                        NOT FOR PUBLICATION WITHOUT THE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-3488-15T2


STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

JUAN ROSARIO,

        Defendant-Appellant.

________________________________________

              Submitted April 27, 2017 – Decided July 27, 2017

              Before Judges Hoffman and O'Connor.

              On appeal from Superior Court of New Jersey,
              Law Division, Bergen County, Indictment No.
              09-03-0548.

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

              Grubir S. Grewal, Bergen County Prosecutor,
              attorney for respondent (Catherine A.
              Foddai, Senior Assistant Prosecutor, of
              counsel and on the brief).

PER CURIAM
    Defendant appeals from a November 30, 2015 order denying

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

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

    In 2008, a jury convicted defendant of reckless

manslaughter, kidnapping, and other offenses.    We refer to this

matter as the "first trial."   Assistant prosecutor Catherine

Fantuzzi prosecuted defendant.   During the trial, the State

called Ernesto Vargas as a witness.     While in court and on the

record, defendant threatened to kill Fantuzzi, Vargas, and

Vargas's mother and child.   Vargas and Fantuzzi were present

when defendant made his threats against each.

    As a result of his threats, defendant was charged in the

instant matter with various offenses.     In 2012, a jury convicted

him of third-degree terroristic threats against Fantuzzi,

N.J.S.A. 2C:12-3(a); two counts of fourth-degree harassment of

Fantuzzi, N.J.S.A. 2C:33-4; and fourth-degree harassment of

Vargas, his mother and child, N.J.S.A. 2C:33-4.     We refer to

this trial as the "second trial."     As a result of the

convictions arising out of the second trial, defendant was

sentenced in the aggregate to an extended ten-year term of

imprisonment, with a five-year period of parole ineligibility.

    Defendant appealed and we affirmed his convictions and

sentence.   See State v. Rosario, No. A-0487-12 (App. Div. July

                                 2                         A-3488-15T2
22, 2014).   The Supreme Court denied his petition for

certification.   State v. Rosario, 220 N.J. 208 (2015).

    In his direct appeal of the convictions arising out of the

second trial, among other things, defendant contended the

assistant prosecutor made prejudicial comments during her

summation that warranted reversal.   Specifically, in one portion

of her summation, the assistant prosecutor addressed defendant's

threats to kill, stating:

         The defendant made his purpose known loud
         and clear again and again and again because
         he made it known persistently that he was
         going to kill Assistant Prosecutor Catherine
         Fantuzzi, and yes, defendant or co-defendant
         Ernesto Vargas and even his mother and
         child. He let it be known that he was
         willing to do anything, even stand up and
         shout out his evil intent in a court of law
         surrounded by uniformed officers.

         That brazen act, those brazen acts tell you
         how purposeful his conduct was. Because of
         his position as a Latin King he was trying
         to extend the territorial boundaries of the
         Latin King Nation into this court of law,
         this court of law that is in the State of
         New Jersey, in the United States of America.
         This is not the Latin King Nation.[1]


1
   It was not disputed defendant was a high-ranking member of
the Latin Kings. During the second trial, Fantuzzi testified
that, in her experience prosecuting gangs and conferring with
the State's expert on gangs, she has learned someone of
defendant's rank in this organization is capable of ordering
another member of the Latin Kings to hurt her even though
defendant is in prison. She believed the immediacy of
defendant's threats because he could issue an order from prison

                                3                         A-3488-15T2
    Defendant argued these comments denied him a fair trial.

We disagreed, determining the assistant prosecutor's comments

were not only based upon the evidence, but also the evidence

defendant made the subject threats was unrefuted.   We concluded

these comments neither prejudiced nor deprived defendant of a

fair trial.   See State v. Michaels, 264 N.J. Super. 579, 636

(1993), aff'd o.b., 136 N.J. 299 (1994) (citing Darden v.

Wainwright, 477 U.S. 168, 181, 106 S. Ct. 2464, 2471, 91 L. Ed.

2d 144, 157 (1986)).   In addition, we noted defendant did not

object to these comments at the time of trial.

    Defendant also claimed on direct appeal the following from

the assistant prosecutor's summation wrongfully urged the jury

to convict defendant out of a duty to society:

         [A]ll that is necessary for evil to triumph
         is for good people to do nothing. Catherine
         Fantuzzi is a good person and she refused to
         let evil triumph.

         . . . .

         And I know that the duty you have is a
         serious one and I would say we have proven
         our case. We have done our job and now I
         ask that you do yours and find this
         defendant guilty of each and every count in
         the indictment.

We disagreed with this contention, as well.


at any time and, thus, there was a likelihood the threats would
be carried out.

                                4                        A-3488-15T2
     The statements in the first paragraph were delivered at the

outset of the summation.      This paragraph refers to testimony

Fantuzzi rendered about her unwillingness to turn the case over

to another assistant prosecutor after defendant threatened to

kill her, just before the first trial.      Fantuzzi stated she did

not want to transfer the file to another because she knew the

file so thoroughly, and did not wish to expose another to

defendant's threats.

     The comments in the second paragraph did not follow and

were unrelated to those given in the first.      The contents of the

second paragraph were delivered at the conclusion of the

summation, and were not an admonishment the jury convict

defendant as part of its societal duty.      Finally, we noted

defendant failed to object to the comments contained in either

paragraph at the time of trial.

     With respect to the evidence defendant threatened to kill

Fantuzzi before the first trial, when considering the

admissibility of this "other crime" evidence during the second

trial, the court analyzed N.J.R.E. 404(b) and the four factors

set forth in State v. Cofield, 127 N.J. 328, 338 (1992).2        The


2
    These four factors are:

          1. The evidence of the other crime must be
          admissible as relevant to a material issue;

                                   5                        A-3488-15T2
trial court found the prior threats admissible, and provided a

limiting instruction after the admission of such evidence.     Id.

at 340-42.

    On appeal, defendant contended the trial court erred by

admitting the pretrial threats and claimed its limiting

instruction was inadequate.   We rejected these arguments,

finding the trial court did not abuse its discretion, see State

v. Castagna, 400 N.J. Super. 164, 182-83 (App. Div. 2008),

certif. denied, 217 N.J. 286 (2014), by admitting this evidence,

and further determined the limiting instruction was adequate.

We also noted the defense attorney had not objected to the

limiting instruction during the trial.

    In 2015, defendant filed a petition for post-conviction

relief as a self-represented litigant; a brief and amended

petition were subsequently submitted on his behalf by counsel.

On November 30, 2015, the PCR court entered an order denying

defendant's petition without an evidentiary hearing.




         2. It must be similar in kind and reasonably
         close in time to the offense charged;

         3. The evidence of the other crime must be
         clear and convincing; and

         4. The probative value of the evidence must
         not be outweighed by its apparent prejudice.

                                6                         A-3488-15T2
    Defendant     presents   the       following   arguments   for    our

consideration in his appeal:

         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 ADEQUATE LEGAL
         REPRESENTATION AT THE TRIAL LEVEL.

                A. The Prevailing Legal Principles
                Regarding Claims Of Ineffective
                Assistance Of Counsel, Evidentiary
                Hearings And Petitions For Post
                Conviction Relief.

                B. The Defendant Did Not Receive
                Adequate Legal Representation From
                Trial Counsel As A Result Of Counsel's
                Failure To Object To Several Improper
                And Prejudicial Comments Made By The
                Prosecutor During Her Summation.

                C. The Defendant Did Not Receive
                Adequate Legal Representation From
                Trial Counsel As A Result Of Counsel's
                Failure To Object To The Trial Court's
                Limiting Instruction To The Jury
                Regarding The Testimony Deemed
                Admissible Pursuant To N.J.R.E. 404(b).

    Defendant's principal contention is counsel was ineffective

for failing to object to: (1) the subject comments made by the

assistant prosecutor during her summation and (2) the limiting

instruction.    Defendant argues counsel's omissions were pivotal

to our conclusion neither the comments nor the limiting

instruction warranted reversal.        We are not persuaded by these

arguments and affirm.

                                   7                           A-3488-15T2
    The standard for determining whether counsel's performance

was ineffective for purposes of the Sixth Amendment was

formulated in Strickland v. Washington, 466 U.S. 668, 104 S. Ct.

2052, 80 L. Ed. 2d 674 (1984), and adopted by our Supreme Court

in State v. Fritz, 105 N.J. 42 (1987).   In order 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 that were 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, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L.

Ed. 2d at 698.

    Although there is no question trial counsel failed to

object to the prosecutor's comments during summation and the

subject limiting instruction, the outcome on appeal would have

been the same even if counsel had done so.   There were grounds

to reject defendant's argument reversal was warranted that were

unrelated to and independent of counsel's failure to object to

the prosecutor's comments and the limiting instruction.

                               8                          A-3488-15T2
    As we observed with respect to the statements addressing

defendant's threats to kill, the comments were based upon the

evidence and were not inappropriate.    The other comments did not

improperly suggest to the jury it had a duty to society to

convict defendant.    We examined the limiting instruction

pertaining to the admission of the pretrial threat pursuant to

N.J.R.E. 404(b) and found it adequate under the case law.

    We have considered defendant's remaining arguments and

conclude they either could have been raised on direct appeal,

Rule 3:22-4(a), or were previously decided on direct appeal.

See Rule 3:22-5.     In the final analysis, defendant failed to

make a prima facie showing of ineffectiveness of trial counsel

within the Strickland-Fritz test.     Accordingly, the PCR court

correctly concluded that an evidentiary hearing was not

warranted.   See State v. Preciose, 129 N.J. 451, 462-63 (1992).

    Affirmed.




                                  9                          A-3488-15T2
