                        NOT FOR PUBLICATION WITHOUT THE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-4313-15T1

STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

DAVID FERNANDEZ,

     Defendant-Appellant.
___________________________

              Submitted May 17, 2017 – Decided July 7, 2017

              Before Judges Simonelli and Farrington.

              On appeal from the Superior Court of New
              Jersey, Law Division, Essex County, Indictment
              No. 08-09-2742.

              Joseph E. Krakora, Public Defender, attorney
              for appellant (Steven M. Gilson, Designated
              Counsel, on the brief).

              Carolyn A. Murray, Acting Essex County
              Prosecutor, attorney for respondent (Kayla
              Elizabeth Rowe, Special Deputy Attorney
              General/Acting   Assistant Prosecutor,  of
              counsel and on the brief).
PER CURIAM

     Defendant David Fernandez appeals from the April 11, 2016 Law

Division order, which denied his motion for post-conviction relief

(PCR) without an evidentiary hearing.           We affirm.

     Following a jury trial, defendant was convicted of first-

degree    attempted   murder   of    Mr.    Ocasio,1   N.J.S.A.    2C:5-1    and

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

N.J.S.A.     2C:11-3(a)(1)     and    (2)     (count     two);    third-degree

possession of a weapon without a permit, N.J.S.A. 2C:39-5(b) (count

three); and second-degree possession of a weapon for an unlawful

purpose,   N.J.S.A.   2C:39-4(a)     (count     four).     Defendant's      sole

theory was that he acted in self-defense and in defense of a

friend.

     Defendant filed a motion for a new trial, arguing, in part,

that trial counsel rendered ineffective assistance by failing to

ensure his participation in sidebar conferences.             The trial judge

denied the motion, finding defendant utilized a wireless listening

device that allowed him to listen to all sidebar conferences from

the voir dire process through the verdict.             The judge found that

all in-court conferences occurred in defendant's presence and

within his hearing range, and if he did not hear what was said,


1
   The court elected to use only Ocasio's last name to provide
some privacy to the victim.

                                      2                                A-4313-15T1
he   had    ample    opportunity      to       ask       trial       counsel   to   relay       the

substance of the conferences to him.

       At sentencing, after merging count four into count two, the

judge      sentenced   defendant      as       follows:          a    thirty-year        term    of

imprisonment on count two with a thirty-year period of parole

ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A.

2C:43-7.2,      on     count   two;        a       consecutive          ten-year     term        of

imprisonment subject to NERA on count one; and a concurrent three-

year    term   of    imprisonment      with          a    one-year       period     of    parole

ineligibility pursuant to the Graves Act, N.J.S.A. 2C:43-6, on

count three.

       Defendant appealed his conviction and sentence.                              He argued,

in part, that the trial court should have sua sponte declared a

mistrial due to the misconduct of Juror No. 2 during voir dire

and deliberations. He also argued that his exclusion from sidebar

conferences and trial counsel's failure to confer with him about

sidebar conferences mandated reversal.                           He further argued that

trial counsel rendered ineffective assistance by failing to confer

with him about sidebar conferences and seek a full voir dire of

the jury and a mistrial based on Juror No. 2's misconduct.

       We affirmed defendant's conviction and sentence.                              State v.

Fernandez, No. A-0573-11 (App. Div. Aug. 8, 2014).                                   Regarding



                                               3                                         A-4313-15T1
Juror No. 2's alleged misconduct during voir dire, we found as

follows, in pertinent part:

              Despite the presumption that a juror's
         omission of information during voir dire is
         prejudicial, a defendant is required "to
         demonstrate that, had he or she known of the
         omitted information, he or she would have
         exercised a peremptory challenge to exclude
         the juror." State v. Cooper, 151 N.J. 326,
         349, (1997), cert. denied, 528 U.S. 1084, 120
         S. Ct. 809, 145 L. Ed. 2d 681 (2000). . . .


              Other than [defendant's] bald assertions
         that "there is no question that he would have
         excluded" Juror No. 2, defendant made no
         affirmative showing that he would have
         challenged her for cause or through a
         peremptory challenge.    In fact, the record
         supports the opposition conclusion.     During
         jury selection and jury deliberations, the
         juror clearly expressed views favorable to
         defendant, and even after learning of the
         omission, defendant did not request the
         juror's removal or a mistrial. In addition,
         defendant did not challenge three other
         empaneled jurors who had revealed during jury
         selection that they were victims of violent
         crimes, or had family members who were victims
         of violent crimes or accused of crimes. We,
         thus, conclude that no error occurred with
         respect to Juror No. 2.

         [Id. (slip op. at 15-16).]

Regarding Juror No. 2's alleged misconduct during deliberations,

we found as follows, in pertinent part:

         The judge found that Juror No. 2 did not
         express  any   bias  or  prejudice  against
         defendant [during deliberations] but merely
         expressed her general observations based on

                               4                          A-4313-15T1
           her own experiences. We find no fault with
           the judge's determination.

                . . . .

                In compliance with [State v. R.D., 169
           N.J. 551, 557 (2001)], as explained in Rule
           1:16-1, the judge questioned Juror No. 2 to
           determine if there was taint and correctly
           determined she had not been exposed to
           extraneous information or outside influence
           that could have possibly impinged on her
           impartiality. We are satisfied that Juror No.
           2 did not prematurely form an unalterable
           opinion of the defendant's guilt, nor was she
           swayed by any outside influences prejudicial
           to defendant.    To the contrary, the juror
           clearly    expressed   views    favorable   to
           defendant, including the view she expressed
           to her fellow jurors during deliberations that
           they must put aside personal experiences, be
           objective and reasonable, and consider all the
           evidence.

           [Id. (slip op. at 11, 14).]

We determined there was no reason to voir dire the other jurors

or declare a mistrial.    Ibid.

    We declined to consider defendant's ineffective assistance

of counsel arguments, preserving them for a PCR petition.        Id.

(slip op. at 4) (citing State v. Castagna, 187 N.J. 293, 313

(2006)).   However, we considered his argument that his exclusion

from sidebar conferences mandated reversal in light of the record

and applicable legal principles and concluded it was without

sufficient merit warrant discussion in a written opinion.        Id.



                                  5                         A-4313-15T1
(slip op. at 19-20) (citing R. 2:11-30(e)(2)).          We added the

following comments:

                Defendant did not affirmatively request
           the right to participate in voir dire sidebar
           conferences. To the contrary, he specifically
           waived his right to personally participate in
           those conferences.   Because the right to be
           present is waivable, defendant was not
           deprived of a fair trial as a result of his
           absences   from   the   voir   dire    sidebar
           conferences.   In addition, there is nothing
           in the record indicating that defendant did
           not   knowingly   and   intelligently    waive
           participation in sidebar proceedings. There
           were numerous sidebar conferences throughout
           the fifteen-day trial, and defendant never
           personally objected or requested to be present
           at them. Accordingly, defendant's exclusion
           from sidebar conferences does not mandate
           reversal of his convictions.

           [Id. (slip op. at 20.]

Our Supreme Court denied certification.         State v. Fernandez,

certif. denied, 220 N.J. 572 (2015).

     Defendant thereafter filed a PCR petition, arguing that trial

counsel   rendered   ineffective   assistance   by   failing   to:   (1)

investigate and obtain exculpatory witnesses in support of his

self-defense theory; (2) inform him after his conviction about

Juror No. 2's misconduct during voir dire and deliberations; (3)

confer with him about sidebar conferences; (4) seek a voir dire

of the other deliberating jurors or a mistrial; and (5) convey the

State's plea offer.


                                   6                            A-4313-15T1
     In an oral opinion, the PCR judge denied the petition without

an evidentiary hearing.          The PCR judge found, incorrectly, that

defendant's claims were procedurally barred by Rule 3:22-12(a)(1)

and Rule 3:22-5.      However, as the State concedes, defendant timely

filed    his   PCR   petition.     In   addition,    we     did   not   determine

defendant's ineffective assistance of counsel claim on the merits

in the prior appeal.        See State v. McQuaid, 147 N.J. 464, 484

(1997) (barring re-litigation of an issue that was determined on

the merits in a prior appeal).              Rather, we preserved that claim

for a PCR petition.

     The PCR judge also found defendant's claim that trial counsel

failed    to    confer   with     him   about     sidebar     conferences      was

procedurally barred by Rule 3:22-4(a)(1), as the trial judge

decided this issue on the merits following defendant's motion for

a new trial.

     Addressing the merits of defendant's claims, the PCR judge

found defendant did not assert any specific facts regarding whom

he would have called, what they would have offered, or whether he

asked trial counsel to call witnesses and counsel refused.                     The

PCR judge also found defendant failed to provide certifications

from any witnesses, or a certification from trial counsel that he

had identified and sought to include exculpatory witnesses at

trial.    The PCR judge concluded that without any material support,

                                        7                                 A-4313-15T1
defendant's    claim    that    counsel    failed   to   obtain   exculpatory

witnesses was too vague, conclusory, or speculative to warrant a

hearing.

      The PCR judge determined that defendant's physical presence

at   sidebar   conferences     was   not   an   absolute   requirement,    and

defendant utilized a wireless listening device that allowed him

to listen to all sidebar conferences from the voir dire process

through the verdict.           The PCR judge found that all in-court

conferences    occurred   in    defendant's     presence    and   within   his

hearing range, and defendant did not complain he could not hear

the conferences.        The PCR judge concluded that defendant was

provided the proper means of assessing the sidebar conferences and

had ample opportunity to be present at those conferences.

      The PCR judge relied primarily on our findings in addressing

defendant's claims that trial counsel failed to inform him after

his conviction about Juror No. 2's misconduct during voir dire and

deliberations and seek a voir dire of the other deliberating jurors

or a mistrial.         The PCR judge made no specific findings on

defendant's claim that trial counsel failed to convey the State's

plea offer.    The PCR judge memorialized her decision in an April

11, 2016 order.

      On appeal, defendant raises the following contentions:



                                       8                              A-4313-15T1
   POINT I     DEFENDANT'S PCR PETITION SHOULD NOT HAVE
               BEEN PROCEDURALLY BARRED. (26T 11-10 to
               13-2).

   POINT II    THIS MATTER MUST BE REMANDED FOR AN
               EVIDENTIARY HEARING BECAUSE DEFENDANT
               ESTABLISHED A PRIMA FACIE CASE OF TRIAL
               COUNSEL'S INEFFECTIVENESS.

               A.   Trial Counsel Failed To Conduct
                    An    Adequate   Investigation,
                    Including Obtaining Exculpatory
                    Witnesses.

               B.   Trial Counsel Failed To Convey
                    The   State's Plea   Offer  To
                    Defendant.

               C.   Trial Counsel Failed To Confer
                    With   Defendant    About  The
                    Sidebars, Seek Full Voir Dire,
                    Or Move For A Mistrial.

     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 discern no abuse of discretion here.

     The mere raising of a claim for PCR 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).

Rather, trial courts should grant evidentiary hearings and make a

determination on the merits only if the defendant has presented a

prima facie claim of ineffective assistance, material issues of

disputed fact lie outside the record, and resolution of the issues

necessitates a hearing.     R. 3:22-10(b); State v. Porter, 216 N.J.


                                   9                         A-4313-15T1
343, 355 (2013).   To establish a prima facie claim of ineffective

assistance of counsel, the defendant

          must satisfy two prongs.     First, he must
          demonstrate that counsel made errors so
          serious that counsel was not functioning as
          the counsel guaranteed the defendant by the
          Sixth Amendment. An attorney's representation
          is deficient when it [falls] below an
          objective standard of reasonableness.

               Second, a defendant must show that the
          deficient performance prejudiced the defense.
          A defendant will be prejudiced when counsel's
          errors are sufficiently serious to deny him a
          fair trial. The prejudice standard is met if
          there is a reasonable probability that, but
          for counsel's unprofessional errors, the
          result of the proceeding would have been
          different.   A reasonable probability simply
          means a probability sufficient to undermine
          confidence in the outcome of the proceeding.

          [State v. O'Neil, 219 N.J. 598, 611 (2014)
          (citations omitted).]

     "[I]n order to establish a prima facie claim, [the defendant]

must do more than make bald assertions that he was denied the

effective assistance of counsel.     He must allege facts sufficient

to   demonstrate   counsel's   alleged    substandard   performance."

Cummings, supra, 321 N.J. Super. at 170.         The defendant must

establish, by a preponderance of the credible evidence, that he

is entitled to the requested relief.     State v. Nash, 212 N.J. 518,

541 (2013).    "[W]hen a [defendant] claims his trial attorney

inadequately investigated his case, he must assert the facts that


                                10                            A-4313-15T1
an investigation would have revealed, supported by affidavits or

certifications based upon the personal knowledge of the affiant

or the person making the certification."            Porter, supra, 216 N.J.

at 353 (quoting Cummings, supra, 321 N.J. Super. at 170).

     While,      arguably,    defendant's      claim    that     trial     counsel

rendered ineffective assistance by failing to confer with him

about sidebar conferences is barred by Rule 3:22-4(a)(1), the

claim nonetheless lacks merit, as do defendant's other ineffective

assistance of counsel claims.          We determined in defendant's prior

appeal   there    was   no    error    regarding    Juror      No.   2's   alleged

misconduct and no reason to voir dire the other jurors or declare

a mistrial.      We also found no merit in defendant's argument that

his exclusion from sidebar conferences mandated reversal, and

commented that he specifically waived his right to personally

participate in those conferences.             Thus, even if trial counsel's

performance was deficient, which it was not, defendant cannot

establish the deficient performance prejudiced his defense.

     In addition, defendant did not assert the facts which an

investigation     of    exculpatory     witnesses      would    have     revealed,

supported by affidavits or certifications based upon the personal

knowledge of the affiant.        Defendant did not even name exculpatory

witness,   let     alone     provide    the    required     certifications        or

affidavits or any information of what exculpatory evidence they

                                       11                                  A-4313-15T1
witnesses would provide.   Lastly, defendant provided no evidence

whatsoever of a plea offer.   Accordingly, because defendant failed

to present a prima facie claim of ineffective assistance           of

counsel, the PCR judge properly denied his PCR petition without

evidentiary hearing.

     Affirmed.




                                12                          A-4313-15T1
