                                NOT FOR PUBLICATION WITHOUT THE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-2032-17T1

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

DONALD THOMAS, a/k/a D-BLOCK,
and DONALD THOMAS, III,

     Defendant-Appellant.
_________________________

                    Submitted November 7, 2018 – Decided December 20, 2018

                    Before Judges Gilson and Natali.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Passaic County, Indictment No. 09-12-1320.

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

                    Camelia M. Valdes, Passaic County Prosecutor,
                    attorney for respondent (Ali Y. Ozbek, Assistant
                    Prosecutor, of counsel and on the brief).

PER CURIAM
        Defendant Donald Thomas appeals from a November 15, 2017 order

denying his petition for post-conviction relief (PCR) following an evidentiary

hearing. We affirm.

                                         I

        In 2012, a jury convicted defendant of first-degree felony murder,

N.J.S.A. 2C:11-3(a)(3); first-degree robbery, N.J.S.A. 2C:15-1(a)(2); second-

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

and violations of regulatory provisions relating to firearms, N.J.S.A. 2C:39-

10(a). The weapons and robbery convictions were merged with the felony

murder conviction and defendant was sentenced to an extended term of sixty

years in prison with eighty-five percent of that time ineligible for parole as

prescribed by the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.

        On direct appeal, we affirmed defendant's convictions and sentence. State

v. Thomas, No. A-5424-11 (App. Div. Feb. 22, 2016). The Supreme Court

denied certification. State v. Thomas, 227 N.J. 217 (2016).

        Defendant's conviction arose out of the shooting and subsequent death of

L.O.1    We detailed the facts in our opinion issued in 2016, and thus we



1
  To protect the privacy interests of the victim, his family, and witnesses, we
use initials for the victim and witnesses.
                                                                         A-2032-17T1
                                        2
summarize only the most relevant facts here. At defendant's trial, the State

presented evidence that defendant was a ranking member of the Bloods street

gang. On the night of the murder, he was with other gang members, including

then fifteen-year-old D.S. Defendant gave D.S. a gun and directed him to rob

L.O., who was sitting in a car parked on the street. With defendant watching,

D.S. walked up to the car in which L.O. and a friend were sitting. D.S. knocked

on the window and pointed a gun at L.O. and the friend. L.O. then tried to drive

away, but D.S. shot him. Thereafter, L.O. died of the gunshot wounds.

      D.S. testified at defendant's trial. According to D.S., on the night of the

murder he was with defendant and other gang members at a bar. Defendant then

asked D.S. to leave with him and they walked out onto a street. Defendant gave

D.S. a gun and ordered him to rob L.O. and to shoot him if L.O. did not comply.

D.S. also testified that another gang member threatened him and D.S. believed

that if he did not commit the robbery he would be killed. He also testified that

he shot L.O. because he had been told to shoot him.

      At defendant's trial, the State presented video surveillance from the bar.

The video showed that just before the murder, defendant was with D.S. and two

other men.   A detective also testified that he investigated the murder and

interviewed defendant. The detective described several inconsistencies with


                                                                         A-2032-17T1
                                       3
defendant's statements to the police, including that defendant initially denied

knowing D.S.

      Defendant filed his petition for PCR in August 2016.            In his initial

petition, defendant claimed that his trial counsel was ineffective in failing to call

witnesses, present evidence, request jury instructions, and to make objections.

Defendant was assigned counsel, and his counsel filed a supplemental brief in

which she contended that trial counsel had failed to vigorously object to certain

phone records that had been introduced, obtain an expert to explain the phone

records, and object to testimony depicting defendant as a gang member.

      After hearing oral arguments on defendant's petition, the PCR judge, who

was also the trial judge, decided to conduct an evidentiary hearing. At the

hearing, defendant's primary contention was that his trial counsel was

ineffective in cross-examining D.S. In that regard, defendant contended that the

State presented D.S. as a young, inexperienced juvenile who was directed by

defendant to commit the robbery that resulted in the murder. Defendant argued

that his trial counsel should have cross-examined D.S. and D.S.'s mother on a

prior incident in which D.S. was selling drugs while armed, and shot an

individual who tried to rob him.




                                                                             A-2032-17T1
                                         4
      At the PCR hearing, defendant testified, trial counsel testified, and trial

counsel for a co-defendant testified. During the co-defendant's trial, D.S. was

cross-examined on the prior incident, and he was also shown to be inconsistent

in his testimony based on what he had testified at defendant's trial as compared

to the testimony at the co-defendant's trial. The co-defendant was not convicted.

      At the conclusion of the evidentiary hearing, the PCR judge rendered an

oral decision denying defendant's petition and issued an order, dated November

15, 2017, denying the petition. The PCR court found that defendant's trial

counsel was experienced and had been well-prepared at trial. The court then

found that the trial counsel had made a strategic decision on how to cross -

examine D.S. and that defendant had not shown that trial counsel was

ineffective. The court also found that defendant had shown no prejudice because

the State had also presented strong evidence of defendant's guilt through the

video surveillance and the testimony by the detective. The PCR court went on

to analyze, but reject, defendant's contentions that trial counsel had been

ineffective in failing to object to the phone records, in failing to obtain an expert

to explain the phone records, and in failing to object to the testimony depicting

defendant as a gang member.




                                                                             A-2032-17T1
                                         5
                                       II

      On appeal, defendant focuses his argument on the contention that his trial

counsel was ineffective in cross-examining D.S. and argues that the PCR court's

findings are not supported by substantial, credible evidence. In that regard,

defendant articulates his arguments as follows:

            THE POST-CONVICTION RELIEF COURT ERRED
            IN DENYING THE DEFENDANT'S PETITION FOR
            POST-CONVICTION RELIEF FOLLOWING THE
            EVIDENTIARY    HEARING     SINCE    THE
            DEFENDANT FAILED TO RECEIVE ADEQUATE
            LEGAL   REPRESENTATION    FROM    TRIAL
            COUNSEL, WHILE THE FACTUAL FINDINGS
            MADE BY THE POST-CONVICTION RELIEF
            COURT UNDERLYING ITS DENIAL WERE NOT
            SUPPORTED BY THE RECORD ESTABLISHED AT
            THE HEARING.

      We use a deferential standard of review on an appeal of a denial of a PCR

petition following an evidentiary hearing. State v. Pierre, 223 N.J. 560, 576

(2015) (quoting State v. Nash, 212 N.J. 518, 540 (2013)). The factual findings

made by a PCR court following an evidentiary hearing will be accepted if they

are based on "sufficient credible evidence in the record." Ibid. (quoting Nash,

212 N.J. at 540). In contrast, interpretations of the law "are reviewed de novo."

Id. at 576-77 (quoting Nash, 212 N.J. at 540).




                                                                         A-2032-17T1
                                       6
      To establish a claim of ineffective assistance of counsel, a defendant must

satisfy the two-prong test set forth in Strickland v. Washington, 466 U.S. 668,

687 (1984), and later adopted by our Supreme Court in State v. Fritz, 105 N.J.

42, 58 (1987). Under that test, a defendant must prove (1) "counsel made errors

so serious that counsel was not functioning as the 'counsel' guaranteed the

defendant by the Sixth Amendment," and (2) "the deficient performance

prejudiced the defense." Strickland, 466 U.S. at 687; see also Fritz, 105 N.J. at

58.   In examining the first prong of the Strickland test, there is a strong

presumption that the attorney provided reasonable effective assistance and a

"'defendant must overcome the presumption that,' the attorney's decisions

followed a sound strategic approach to the case." Pierre, 223 N.J. at 579

(quoting Strickland, 466 U.S. at 689). "If counsel thoroughly investigates law

and facts, considering all possible options, his or her trial strategy is 'virtually

unchallengeable.'"    State v. Savage, 120 N.J. 594, 617 (1990) (quoting

Strickland, 466 U.S. at 690-91).

      Here, defendant failed to satisfy the Strickland test. After conducting an

evidentiary hearing, the PCR court found that defendant's trial counsel had made

a strategic decision on how to cross-examine D.S. The PCR court then found

that that strategic decision was not ineffective. There was substantial, credible


                                                                            A-2032-17T1
                                         7
evidence supporting those fact-findings by the PCR court. In that regard, the

court listened to the testimony of defendant, defense counsel, and counsel who

had represented a co-defendant.

      The PCR court also found that defendant had failed to show any prejudice

because there was other evidence that supported defendant's conviction,

including video surveillance and testimony from a detective. The PCR judge

was in a particularly good position to evaluate defendant's contention because

he was also the judge who presided at defendant's trial. We discern no basis to

disturb the findings made by the PCR court. Having made factual findings, the

PCR court correctly applied those facts to the law.

      Affirmed.




                                                                       A-2032-17T1
                                       8
