                             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                        NOT FOR PUBLICATION WITHOUT THE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-2741-16T3

STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

L.L.M.,

     Defendant-Appellant.
_____________________________

              Submitted June 4, 2018 – Decided June 22, 2018

              Before Judges Whipple and Rose.

              On appeal from Superior Court of New Jersey,
              Law Division, Gloucester County, Indictment
              No. 08-03-0291.

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

              Sean F. Dalton, Gloucester County Prosecutor,
              attorney   for    respondent   (Margaret   A.
              Cipparrone, Senior Assistant Prosecutor, of
              counsel and on the brief).

PER CURIAM
       Defendant L.L.M.1 appeals from the January 23, 2017 denial of

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

evidentiary hearing.        We affirm.

       In   his   single-point    merits    brief,     defendant   raises    the

following argument for our consideration:

             DEFENDANT WAS ENTITLED TO AN EVIDENTIARY
             HEARING   WHERE   HE WAS   DENIED  EFFECTIVE
             ASSISTANCE OF COUNSEL WHEN COUNSEL MOVED TO
             ADMIT DEFENDANT'S ENTIRE INTERROGATION, NON-
             REDACTED, ALLOWING THE JURY TO CONSIDER THE
             UNDULY PREJUDICIAL ULTIMATE OPINIONS MADE BY
             THE INTERROGATOR.

       We incorporate by reference the facts and procedural history

set forth in our prior unpublished opinion.             State v. L.L.M., No.

A-6274-10 (App. Div. Oct. 25, 2013).            Pertinent to this appeal,

defendant sexually assaulted his wife's cousin over the course of

three years when the victim was between the ages of ten and

thirteen.     Defendant was ultimately arrested, waived his Miranda2

rights, and was questioned by the investigating officers for nearly

four    hours.     Defendant     maintained    his     innocence   during    the

interrogation, which was video-recorded.

       At trial, defendant testified on his own behalf.             On cross-

examination,      the    prosecutor   attempted   to    impeach    defendant's


1
    We use initials to protect the privacy of the victim.
2
    Miranda v. Arizona, 384 U.S. 436 (1966).


                                       2                               A-2741-16T3
testimony with portions of his recorded statement, such as, the

victim was "very mature for her age."      Defense counsel objected,

requesting   the   court   play   defendant's   entire   video-recorded

statement to the jury so that the statements read by the prosecutor

were not taken out of context.

     After a short recess to resolve technological issues, defense

counsel, apparently reconsidering his initial request, moved to

redact those portions of the recording where the officers expressed

their belief that the victim's allegations were true.        The trial

judge accepted the prosecutor's argument that the doctrine of

completeness warranted playing the video in full.        The judge also

was concerned that editing the video would delay the trial.

     After the entire video-recorded statement was played for the

jury, the judge issued the following limiting instruction:

               During the interview, you heard questions
          or statements by the detectives that included
          comments   or   opinions   relating   to   the
          credibility   of   [the    victim]   and   the
          credibility of the [d]efendant.

               You're not to give those comments any
          weight.     Determining the credibility of
          witnesses who have testified here and the
          weight to give to their testimony is for you
          and you alone to determine. You are the judges
          of the facts.

               Thus, what has been said by others, as
          to the credibility of any witnesses here is
          to be disregarded by you, as it relates to the


                                    3                           A-2741-16T3
          credibility of those witnesses.       That   is
          solely your determination.

               Also, there were questions and statements
          asked by the detective and statements by the
          [d]efendant,     which    included     certain
          statements or allegations of facts. The facts
          that are contained within questions do not
          prove the existence of those facts.

               You only consider such facts which, in
          your judgment, have been proven by the
          testimony of witnesses and from the exhibits
          admitted into evidence by the [c]ourt.

     Defendant was convicted of second-degree sexual assault,

N.J.S.A. 2C:14-2(b), and third-degree endangering the welfare of

a child, N.J.S.A. 2C:24-4(a).   He was sentenced to an aggregate

seven-year term of imprisonment, subject to an eighty-five percent

period of parole ineligibility, pursuant to the No Early Release

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

     Defendant raised several arguments on direct appeal.   L.L.M.,

slip op. at 15-16.   Relevant here, defendant claimed "the trial

court erred in failing to excise prejudicial material from the

interrogation video that was played to the jury."       Id. at 16.

"Although we agree[d] with defendant that it would have been

preferable to have delayed the trial to edit out the officers'

personal opinions from the videotape, we conclude[d] that the

playing of the entire tape, along with the judge's extensive

curative instruction, was not harmful error."   Id. at 27-28.    The


                                4                           A-2741-16T3
Supreme Court thereafter denied certification.       State v. L.L.M.,

217 N.J. 588 (2014).

     Defendant then filed a PCR petition, alleging ineffective

assistance of his trial and appellate counsel on several grounds.

In the alternative, defendant requested an evidentiary hearing.

Relevant to this appeal, defendant claimed trial counsel advanced

an "ill-advised trial strategy of requesting a showing to the

jury, the full version of [his] statement to the police without

any redactions."   Specifically,

          the inflection of [the officers'] voices, the
          language   used  by   them,  their   forceful
          accusatory statements, along with their clear
          opinions that the alleged victim was telling
          the truth and the [d]efendant was not being
          forthright, is sufficient evidence in and of
          itself for the court to make a finding that
          trial counsel's decision to play the entire
          interrogation was unsound trial strategy.

     In a comprehensive twenty-six page written decision, the PCR

judge denied each of defendant's claims.       Regarding defendant's

sole claim before us in this appeal, the PCR judge referenced our

opinion on direct appeal, finding that because we determined

admission of the entire statement was harmless error, "trial

counsel cannot be held accountable for the court's decision to

play the tape in full."

     The PCR judge also found trial counsel's decision in this

regard was sound trial strategy.       In particular, the judge noted

                                   5                          A-2741-16T3
"trial counsel's decision to seek to play more of the defendant's

statement was a response to his concerns that the limited portions

of the statement that [were] being played were more harmful if

left in their limited form or out of context."                     The judge thus

found, "This is not an unreasonable approach."

     Further,    the   PCR    judge    determined        defendant's    claim    was

procedurally barred pursuant to Rule 3:22-5, because that claim

was decided previously by us on the merits.               Nevertheless, the PCR

judge addressed the merits of defendant's argument, finding our

determination of harmless error "means . . . [admission of the

entire statement] did not prejudice [defendant's] substantial

rights under R[ule] 1:7-5.         Without any prejudice, [defendant's]

argument   cannot   be   said     to   satisfy     the    second    prong   of   the

Strickland/Fritz3      analysis    and       therefore    warrants     no   further

consideration."

     "Post-conviction        relief    is    New   Jersey's   analogue      to   the

federal writ of habeas corpus."             State v. Preciose, 129 N.J. 451,

459 (1992).     Pursuant to Rule 3:22-2(a), a criminal defendant is

entitled to post-conviction relief if there was a "[s]ubstantial

denial in the conviction proceedings of defendant's rights under


3
  Strickland v. Washington, 466 U.S. 668 (1984); State v. Fritz,
105 N.J. 42 (1987) (adopting the Strickland two-part test in New
Jersey).


                                         6                                  A-2741-16T3
the Constitution of the United States or the Constitution or laws

of the State of New Jersey."

     "[A] defendant asserting ineffective assistance of counsel

on PCR bears the burden of proving his or her right to relief by

a preponderance of the evidence."           State v. Gaitan, 209 N.J. 339,

350 (2012) (citations omitted).           A defendant must prove counsel's

performance was deficient; it must be demonstrated that counsel's

handling of the matter "fell below an objective standard of

reasonableness" and 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-

88; Fritz, 105 N.J. at 52.

     A defendant must also prove counsel's "deficient performance

prejudiced the defense."     Strickland, 466 U.S. at 687.         Prejudice

is established by showing a "reasonable probability that, but for

counsel's unprofessional errors, the result of the proceeding

would have been different."         Id. at 694.      Thus, petitioner must

establish that counsel's performance was deficient and petitioner

suffered prejudice in order to obtain a reversal of the challenged

conviction.     Id. at 687; Fritz, 105 N.J. at 52.

     Further, 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. 1999). Rather, trial courts should

                                      7                              A-2741-16T3
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 facts lie

outside the record, and resolution of the issues necessitates a

hearing. R. 3:22-10(b); State v. Porter, 216 N.J. 343, 355 (2013).

We review a judge's decision to deny a PCR petition without an

evidentiary hearing for abuse of discretion.            See Preciose, 129

N.J. at 462.      We review any legal conclusions of the trial court

de novo.     State v. Nash, 212 N.J. 518, 540-41 (2013); State v.

Harris, 181 N.J. 391, 419 (2004).

       While we disagree with the PCR court that defendant's claim

was barred procedurally,4 the judge astutely rejected defendant's

claims on the merits, giving due deference to trial counsel's

trial strategy.     Here, that strategy was specifically designed to

rebut negative inferences suggested by the prosecutor on cross-

examination with the introduction of a lengthy video-recorded

statement,    during   which    defendant   maintained      his   innocence.

Further, even if trial counsel's strategy were deemed deficient,


4
  On direct appeal, we only considered whether the trial court
erred in admitting defendant's entire video-recorded statement;
we did not consider whether counsel was ineffective in seeking to
do so. Thus, defendant's ineffective assistance of counsel claim
is not procedurally barred pursuant to Rule 3:22-5; see also State
v. McQuaid, 147 N.J. 464, 484 (1997) (recognizing "claims that
differ from those asserted below will be heard on PCR").

                                      8                              A-2741-16T3
because we found admission of the statement was "not harmful

error,"     defendant       fails     to     satisfy          the   prejudice    prong.

Strickland, 466 U.S. at 687.

       We also reject defendant's suggestion that the officers'

interrogation techniques were improper.                   In particular, defendant

claims the video depicts one of the officers "sitting next to the

defendant at the table, putting [the officer's] arms around him,

holding     the    defendant's       hand,       and    [an    officer]    telling    the

defendant that he knows what the defendant is going through, and

that the defendant will feel better once it is off his chest."

These investigative techniques were not inappropriate.                         See State

v. DiFrisco, 118 N.J. 253, 257 (1990) (acknowledging "[t]he fact

that   an   investigative       officer          is    friendly,    sympathetic,      and

encourages        the   trust   of   the     defendant         to   give   a   statement

ordinarily would not render the confession involuntary").

       We are satisfied from our review of the record that defendant

failed to demonstrate a prima facie showing of ineffectiveness of

trial counsel under the Strickland/Fritz test.                         We, therefore,

discern no abuse of discretion in the denial of defendant's PCR

petition. The PCR judge correctly concluded an evidentiary hearing

was not warranted.         See Preciose, 129 N.J. at 462-63.

       Affirmed.



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