                        NOT FOR PUBLICATION WITHOUT THE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-1482-15T3

STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

LEONARDO BUCCHERI,

     Defendant-Appellant.
____________________________

              Submitted February 7, 2017 – Decided April 3, 2017

              Before Judges Fasciale and Gilson.

              On appeal from Superior Court of New Jersey,
              Law Division, Hudson County, Indictment No.
              09-12-2104.

              Joseph E. Krakora, Public Defender, attorney
              for appellant (Steven M. Gilson, Designated
              Counsel, on the brief).

              Esther Suarez, Hudson County Prosecutor,
              attorney for respondent (Lillian M. Kayed,
              Assistant Prosecutor, on the briefs).

              Appellant filed a pro se supplemental brief.

PER CURIAM

        Defendant Leonardo Buccheri appeals from a June 19, 2015

order     denying    his   petition     for   post-conviction      relief    (PCR)
without an evidentiary hearing.            We affirm substantially for the

reasons explained by Judge Joseph V. Isabella in the written

opinion issued on June 19, 2015.

                                      I.

     In    2010,   a    jury     convicted    defendant   of   second-degree

manslaughter, N.J.S.A. 2C:11-4(b)(2), as a lesser included offense

on a charge of first-degree murder; second-degree possession of a

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

degree    possession    of   a   defaced   firearm,   N.J.S.A.   2C:39-3(d).

Thereafter, defendant pled guilty to second-degree certain persons

not to have weapons, N.J.S.A. 2C:39-7(b).

     On the manslaughter conviction, defendant was sentenced to

ten years in prison with a period of parole ineligibility as

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

Defendant was also sentenced to a consecutive five years in prison

with five years of parole ineligibility on the certain persons not

to have weapons        conviction.     Finally, on the conviction for

possession of a defaced firearm, defendant was sentenced to a

concurrent eighteen months in prison.          Thus, defendant's aggregate

sentence was fifteen years in prison with over thirteen years of

parole ineligibility.

     On direct appeal, we affirmed his convictions and sentence.

State v. Buccheri, No. A-1086-11 (App. Div. March 8, 2013).               The

                                       2                             A-1482-15T3
Supreme     Court     subsequently    denied       certification.         State     v.

Buccheri, 216 N.J. 7 (2013).

     In November 2013, defendant filed a petition for PCR.                   He was

assigned    counsel     and   Judge   Isabella,      who   had    presided        over

defendant's trial, heard oral arguments on that petition.                     After

considering all of the arguments presented, Judge Isabella entered

an order on June 19, 2015, denying the PCR petition.                          Judge

Isabella also issued a comprehensive written opinion.

     Defendant's convictions arose out of the death of his fiancée,

Soveira "Sophie" Rojas. We have previously summarized the relevant

facts in our decision issued in 2013.             In short, defendant and his

fiancée had been attending a reunion barbecue for defendant's

motorcycle club.        Most of the people attending were eating and

drinking.    Towards the end of the barbecue, defendant and another

man got into a heated verbal argument.              Sophie intervened and had

to tackle defendant to the ground to prevent him from hitting the

other man.     Some friends then drove the couple's children home

while defendant and Sophie drove separately.

     When defendant and Sophie arrived at their home, witnesses

testified    that     they    appeared       to   have   been    in   a    physical

altercation.        Defendant had scars and scratches on his face and

head, which he had not had before getting into the car with Sophie.



                                         3                                  A-1482-15T3
Sophie's face was blotched and she was complaining of an injured

thumb.

      The friends then left. Later that evening, one of defendant's

children heard a pop sound.       Shortly thereafter, defendant called

911 to report that Sophie had been shot.              Defendant claimed that

the fiancée had shot herself.            At trial, the State called the

regional medical examiner, Dr. Lyla E. Perez, to testify as an

expert witness.     Dr. Perez determined that the cause of death was

a gunshot wound to the upper right chest.             Dr. Perez also opined

that the manner of death was homicide.            She formed that opinion

after comparing autopsy photographs of the victim with the results

of a firing test performed on the gun.           That information led Dr.

Perez to conclude that the muzzle of the gun had been three to six

inches away from where the bullet entered Sophie when it was fired.

      Defendant elected not to testify at trial.                 Before making

that election, defendant was questioned by Judge Isabella who

advised    defendant   of   his   right    not   to    testify    and   of   the

instruction that would be given to the jury if he elected not to

testify.    Judge Isabella also informed defendant that he should

only make that decision after he consulted with his attorney.

Thereafter, defendant elected not to testify at trial and asked

the   court    to   give    the   jury     instruction      concerning       his

constitutional right to remain silent.

                                     4                                  A-1482-15T3
     On this appeal, defendant argues:

          THIS   MATTER   MUST   BE  REMANDED  FOR   AN
          EVIDENTIARY    HEARING    BECAUSE   DEFENDANT
          ESTABLISHED A PRIMA FACIE CASE OF TRIAL
          COUNSEL'S INEFFECTIVENESS

          A.   Trial Counsel Induced Defendant Not To
          Testify

          B.   Trial Counsel Failed To Alert The Court
          To Sleeping Jurors

     Defendant also filed a pro se supplemental brief.     In that

supplemental brief, defendant contends that trial counsel was also

ineffective for failing to seek and consult with a medical expert

who could have rebutted the testimony of Dr. Perez.       Defendant

also argues that his trial counsel was ineffective in failing to

object to the opinion rendered by Dr. Perez based on an autopsy

that was performed by another medical examiner.

     We first review the well-established principles guiding our

review of an order denying PCR.   Defendant's petition arises from

the application of Rule 3:22-2, which permits collateral attack

of a conviction based upon a claim of ineffective assistance of

counsel within five years of the conviction. See R. 3:22-12(a)(1);

see also Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct.

2052, 2064, 80 L. Ed. 2d 674, 693 (1984); State v. Fritz, 105 N.J.

42, 58 (1987).   To establish a claim of ineffective assistance of

counsel, a defendant must satisfy the two-part Strickland test:


                                  5                         A-1482-15T3
(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     [truly]

prejudiced the defense."        Strickland, supra, 466 U.S. at 687, 104

S. Ct. at 2064, 80 L. Ed. 2d at 693 (quoting U.S. Const. amend.

VI); Fritz, supra, 105 N.J. at 58-59 (adopting the Strickland two-

part test in New Jersey).

        Rule 3:22-10(b) provides that a defendant is only entitled

to an evidentiary hearing on a PCR petition if he establishes a

prima facie case in support of PCR, "there are material issues of

disputed fact that cannot be resolved by reference to the existing

record," and the court determines that "an evidentiary hearing is

necessary to resolve the claims for relief." See also State v.

Porter, 216 N.J. 343, 354 (2013).               To establish a prima facie

case, a defendant must demonstrate "the reasonable likelihood of

succeeding under the test set forth in Strickland."                  State v.

Preciose, 129 N.J. 451, 463 (1992).              A defendant "must do more

than make bald assertions that he [or she] was denied the effective

assistance of counsel."         State v. Cummings, 321 N.J. Super. 154,

170 (App. Div.), certif. denied, 162 N.J. 199 (1999).                 "He [or

she]   must   allege     [specific]     facts   sufficient   to   demonstrate

counsel's alleged substandard performance."            Ibid.



                                        6                             A-1482-15T3
     Applying these principles, we affirm substantially for the

reasons expressed by Judge Isabella.     We add some brief comments

on each of the three alleged grounds of ineffective assistance of

trial counsel.

     First, defendant contends that trial counsel prevented him

from testifying in his own defense.    Initially, we note that that

contention is inconsistent with the trial record.       At trial, Judge

Isabella informed defendant of his right to testify and his right

to remain silent.   Knowing he had the right to testify, defendant

elected not to testify.

     Just as critically, defendant cannot establish any prejudice

from his election not to testify.     At trial, defendant's defense

was that his fiancée had committed suicide and shot herself.          That

position was very clearly presented to the jury through the cross-

examination of the State's expert witness.          The jury also heard

defendant's own words in the 911 recording where he claimed that

Sophie had shot herself.      As Judge Isabella pointed out, had

defendant elected to testify, he could have been cross-examined

about his extensive criminal record.         Given all of those facts,

defendant has not shown any prejudice from his election not to

testify.

     Second,   defendant   contends   that    his   trial   counsel   was

ineffective in failing to alert the court during trial that two

                                 7                               A-1482-15T3
jurors were allegedly sleeping.           The only evidence in the record

concerning jurors allegedly sleeping is the contentions made by

defendant    in   his   post-verdict      PCR   petition.      In    his    PCR

certification, defendant contends that during the testimony of Dr.

Perez, he saw two jurors in the back row leaning on each other as

if they were asleep.

     Judge   Isabella    found   no    prejudice    from    that    contention

because he noted that during the deliberation, the jurors requested

to have Dr. Perez's testimony replayed.            Thus, even if there was

some period of time where certain jurors were not paying attention

during the initial testimony, those jurors heard the testimony

again during deliberation.        We agree with Judge Isabella that

under these facts, there is no showing of any potential for

prejudice.    Judge Isabella, who presided over the trial, did not

note any sleeping jurors.        Further Judge Isabella, as the PCR

judge, noted that Dr. Perez's testimony was some of the strongest

evidence against defendant.       Finally, Judge Isabella noted that

Dr. Perez's testimony had been replayed during deliberation. Given

that procedural history, defendant has failed to establish a prima

facie case of ineffective assistance of counsel as it relates to

the alleged sleeping jurors.

     Finally, defendant argues that his counsel was ineffective

in failing to retain and consult with an expert to rebut Dr. Perez.

                                      8                                A-1482-15T3
The flaw that Judge Isabella found with this argument was that

defendant provided no evidence that a defense expert could have

disputed the State's medical expert.        In other words, defendant

presented nothing to the PCR court to show that had trial counsel

consulted with a medical expert, that medical expert could have

disputed the testimony of the State's expert.

       Without presenting evidence that an expert could have been

consulted and retained, defendant is essentially asking the court

to speculate.      Such speculation cannot form the basis for a prima

facie case of ineffective assistance of counsel.           See R. 3:22-

10(e)(2) (providing that a court shall not grant an evidentiary

hearing if defendant's "allegations are too vague, conclusory or

speculative"); see also Fritz, supra, 105 N.J. at 64 (explaining

that   "purely     speculative   deficiencies   in   representation   are

insufficient to justify reversal").

       Affirmed.




                                     9                           A-1482-15T3
