                        NOT FOR PUBLICATION WITHOUT THE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-0869-16T2

STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

PEDRO DOMINGUEZ, a/k/a PEDRO
DOMINGUEZ, JR.,

     Defendant-Appellant.
_____________________________

              Submitted February 13, 2018 – Decided June 6, 2018

              Before Judges Fisher and Sumners.

              On appeal from Superior Court of New Jersey,
              Law Division, Union County, Indictment No.
              11-01-0003.

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

              Michael A. Monahan, Acting Union County
              Prosecutor, attorney for respondent (Meredith
              L. Balo, Special Deputy Attorney General/Acting
              Assistant Prosecutor, of counsel and on the
              brief).

PER CURIAM
     Defendant Pedro Dominguez appeals from a Law Division order

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

evidentiary   hearing.   He   argues   that   he   was   entitled    to    an

evidentiary hearing because he established a prima facie case of

ineffective assistance of counsel due to trial counsel's failure

to object to prosecutorial misconduct in summation; and failure

to advise him of his right to testify when counsel did not comment,

object, or ask for a recess when defendant advised the trial judge

that he "was not feeling good" and would not testify.           We agree

with the PCR court that the claim of prosecutorial misconduct was

procedurally barred under Rule 3:22-5 because it was raised and

denied on direct appeal, and that defendant was fully appraised

of his right to testify, and we therefore affirm.

     To resolve the issues raised in this appeal, we need not

discuss the trial evidence, which is detailed in our twenty-four

page unpublished opinion affirming defendant's convictions, along

with that of his two co-defendants (collectively defendants), for

two counts of first-degree armed robbery, third-degree possession

of a weapon for an unlawful purpose, and fourth-degree possession

of a weapon for unlawful use, as well as defendant's consecutive

sentences of fifteen- and thirteen-year prison terms.           State v.

Yebes, No. A-2098-12 (App. Div. May 6, 2015), certif. denied, 223



                                  2                                 A-0869-16T2
N.J. 280 (2015).     Instead, we limit our focus to defendant's

contentions on appeal.

     Concerning    alleged   prosecutorial   misconduct,   defendant

contends counsel failed to object to the prosecutor's closing

remarks that: defendants failed to tell police how they came to

possess the victim's cell phone; the victim should be able to walk

around without being threatened with a knife; he is the same size

as the victim, and suggested the victim would not be significantly

impaired given the amount of beer he consumed; he did not object

to any of the evidence the defendants sought to admit; in citing

the book, Blink1, which posits an identification theory and was

not mentioned during witnesses' testimony, muddled the jury charge

on identification that was based upon State v. Henderson, 208 N.J.

208 (2011); and the victim was thinking "am I going to die here

in the street?" even though the thought was not admitted into

evidence.

     Defendant argues that the claim of ineffective assistance

related to prosecutorial misconduct was not previously adjudicated

and thus should not be barred by Rule 3:22-5.      Under the rule,

"[a] prior adjudication upon the merits of any ground for relief

is conclusive whether made in the proceedings resulting in the


1
  Malcolm Gladwell, Blink: The Power of Thinking Without Thinking
(2005).

                                  3                          A-0869-16T2
conviction or in any post-conviction proceeding brought pursuant

to this rule . . . , or any appeal taken from such proceedings."

R. 3:22-5.   He further asserts that his claim falls under the

exception of Rule 3:22-4(a), which provides:

          (1) that the ground for relief not previously
          asserted could not reasonably have been raised
          in any prior proceeding; or

          (2) that enforcement of the bar to preclude
          claims,   including   one  for  ineffective
          assistance of counsel, would result in
          fundamental injustice; or

          (3) that denial of relief would be contrary
          to a new rule of constitutional law under
          either the Constitution of the United States
          or the State of New Jersey.

We disagree and affirm substantially for the reasons set forth in

Judge John M. Deitch's concise and logical written decision.

    Judge Deitch noted that in defendant's direct appeal, this

court determined that the prosecutor's summation did not deny

defendant a fair trial where there was an:

          (1) emphasis on the violent nature of the
          crime; (2) suggestion that defense counsel
          called the victims "liars"; (3) disparagement
          of the motives of defense counsel; (4)
          expression of his own experience with alcohol;
          and (5) reference to the book, Blink, which
          discusses   eyewitness    identification.   In
          addition, [a co-defendant], who testified at
          trial, contends the prosecutor improperly
          commented on his silence at the time of
          arrest.

          [Yebes, slip op. at 14.]

                                4                          A-0869-16T2
We specifically concluded, "the prosecutor's summary remarks, for

the most part, were responsive to the issues raised by defense

counsel in his summation and a fair commentary on the evidence

adduced at trial."         Id. at 15.       Since defendant's present claim

is substantially similar to the claim he raised on direct appeal

that   we    found   was   without   merit,    we   agree   with    the   judge's

reasoning:

              Accordingly, the [c]ourt finds that issue of
              prosecutorial misconduct was raised on appeal
              and adjudicated. . . . Defendant had access
              to the trial transcript containing the "new"
              statements made by the prosecutor that he now
              seeks to contest.     However, he failed to
              raise[] th[at] issue when the issue was open
              before the Appellate Division.     Since the
              . . . issue of prosecutorial misconduct was
              adjudicated by the appellate court and was of
              record and could have been raised during
              appeal, the claims are now barred from
              adjudication under [Rule] 3:22-5 and [Rule]
              3:22-4.

       Turning to defendant's decision not to testify, he argues

"[i]t is the lack of investigation [by counsel] into [his] medical

condition when he stated he was not feeling well at the time of

the judge's colloquy as well as [counsel's] lack of thorough

consultation and representation which is . . . the heart of [his]

motion      for   post-conviction    relief."       Defendant      proffers    his

counsel failed to properly guide him "through the decision process

regarding whether to testify[,]" and should have taken a short

                                        5                                 A-0869-16T2
recess to discuss defendant's decision not to testify when he told

the court he was "not feeling good."       Again, we disagree with

defendant's argument, and affirm substantially for the reasons set

forth in Judge Deitch's written decision.

     In denying PCR, the judge applied the well-settled two-prong

test set forth in Strickland v. Washington, 466 U.S. 668, 687

(1984), adopted by our Supreme Court in State v. Fritz, 105 N.J.

42, 58 (1987), that a defendant must first show "that counsel made

errors so serious that counsel was not functioning as the 'counsel'

guaranteed . . . by the Sixth Amendment," Fritz, 105 N.J. at 52

(quoting Strickland, 466 U.S. at 687); and second, he must prove

that he suffered prejudice due to counsel's deficient performance,

Strickland, 466 U.S. at 687, 691-92.     The judge found that under

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

defendant's contentions were nothing more than bald assertions

without any factual support, and thereby failed to establish a

prima facie case of ineffective assistance of counsel.

     Our review of the record fully substantiates Judge Deitch's

finding that "[t]he record is clear that the issue of [defendant]

testifying was appropriately raised, discussed between counsel and

[defendant], and addressed on record."    After the State concluded

its case, counsel obtained more time to consult with defendant

regarding whether he would testify in his defense because counsel

                                 6                           A-0869-16T2
stated in his opening that defendant would testify, he urged

defendant to testify, and defendant had not "made up his mind"

whether he would testify.    Thereafter, the following colloquy took

place among the court, counsel, and defendant regarding whether

defendant would exercise his right to testify:

          The Court:     All right. Before we bring the
          jury out, [defense counsel], I understand
          you've had a discussion with your client and
          your client has decided not to testify.    Is
          that correct?

          [Counsel]:        That's correct, Your Honor.

          EXAMINATION BY THE COURT

          [The Court:]      [Defendant], this decision is
          yours?

          [Defendant:]   Yes, sir.   Before you asked,
          I'd like to have this right.

          [Counsel]:        Right.

          [The Court:]  No one is forcing you to do
          that? You're making this --

          [Defendant:]      Before he rests.

          [The Court:]   decision    on    your    own?
          [Counsel] has given you some advice, correct?

          [Defendant:]      Yes, sir.

          [The Court:]   But you've chosen, on your own,
          not to testify?

          [Defendant:]      I'm not feeling good.




                                     7                       A-0869-16T2
           [The Court]:   Thank you, sir.    All right.
           When the . . . jury is ready we'll bring them
           in.

Although there was no inquiry concerning defendant's comment that

he did not feel well, Judge Deitch sua sponte located in the trial

court file a form that was executed by defendant – and witnessed

by counsel – after the court's voir dire of defendant, entitled

"Defendant's Election Not to Testify."    The form was read to the

jury, and provided in pertinent part, that defendant exercised his

constitutional right not to testify and that he        is presumed

innocent whether or not he testified.    Judge Deitch further noted

that at no time thereafter did defendant comment about feeling

ill.

       Because we agree with Judge Deitch that defendant failed to

establish a prima facie case of ineffective assistance of counsel,

we cannot find that he abused his discretion in denying defendant's

request for an evidentiary hearing.     State v. Preciose, 129 N.J.

451, 462 (1992); see also State v. Porter, 216 N.J. 343, 354 (2013)

(holding an evidentiary hearing need only be conducted if there

are disputed issues as to material facts regarding entitlement to

PCR that cannot be resolved based on the existing record).

       Affirmed.




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