                                NOT FOR PUBLICATION WITHOUT THE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-1589-17T2

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

MANUEL E. CONCEPCION,
a/k/a MANNY CONCEPCION,
MANNY E. CONCEPCION, and
MANUEL E. CONCEPCION, JR.,

     Defendant-Appellant.
______________________________

                    Submitted October 16, 2018 – Decided November 26, 2018

                    Before Judges Yannotti and Natali.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Atlantic County, Indictment No. 12-02-0408.

                    Joseph E. Krakora, Public Defender, attorney for
                    appellant (Monique D. Moyse, Designated Counsel, on
                    the brief).

                    Damon G. Tyner, Atlantic County Prosecutor, attorney
                    for respondent (John J. Santoliquido, Assistant
                    Prosecutor, of counsel and on the brief).
            Appellant filed a pro se supplemental brief.

PER CURIAM

      Defendant Manuel E. Concepcion appeals from an August 23, 2017 order

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

hearing. We affirm.

                                       I.

      On September 21, 2011, defendant was indicted on a charge of possession

of cocaine, N.J.S.A. 2C:35–10(a)(1). Defendant was indicted again on February

15, 2012, on charges of first-degree murder, N.J.S.A. 2C:11–3(a)(1), third-

degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39–4(d),

and fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39–5(d) (2012

indictment). Tried by a jury, defendant was acquitted of murder but convicted

of the lesser included offense of aggravated manslaughter and the two weapons

offenses.   Defendant subsequently pled guilty to the possession of cocaine

charge and was sentenced to an aggregate forty-year custodial sentence, with an

eighty-five-percent period of parole ineligibility pursuant to the No Early

Release Act, N.J.S.A. 2C:43-7.2.

      We affirmed defendant's convictions and sentence in an unpublished

opinion. State v. Concepcion, No. A-3884-13 (App. Div. Jan. 5, 2016). The


                                                                       A-1589-17T2
                                       2
Supreme Court denied defendant's petition for certification.             State v.

Concepcion, 225 N.J. 339 (2016).

      The facts underlying defendant's convictions are detailed in our

unpublished opinion. We briefly recount those facts to provide context for our

decision.

      Ignacio Castro met Megan Cassidy, a prostitute, and solicited her services.

The two engaged in an argument and Castro slapped Cassidy. An individual

known to Cassidy as "Boo" asked her what occurred. Shortly thereafter, Boo

and a number of other individuals, including defendant and Michael Jones,

approached and confronted Castro. That confrontation turned violent as Cassidy

testified that Boo, Jones, and defendant each struck Castro in the chest. Castro

began bleeding, staggered away and ultimately died as a result of a stab wound

to his chest.

      At the trial of the 2012 indictment, defendant testified but called no other

witnesses. He testified that he made money by hustling, dealing drugs and

cutting hair. Cassidy gave him the money she earned as a prostitute, and, in

return, he provided her with food, shelter and drugs. On the day of the stabbing,

defendant testified he saw a commotion on the street, and was told that Castro




                                                                          A-1589-17T2
                                        3
had not paid Cassidy and had hit her. Defendant admitted that he struck Castro,

but denied stabbing him.

      A number of witnesses provided statements inculpating defendant. Three

of those witnesses, Cassidy, Jones, and Alexis Campbell, recanted those

statements prior to trial.

      Despite Cassidy's and Campbell's recantations, the State played their

original, audiotaped statements to the jury. The State also played an audiotaped

statement of Willy Henderson, Jr. Jones did not testify at trial.

       In Cassidy's original, taped statement to the police, she said defendant

admitted to her that he stabbed Castro with scissors, cut his hand and broke the

scissors in the process. Campbell's taped statement also included an admission

by defendant that he stabbed a man who was arguing with Cassidy over money.

Henderson's taped statement included a similar admission by defendant and

defendant's request that Henderson recover the broken scissors from the scene.

      On June 15, 2016, defendant filed a pro se PCR petition which he

supplemented by appointed PCR counsel's brief and two witness statements of

Heather Reynolds, dated May 8, 2017 and June 20, 2017.              Defendant also

submitted to the PCR court the recanted statements from Cassidy, Jones, and

Campbell.


                                                                           A-1589-17T2
                                        4
      Before the PCR court, defendant maintained his trial counsel was

ineffective in "fail[ing] to investigate and call favorable witnesses Michael

Jones and Aspen Baker who would have testified that [he] was not guilty of the

charges." In his May 11, 2017 brief to the PCR court, PCR counsel added that

"[a]side from the three exculpatory statements" from Cassidy, Jones, and

Campbell, which "defendant himself . . . obtain[ed], defense counsel is not

known to have conducted any additional investigations, sought interviews of the

other identified eye witnesses or sought out other individuals who were present

for the incident and could provide exculpatory information not tainted by a prior

statement to the police."

      PCR counsel also claimed that trial counsel's representation of defendant

was constitutionally deficient because counsel failed to object at trial to the

hearsay testimony of Detective Paul Micheletti that Jones provided a statement

admitting to hitting Castro in the face. Detective Micheletti further testified that

Jones was not charged with the murder because he committed a disorderly

person's offense of simple assault. According to defendant, that testimony had

the effect of improperly "bolstering the credibility of crucial State witnesses"

and "highly damaged and unequivocally prejudiced [defendant]" as it told the

jury that Jones was not responsible for the offense and undermined defendant's


                                                                            A-1589-17T2
                                         5
claim that Jones stabbed the victim. Finally, PCR counsel maintained appellate

counsel was ineffective for failing to raise the improper admission of Detective

Micheletti's hearsay testimony.

      Judge Michael J. Blee denied defendant's petition for reasons detailed in

a comprehensive written decision.       He concluded that defendant failed to

establish that he was prejudiced by trial counsel's alleged failure to investigate

and call Reynolds, Cassidy, Jones and Campbell as trial witnesses and,

therefore, did not satisfy the second prong of the two-part test for ineffective

assistance of counsel detailed in Strickland v. Washington, 466 U.S. 668 (1984)

and adopted by our Supreme Court in State v. Fritz, 105 N.J. 42 (1987). Judge

Blee determined that as to Carter and Baker, defendant failed to support his

petition with a statement or affidavit from either witness or a description of their

proposed testimony. Finally, he concluded that trial counsel's failure to object

to Detective Micheletti's testimony would not have affected the trial outcome

and denied defendant's request for an evidentiary hearing.

      Defendant appeals, arguing:

            POINT I

            MR. CONCEPCION IS ENTITLED TO AN
            EVIDENTIARY HEARING ON HIS CLAIM THAT
            HIS ATTORNEY RENDERED INEFFECTIVE
            ASSISTANCE OF COUNSEL BY FAILING TO

                                                                            A-1589-17T2
                                         6
           INVESTIGATE AND PRESENT WITNESSES AND
           FAILING TO OBJECT TO HEARSAY TESTIMONY
           THAT     VIOLATED     HIS  RIGHT    TO
           CONFRONTATION AND UNDERMINED HIS
           DEFENSE.

      Defendant filed a pro se reply brief in which he raised the following

points:

           POINT I

           PCR COUNSEL WAS INEFFECTIVE FOR NOT
           FULLY ADVISING PETITIONER OF THE
           DOWNFALLS OF NOT ATTENDING HIS PETITION
           AND PETITIONER DID NOT FULLY AND
           INTELLIGENTLY WAIVE HIS APPEARANCE FOR
           HIS PCR HEARING.

           POINT II

           PCR COURT ERRED BY DENYING PETITIONER A
           FULL HEARING IN ACCORDANCE WITH
           CUMMINGS TO HEAR TESTIMONY FROM
           WITNESSES AND PETITIONER TO ADDRESS
           ISSUES OUTSIDE OF THE RECORD.

           POINT III

           TRIAL COUNSEL WAS INEFFECTIVE FOR
           FAIL[ING] TO OBJECT TO JUDGE'S REMARKS OF
           PETITIONER BEING [A] PIMP.




                                                                    A-1589-17T2
                                     7
            POINT IV

            TRIAL COUNSEL FAILED TO OBJECT [TO] THE
            PROSECUTOR'S        ERROR        AFTER
            MISINTERPETING WHAT WAS SAID BY
            PETITIONER AND REQUEST A CURATIVE
            INSTRUCTION.

            POINT V

            TRIAL COUNSEL WAS INEFFECTIVE FOR
            FAILING TO ADDRESS THE ISSUE THAT MS.
            CASSIDY   WAS   INTOXICAT[ED]  DURING
            INTERROGATION AND THAT SHE RECEIVED
            HELP   WITH   HER   AFFIDAVIT   WHILE
            INCARCERATED.

       We find no merit in these arguments and affirm substantially for the

reasons stated in Judge Blee's written opinion. We add the following comments.

                                        II.

       Because defendant's PCR petition is predicated on his claim that trial

counsel was ineffective, he must satisfy the two-part test pronounced in

Strickland by demonstrating that "counsel's performance was deficient," that is,

"that counsel made errors so serious that counsel was not functioning as the

'counsel' guaranteed the defendant by the Sixth Amendment." Strickland, 466

U.S. at 687; see also Fritz, 105 N.J. at 58. The first prong requires a showing

that   "counsel's   representation   fell       below   an   objective   standard    of

reasonableness." Strickland, 466 U.S. at 688. It is the defendant's burden to

                                                                              A-1589-17T2
                                            8
prove, by a preponderance of the evidence, that counsel's decisions about trial

strategy were not within the broad spectrum of competent legal representation.

See Fritz, 105 N.J. at 52.

      Under the second prong, a defendant must demonstrate that his counsel's

errors prejudiced the defense to the extent that the defendant was deprived of a

fair and reliable trial outcome. Strickland, 466 U.S. at 687. To prove this

element, a defendant must demonstrate "a reasonable probability that, but for

counsel's unprofessional errors, the result of the proceeding would have been

different." Id. at 694.

      Applying the Strickand/Fritz test to defendant's claim that trial counsel

failed to investigate and present witnesses at trial, we agree with the PCR court

that defendant failed to establish that it was reasonably probable that but for trial

counsel's alleged ineffective representation, there would have been a different

outcome at trial. We address each witness separately.

      In her May 18, 2017 statement, Reynolds indicated that while standing

across the street, she witnessed defendant, Jones, and Cassidy engaged in a

verbal dispute with a "Mexican" individual while someone she knew as Castro

stood by. She claimed that defendant and Jones attacked the Mexican male "who

. . . had both of his hands up in a defensive position." She also stated defendant


                                                                             A-1589-17T2
                                         9
"sw[u]ng upward and str[uck] [the] 'Mexican male' in the upper part of his face

or chest" at least once. She recounted that defendant then walked toward her,

upset, yelling, and "waiving his hands," but Reynolds claimed she did not see

anything in his hands. In her June 20, 2017 statement, Reynolds said Cassidy

told her "she was threatened by the police," and that the police "told [Cassidy]

what to say."

      We agree with the PCR court that in light of the overwhelming evidence

of defendant's guilt, any failure to call Reynolds as a trial witness did not

prejudice defendant.   The State called nineteen witness at trial and played

multiple audiotapes of witnesses recounting defendant's admissions that he

stabbed the victim with scissors.    Further, despite denying that he stabbed

Castro, defendant admitted at trial that he did in fact strike him. Thus, the PCR

court correctly concluded that "the quantum and quality of the evidence"

indicative of defendant's guilt was "overwhelming" and rendered Reynolds'

statements "inconsequential" to the trial's outcome.

      With respect to Cassidy and Campbell, both witnesses testified at trial and

were subject to cross-examination where trial counsel elicited the substance of

their recantations. Defendant has failed to identify specifically what additional




                                                                         A-1589-17T2
                                      10
pre-trial investigation counsel should have performed or how it would have

affected Cassidy's or Campbell's trial testimony.

      As to Jones, the record reflects that trial counsel requested that an

investigator locate and interview him before trial. Jones could not be found and

the State did not introduce his pre-trial statement. Thus, there is no merit to

defendant's claim that trial counsel was ineffective or that defendant was in any

way prejudiced by trial counsel's failure to interview or call a witness that

counsel was not able to locate and who did not testify at trial.

      With respect to Edwin and Baker, defendant failed to submit an affidavit

or statement from either witness that described the purported exculpatory

information these witnesses possessed. Thus, defendant's claim that trial counsel

should have interviewed and called them, or any other unidentified witness, at

trial is nothing more than a "bald assertion[]" and insufficient to warrant relief.

See State v. Porter, 216 N.J. 343, 355 (2013) (quoting State v. Cummings, 321

N.J. Super. 154, 170 (App. Div. 1999)); see also R. 3:22-10(c).

                                       III.

      We also agree with the PCR court that trial counsel's failure to object to

the admission of Detective Micheletti's hearsay testimony did not affect the

trial's outcome. As the PCR court explained, trial counsel "chose a trial strategy


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                                       11
in which he argued that it was someone else involved in the altercation that

delivered the fatal stab wound to the victim." Judge Blee acknowledged that

Detective Micheletti's response was inadmissible hearsay but rather than h arm

defendant's case, the testimony actually "strengthened the [d]efendant's theory

. . . that it was someone else, and possibly Michael Jones, who stabbed the

victim."

      We similarly find no merit to defendant's claim that appellate counsel was

ineffective for failing to raise Detective Micheletti's testimony on direct appeal

as an appellate counsel is not ineffective for failing to raise every issue

imaginable. State v. Gaither, 396 N.J. Super. 508, 515 (App. Div. 2007) (citing

Jones v. Barnes, 463 U.S. 745, 753-54 (1983)). Rather, appellate counsel is

afforded the discretion to construct and present what he or she deems are the

most effective arguments in support of the client's position. Id. at 516. Here, in

light of the overwhelming evidence unrelated to Detective Micheletti's

testimony establishing defendant's guilt, including his admissions to multiple

individuals, appellate counsel's representation was not deficient for failing to

raise an issue that was unlikely to affect the outcome of the appeal.




                                                                          A-1589-17T2
                                       12
                                       IV.

      There was no need for an evidentiary hearing on the PCR petition because

defendant failed to establish a prima facie basis for relief. See Porter, 216 N.J.

at 357. The PCR judge was within his discretion in denying a hearing. See State

v. Brewster, 429 N.J. Super. 387, 401 (App. Div. 2013) ("[W]e revie under the

abuse of discretion standard the PCR court's determination to proceed without

an evidentiary hearing." (citing State v. Marshall, 148 N.J. 89, 157-58 (1997))).

                                       V.

      Finally, we reject the arguments raised in defendant's pro se brief. With

respect to point I, the PCR judge determined after executing a writ for

defendant's appearance, that "defendant made a knowing waiver" because he

declined to appear "and indicated a desire to allow [his PCR counsel] to present

argument in his absence." Further, it is clear from the record that Judge Blee

considered all of defendant's arguments and his non-appearance at oral argument

had no effect on the PCR court's decision.

      For the reasons expressed in section IV, the trial court correctly rejected

defendant's claim that an evidentiary hearing was necessary. With respect to the

arguments raised in points III-V, defendant did not raise those issues before the




                                                                          A-1589-17T2
                                       13
PCR court. In any event, our review of the record confirms that defendant's

arguments fail to satisfy either prong of the Strickland/Fritz test.

      To the extent not addressed, defendant's remaining arguments lack

sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

      Affirmed.




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                                       14
