 10 of the New Jersey Constitution guarantee

a defendant in a criminal proceeding the right to the assistance

of counsel.    State v. Nash, 212 N.J. 518, 541 (2013).    This

right includes "the right to the effective assistance of

counsel."     Ibid. (quoting Strickland v. Washington, 466 U.S.

668, 686 (1984)).

       The Court established a two-part test in Strickland, later

adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58

(1987), to determine whether a defendant has been deprived of

the effective assistance of counsel.      Strickland, 466 U.S. at

687.   Under the first prong of this test, a petitioner must show

counsel's performance "fell below an objective standard of

reasonableness" and "counsel made errors so serious that counsel

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

the Sixth Amendment."    Id. at 687-88.

       The first prong of the test is satisfied by showing

counsel's acts or omissions fell outside the wide range of

professionally competent assistance considered in light of all

                                  9                          A-0956-16T3
the circumstances of the case."      State v. Allegro, 193 N.J. 352,

366 (2008) (quoting State v. Castagna, 187 N.J. 293, 314

(2006)).   "[T]here is 'a strong presumption that counsel's

conduct falls within the wide range of reasonable professional

assistance.'"   Castagna, 187 N.J. at 314 (quoting Strickland,

466 U.S. at 689).

    Under the second prong, a defendant "must show that the

deficient performance prejudiced the defense."      Strickland, 466

U.S. at 687.    That is, there must be a "reasonable probability

that, but for counsel's unprofessional errors, the result of the

proceeding would have been different."      Id. at 694.   "The error

committed must be so serious as to undermine the court's

confidence in the jury's verdict or the result reached."

Castagna, 187 N.J. at 315.

    After reviewing the record in light of the contentions

advanced on appeal, we conclude defendant's contention counsel

was ineffective is devoid of merit, and affirm for substantially

the same reasons expressed by Judge Robert J. Mega in his

comprehensive written decision.      Further, the judge correctly

concluded there was no basis to order an evidentiary hearing.

See State v. Preciose, 129 N.J. 452, 462-63 (1992).

    Affirmed.



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