                        NOT FOR PUBLICATION WITHOUT THE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-0059-17T1

STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

ERIK JONES, a/k/a ERIC TAYLOR,

        Defendant-Appellant.


              Submitted June 6, 2018 – Decided August 13, 2018

              Before Judges Alvarez and Nugent.

              On appeal from Superior Court of New Jersey,
              Law Division, Hudson County, Indictment No.
              12-03-0471.

              Joseph E. Krakora, Public Defender, attorney
              for appellant (Andrew R. Burroughs, Designated
              Counsel, on the brief).

              Esther Suarez, Hudson County Prosecutor,
              attorney for respondent (Svjetlana Tesic,
              Assistant Prosecutor, on the brief).

              Appellant filed a pro se supplemental brief.

PER CURIAM

        Defendant Erik Jones appeals the July 13, 2017 Law Division

order denying his petition for post-conviction relief (PCR).                       For
the reasons stated by Judge Patrick J. Arre, we affirm with only

brief comments.

    Defendant was indicted for first-degree murder, N.J.S.A.

2C:11-3(a)(1) or 2C:11-3(a)(2), second-degree possession of a

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

degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b).                    He

was convicted of only the third count of the indictment.                         On

November 22, 2013, defendant was sentenced to an extended term of

twenty years subject to ten years parole ineligibility as a

persistent offender, N.J.S.A. 2C:43-6(c) and 2C:44-3(d), among

other reasons.

    The State's key proofs at trial included a videotaped police

interview of an eyewitness, G.L., inculpating defendant.                       G.L.

refused to testify at trial.             The court admitted the statement

over defendant's objection after a pretrial hearing pursuant to

N.J.R.E. 804(b)(9).

    The State also presented the testimony of T.B., who was then

in a relationship with defendant.                She said that in late July

2011,   around   the   time   of   the       murder,   defendant   came   to   her

apartment carrying a black or blue bag.                T.B.'s description of it

was similar to the bag G.L. said held the firearm defendant

allegedly used on the night of the killing.                 Defendant left the

bag in a closet in T.B.'s apartment.              In his absence, she looked

                                         2                                A-0059-17T1
inside and saw a handgun and some clothes.         Defendant returned for

it some hours later.

     On     defendant's    unsuccessful   direct     appeal,   he    argued

prosecutorial misconduct and that the court erred in its sentence.

State v. Jones, No. A-3367-13 (App. Div. Mar. 28, 2016) (slip op.

at 6-7).    In a pro se brief, defendant challenged the sufficiency

of the evidence supporting his conviction, and suggested the trial

court should have "mold[ed] the jury verdict to one sustainable

on the [proofs] adduced at trial, and impose [a] sentence within

the third[-]degree range."       Id. at 7 (second, third, and fourth

alterations in original).       The Supreme Court denied defendant's

petition for certification.      State v. Jones, 227 N.J. 38 (2016).

Defendant's PCR petition followed.

     During    the   PCR   evidentiary    hearing,    the   State    called

defendant's trial attorney and appellate counsel.              Defendant's

trial attorney then indicated that T.B. was subpoenaed but had not

appeared.     Judge Arre allowed defendant "to submit a proffer as

to his request to present [T.B.'s] testimony," and would "consider

[his] supplemental petition . . . and the State's supplemental

brief."     In the supplemental brief, defendant argued that T.B.

should have been cross-examined about the nature of the object

that she saw in the bag.



                                    3                               A-0059-17T1
     Trial counsel testified that she did speak to T.B. on the

phone before trial, and that neither she nor defendant at any time

questioned whether the item in the bag was a genuine firearm.

Trial counsel also said she did not want to risk eliciting false

testimony by flatly asking T.B. if she was certain the gun was

real, as opposed to an imitation object "or even a water pistol"

as PCR counsel contended.      Although not entirely clear from

defendant's proffer, it seems as if he intended to attack trial

counsel's representation for failing to question T.B.'s testimony

that the item was a handgun.

     Now on appeal, defendant raises the following points:

          POINT I
          PETITIONER RECEIVED INEFFECTIVE ASSISTANCE OF
          COUNSEL.

          (1) Trial counsel was ineffective by failing
          to cross-examine [T.B.] on what she observed
          in Defendant's bag.

          (2) Trial counsel was ineffective by failing
          to argue during summation that the State did
          not prove beyond a reasonable doubt that
          Defendant possessed a handgun.

          (3) Trial counsel failed to object to the
          trial court's erroneous and misleading jury
          instruction on possession of a handgun.

          (4) Trial counsel was ineffective for failing
          to request a mistrial and ask the trial judge
          to recuse himself.




                                4                            A-0059-17T1
           (5) Trial    counsel's    cumulative    errors
           deprived Defendant of his constitutional right
           to effective assistance of counsel.

           POINT II
           AS THE PCR COURT WAS WRONG WHEN IT RULED THAT
           APPELLATE COUNSEL WAS NOT INEFFECTIVE AND THAT
           THE MATTER WAS PROCEDURALLY BARRED.

           POINT III
           THE PCR COURT ERRED BY FAILING TO PERMIT
           DEFENDANT TO PRESENT THE TESTIMONY OF T.B.
           . . . AT THE EVIDENTIARY HEARING.

     We address defendant's third point first.            The record does

not support the claim that in any way the judge prevented defendant

from calling T.B. as a witness.         Although the State objected to

her testimony, the judge deferred a decision on the objection

until such time as T.B. appeared.         She never appeared, and the

judge   therefore   allowed   defendant   to   make   a   written   proffer

regarding her proposed testimony.

     With regard to defendant's second point, it is barred by Rule

3:22-5.1   It was not ineffective for appellate counsel not to

advance defendant's meritless argument that the court should have

"molded"   the   jury's   verdict   to    a    third-degree   conviction.

Defendant in his pro se brief, however, did raise the issue, and

we found the argument so lacking in merit as to not warrant




1
    Rule 3:22-5 bars from       consideration     arguments    which    were
previously adjudicated.

                                    5                               A-0059-17T1
discussion in a written opinion.            Jones, slip op. at 7, 20; R.

2:11-3(e)(2).

     Turning now to defendant's multi-part first point, Judge Arre

correctly held that strategic decisions, such as those made by

trial counsel regarding T.B.'s testimony, are not subject to attack

by way of PCR.      See State v. Marshall, 148 N.J. 89, 312 (1997).

Furthermore, given the trial context that counsel was defending a

murder charge as well as a possession of a weapon for an unlawful

purpose, her failure to cast doubt on the nature of the object was

reasonable.     As Judge Arre noted, although counsel did not cast

doubt   through    T.B.   regarding   the    nature   of   the   object,   she

certainly   cast    doubt   on   T.B.'s     overall   credibility   and    the

reliability of her testimony. Thus, this point lacks merit because

it is not cognizable by way of PCR.

     With regard to the objected-to trial judge's interactions

with defendant, we note they occurred pretrial, during a break in

the proceedings in the absence of the jury, and on one occasion

in the presence of the jury when defendant audibly interjected

while a defense witness was testifying.          The single instance that

took place in the presence of the jury was not so egregious as to

have affected the outcome.       Based on our review of the record, it

is clear the judge's responses would not prejudice the jury.



                                      6                               A-0059-17T1
    The trial judge condensed the relevant Model Jury Charge for

reasons not clear from the record, stating:


              The first element the State must prove
         beyond a reasonable doubt is that there was a
         handgun.

              And under our law a handgun is any
         pistol, revolver or firearm designed or
         manufactured to be fired by the use of a single
         hand. Okay?

The Model Charge provides two far more detailed options.

         [A] handgun is any pistol, revolver or other
         firearm originally designed or manufactured to
         fire or eject any solid projectile, ball,
         slug, pellet, missile or bullet, or any gas,
         vapor or other noxious thing, by means of a
         cartridge or shell or by action of an
         explosive or the igniting of flammable or
         explosive substances by the use of a single
         hand.

                             (OR)

         [A] handgun is any pistol, revolver or other
         firearm in the nature of an air gun, spring
         gun or pistol of similar nature in which the
         propelling force is a spring, elastic band,
         carbon dioxide, compressed, or other gas or
         vapor, air or compressed air, or is ignited
         by compressed air, which was originally
         designed or manufactured to be fired by the
         use of a single hand and to eject a bullet or
         missile smaller than three-eighths of an inch
         in diameter, with sufficient force to injure
         a person.

         [Model Jury Charges (Criminal), "Unlawful
         Possession of a Handgun (N.J.S.A. 2C:39-5(b))"
         (rev. Feb. 26, 2001) (citations omitted).]


                               7                           A-0059-17T1
We do not think the judge's condensed version had any significant

effect on the outcome.2        The judge varied from the Model Jury

Charge, but instructed the jury as to all the requisite elements

of the crime.    Model jury charges are not "cast . . . in stone."

State v. W.B., 205 N.J. 588, 621 (2011).             Although we do not

endorse condensing a charge in this way, there was no suggestion

at any time during the trial that the object T.B. saw in the bag

and G.L. claimed he saw defendant employ was anything but a

handgun.   Thus, the condensed version of the instruction served

the purpose.

     Finally, defendant claims the cumulative effect of counsel's

errors   warrants   reversal   of   the   judge's   denial   of   PCR.     We

disagree, as no error whatsoever was committed.

     Affirmed.




2
  We also note that this argument could have and should have been
raised on the direct appeal and is arguably therefore barred by
Rule 3:22-4.

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