                                NOT FOR PUBLICATION WITHOUT THE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-4615-18T1

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

VAUGHN L. SIMMONS, a/k/a
JONES, and MICHAEL SIMMON,

     Defendant-Appellant.
_____________________________

                   Submitted May 19, 2020 – Decided June 25, 2020

                   Before Judges Yannotti and Hoffman.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Essex County, Indictment Nos. 10-06-1539
                   and 10-06-1540.

                   Joseph E. Krakora, Public Defender, attorney for
                   appellant (Phuong Vinh Dao, Designated Counsel, on
                   the brief).

                   Theodore N. Stephens II, Acting Essex County
                   Prosecutor, attorney for respondent (Hannah Faye Kurt,
                   Special Deputy Attorney General/Acting Assistant
                   Prosecutor, of counsel and on the brief).
            Appellant filed a pro se supplemental brief.

PER CURIAM

      Defendant appeals from an order entered by the Law Division on March

11, 2019, which denied his petition for post-conviction relief (PCR). We affirm.

                                       I.

      Defendant was charged in Indictment No 10-06-1539 with two counts of

first-degree robbery, N.J.S.A. 2C:15-1 (counts one and five); two counts of

aggravated assault, N.J.S.A. 2C:12-1(b)(4) (counts two and six); two counts of

unlawful possession of a handgun, N.J.S.A. 2C:39-5(b) (counts three and seven);

and two counts of possession of a handgun for an unlawful purpose, N.J.S.A.

2C:39-4(a) (counts four and eight). Defendant also was charged in Indictment

No. 10-06-1540 with two counts of second-degree certain persons not to have

weapons, N.J.S.A. 2C:39-7(b) (counts one and two).

      The charges were severed for trial. The court conducted a bifurcated trial

on charges in counts one through four of Indictment No. 10-06-1539, and count

one of Indictment No. 10-06-1540, which arose out of a robbery of a Family

Dollar store in Newark.

      At the first trial, the State presented evidence showing that on December

3, 2009, an African-American male entered the store, complained that the lines


                                                                        A-4615-18T1
                                       2
were too long, and left soon thereafter. Later that day, at around 5:30 p.m.,

F.M., the store's manager, noticed that the individual who entered the store

earlier had returned and was attempting to take one of the cash registers. 1 R.H.,

the store's security guard, attempted to stop the man from taking the register.

During the struggle, they fell to the floor. F.M. activated the store's "panic

button" alarm.

        When F.M. turned around, he saw that the perpetrator had gotten up and

was pointing a handgun at him. F.M. turned again and the man fled the store

with the register. It contained $125 in cash. F.M. called 9-1-1 and provided a

description of the perpetrator. He reported that the robber was a male, about

five feet and seven to eight inches in height, who weighed about 140 to 150

pounds.

        That same day, F.M. went to the police station and provided a statement.

The following day, F.M. gave the police a DVD with copies of recorded "still"

frames of footage from the store's security camera. He said the dates on the

video were incorrect because the camera had been installed recently and it had

not been updated.




1
    We use initials to identify certain individuals, to protect their privacy.
                                                                                 A-4615-18T1
                                           3
      Several weeks later, an officer showed F.M. an array of photos for the

purpose of identifying the person who committed the robbery. The officer told

F.M. he did not need to select a photo, since the perpetrator's picture might not

be in the array. F.M. positively identified defendant as the person who robbed

the store and pointed the gun at him.

      On the day of the robbery, R.H. also provided the police with a description

of the perpetrator. She described the robber as an African American male, who

was about five feet, nine inches tall, and weighed about 150 pounds. R.H. said

the man had braided hair and was wearing a short-sleeved shirt, a vest, and a

Yankees cap.

      The police also showed R.H. a photo array. She was not able to identify

the person who robbed the store. However, sometime later, R.H. identified

defendant as the perpetrator, after another officer showed her a different photo

array. At trial, R.H. identified defendant as the man who robbed the store.

      A.J. was working as a cashier in the store on the day of the robbery. She

initially told the police the perpetrator was about five feet, nine inches tall, and

weighed 150 pounds. However, she later told the police the robber was about

five feet, seven inches tall, and weighed around 165 pounds.




                                                                            A-4615-18T1
                                         4
      T.R. was in the Family Dollar store at the time of the robbery. She told

the police the perpetrator was an African American male, age twenty-five to

thirty, about five feet, nine inches tall, and weighed 180 pounds. She said the

robber had been wearing a Yankees cap and grey sweater. T.R. was, however,

unable to identify the robber from a photo array that included defendant's photo.

      Defendant testified that he was not in the store when the robbery occurred.

He said he picked up his wife from work that day around 5:00 p.m. However,

on cross-examination, defendant admitted he called his wife at around 5:52 p.m.

He also said he was not the person shown in the surveillance footage because,

before the robbery, he had four facial surgeries to treat an infection

      Defendant stated that the surgeries left his face "droopy" and

"uncontrollable." He also stated that on the date of the robbery, he weighed 130

pounds. On cross-examination, defendant acknowledged he did not have any

medical records to support his claimed medical conditions. He also admitted he

had five prior felony convictions.

      The jury found defendant guilty on counts one to four of Indictment No.

10-06-1539, in which he was charged with robbery, aggravated assault, unlawful

possession of a handgun, and possession of a weapon for an unlawful purpose .

Thereafter, in a separate trial on the charges in Indictment No. 10-06-1540, the


                                                                         A-4615-18T1
                                        5
jury found defendant guilty of possession of a weapon by a person previously

convicted of a felony.

      On Indictment No. 10-06-1539, the judge sentenced defendant to an

aggregate term of twenty years of incarceration and required that he serve

eighty-five percent of that sentence before becoming eligible for parole,

pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2. On Indictment No.

10-06-1540, the judge sentenced defendant to a ten-year prison term, with five

years of parole ineligibility, and ordered that the sentence be served

consecutively to the sentence on Indictment No. 10-06-1539.

                                     II.

      Defendant appealed from the judgments of conviction dated February 3,

2012. He raised the following arguments:

            POINT I
            THE STATE ENGAGED IN PROSECUTORIAL
            MISCONDUCT BY IMPERMISSIBLY SHIFTING
            THE BURDEN OF PROOF TO THE DEFENSE. (Not
            Raised Below).

            POINT II
            THE      INSTRUCTION     AND     REPEATED
            REFERENCE TO UNSANITIZED DETAILS OF
            [DEFENDANT'S] PRIOR CONVICTION TO PROVE
            THE CERTAIN PERSON[S] OFFENSE DEPRIVED
            HIM OF HIS RIGHT TO A FAIR TRIAL. (Not Raised
            Below).


                                                                      A-4615-18T1
                                      6
          POINT III
          THE SENTENCE IS MANIFESTLY EXCESSIVE
          AND UNDULY PUNITIVE

          A. The Sentences Imposed Were Not Offense-Oriented,
          as Required by State v. Roth [95 N.J. 334 (1984)] and
          State v. Hodge [95 N.J. 369 (1984)].

          B. The Sentencing Court Erred in Imposing a
          Consecutive Sentence on the Certain Person[s]
          Offense.

     In addition, defendant filed a supplemental pro se brief in which he

argued:

          [POINT] I
          THE TRIAL COURT ERRED AT THE CLOSE OF
          TRIAL [BY] ALLOWING THE STATE TO
          INTRODUCE INTO EVIDENCE AN ADDITIONAL
          CD FOR THE JURY'S DELIBERATIONS THAT THE
          DEFENSE DID NOT GET A CHANCE TO EXAMINE
          IN VIOLATION OF DEFENDANT[']S RIGHT TO A
          FAIR TRIAL.

          [POINT] II
          THE PROSECUTOR COMMITTED MISCONDUCT
          BY MAKING IMPROPER PREJUDICIAL AND
          UNTRUTHFUL STATEMENTS AND REFERRING
          TO EVIDENCE THAT CIRCUMVENTED THE
          TRIAL JUDGE[']S ORDER SEVERING COUNTS OF
          THE INDICTMENT.

          [A.] [The] Prosecutor Attacked Credibility with
          Untruthfulness.

          [B.] [The] Prosecutor Read a Statement From a Non-
          Testifying Witness.

                                                                  A-4615-18T1
                                   7
[C.] The One Question The Jury Asked.


[POINT] III
THE PROSECUTOR COMMITTED MISCONDUCT
BY SUPPRESSING EVIDENCE FAVORABLE TO
THE DEFENSE AND PRESENTING THE JURY
WITH UNTRUTHFUL EVIDENCE IN VIOLATION
OF DEFENDANT[']S RIGHT TO DUE PROCESS.

[A.] [The] Prosecutor Resorted to Improper Courtroom
Antics.

[POINT] IV
THE TRIAL COURT ERRED [BY] DENYING
DEFENDANT[']S MOTION FOR AN EVIDENTIARY
HEARING TO EXCLUDE AN ALTERED AND
PREJUDICIAL   CD    IN   VIOLATION   OF
[DEFENDANT'S] RIGHT TO DUE PROCESS AND
FUNDAMENTAL FAIRNESS.

A. Were [t]he      Surveillance   Stills   Altered   or
Fabricated[?]

B. The Trial Court Erred [i]n Omitting [t]he Incident
Report [f]rom [t]he Jury's Deliberations.

C. Did This Evidence Find [Its] Way [i]nto [t]he
Courtroom [a]nd Deprive Defendant of [a] Fair Trial[?]

[POINT] V
THE TRIAL COURT, TRIAL COUNSEL AND
PROSECUTOR   VIOLATED  DEFENDANT[']S
STATE CONSTITUTIONAL RIGHT [UNDER]




                                                          A-4615-18T1
                          8
              ARTICLE 1, PARAGRAPH [1] IN NOT HOLDING A
              WADE[2] HEARING AS REQUESTED.

              [A.] [The] Jury Should [h]ave Been Given [a] Tailored
              Charge.

        In addition, defendant asserted a claim of ineffective assistance of

counsel, for the purpose of preserving the same for post-conviction relief (PCR).

He alleged.

              TRIAL COUNSEL[']S FAILURE TO PRESENT
              DEFENDANT[']S ALIBI WITNESS, REQUEST AN
              EVIDENTIARY     HEARING,     INVESTIGATE
              EXCULPATORY EVIDENCE, [AND] OBJECT TO
              IMPROPER COURT ROOM GESTURES DEPRIVED
              DEFENDANT OF HIS STATE AND FEDERAL
              CONSTITUTIONAL RIGHTS TO EFFECTIVE
              REPRESENTATION.

        We affirmed defendant's conviction and the sentences imposed but

remanded the matter to the trial court for reconsideration of the decision to

impose a consecutive sentence on Indictment No. 10-06-1540. State v.

Simmons, No. A-4938-12 (App. Div. Feb. 11, 2016) (slip op. at 22). The

Supreme Court denied defendant's petition for certification. State v. Simmons,

226 N.J. 213 (2015).




2
    United States v. Wade, 388 U.S. 218 (1967).
                                                                         A-4615-18T1
                                        9
      The trial court again imposed consecutive sentences and defendant

appealed.   We again remanded the matter to the trial court to undertake the

appropriate analysis for the imposition of the consecutive sentence. State v.

Simmons, No. A-5166-15 (App. Div. May 3, 2017). In March 2018, the trial

court provided its reasons for consecutive sentences.

                                       III.

      Thereafter, defendant filed a pro se petition for PCR in the Law Division,

alleging that he was denied the effective assistance of trial counsel. He claimed

his attorney: had an actual conflict of interest which adversely affected his

ability to provide constitutionally-adequate representation; failed to review the

discovery that showed someone else committed the robbery; failed to present an

alibi witness; did not file a motion to suppress the surveillance footage on the

ground that it was altered or fabricated; and failed to adequately cross-examine

certain witnesses. Defendant requested an evidentiary hearing on the petition.

      The trial court appointed counsel to represent defendant, and defendant's

attorney filed a brief in support of the petition. In addition, counsel presented

the court with a certification by defendant and an affidavit from G.L., who stated

she was present for defendant's trial but had not been called to testify. She




                                                                          A-4615-18T1
                                       10
asserted that on the date of the robbery, defendant had picked her up from work

and they did not stop at the store.

      The PCR court heard oral argument and placed an oral decision on the

record. The judge found defendant had not presented a prima facie case of

ineffective assistance of counsel and an evidentiary hearing was not required.

The judge entered an order dated March 11, 2019, denying PCR. This appeal

followed.

      On appeal, defendant raises the following arguments:

            POINT I
            DEFENDANT            RECEIVED         INEFFECTIVE
            ASSISTANCE         OF COUNSEL        FROM TRIAL
            COUNSEL.

            [A.] [TRIAL COUNSEL FAILED TO CALL G.L. AS
            AN ALIBI WITNESS].

            [B.] [TRIAL COUNSEL FAILED TO REQUEST A
            WADE HEARING IN LIGHT OF DIFFERENT
            DESCRIPTIONS OF THE ASSAILANT BY
            DIFFERENT WITNESSES].

            POINT II
            THE TRIAL COUNSEL'S CUMULATIVE ERRORS
            DENIED [DEFENDANT] A FAIR AND RELIABLE
            TRIAL.

            POINT III
            DEFENDANT'S   PETITION   [FOR]    POST-
            CONVICTION  RELIEF    CLAIM    IS  NOT
            PROCEDURALLY BARRED.

                                                                       A-4615-18T1
                                      11
     Defendant has filed a pro se supplemental brief in which he raises the

following additional arguments:

           POINT I:
           DEFENDANT SUFFERED PREJUDICE DUE TO
           TRIAL COUNSEL[’S] CONFLICT OF INTEREST
           BECAUSE COUNSEL FAILED TO FILE A MOTION
           TO DISMISS INDICTMENT [NO.] 10-6-1540
           WHICH WAS NOT BROUGHT BEFORE THE
           GRAND JURY NOR WAS THERE EVIDENCE TO
           SUSTAIN THE CONVICTION.

           POINT II:
           THE REMAND COURT ERRED IN UPHOLDING
           THE     ORIGINAL  SENTENCING    COURT[’S]
           CONSECUTIVE SENTENCE FROM THE CERTAIN
           PERSONS OFFENSE BECAUSE THE APPELLATE
           COURT REVERSED THE LOWER COURT[’]S
           CONSECUTIVE SENTENCE NOT ONCE BUT
           TWICE FOR FAILURE TO ADHERE TO THE
           FACTORS IN STATE V. YARBOUGH, [100 N.J. 627]
           (1985) AND STATE V. MILLER, [108 N.J. 112]
           (1987).

           POINT III:
           TRIAL COUNSEL’S FAILURE TO PRESENT
           DEFENDANT[’]S ALIBI WITNESS DEPRIVED
           DEFENDANT OF HIS STATE AND FEDERAL
           RIGHT TO THE COMPULSORY PROCESS TO
           PRESENT WITNESS[ES] IN HIS DEFENSE.

           POINT IV:
           TRIAL COUNSEL VIOLATED DEFENDANT[’]S
           STATE AND FEDERAL RIGHTS TO EFFECTIVE
           ASSISTAN[CE]  OF   COUNSEL    BECAUSE
           COUNSEL   FAILED  TO   SIFT  THROUGH

                                                                    A-4615-18T1
                                   12
            DISCOVERY WHICH CONTAINED EVIDENCE
            THAT SOMEONE OTHER THAN DEFENDANT
            COMMITTED THE OFFENSE IN VIOLATION OF
            UNITED STATES CONSTITUTION AMENDMENT
            VI AND NEW JERSEY CONSTITUTION ART. I,
            PAR. X.

            POINT V:
            BASED ON NEWLY DISCOVERED EVIDENCE[,]
            TRIAL COUNSEL WAS INEFFECTIVE AND
            VIOLATED DEFENDANT[’]S CONSTITUTIONAL
            RIGHT TO DUE PROCESS IN FAILING TO FILE A
            MOTION TO SUPPRESS THE ALTERED AND
            FABRICATED SURVEILLANCE FOOTAGE THAT
            WAS PLACED BEFORE THE JURY.

            POINT V:
            THE [PCR] COURT FAILED TO REMAIN
            IMPARTIAL AND GRANT AN EVIDENTIARY
            HEARING.

            POINT VI:
            [PCR] COUNSEL WAS INEFFECTIVE AND NOT
            FUNCTIONING AS COUNSEL GUARANTEED
            [UNDER] THE SIXTH AMENDMENT WHEN SHE
            DID NOT ARGUE FOR AN EVIDENTIARY
            HEARING.

                                       IV.

      As noted, defendant contends he received ineffective assistance of trial

counsel because his attorney failed to call G.L. as an alibi witness and request a

Wade hearing to challenge the identifications of certain witnesses. Defendant




                                                                          A-4615-18T1
                                       13
argues that the PCR court erred by failing to conduct an evidentiary hearing on

these claims. We disagree.

      To prevail on a claim of ineffective assistance of counsel, a defendant

must satisfy the two-prong test established in Strickland v. Washington, 466

U.S. 668, 687 (1984), and adopted by our Supreme Court in State v. Fritz, 105

N.J. 42, 58 (1987). The defendant must show that: (1) counsel's performance

was deficient; and (2) the deficient performance prejudiced the defendant.

Strickland, 466 U.S. at 687.

      To satisfy the first prong of the Strickland test, a defendant must overcome

a "strong presumption that counsel's conduct falls within the wide range of

reasonable professional assistance . . . ." Id. at 689. A deficient performance

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

the 'counsel' guaranteed the defendant by the Sixth Amendment." Id. at 687.

      To establish the second prong of the Strickland test, the defendant must

establish "that there is a reasonable probability that, but for counsel's

unprofessional errors, the result of the proceeding would have been different. A

reasonable probability is a probability sufficient to undermine confidence in the

outcome." Id. at 694.




                                                                          A-4615-18T1
                                      14
      Furthermore, an evidentiary hearing is required on a PCR petition only if

the defendant presents a prima facie case in support of PCR, the court determines

there are material issues of dispute fact that cannot be resolved based on the

existing record, and the court determines that an evidentiary hearing is necessary

to resolve the claims for relief. R. 3:22-10(b). "A prima facie case is established

when a defendant demonstrates ‘a reasonable likelihood that his or her claim,

viewing the facts alleged in the light most favorable to the defendant, will

ultimately succeed on the merits.’" State v. Porter, 216 N.J. 343, 355 (2013)

(quoting R. 3:22-10(b)).

      A. G.L.'s Testimony.

      Defendant contends his attorney was deficient in failing to call G.L. to

testify on his behalf. At the time of the robbery, G.L. was either defendant's

wife or fiancée. Defendant asserts G.L. was present and willing to testify at

trial. In the affidavit submitted in support of the PCR petition, G.L. stated that

on the date of the robbery, she returned to work after recovering from surgery.

She said defendant picked her up from work and they did not stop at the store.

      On appeal, defendant argues that his trial attorney erred by failing to call

G.L. as a witness at trial. He contends that her testimony would have supported

his assertion that he was not the person who robbed the Family Dollar store.


                                                                           A-4615-18T1
                                       15
      The PCR judge correctly found, however, that defendant failed to

establish his trial counsel was ineffective because counsel did not call G.L. to

testify at trial. The judge observed that G.L. stated she had been in court during

the trial but she did not come forward with her alleged alibi evidence until about

two and one-half years after the trial.

      Moreover, G.L. would have not supported defendant's claim that he could

not have been the person who robbed the store. As stated previously, defendant

testified that on the day of the robbery, he picked up G.L. from work at 5:00

p.m. However, on cross-examination, defendant admitted he called G.L. that

day at 5:52 p.m.

      Furthermore, in her affidavit, G.L. stated that defendant picked her up at

5:50 p.m. and they did not stop at the Family Dollar store. G.L.'s testimony

would not have provided defendant with an alibi for the robbery that occurred

at 5:30 p.m. Defendant's attorney reasonably chose not to present G.L. as a

witness for the defense.

      B. Wade Hearing.

      Defendant argues that he was denied the effective assistance of counsel

because his attorney did not request a Wade hearing to challenge the out-of-

court identifications. As noted, several persons identified defendant as the


                                                                          A-4615-18T1
                                          16
individual who robbed the Family Dollar store. He contends the PCR court erred

by finding that counsel did not err by failing to request the hearing because there

was no basis for such a request.

       A court conducts a Wade hearing “to determine the admissibility of the

out-of-court identifications.” State v. Micelli, 215 N.J. 284, 288 (2013) (citing

State v. Ortiz, 203 N.J. Super. 518, 522 (App. Div. 1985)). At a Wade hearing,

the defendant bears the initial burden of “demonstrating by a preponderance of

the evidence that the pretrial identification procedure was so suggestive as to

result in a substantial likelihood of misidentification.” State v. Santoro, 229 N.J.

501, 504 (App. Div. 1990).

      Challenges to convictions based on out-of-court identifications are

reviewed under the two-step analysis set forth in State v. Madison, 109 N.J. 223,

233 (1988). State v. Little, 296 N.J. 573, 579 (App. Div. 1997).

            [A] court must first decide whether the procedure in
            question was in fact impermissibly suggestive. If the
            court does find the procedure impermissibly
            suggestive, it must then decide whether the
            objectionable procedure resulted in a "very substantial
            likelihood of irreparable misidentification."            In
            carrying out the second part of the analysis, the court
            will focus on the reliability of the identification. If the
            court finds that the identification is reliable despite the
            impermissibly suggestive nature of the procedure, the
            identification may be admitted into evidence.


                                                                            A-4615-18T1
                                        17
            "Reliability is the linchpin in determining the
            admissibility of identification testimony . . . ."

            [Madison, 109 N.J. at 232-33 (internal citations
            omitted) (quoting Simmons v. United States, 390 U.S.
            377, 384 (1968); Manson v. Braithwaite, 432 U.S. 98,
            114 (1977)).]

      “[T]he reliability determination is to be made from the totality of the

circumstances adduced in the particular case.” Id. at 239. The court should

consider the “opportunity of the witness to view the criminal at the time of the

crime, the witness’s degree of attention, the accuracy of his prior description of

the criminal, the level of certainty demonstrated at the time of the confrontation

and the time between the crime and the confrontation.” Id. at 239-40 (quoting

Manson, 432 U.S. at 114).

      In this matter, the trial court found that a Wade hearing was not required.

The court stated that he had reviewed the material pertaining to the

identifications and did not “see anything suggestive whatsoever." The court

noted that the police had employed identification procedures that complied with

the applicable Attorney General guidelines.

      The PCR court determined that trial counsel did not err by failing to seek

a Wade hearing. The judge found there was no basis for defendant’s allegation

that the identification process used to obtain R.H.'s identification was unduly


                                                                          A-4615-18T1
                                       18
suggestive, or that a police officer had directed R.H. to select and sign

defendant's photograph.

      On appeal, defendant argues that a Wade hearing was required because

witnesses to the robbery had given different descriptions of the perpetrator.

However, defendant did not establish that the identifications were the result of

any impermissible suggestiveness on the part of the police.

      Defendant also contends a Wade hearing was required because at the time

of the robbery, he was allegedly recovering from facial surgeries, which

purportedly affected his appearance. However, as noted previously, at trial,

defendant conceded that he did not have any medical records to support this

claim.

      In addition, defendant argues we should apply the principles enunciated

in State v. Henderson, 208 N.J. 208, 288-89 (2011), in determining if his

attorney was deficient in failing to challenge the out-of-court identifications.

However, in Henderson, the Court held that the new framework only applies

prospectively. Id. at 220. Moreover, even if Henderson were applied, the result

here would be the same.

      Under Henderson, a defendant who seeks a pretrial hearing to challenge

an out-of-court identification "has the initial burden of showing some evidence


                                                                        A-4615-18T1
                                      19
of suggestiveness that could lead to a mistaken identification." Id. at 289. Here,

defendant presented no evidence of suggestiveness on the part of law

enforcement in obtaining the identifications.

                                       V.

      Defendant has raised several additional arguments in support of his

contention that the PCR court erred by denying relief. He contends he was

denied the effective assistance of counsel because his attorney did not file a

motion to suppress the surveillance footage on the ground that it had been altered

or fabricated. There is, however, no evidence that the footage was altered or

fabricated.

      Defendant also contends his attorney was deficient because he did not

object to the admission of a criminal-incident report. Defendant contends the

report should not have been admitted because the report states the person who

committed the robbery was wearing a black cap, but it did not state that the cap

was a "Yankee cap." The contention is meritless. The purported discrepancy

would not have been a valid basis to object to the introduction of this evidence.

      Defendant further argues that: he was denied the effective assistance of

counsel because his attorney allegedly had a conflict of interest that precluded

him from providing adequate representation; his attorney erred by failing to file


                                                                          A-4615-18T1
                                       20
a motion to dismiss the indictment; the State fabricated the indictment on the

certain persons charge; his attorney's cumulative errors denied him of a fair trial;

and the PCR judge lacked impartiality. These contentions lack sufficient merit

to warrant discussion. R. 2:11-3(e)(2).

      In addition, defendant claims that on remand, the trial court erred by

reaffirming the imposition of a consecutive sentence on Indictment No. 10-06-

1540. Defendant's claim regarding his sentence is barred by Rule 3:22-4.

      The rule bars a defendant from raising on PCR a ground for relief that

could have been raised at trial or on appeal. State v. Peoples, 446 N.J. Super.

245, 254-55 (App. Div. 2016) (citing State v. Afanador, 151 N.J. 41, 50 (1997)).

Rule 3:22-4 provides three exceptions to the procedural bar. None apply to his

arguments regarding the sentence.

      In view of our decision, we need not consider whether our court rules

provide any other procedural bar to the claims that defendant has asserted in his

PCR petition.

      Defendant also contends he was denied the effective assistance of PCR

counsel. We will not address this argument because it was not raised in the PCR

court. State v. Robinson, 200 N.J. 1, 20-22 (2009); Nieder v. Royal Indem. Ins.

Co., 62 N.J. 229, 234 (1973). If defendant wishes to assert this claim, he must


                                                                            A-4615-18T1
                                        21
file a petition in the Law Division. See R. 3:22-4(b)(2)(C) (allowing claims

alleging ineffective assistance of counsel to be raised in a second or subsequent

PCR petition).

      Affirmed.




                                                                         A-4615-18T1
                                      22
