                                NOT FOR PUBLICATION WITHOUT THE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-2668-18T1

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

COBY T. RICHARDSON, a/k/a
COLBY RICHARDSON, and
TIMOTHY RICHARDSON,

     Defendant-Appellant.
__________________________

                    Submitted February 12, 2020 – Decided March 8, 2020

                    Before Judge Gooden Brown and Mawla.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Essex County, Indictment No. 12-04-1144.

                    Joseph E. Krakora, Public Defender, attorney for
                    appellant (John Vincent Molitor, Designated Counsel,
                    on the brief).

                    Theodore N. Stephens II, Acting Essex County
                    Prosecutor (Stephen Anton Pogany, Special Deputy
                    Attorney General/Acting Assistant Prosecutor, on the
                    brief).
PER CURIAM

      Defendant appeals from the December 11, 2018 Law Division order

denying his first petition for post-conviction relief (PCR) without an evidentiary

hearing. On appeal, defendant raises the following single contention for our

consideration:

            THIS COURT SHOULD REVERSE THE TRIAL
            COURT'S DECISION TO DENY DEFENDANT'S
            PETITION FOR POST-CONVICTION RELIEF
            WITHOUT AN EVIDENTIARY HEARING.

We disagree and affirm for the reasons expressed in Judge John I. Gizzo's

comprehensive and well-reasoned written opinion.

      We incorporate herein the facts set forth in State v. Richardson, No. A-

4021-14 (App. Div. June 23, 2017) (slip op. at 2, 5, 39), certif. denied, 231 N.J.

520 (2017), wherein we affirmed defendant's 2015 convictions following a jury

trial, as well as the imposition of an aggregate seventeen-year sentence, with

six-and-one-half-years of parole ineligibility, for receiving stolen property,

resisting arrest and weapons possession offenses.1 The convictions stemmed

from a July 21, 2011 "9-1-1 call from an unidentified woman, reporting armed

men, wearing gloves, in a red vehicle in the area of 600 Irvine Turner Boulevard"


1
  Defendant was acquitted of eluding police and possession of hollow point
bullets.
                                                                          A-2668-18T1
                                        2
in Newark. Id. at 5. The report led to a police pursuit of a vehicle matching the

description, and the ultimate apprehension of defendant and his brother, who

"fled" from the vehicle "on foot" just prior to the vehicle striking "a parked car

and a tree." Ibid.

      The two officers who first responded to the police dispatch, Jimmy Rios

and Steven Maresca, identified defendant as the driver of the vehicle.           A

subsequent examination of the vehicle revealed a damaged ignition, and a search

uncovered a "handgun, a rifle, a high capacity magazine, and a screwdriver." Id.

at 6-7. "Police also recovered gloves, bandanas, cellphones, and a cap at the

scene." Id. at 7. A bandana was linked to defendant by DNA evidence, which

was challenged by a defense expert forensic scientist.

      During the nine-day trial, the State produced "the dispatch officer" and

"the 9-1-1 operator," as well as several other police and civilian witnesses, and

introduced "various documents including transcripts of the 9-1-1 call and radio

dispatches." Ibid. Defendant testified at trial, essentially claiming mistaken

identity. We previously recounted his testimony as follows:

                  [Defendant] testified he worked as a driver for his
            brother's roadside assistance company, which
            responded to service calls for customers of companies
            such as AAA and All America. On July 21, 2011, at
            approximately 3 p.m., [his brother] arrived in a
            company van to take [defendant] to work. [Defendant]

                                                                          A-2668-18T1
                                        3
             was to start work at 5 p.m., when [his brother's] shift
             ended. Sometime after 4 p.m., the van overheated so
             [his brother] took it for repair at a local mechanic shop.
             While the two waited, they walked to a nearby
             neighborhood . . . because [defendant] wanted to buy
             marijuana.

                    At some point, [his brother] separated from
             [defendant] because he desired to purchase Percocet.
             After his transaction was completed, [defendant]
             emerged from an alleyway and saw police. He became
             nervous, as he just purchased marijuana, so he ran. A
             police officer, searching on foot, saw [defendant]
             hiding behind a bush and arrested him. . . . Also he
             admitted he tossed the marijuana during the chase and
             lost his bandana. [Defendant] denied he was driving a
             red Ford Taurus or that he possessed guns.

             [Id. at 7-8.]

His brother, who was also charged and tried jointly with defendant, gave similar

testimony.

      In his timely PCR petition, defendant certified his "trial attorney was

ineffective . . . in failing to consult with [him] regarding trial strategy."

Specifically, defendant averred his attorney "fail[ed] to contact the [9-1-1] caller

and interview her as to her observations." Defendant asserted "[t]he caller's

telephone number was provided, and [he] requested" his attorney to "contact"

her "several times . . . but he refused." According to defendant, because the

caller never "provide[d] the race of the individuals she saw, and . . . never


                                                                            A-2668-18T1
                                         4
mentioned dreadlocks, which would have been a distinguishing feature," if his

attorney had contacted her, she "would have exculpated [him]."

      Defendant also asserted his attorney "refused" to "cross-examine" Rios on

a "critical" discrepancy in his testimony. According to defendant, although Rios

stated at trial that "the perpetrator had dreadlocks, . . . he failed to communicate

such to dispatch" and "only added dreadlocks into his police report after the

fact." Defendant averred "[t]his omission would have illustrated to the jury that

the officer was lying about [defendant's] involvement." Defendant made other

assertions to support his ineffective assistance of counsel claim (IAC) that are

not pertinent to this appeal.

      Following oral argument, Judge Gizzo denied defendant's petition. In his

December 10, 2018 written decision, the judge reviewed the factual background

and procedural history of the case, applied the applicable legal principles, and

concluded defendant failed to establish a prima facie case of IAC. The judge

found defendant failed to show that either counsel's performance fell below the

objective standard of reasonableness set forth in Strickland v. Washington, 466

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

N.J. 42, 49-53 (1987), or that the outcome would have been different without

the purported deficient performance as required under the second prong of the


                                                                            A-2668-18T1
                                         5
Strickland/Fritz test.   Additionally, in rejecting defendant's request for an

evidentiary hearing, the judge concluded defendant failed to present any issues

that could not be resolved by reference to the existing record.

      In rejecting defendant's claim that trial counsel failed to effectively cross-

examine Rios, the judge stated

            the trial record suggests otherwise. During his cross[-
            ]examination of . . . Rios, trial counsel proceeded to ask
            the detective about the descriptions he provided to
            dispatch regarding the suspect's identity. The record
            further reveals that trial counsel questioned . . . Rios not
            only about the suspect's hair type but also about the
            suspect's weight, height, dress and race. This line of
            questioning directly contradicts [d]efendant's claim.
            The jury not only had the benefit of hearing
            [d]efendant's trial attorney cross-examine . . . Rios on
            the identification issues, but they also listened while
            [his brother's] trial counsel conducted his own cross-
            examination of . . . Rios on the identification issues.

      As to defendant's claim regarding the 9-1-1 caller, the judge explained:

            It seems apparent that trial counsel chose not to call the
            witness but instead chose to use the State's failure to
            call the 9-1-1 caller to raise reasonable doubt. Trial
            counsel might have chosen not to call the 9-1-1 caller
            as part of his trial strategy. Trial counsel integrated this
            theory into his cross-examinations and closing
            argument. Therefore, his choice not to call the 9-1-1
            caller to testify is likely attributable to trial strategy.
            For instance, in his closing argument, trial counsel
            referred several times to the State's inability to call the
            9-1-1 caller and continued to address her by her phone
            number. Trial counsel extensively questioned [the

                                                                            A-2668-18T1
                                         6
            police dispatcher] and the [9-1-1 operator] . . . on their
            inability to ask the 9-1-1 caller about her identity.

                   Assuming that trial counsel's failure to call the 9-
            1-1 witness amounted to deficient performance,
            [d]efendant presents no evidence tending to show that
            the 9-1-1 caller's testimony would have raised any
            reasonable doubt. Defendant merely speculates that the
            9-1-1 caller, if called to testify, would have somehow
            provided testimony tending to change the outcome of
            the trial. However, there is no such evidence to provide
            as much as a reasonable inference into this claim. The
            9-1-1 caller provided specific details about the car she
            saw which later matched the car occupied by
            [defendant's brother] and [d]efendant. It is clear from
            the line of questioning that trial counsel was attempting
            to cast doubt on the veracity of the State's witness,
            which, in itself, amounts to trial strategy. Therefore,
            trial counsel did not render ineffective assistance for
            likely choosing not to call the 9-1-1 caller to testify as
            part of his trial strategy or for choosing not to do so
            because the 9-1-1 caller could have actually harmed
            [d]efendant's case.

      On appeal, defendant argues that, "[a]t the very least," he was entitled to

"an evidentiary hearing so [d]efendant's trial attorney can explain why he did

not attempt to locate the 9-1-1 caller and did not attempt to establish the flaws

in the State's witnesses' identification of [d]efendant." Merely raising a claim

for PCR does not entitle a defendant to relief or an evidentiary hearing. See

State v. Cummings, 321 N.J. Super. 154, 170 (App. Div. 1999). Rather, trial

courts should grant evidentiary hearings only if the defendant has presented a


                                                                          A-2668-18T1
                                        7
prima facie claim of IAC, material issues of disputed fact lie outside the record,

and resolution of those issues necessitates a hearing. R. 3:22-10(b); State v.

Porter, 216 N.J. 343, 355 (2013). A PCR court deciding whether to grant an

evidentiary hearing "should view the facts in the light most favorable to a

defendant . . . ." State v. Preciose, 129 N.J. 451, 463 (1992). However, "[a]

court shall not grant an evidentiary hearing" if "the defendant's allegations are

too vague, conclusory or speculative." R. 3:22-10(e)(2). Indeed, 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, 321 N.J. Super. at 170.

      In turn, "we review under the abuse of discretion standard the PCR court's

determination to proceed without an evidentiary hearing." State v. Brewster,

429 N.J. Super. 387, 401 (App. Div. 2013). "If the court perceives that holding

an evidentiary hearing will not aid the court's analysis of whether the defendant

is entitled to post-conviction relief, . . . then an evidentiary hearing need not be

granted." Ibid. (alteration in original) (quoting State v. Marshall, 148 N.J. 89,

158 (1997)). We also typically review a PCR petition with "deference to the

trial court's factual findings . . . 'when supported by adequate, substantial and

credible evidence.'" State v. Harris, 181 N.J. 391, 415 (2004) (alteration in


                                                                            A-2668-18T1
                                         8
original) (quoting Toll Bros., Inc. v. Twp. of W. Windsor, 173 N.J. 502, 549

(2002)). However, where, as here, "no evidentiary hearing has been held, we

'may exercise de novo review over the factual inferences drawn from the

documentary record by the [PCR judge].'" State v. Reevey, 417 N.J. Super. 134,

146-47 (App. Div. 2010) (alteration in original) (quoting Harris, 181 N.J. at

421). We also review de novo the legal conclusions of the PCR judge. Harris,

181 N.J. at 415-16 (citing Toll Bros., 173 N.J. at 549).

      To establish a prima facie claim of IAC, a defendant must satisfy the two-

prong Strickland test, and "bears the burden of proving" both prongs of an IAC

claim "by a preponderance of the evidence." State v. Gaitan, 209 N.J. 339, 350

(2012). Specifically, a defendant must show that (l) "counsel's performance was

deficient" and he "made errors so serious that counsel was not functioning as the

'counsel' guaranteed . . . by the Sixth Amendment" to the United States

Constitution; and (2) "there is a reasonable probability that, but for counsel's

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

Strickland, 466 U.S. at 687, 694; see also Fritz, 105 N.J. at 52. A reasonable

probability is defined as "a probability sufficient to undermine confidence in the

outcome." Strickland, 466 U.S. at 694.




                                                                          A-2668-18T1
                                        9
      Under the first Strickland prong, "a defendant must overcome a 'strong

presumption' that counsel exercised 'reasonable professional judgment' and

'sound trial strategy' in fulfilling his responsibilities." State v. Hess, 207 N.J.

123, 147 (2011) (quoting Strickland, 466 U.S. at 689-90). Indeed, "counsel is

strongly presumed to have rendered adequate assistance," Strickland, 466 U.S.

at 690, as measured by a standard of "reasonable competence." Fritz, 105 N.J.

at 53.    However, "'[r]easonable competence' does not require the best of

attorneys," State v. Davis, 116 N.J. 341, 351 (1989), and "[n]o particular set of

detailed rules for counsel's conduct can satisfactorily take account of the variety

of circumstances faced by defense counsel or the range of legitimate decisions

regarding how best to represent a criminal defendant." Strickland, 466 U.S. at

688-89.

      For that reason,

             an otherwise valid conviction will not be overturned
             merely because the defendant is dissatisfied with his or
             her counsel's exercise of judgment during the trial. The
             quality of counsel's performance cannot be fairly
             assessed by focusing on a handful of issues while
             ignoring the totality of counsel's performance in the
             context of the State's evidence of defendant's guilt. As
             a general rule, strategic miscalculations or trial
             mistakes are insufficient to warrant reversal except in
             those rare instances where they are of such magnitude
             as to thwart the fundamental guarantee of a fair trial.


                                                                           A-2668-18T1
                                       10
            [State v. Castagna, 187 N.J. 293, 314-15 (2006)
            (citations, internal quotation marks, and brackets
            omitted).]

Thus, "[j]udicial scrutiny of counsel's performance must be highly deferential."

Strickland, 466 U.S. at 689.

      Under the second Strickland prong, defendant must prove prejudice.

Fritz, 105 N.J. at 52. "An error by counsel, even if professionally unreasonable,

does not warrant setting aside the judgment of a criminal proceeding if the error

had no effect on the judgment." Strickland, 466 U.S. at 691. This prong "is an

exacting standard" and "'[t]he error committed must be so serious as to

undermine the court's confidence in the jury's verdict or the result reached.'"

State v. Allegro, 193 N.J. 352, 367 (2008) (alteration in original) (quoting

Castagna, 187 N.J. at 315).

      Applying these principles, we are satisfied defendant failed to make a

prima facie showing of IAC under the Strickland/Fritz test, and we discern no

abuse of discretion in the judge's denial of defendant's PCR petition without an

evidentiary hearing. We agree with Judge Gizzo that defendant's contention that

his attorney failed to effectively cross-examine Rios is belied by the record. As

to defendant's contention that his attorney was ineffective by failing to

investigate the 9-1-1 caller, an attorney's failure to investigate "is a serious


                                                                         A-2668-18T1
                                      11
deficiency that can result in the reversal of a conviction." Porter, 216 N.J. at

353. "[C]ounsel has a duty to make reasonable investigations or to make a

reasonable decision that makes particular investigations unnecessary."

Strickland, 466 U.S. at 691. However, "when a [defendant] claims his trial

attorney inadequately investigated his case, he must assert the facts that an

investigation would have revealed, supported by affidavits or certifications

based upon the personal knowledge of the affiant or the person making the

certification." Cummings, 321 N.J. Super. at 170.

      Here, as the judge explained, other than rank speculation, defendant

offered no support for his claim that the 9-1-1 caller would have exonerated him.

See id. at 171 (rejecting the defendant's contention that trial counsel was

ineffective by failing to adequately investigate the case by interviewing

witnesses because defendant "offer[ed] nothing as to what those witnesses

would have said had they been interviewed."). As the judge noted, given the

equally plausible likelihood that the 9-1-1 caller's testimony would have

"actually harmed [d]efendant's case," his attorney's "reasonable professional

judgment[] support[ed] the limitation[] on investigation." Strickland, 466 U.S.

at 691.

      Affirmed.


                                                                         A-2668-18T1
                                      12
