                NOT FOR PUBLICATION WITHOUT THE
               APPROVAL OF THE APPELLATE DIVISION

                                   SUPERIOR COURT OF NEW JERSEY
                                   APPELLATE DIVISION
                                   DOCKET NO. A-4965-13T1
STATE OF NEW JERSEY,

     Plaintiff-Respondent,              APPROVED FOR PUBLICATION

v.                                            July 6, 2016

                                          APPELLATE DIVISION
EDWARD PEOPLES, a/k/a
RASHAWN WHITE, EDWARD D.
WHITE,

     Defendant-Appellant.
__________________________

         Submitted September 21, 2015 – Decided July 6, 2016

         Before   Judges     Messano,     Simonelli      and
         Carroll.

         On appeal from the Superior Court of New
         Jersey,   Law    Division, Essex  County,
         Indictment No. 06-08-2643.

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

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

         Appellant filed a pro se supplemental brief.

     The opinion of the Court was delivered by

SIMONELLI, J.A.D.
       Defendant Edward Peoples appeals from the April 9, 2014 Law

Division order, which denied his petition for post-conviction

relief (PCR) without an evidentiary hearing.                          For the following

reasons, we affirm.

                                             I.

       In     August   2006,     a     grand        jury    indicted     defendant      for

conspiracy to commit murder, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:11-

3(a)(1) (count one); first-degree murder, N.J.S.A. 2C:11-3(a)(1)

and   (2)     (count   two);     first-degree         attempted       murder,     N.J.S.A.

2C:11-3       (count        three);     second-degree             aggravated      assault,

N.J.S.A.       2C:12-1(b)(1)          (count       four);     third-degree        unlawful

possession of a weapon, N.J.S.A. 2C:39-5(b) (count five); and

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

N.J.S.A. 2C:39-4(a) (count six).                     The charges stemmed from the

shooting      death    of    Rahman    Jenkins       in    the    parking   lot    of   the

Baxter       Terrace   apartment       complex       in     Newark.      Defendant      was

represented       by    Paul      W.     Bergrin,          who,     after      defendant's

conviction and sentence, was suspended from the practice of law

in    this    State,    convicted       of     federal      criminal     offenses,      and

incarcerated in a federal prison for life.

       Marquis Grimsley, defendant's girlfriend, Anyea Williams,

and co-defendant Joseph Richardson had given statements to the

police       inculpating      defendant        in    Jenkins's        murder    and     were




                                               2                                  A-4965-13T1
witnesses     for     the    State.         In       August    2007,      the    Essex      County

Prosecutor's      Office         (ECPO)    began       an     investigation           of   alleged

witness       tampering          in    defendant's                case.          During           the

investigation, defendant's prison cellmate reported to the ECPO

that defendant asked him to assist in preparing affidavits to

send     to     witnesses         saying        that       they      lied,      and        provided

information on witness intimidation tactics defendant was using.

The cellmate also indicated that another inmate, Brandon Stokes,

had    agreed    to     be   a    defense       witness       in    exchange      for      Bergrin

representing him on his criminal appeal at a discounted fee even

though    Stokes      was    not      present         at    the     shooting      and       had   no

knowledge of Baxter Terrace.

       Stokes     was    listed       as    a    defense           witness      who    defendant

proffered would testify that defendant was not in possession of

the gun and did not shoot Jenkins; however, Stokes told the ECPO

that he was not present at and did not witness the shooting.

Defendant concedes in his pro se supplemental merits brief that

Stokes did not implicate Bergrin in any unethical or criminal

conduct.

       Another inmate, Gregory Smith, told the ECPO that defendant

was coaching him to be a defense witness.                             Smith also gave the

ECPO a map/diagram and prepared script that defendant gave him




                                                 3                                         A-4965-13T1
to tailor his testimony.       Smith did not implicate Bergrin in any

unethical or criminal conduct.

      Grimsley told the ECPO that defendant threatened him to

change his testimony and sent him an affidavit that said he lied

to the police.          The ECPO also received a letter written by

defendant    that   contained    threats      to   Richardson.     Neither

Grimsley nor the letter implicated Bergrin in any unethical or

criminal conduct.

      Williams was under subpoena and expected to testify for the

State that she saw defendant obtain a handgun just prior to the

shooting and walk towards the parking lot area where Jenkins was

killed and heard shots fired, following which defendant told her

that he shot Jenkins.       On September 25, 2007, she told the ECPO

that defendant, his mother and his sister threatened her and

told her not to appear in court.           She later provided a letter

she   received   from    defendant,   dated   September   2,   2007,   which

stated as follows:

            I'm really about to come home I talked to
            Paul today everything lookin[g] alright, he
            said to make sure you come to court the
            first day of my trial but just don't come
            after that because if you don't come the
            first day they just [going to] try to post-
            pone my trial[] but if you come they [are
            going to] think they got you and they [are
            going to] start trial and once they start
            they can[']t stop.




                                      4                            A-4965-13T1
       Relying solely on this letter, the State filed a motion to

disqualify Bergrin based on a conflict of interest.                            The State

argued    that     defendant     advised     Williams    to    evade      the    State's

subpoena and not appear at trial at Bergrin's instruction, and

thus,    both      defendant   and     Bergrin       attempted       to   tamper      with

witnesses in violation of N.J.S.A. 2C:28-5(a)(2) and (4), and

Bergrin violated Rule of Professional Conduct 1.2(d).                          The State

submitted      a   certification       from       Williams    in   support       of   the

motion, which confirmed her receipt of the letter from defendant

and also stated that defendant threatened her with physical harm

if she testified against him.                Williams did not say she had any

contact with Bergrin or that Bergrin had any direct or indirect

involvement with the letter or threats.

       Defendant was assigned special counsel to represent him on

the motion.        Bergrin filed opposition, but the record does not

reveal that defendant filed opposition.                      However, the record

reveals that defendant advised the court he wanted Bergrin to

continue representing him.             The judge denied the motion, finding

there    was     no   evidence    of    an       organized    plan      that    directly

connected       Bergrin   to     instructing        defendant      to     tamper      with

Williams, and defendant wanted Bergrin to continue representing

him.     The judge determined that defendant knowingly attempted to

induce Williams not to testify by instructing her not to appear,




                                             5                                  A-4965-13T1
thus denying the State evidence.                   Accordingly, the judge ruled

the    letter      would    be   admissible         at     trial   as    evidence   of

defendant's guilt.

       The evidence of defendant's guilt was overwhelming.                          In

addition      to     Williams,     at     the      trial,       three    eyewitnesses

identified defendant as the shooter.                     On April 15, 2008, a jury

found defendant guilty of murder (count two), attempted murder

(count three), unlawful possession of a weapon (count five), and

possession of a weapon for an unlawful purpose (count six), and

not guilty of conspiracy to commit murder (count one).                              The

State voluntarily dismissed count four charging defendant with

aggravated assault.

       At sentencing on August 5, 2008, the trial judge merged

count six with count two and sentenced defendant to a sixty-

five-year     term     of   imprisonment          with     an   eighty-five-percent

period of parole ineligibility pursuant to the No Early Release

Act, N.J.S.A. 2C:43-7.2.           The judge also sentenced defendant to

a   concurrent       twenty-year   term      of    imprisonment      with   seventeen

years of parole ineligibility on count three, a concurrent five-

year   term     of    imprisonment      on       count    five,    and   imposed    the

appropriate assessments and penalties.

       Nearly a year after defendant's conviction, on June 16,

2009, Bergrin was suspended from the practice of law in New




                                             6                               A-4965-13T1
Jersey.     See In re Bergrin, 199 N.J. 309 (2009).                       On November

10, 2009, a federal grand jury returned a superseding indictment

charging     Bergrin   and     several          co-defendants        with      numerous

offenses relating, in part, to the murder of an informant and

witness tampering in a drug-trafficking case.                     See United States

v. Bergrin, 650 F.3d 257 (3d Cir. 2011).

    Defendant      appealed        his     conviction       and     sentence.          We

affirmed, but remanded for a hearing on potential juror taint.

State v. Peoples, No. A-5793-08 (App. Div. May 23, 2012) (slip

op. at 16-17), certif. denied, 212 N.J. 462 (2012).                             In our

opinion, we noted that defendant had tampered with Williams and

other     witnesses.    Id.        at    8-11.         We   declined      to   address

defendant's    ineffective     assistance         of     counsel    (IAC)      argument

that Bergrin had a conflict of interest because of the federal

indictment.      Id.   at    14.         Over    two    years     after   defendant's

sentencing, Bergrin was convicted in federal court and sentenced

to life imprisonment.          See United States v. Bergrin, 599 F.

App'x 439 (3d Cir. 2014), cert. denied, ___ U.S. ___, 135 S. Ct.

2370, 192 L. Ed. 2d 159 (2015).

    Following a remand hearing in this matter, the trial judge

found no juror taint had occurred.                     Defendant did not appeal.

Instead, he filed a PCR petition, arguing that Bergrin rendered

IAC by failing to investigate and prepare a defense and instead,




                                           7                                   A-4965-13T1
engaged   in    witness      tampering.           Defendant       admitted    there   was

overwhelming evidence of his involvement in Jenkins's murder and

ample evidence he was involved with attempting to tamper with

the   State's    witnesses,          but     argued      that     the    tampering     was

conducted under Bergrin's guidance.1

      In a pro se supplemental brief, defendant added that the

judge erred by allowing the jury unfettered access to videotaped

statements     during     deliberations;           Bergrin      was     ineffective    for

failing   to    object       to    this     procedure;      and    Bergrin    gave     him

illegal   and    unethical          advice    to    tamper      with     witnesses     and

recruit false alibi witnesses.                    Lastly, defendant argued that

appellate counsel was ineffective during the remand hearing for

failing   to    raise     specific         questions     regarding       alleged     juror

taint.    In    another       supplemental         brief,    defendant       added    that

Bergrin   failed        to        challenge       both    the     State's     selective

prosecution of defendant and the police coercion of Richardson.

Defendant did not raise any conflict of interest argument.

      In an April 9, 2014 written opinion, the judge denied the

petition without an evidentiary hearing.                     The judge first found


1
   Defendant also argued that he declined a plea offer of twenty
years as the result of Bergrin's assurances that "after all the
witnesses disappeared, or refused to cooperate, or witnesses
were manufactured as alibi witnesses, the State would be unable
to convict" defendant. However, there was no evidence that the
State made any plea offer.



                                              8                                 A-4965-13T1
that defendant's claim of trial court error was procedurally

barred by Rule 3:22-4(a).               Addressing the merits, the judge

found there was no evidence that the jury had unfettered access

to the videotaped statements; the law in effect at the time did

not preclude such access; and defendant failed to show how the

outcome would have been different.

       The judge next determined there was no evidence implicating

Bergrin   in     witness    tampering     or    that   Bergrin    gave    defendant

illegal advice to tamper with witnesses.                   The judge found that

none of the witnesses with whom defendant tampered said that

Bergrin        directly     communicated        with      them   or      indirectly

communicated with them through defendant.                  The judge also found

that    even    if   Bergrin's       performance    was    deficient,     defendant

failed    to    show    that   the    outcome   would     have   been    different;

rather, defendant conceded there was overwhelming evidence of

his involvement in Jenkins's murder.                   Lastly, the judge found

there    was    no     evidence   supporting       defendant's    remaining      IAC

claims against Bergrin and no merit to or evidence supporting

defendant's IAC claims against appellate counsel.                       This appeal

followed.

       On appeal, defendant raises the following contentions in

assigned counsel's brief:

       POINT I:        THE TRIAL COURT ERRED IN DENYING
                       THE  DEFENDANT'S   PETITION  FOR



                                          9                                A-4965-13T1
[PCR] WITHOUT AFFORDING HIM AN
EVIDENTIARY   HEARING  TO  FULLY
ADDRESS HIS CONTENTION THAT HE
FAILED TO RECEIVE ADEQUATE LEGAL
REPRESENTATION   AT   THE  TRIAL
LEVEL.

A. THE      PREVAILING     LEGAL
PRINCIPLES REGARDING CLAIMS OF
[IAC], EVIDENTIARY HEARINGS AND
PETITIONS FOR [PCR].

B. TRIAL COUNSEL DID NOT PROVIDE
ADEQUATE LEGAL REPRESENTATION TO
THE DEFENDANT AS A RESULT OF
COUNSEL'S FAILURE TO OBJECT TO
THE MANNER IN WHICH THE JURY WAS
GIVEN UNFETTERED ACCESS TO TWO
VIDEOTAPED STATEMENTS IN THE JURY
ROOM DURING DELIBERATIONS.

C. THE DEFENDANT DID NOT RECEIVE
ADEQUATE    LEGAL   REPRESENTATION
FROM TRIAL COUNSEL AS A RESULT OF
COUNSEL'S FAILURE TO CONDUCT ANY
REASONABLE             PRE[-]TRIAL
PREPARATION    OR   INVESTIGATION,
INSTEAD CONVINCING THE DEFENDANT
TO ASSIST HIM IN ENGAGING IN
CRIMINAL   CONDUCT   DESIGNED   TO
TAMPER    WITH    WITNESSES    AND
FABRICATE TRIAL TESTIMONY.

D. THE    DEFENDANT      FAILED    TO
RECEIVE        ADEQUATE         LEGAL
REPRESENTATION FROM TRIAL COUNSEL
SINCE, AS A RESULT OF COUNSEL'S
CONDUCT ASSURING THE DEFENDANT HE
WOULD NOT BE CONVICTED AT TRIAL
AS LONG AS HE FOLLOWED HIS
INSTRUCTIONS     AND    ADVICE,    HE
REJECTED     THE     STATE'S     PLEA
RECOMMENDATION       AND     INSTEAD
PROCEEDED TO TRIAL, SUBSEQUENTLY
RECEIVING A [SIXTY-FIVE] YEAR
TERM    WITH     AN    [EIGHTY-FIVE]



                10                      A-4965-13T1
                    PERCENT PAROLE DISQUALIFIER AT
                    SENTENCING, MORE THAN THREE TIMES
                    GREATER THAN THE STATE'S PLEA
                    OFFER.

    In   a    pro    se   supplemental    brief,   defendant   raises    the

following contentions:

    POINT I:        [IAC] DUE TO TRIAL COUNSEL'S
                    ILLEGAL ADVICE, CRIMINAL CONDUCT,
                    AND LACK OF PREPARATION.

     POINT II:      [IAC] DUE TO TRIAL          COUNSEL'S
                    MULTIPLE CONFLICTS.

    POINT III: COUNSEL ASSIGNED TO THE APPELLATE
               REMAND    HEARING  CONDUCTED   ON
               SEPTEMBER      28,   2012     WAS
               INEFFECTIVE FOR FAILURE TO RAISE
               SPECIFIC QUESTIONS FOR THE COURT
               TO ASK THE ALLEGED TAINTED JUROR
               THAT WERE PERTINENT TO THE ISSUE
               AT HAND.

    POINT IV:       INEFFECTIVE ASSISTANCE OF DIRECT
                    APPEAL APPELLATE COUNSEL.

    POINT V:        THE CUMULATIVE EFFECT OF THE
                    ERRORS COMPLAINED OF RENDERED THE
                    TRIAL UNFAIR.

    To establish an IAC claim, a defendant must satisfy the

two-pronged   test    formulated   in    Strickland   v.   Washington,   466

U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693

(1984), and adopted by our Supreme Court in State v. Fritz, 105

N.J. 42, 58 (1987).       First, a defendant must show "that counsel

made errors so serious that counsel was not functioning as the

counsel guaranteed . . . by the Sixth Amendment."            Fritz, supra,




                                    11                             A-4965-13T1
105 N.J. at 52 (quoting Strickland, supra, 466 U.S. at 687, 104

S. Ct. at 2064, 80 L. Ed. 2d at 693).

    Second, a defendant must prove that he suffered prejudice

due to counsel's deficient performance.                    Strickland, supra, 466

U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693.                                   A

defendant       must    show    by    a    "reasonable    probability"        that   the

deficient performance affected the outcome.                      Fritz, supra, 105

N.J. at 58.            "If [a] defendant establishes one prong of the

Strickland-Fritz standard, but not the other, his claim will be

unsuccessful."         State v. Parker, 212 N.J. 269, 280 (2012).

    The mere raising of a claim of IAC does not entitle the

defendant to an evidentiary hearing.                      State v. Cummings, 321

N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199

(1999).      "A      defendant       shall    be    entitled    to     an   evidentiary

hearing only upon the establishment of a prima facie case in

support of post-conviction relief . . . ."                       R. 3:22-10(b).         A

"prima    facie      case"     requires      that   a   defendant      "demonstrate     a

reasonable likelihood that his or her claim, viewing the facts

alleged    in    the    light       most   favorable     to    the   defendant,      will

ultimately       succeed       on    the     merits[,]"       ibid.,    and   must     be

supported       by     "specific      facts       and   evidence       supporting     his

allegations."          State v. Porter, 216 N.J. 343, 355 (2013); see

also Cummings, supra, 321 N.J. Super. at 170 (holding that "a




                                             12                                A-4965-13T1
petitioner must do more than make bald assertions that he was

denied the effective assistance of counsel").                   "Because post-

conviction relief is not a substitute for direct appeal and

because of the public policy 'to promote finality in judicial

proceedings,' our rules provide various procedural bars."                   State

v. Echols, 199 N.J. 344, 357 (2009) (citations omitted) (quoting

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

    "[A] petitioner may be barred from relief if the petitioner

could have raised the issue on direct appeal but failed to do

so, Rule 3:22-4[, or] the issue was previously decided on direct

appeal, Rule 3:22-5[.]"         Ibid.        The effect of Rule 3:22-4 is

that PCR will be precluded if any ground for relief could have

been raised at trial or on appeal.             State v. Afanador, 151 N.J.

41, 50 (1997).       We review a judge's decision to deny a PCR

petition without an evidentiary hearing for abuse of discretion.

State v. Preciose, 129 N.J. 451, 462 (1992).

    We have considered defendant's contentions in Point I.B. of

assigned   counsel's    brief    and    in     Points    III,    IV   and   V   of

defendant's pro se supplemental brief in light of the record and

applicable   legal     principles      and    conclude    they    are   without

sufficient merit to warrant discussion in a written opinion.                    R.

2:11-3(e)(2).    We affirm substantially for the reasons expressed

by the judge in his written opinion.




                                       13                               A-4965-13T1
    We reject defendant's contention in Point I.D. of assigned

counsel's    brief   regarding      defendant's      alleged    rejection      of   a

plea offer.     We reiterate there is no evidence the State made

any plea offer to defendant.

    We also reject defendant's contention in Point II of his

pro se supplemental brief, raised for the first time on appeal,

that Bergrin had a conflict of interest because the ECPO was

actively investigating him for witness tampering.                    We decline to

consider questions or issues not presented to the trial court

when an opportunity for such a presentation was available unless

the matter involves the trial court's jurisdiction or is of

public importance.       State v. Robinson, 200 N.J. 1, 20 (2009).

No exception applies here.             In any event, for the following

reasons, the argument lacks merit.

    Our Supreme Court has "adhered to a two-tiered approach in

analyzing     whether    a    conflict       of    interest    has    deprived      a

defendant of his state constitutional right to the effective

assistance of counsel."            State v. Cottle, 194 N.J. 449, 467

(2008).     "In those cases in which [the Court has] found a per se

conflict,    prejudice       is   presumed    in    the   absence     of   a   valid

waiver, and the reversal of a conviction is mandated."                         Ibid.

However, the Court has limited findings of a conflict to cases

in which an attorney is "contemporaneously under indictment in




                                       14                                  A-4965-13T1
the same county as his client, and being prosecuted by the same

prosecutor's office . . . absent a valid waiver by the client."

Id. at 473.

      Defendant waived any conflict of interest when he advised

the court that he wanted Bergrin to continue representing him.

In    addition,        the   ECPO   investigation       report     reveals       that

defendant was the focus of witness tampering, not Bergrin, and

none of the witnesses the ECPO interviewed implicated Bergrin in

defendant's witness tampering scheme.               Moreover, the State did

not rely on the ECPO investigation to disqualify Bergrin, and

there never was any determination that Bergrin was involved in

defendant's witness tampering.

      Insofar as defendant argues, as he did on direct appeal,

that Bergrin's conflict of interest stemmed from his federal

indictment, we reject that argument as well.                     A federal grand

jury returned an indictment in November 2009, two years after

defendant's     conviction.         There   was    no   evidence    as     to    when

federal authorities were investigating Bergrin and no evidence

that the ECPO participated in that investigation.                        Unlike in

Cottle, supra, where the defense attorney "was under indictment

and   subject     to    prosecution   during      the   entire    period    of    his

representation," 194 N.J. at 466, there was no evidence that

Bergrin was contemporaneously under indictment at the same time




                                       15                                  A-4965-13T1
as defendant, and Bergrin was not being prosecuted by the same

prosecutor's     office.         Accordingly,         there      was   no    conflict   of

interest mandating reversal of defendant's conviction.

                                          II.

       We next address defendant's contention in Point I.C. of

assigned      counsel's   brief     and    Point      I     of     defendant's    pro   se

supplemental brief that he is entitled to IAC relief based on

Bergrin's illegal and unethical advice to tamper with witnesses.

       There is no doubt that defendant tampered with witnesses,

but there is no competent evidence that Bergrin was directly or

indirectly involved.           Even if Bergrin was involved, defendant is

not entitled to IAC relief when he participated in the illegal

conduct or acquiesced in that conduct.

       The notion that a defendant could successfully raise an IAC

claim when he engaged in illegal conduct in collusion with his

attorney or acquiesced in the attorney's illegal conduct has not

been squarely addressed by our courts.                      By way of analogy, our

Supreme Court has denied IAC relief to a defendant who claimed

that    but    for     trial    counsel's       deficient           advice    concerning

sentencing consequences, and even though he was not guilty, he

would   have    pled    guilty    rather       than    go     to    trial.      State   v.

Taccetta, 200 N.J. 183, 192 (2009).                    The Court noted that "an

attorney would be engaged in professional misconduct if he or




                                          16                                     A-4965-13T1
she knowingly assisted a client to perpetrate a fraud on the

court by assisting or encouraging a client to lie under oath."

Id. at 196.         In denying IAC relief, the Court concluded as

follows:

                 If a trial court cannot accept a guilty
            plea that is known to be false, then it
            would be strange indeed for a PCR court to
            vacate a jury verdict following a fair trial
            on the ground that [the] defendant would
            have taken an advantageous plea offer with a
            limited sentence exposure if only he had
            been given the opportunity to lie under
            oath. A court cannot give its imprimatur to
            perjury or in any way suggest that the
            requirement of a truthful factual basis at a
            plea colloquy is an empty formality.

            [Id. at 197.]

As the Court further noted, "[j]ust because we are powerless to

control or eliminate every negative practice in our criminal

justice    system    does   not       mean    that     we     must    condone     those

practices."      Id. at 198.

    Other jurisdictions have addressed the issue of a defendant

engaging    or    acquiescing    in    illegal       conduct    and    afforded       the

defendant no IAC relief.           For example, in Arnett v. State, 938

P.2d 1079 (Alaska Ct. App. 1997), the defendant claimed that

trial     counsel    rendered      ineffective        assistance      by    illegally

advising    him     to   abscond      from    trial     and     assisting       him    in

absconding.       Id. at 1082.        The Court of Appeals of Alaska held




                                         17                                  A-4965-13T1
the    defendant      was   not    entitled         to     IAC    relief,    reasoning     as

follows:

               We have no doubt that a lawyer who counsels
               a client to commit a crime for tactical gain
               acts incompetently.    But by the same token,
               this form of advice falls so far beyond the
               pale of anything that could conceivably be
               considered legitimate legal assistance that
               a defendant's voluntary reliance on it is
               tantamount to a willing abandonment of
               competent representation.      A defendant who
               voluntarily commits a crime on advice of
               counsel ought not to be allowed to impute
               blame to the attorney or to claim prejudice
               stemming from the attorney's incompetence;
               for   in   almost    all    such   cases,   the
               defendant's own voluntary acts will be a
               superseding    cause     of    any    resulting
               misfortune.

               [Id. at 1083.]

The    court      concluded      that,   even       assuming       there    was   attorney-

client collusion, "[t]o grant relief in this case would permit

[the defendant] to reap a windfall new trial on account of his

own [crime].         We cannot allow this tempting gambit for counsel

and client.         In the circumstances alleged by [the defendant],

[the defendant] must remain responsible for his own misconduct."

Ibid. (third alteration in original) (citations omitted).

       In DeHaven v. State, 618 So.2d 337 (Fla. Dist. Ct. App.

1993),      the     defendant      claimed          that    he     presented      differing

versions of the victim's shooting to trial counsel and counsel

said   he    preferred      to    use    the    version          more   favorable   to    the




                                               18                                   A-4965-13T1
defendant.      Id. at 339.      The Florida District Court of Appeals

stated that whether or not the defendant's IAC claim was true,

            [t]his motion does not present the picture
            of   a    hapless   defendant   whose   lawyer
            knowingly or negligently ignored available
            evidence in favor of a less viable defense,
            nor    of   an    unsophisticated   individual
            deceived by an overzealous or unscrupulous
            advocate.     It is an admission of having
            knowingly perpetrated a fraud upon the
            court.    Even if it were true that counsel
            joined in or encouraged such misconduct -
            and    we   have    only   [the   defendant's]
            allegation this occurred - this might be a
            matter for the Florida Bar, but would not
            require    vacation   of   [the   defendant's]
            conviction.

            [Id. at 339-340.]

    In Commonwealth v. McNeil, 487 A.2d 802, 807 (Pa. 1985),

the defendant claimed that trial counsel advised him to render

perjured    testimony.     Id.    at   616-17.         Finding    the   defendant

freely    and   deliberately   chose    to     offer    false    testimony,     the

Supreme    Court   of   Pennsylvania        held   that   IAC    relief   is    not

available to a defendant who "attempts to reap a windfall new

trial on account of his own perjury".                Id. at 618.        The court

reasoned as follows:

            [t]he criminal justice system cannot and
            will not tolerate such an obvious and
            flagrant affront to the integrity of the
            truth determining process thinly disguised
            under the rubric of ineffective assistance.
            . . . [T]o hold otherwise would create a
            situation wherein a defendant, by design,
            could   build into  his   case  ineffective



                                       19                                 A-4965-13T1
           assistance    of   counsel    claims,   thus
           guaranteeing himself a basis for a new trial
           if the verdict were adverse to him.

           [Id. at 618-19 (citation omitted).]

      In Kelley v. State, 644 S.W. 2d 571, 573 (Tex. Ct. App.

1982),   defense     counsel   attempted       to     dispose   of     evidence.

Though describing counsel's action as "reprehensible," the Court

of Appeals of Texas denied IAC relief to the defendant, finding

that he acquiesced in the tactic.          Id. at 574.

      Guided by the above principles, we hold that a defendant

who   participates    in   illegal   conduct         in   collusion    with     his

attorney or acquiesces in the attorney's illegal or unethical

conduct is not entitled IAC relief.             We will not tolerate what

amounts to a fraud on the court, and will not permit a defendant

who   participates   or    acquiesces     in   his    attorney's      illegal   or

unethical conduct to reap any benefit of IAC relief.                     To hold

otherwise would impermissibly permit a defendant to build an IAC

claim into his case, thus guaranteeing him a basis for reversal

of an adverse verdict.

      Affirmed.




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