                        NOT FOR PUBLICATION WITHOUT THE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-5054-14T1

STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

KENNETH PAGLIAROLI,

        Defendant-Appellant.


              Submitted March 22, 2017 – Decided July 18, 2017

              Before Judges Alvarez and Lisa.

              On appeal from the Superior Court of New
              Jersey, Law Division, Middlesex County,
              Indictment No. 05-03-0335.

              Joseph E. Krakora, Public Defender, attorney
              for appellant (David A. Gies, Designated
              Counsel, on the brief).

              Andrew C. Carey, Middlesex County Prosecutor,
              attorney   for   respondent  (Joie   Piderit,
              Assistant Prosecutor, of counsel and on the
              brief).

              Appellant filed a pro se supplemental brief.

PER CURIAM
      Defendant Kenneth Pagliaroli appeals from the May 15, 2015

denial of his petition for post-conviction relief (PCR) after an

evidentiary hearing.       We now affirm.

      Defendant was sentenced on June 16, 2006, to an aggregate

fifty-year sentence after a month-long jury trial. The convictions

and   corresponding     sentences      were      broken    down       as       follows:

first-degree conspiracy to commit armed robbery, N.J.S.A. 2C:5-2

and 2C:15-1(a)(1), twenty years subject to the No Early Release

Act (NERA), N.J.S.A. 2C:43-7.2, and (count three); first-degree

conspiracy to commit aggravated manslaughter, N.J.S.A. 2C:5-2 and

2C:11-4(a)(1),    thirty      years   subject     to    NERA    (count         three);

accomplice to first-degree armed robbery, N.J.S.A. 2C:2-6(b)(3)

and 2C:15-1(a)(1), twenty years subject to NERA (count four);

accomplice to first-degree aggravated manslaughter, N.J.S.A. 2C:2-

6(b)(3) and 2C:11-4(a)(1), thirty years subject to NERA                          (count

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

purpose,    N.J.S.A.    2C:39-4(a),        ten     years       with        a     parole

ineligibility period of five years (count seven).

      The   sentences   for    the    aggravated       manslaughter        offenses,

although concurrent to each other, were made consecutive to the

armed robbery offenses, which were also concurrent to one another.

The sentences for the unlawful possession of a weapon offense was

concurrent to the robbery offenses.

                                       2                                        A-5054-14T1
       Defendant was acquitted of the charge of first-degree felony

murder, N.J.S.A. 2C:11-3(a)(3) and 2C:2-6 (count six).              The State

dismissed counts one, two, and eight, which charged defendant with

third-degree conspiracy to commit burglary, N.J.S.A. 2C:5-2 and

2C:18-2, third-degree burglary, N.J.S.A. 2C:18-2, and first-degree

conspiracy    to   commit   murder,       witness    tampering,     hindering

prosecution, and hindering apprehension, N.J.S.A. 2C:11-3, 2C:28-

5(a), 2C:29-3(b)(3), and 2C:5-2.1

       On direct appeal, defendant's convictions and sentences were

affirmed.    Pagliaroli, supra, (slip op. at 51-52), cert. denied,

200 N.J. 206 (2009) (Pagliaroli I).            On the appeal of defendant's

PCR petition, we remanded the matter for an evidentiary hearing

on   his   ineffective   assistance       of   counsel   claim.     State    v.

Pagliaroli, No. A-2167-11 (App. Div. July 31, 2014) (Pagliaroli

II).   The basis of his claim was his attorney's failure to object

to   the   substantial   hearsay   and     bad    acts   evidence   that    was

introduced at trial, and that his attorney elicited from the

State's witnesses on cross-examination.




1
  On direct appeal, we noted that although there were no
conspiracies beyond the completed offenses, none of the
convictions were merged.    To date, that issue has not been
addressed. State v. Pagliaroli, No. A-6153-05 (App. Div. Apr. 8,
2009) (slip op. at 50).

                                      3                               A-5054-14T1
     We discuss the relevant factual scenario in order to provide

some context for our discussion regarding the attorney's trial

strategy.   According to the State's witnesses at trial, defendant,

defendant's wife, and the victim had a tumultuous relationship.

The victim, Richard Maskevich, known as "Pops," was a sixty-eight-

year-old drug dealer.   He treated defendant and defendant's wife

as his own children.    The relationship ran the gamut from loud

arguments to jaunts to Atlantic City to gamble.        Once, after

Maskevich spoke to defendant on the phone, he complained that

defendant was trying to get his money, and had threatened to kill,

sodomize, and be cruel to him.       Maskevich made a practice of

keeping substantial amounts of cash in his home, as well as

substantial quantities of cocaine.

     A State's witness testified at the trial that at one point

defendant also sold cocaine.     Defendant and his wife over the

years had borrowed substantial sums of money from the victim, and

at least once, the victim had bailed defendant out of jail.

     Maskevich also supplied defendant's wife, a drug addict who

struggled with mental health issues, with cocaine and marijuana.

By the summer of 2003, defendant was cooperating with the Maine

Drug Enforcement Agency (DEA).   On one occasion, he took his wife

into the office of the agent who was his contact.   Defendant asked



                                 4                          A-5054-14T1
the agent to do something to stop Maskevich from supplying her

with drugs.

     Another State's witnesses testified that Maskevich's house

had been repeatedly burglarized.          Maskevich suspected the break-

ins were committed by someone he knew, either his son-in-law, or

defendant.     The victim had also spoken to defendant's wife about

his belief that defendant had been burglarizing his house. Shortly

before   the   murder,    on   July   14,   2003,   the   home   was     again

burglarized.    After initially calling police, the victim told them

he did not wish to pursue the matter any further.

     Defendant and his wife operated a tattoo parlor in Maine and

one in   New Jersey.     Another State's witness, who also operated a

tattoo parlor, said that in July or August 2003, defendant's wife

told her that defendant had robbed the victim.

     Defendant's wife wrote a letter to the victim on defendant's

behalf, as he was then illiterate.          The letter stated:

           I may have not told you.     I won $45,000 in
           6/9/03 [sic]. I used it --- a friend of mine
           to absorb the taxes because of SSI because I'm
           not supposed to gamble because I will lose my
           medical. That's where I got the money for the
           [Corvette]. I feel really f---ed up for you
           saying I robbed you, your house. Since then
           I've won more money. Since seeing that you
           ripped me and my wife's marriage apart and
           wanted her to revoke my bail for the second
           time even before your house got robbed, you
           can go f--k yourself.


                                      5                                A-5054-14T1
                   . . . .

              If in any shape, form or way you think I did
              this to you and tried to . . . hurt me and
              shape, form or way [sic], your drug world and
              you will come to an end the second [sic]. Go
              f--k yourself. Not your friend anymore.

On the stand, defendant's wife explained the reference in the

letter   to    Maskevich's   world   coming   to   an   end,   as   defendant

threatening to turn the victim in to the DEA.

     Delphie Patton, known as "Dee," was part of the victim's

circle of friends, along with defendant and defendant's wife.

Several witnesses testified that defendant, after an argument with

his wife, allegedly told Patton that he was going to "take her out

[,]" referring to his wife, for the sake of the insurance policy

on her life.

     After Maskevich's murder, police found a voicemail message

that defendant left on the victim's answering machine that stated:

              You know, you keep filling [my wife's] head
              full of s--t. She told me she's moving to New
              Jersey.   Okay?    And she also told me that
              you're saying I got a thirty five thousand
              dollar car?    1984 Corvette, salvaged title.
              Look and see what it's worth. She keeps comin'
              to my shop flippin' out over this f--kin' girl
              that you're saying.    Delphi Patten [sic] is
              not a girl.      It's a f--kin' guy.      Keep
              interfering   with   my   f--kin'  life,   you
              mother--ker. What do you want to do? Bring
              her there and turn her into a coke whore, like
              you did the last Cathy? I'll tell you what
              mother f--ker [sic]    You want problems with
              me, now you got f--kin' problems with me.

                                     6                                A-5054-14T1
           Okay? Now, let's see what the f--k goes on
           with your life, mother--ker. Don't f--k with
           me, b---h.

On September 3, 2003, the victim was discovered lying in his bed

face-up with two bullet holes in his head.

     It was undisputed at trial that the actual shooter was Patton,

who when arrested in Kansas, made inculpatory statements to the

authorities and others.      He also implicated defendant in the

killing.   During the PCR hearing, defense counsel discussed those

statements and the fact the State's witnesses had been cautioned

to avoid any reference to Patton's statements.        The parties

stipulated that on October 31, 2003, after his arrest, Patton was

found hanging in a jail cell in Kansas.

     Defendant's wife testified that during the early morning

hours of September 3, 2003, defendant nudged her awake and told

her that Patton had shot the victim.      He was on the phone and

whispering, and he asked Patton if he had killed him.     She said

she heard defendant say, "shoot him again."    Defendant asked her

where the victim kept his marijuana and cocaine, and he relayed

the information to Patton.     Later, defendant's wife spoke with

Patton and left messages on his cell phone.    Cell phone records

introduced by the State showed that on September 3, various calls

were exchanged between defendant, his wife, and Patton.



                                 7                          A-5054-14T1
     Defendant's trial counsel was a certified criminal attorney2

and very experienced.   He testified at the PCR evidentiary hearing

that because of the damning letter and threatening voicemail, he

and his client knew the trial was going to be an uphill battle.

Trial counsel had previously represented defendant in matters in

Maine, where he was also licensed. He and the two seasoned retired




2
  Rule 1:39 provides that "[a]n attorney of the State of New
Jersey may be certified as a . . . criminal trial attorney . . .
but only on establishing eligibility and satisfying requirements
regarding education, experience, knowledge, and skill for each
designated area of practice[.]" In addition to meeting the
eligibility requirement of being a member in good standing of
the New Jersey bar for at least five years:

          a candidate for certification must demonstrate
          "[e]xtensive and substantial experience" in
          the designated practice area, as defined in
          the   Board    on   Attorney   Certification's
          regulations. R. 1:39-2(b). He or she must
          establish     "professional     fitness    and
          competence in the designated area of practice"
          by presenting peer references, supplemented by
          the Board's or Committee's investigation of
          the     candidate's     qualifications     and
          reputation. R. 1:39-2(c). The candidate must
          demonstrate "satisfactory and substantial
          educational involvement within the three years
          immediately     preceding    his     or    her
          application." R. 1:39-2(d). Upon completion
          of the requirements of Rule 1:39-2, the
          candidate must pass a written examination in
          the relevant field. R. 1:39-3.

          [In re Hyderally,      208   N.J.   453,   458-59
          (2011).]


                                 8                            A-5054-14T1
police officers who acted as investigators in the case developed

a strategy, together with defendant.          They decided to acknowledge

the volatile relationship between defendant, his wife, and the

victim, and attempt to place the blame for the killing squarely

on defendant's wife, hoping to convince the jury that she was the

one who conspired with Patton to commit murder.         During the trial,

the jury heard the fact defendant's wife was not charged at all

in exchange for her testimony.

     At the trial, counsel questioned defendant's wife extensively

regarding her psychiatric history and psychiatric commitments, in

addition to her drug problems.           He also brought out before the

jury that she had given six different versions to the authorities

regarding the murder, including statements in which she denied

that her husband had been involved. Trial counsel wanted to recast

the threatening letter and the voicemail in a more benign light,

as merely defendant's efforts to stop the victim from supplying

drugs to his wife.

     Trial counsel was asked by defendant's PCR counsel during the

course   of   the   lengthy   PCR   hearing    point-by-point   regarding

specific hearsay or bad acts statements made by various witnesses,

and his reason for not objecting.        Trial counsel even acknowledged

that during the trial, the judge had stated for the record at

sidebar that material was being introduced which was potentially

                                     9                            A-5054-14T1
objectionable.     But trial counsel declined to object, and the

judge allowed him to continue in that fashion, commenting that

counsel was following a strategy in doing so.

     Trial counsel said it was his firm belief, "to this day, that

the verdict that we have was a compromise[] verdict."            In other

words, that by deliberately allowing the sordid and violent milieu

occupied by the victim, defendant, and all the State's witnesses

to be depicted in full detail, the jury would find none credible

and might acquit defendant. Additionally, he at times used hearsay

in order to impeach witnesses.

     At the hearing, defendant also testified.           The judge found

defendant's testimony "to be self-serving, not -- not credible."

He disputed that he had been given discovery on a timely basis,

claimed that there were discrepancies in the testimony that his

attorney should have resolved, and said too much testimony was

admitted about Patton, who was dead.         Defendant also disputed some

circumstances developed during the trial regarding the jailhouse

cellmate   who   also   repeated   certain    inculpatory   statements   he

allegedly made while incarcerated.

     Defendant claimed he had difficulty communicating with his

attorney, that "things just didn't go the way I wanted them to go

at trial[,]" and that he would repeatedly ask his attorney to



                                    10                            A-5054-14T1
object but was told in vulgar terms to be silent.                     He complained

that his attorney did not do what he asked him to do.

       In his decision at the close of the PCR hearing, the judge

described trial counsel's representation as the "pursui[t] [of] a

consciously chosen strategy that resulted in defendant's acquittal

of the most serious charges against him. . . . murder and felony

murder."      The strategy, developed with defendant, highlighted the

volatile relationship between the parties, a means of neutralizing

the threatening voicemail and threatening letter.                   The judge also

found   the    attorney      "to   be    a     very   credible     witness.         Very

forthright."

       The judge noted that despite the fact Patton's statements

implicating defendant were not presented to the jury, the State

presented     other   inculpatory        evidence      connecting     defendant        to

Patton.        This   included       phone      records,    and,    significantly,

videotapes of a meeting defendant had with Patton at a Pennsylvania

casino within a day or two of the murder.                  The admission of that

evidence was unavoidable and consequential.                  The judge found the

defense    strategy     to    make      defendant's       wife   appear    to     be    a

"pathological liar," because of her mental health and drug issues,

was clearly designed to weaken the effectiveness of her testimony.

       By developing the extent to which defendant and the victim

were      financially        intertwined,         trial     counsel       hoped        to

                                          11                                    A-5054-14T1
counterbalance any financial motive.   In fact, he was attempting

to convince the jury that defendant had "no motive to kill []

Maskevich, who was basically his patron."     The judge concluded

defense counsel's deliberate strategy regarding hearsay and bad

act evidence did establish that everyone involved, all of the

State's witnesses, the victim, and defendant, were part of a drug

culture, people who were "on the edge[.]"

     On appeal, defendant raises the following points:3

          THE PERFORMANCE OF THE DEFENDANT'S TRIAL
          ATTORNEY WAS CONSTITUTIONALLY DEFICIENT WHERE
          NOT ONLY DID THE TRIAL ATTORNEY'S FAILURE TO
          OBJECT RESULT IN THE ADMISSION OF NUMEROUS
          HEARSAY STATEMENTS WHICH PREJUDICED THE
          DEFENDANT'S RIGHT TO A FAIR TRIAL, BUT IN
          CONTRAST TO HIS COMMENTS MADE DURING THE
          TRIAL, HIS PCR TESTIMONY REVEALED THAT HE
          DEVISED THE PURPORTED STRATEGY TO USE THE
          INADMISSIBLE HEARSAY IN HINDSIGHT.

     In his uncounseled brief, defendant contends as follows:

          POINT I
          DEFENDANT-PETITIONER   KENNETH    PAGLIAROLI,
          CONVICTION WAS SECURED IN VIOLATION OF HIS
          STATE, AND FEDERAL CONSTITUTIONAL RIGHTS TO
          THE EFFECTIVE ASSISTANCE OF COUNSEL AT TRIAL,
          PURSUANT TO THE UNITED STATES CONSTITUTION,
          AMENDMENT VI, AND XIV; AND THE NEW JERSEY

3
  In his counseled reply brief, defendant raises the argument that
a heightened scrutiny should be employed in reviewing this matter
because the defense investigation in the case was less than
complete. It is improper to raise new issues in a reply brief.
R. 2:6-5.    Moreover, defendant had the benefit of two retired
police officers who assisted his attorney in investigating the
case, and who fully participated in interviewing witnesses in
preparation for trial. We will not, therefore, address this point.

                               12                          A-5054-14T1
          CONSTITUTION OF 1947, ART. 1, ¶ 1, AND ART.
          1, ¶ 10.

               A.
               TRIAL COUNSEL WAS INEFFECTIVE IN FAILING
               TO   CONDUCT   AN    ADEQUATE   PRETRIAL
               INVESTIGATION AND MEANINGFUL DEFENSE.

               B.
               TRIAL COUNSEL   FAILED   TO   CONSULT   WITH
               DEFENDANT.

               C.
               TRIAL COUNSEL FAILED TO DISCUSS         WITH
               DEFENDANT HIS RIGHT TO TESTIFY.

               D.
               TRIAL COUNSEL FAILED TO CROSS-EXAMINE IN
               AN EFFECTIVE MANNER.

               E.
               DEFENSE COUNSEL'S FAILURE TO OBJECT TO
               HIGHLY PREJUDICIAL OTHER-CRIME EVIDENCE
               AND HEARSAY TESTIMONY AND TO MAKE
               APPROPRIATE OBJECTIONS DURING THE TRIAL
               PROCEEDINGS DENIED DEFENDANT[] HIS RIGHT
               TO A FAIR TRIAL.

     We limit our discussion to the issues raised in defendant's

counseled brief, as we consider the claims in his uncounseled

brief to be so lacking in merit as to not warrant discussion in a

written opinion.   R. 2:11-3(e)(2).

     Following an evidentiary hearing, appellate consideration is

"necessarily deferential to a PCR court's factual findings based

on its review of live witness testimony."    State v. Nash, 212 N.J.

518, 540 (2013).    So long as the judge's factual findings are

supported by sufficient credible evidence in the record, they will

                               13                             A-5054-14T1
be upheld.       Ibid. (citing State v. Harris, 181 N.J. 391, 415

(2004), cert. denied, 545 U.S. 1145, 125 S. Ct. 2973, 162 L. Ed.

2d 898 (2005)). A reviewing court "need not defer to a PCR court's

interpretation of the law; a legal conclusion is reviewed de novo."

Id. at    540-41 (citing Harris, supra, 181 N.J. at 415-16).

     In this context, de novo review requires application of the

Strickland standard.        The Constitutions of both New Jersey and

United States guarantee the accused "the right to the effective

assistance   of   counsel"    in   criminal    proceedings   against   them.

Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052,

2063, 80 L. Ed. 2d 674, 692 (1984); State v. Fritz, 105 N.J. 42,

58 (1987) (adopting Strickland's ineffective-assistance standard).

Establishing ineffective assistance of counsel requires defendant

to satisfy two prongs.       State v. O'Neil, 219 N.J. 598, 611 (2014).

     A defendant seeking PCR on ineffective assistance of counsel

grounds must first demonstrate trial counsel made errors "so

serious   that    counsel    was   not    functioning   as   the   'counsel'

guaranteed the defendant by the Sixth Amendment." Strickland,

supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693;

Fritz, supra, 105 N.J. at 52.             An attorney's representation is

deficient if representation "[falls] below an objective standard

of reasonableness."     Strickland, supra, 466 U.S. at 688, 104 S.

Ct. at 2064, 80 L. Ed. 2d at 693; see Fritz, supra, 105 N.J. at

                                     14                              A-5054-14T1
58.    Whether counsel's conduct at trial was reasonable, and more

specifically,     whether   counsel       employed    a    reasonable     trial

strategy, is central to this appeal.

       Strickland's second prong requires that a defendant "show

that     the   deficient    performance      prejudiced      the     defense."

Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed.

2d at 693; Fritz, supra, 105 N.J. at 52.         A defendant demonstrates

prejudice by establishing "a reasonable probability that, but for

counsel's unprofessional errors, the result of the proceeding

would have been different."         Strickland, supra, 466 U.S. at 694,

104 S. Ct. at 2068, 80 L. Ed. 2d at 698; Fritz, supra, 105 N.J.

at 52.   A "reasonable probability" means a "probability sufficient

to    undermine   confidence   in   the    outcome"   of    the    proceeding.

Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed.

2d at 698; Fritz, supra, 105 N.J. at 52.

       We observe first that trial counsel in this case was faced

with a strong State's case, including defendant's threatening

letter to the victim, voicemail threat shortly before the murder,

and the videotaped contact with the actual shooter a day or two

after the killing.     That evidence was compounded by the testimony

of defendant's wife to the effect that the night of the shooting,

Patton called her husband and she overheard defendant urging the

killer to "shoot him again."        A novel strategy had to be developed

                                     15                                 A-5054-14T1
in order to weaken these proofs, even if they could not be

overcome.    That it consisted to a great extent of circumstantial

evidence did not make the State's case weaker.

     The judge found trial counsel a credible witness, and found

defendant incredible.    These findings are entitled to deferential

review.   See Nash, supra, 212 N.J. at 540.

     Trial counsel, an experienced defense attorney, supported by

two experienced investigators, painted a picture for the jury of

a drug-riddled unstable underworld in the hopes of diminishing the

effect of all the damning testimony, and of creating confusion and

distracting storylines whenever possible. The strategy succeeded:

defendant was acquitted of the most serious crimes, namely murder

and felony murder.

     Counsel developed a distinct and novel strategy, and there

is a "strong presumption that counsel's conduct falls within the

wide range of reasonable professional assistance."             Strickland,

supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694.

We "judge the reasonableness of counsel's challenged conduct on

the facts of the particular case, viewed as of the time of

counsel's conduct."     Id. at   690, 104 S. Ct. at 2066, 80 L. Ed.

2d   at   695.    As   always,   "[a]s   a   general   rule,    strategic

miscalculations or trial mistakes are insufficient to warrant

reversal except in those rare instances where they are of such

                                  16                               A-5054-14T1
magnitude as to thwart the fundamental guarantee of [a] fair

trial."   State v. Castagna, 187 N.J. 293, 314-15 (2006) (internal

quotation marks and citation omitted).       Counsel made reasonable

strategic choices in light of the State's case.      Trial counsel's

decision to allow hearsay and prior bad acts to be testified about

without objection in this somewhat unique scenario falls within

the wide range of reasonable professional assistance.

     The four examples of objectionable material identified by

defendant in his brief are just a part of the framework trial

counsel wanted to develop. They fit into trial counsel's strategy.

For example, that defendant may have threatened the victim on

another occasion, which was testimony given by a witness whose

bona fides were questionable, made the threatening phone message

and letter appear just a part of the ongoing volatile relationship

between the two men, who interacted like father and son at times,

and at other times, like sworn enemies.       Another example is the

testimony regarding whether defendant had previously assaulted his

wife, or was angry at her and wanted to "take her out[.]"         That

testimony is less prejudicial in light of the need to cast doubt

on her testimony that the shooter called defendant while at the

scene, and that defendant told him to shoot the victim a second

time because he was still alive.     Counsel needed to attribute some

improper motive for her testimony —— whether it was revenge, or

                                17                            A-5054-14T1
to point the finger of blame away from herself.   When faced with

an impossible defense, counsel developed a different script from

the one that the State was offering to the jury, to his client's

benefit.   We will not second-guess his deliberate decision.   Thus

we conclude defendant has failed to meet the Strickland standard.

    Affirmed.




                                18                         A-5054-14T1
