                        NOT FOR PUBLICATION WITHOUT THE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-0790-15T1

STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

FEDNER PIERRE-LOUIS,

     Defendant-Appellant.
_______________________________

              Submitted April 4, 2017 – Decided September 6, 2017

              Before Judges Koblitz and Sumners.

              On appeal from Superior Court of New Jersey,
              Law Division, Union County, Indictment No. 02-
              10-1296.

              Joseph E. Krakora, Public Defender, attorney
              for appellant (Alan I. Smith, Designated
              Counsel, on the brief).

              Grace H. Park, Acting Union County Prosecutor,
              attorney for respondent (Milton S. Leibowitz,
              Special    Deputy   Attorney    General/Acting
              Assistant Prosecutor, of counsel and on the
              brief).

              Appellant filed a pro se supplemental brief.


PER CURIAM
     Defendant Fedner Pierre-Louis appeals from a July 2, 2015

order   denying   his   petition   for   post-conviction   relief   (PCR)

following an evidentiary hearing.        On appeal, defendant raises the

following single-point argument:

           POINT I

           THE ORDER DENYING POST-CONVICTION RELIEF
           SHOULD   BE    REVERSED   BECAUSE    DEFENDANT
           ESTABLISHED BY A PREPONDERANCE OF THE EVIDENCE
           THAT TRIAL COUNSEL'S DECISION NOT TO PRESENT
           AN ALIBI DEFENSE WAS INEFFECTIVE ASSISTANCE
           OF COUNSEL.

Defendant presents the following additional point in a pro se

supplemental brief:

           THE POST CONVICTION RELIEF COURT ERRED IN
           DENYING THE DEFENDANT POST CONVICTION RELIEF
           BASED UPON TRIAL COUNSEL'S FAILURE TO PROVIDE
           ADEQUATE LEGAL REPRESENTATION TO DEFEENDANT
           REGARDING WHETHER TO CALL ALIBI WITNESSES TO
           TESTIFY AT TRIAL, SINCE ITS FACTUAL FINDINGS
           WERE NOT SUPPORTED BY SUFFICIENT CREDIBLE
           EVIDENCE ARISING OUT OF THE REMAND EVIDENTARY
           HEARING AND THEREFORE, ARE NOT ENTITLED TO
           DEFERENCE ON APPEAL.

For the reasons that follow, we affirm.

     We glean the following facts and procedural history from the

record.    On March 1, 2002, Dr. Jeffrey Perchick was robbed and

shot in a hotel      parking lot at Newark Liberty International

Airport.    He died from his injuries.           On December 10, 2004,

defendant was found guilty by a jury of first-degree aggravated

manslaughter of Dr. Perchick, N.J.S.A. 2C:11-4(a)(1), as a lesser-



                                    2
                                                                A-0790-15T1
included offense of knowing and purposeful murder; first-degree

robbery, N.J.S.A. 2C:15-1; first-degree felony murder, N.J.S.A.

2C:11-3(a)(3); third-degree unlawful possession of a firearm,

N.J.S.A. 2C:39-5(b); and second-degree possession of a firearm for

an unlawful purpose, N.J.S.A. 2C:39-4(a).        After merger, defendant

was sentenced to a forty-five-year prison term with an eighty-five

percent period of parole ineligibility pursuant to the No Early

Release Act, N.J.S.A. 2C:43-7.2, for felony murder.         In addition,

a consecutive five-year term for unlawful possession of a firearm

was imposed.

     On direct appeal, we affirmed defendant's conviction, but

remanded   for   resentencing   because   the    sentence   for   unlawful

possession of a firearm exceeded "the now defunct presumptive term

of four years."     State v. Pierre-Louis, No. 2950-05 (App. Div.

April 13, 2007) (slip op. at 15).          The Supreme Court denied

certification.    State v. Pierre-Louis, 192 N.J. 71 (2007).

     Defendant subsequently filed a PCR petition alleging his two

trial counsel were ineffective for failure to conduct an adequate

investigation, failure to serve a notice of alibi, Rule 3:12-2,

and failure to assert an alibi defense.         Following an evidentiary

hearing, the PCR judge granted defendant relief.            However, the

judge granted the State's motion for reconsideration based upon

newly discovered evidence, and after a second evidentiary hearing



                                   3
                                                                  A-0790-15T1
reversed its prior ruling and reinstated defendant's conviction.

We affirmed the denial of PCR.     State v. Pierre-Louis, No. A-0669-

09 (App. Div. Aug. 20, 2012), certif. granted, 216 N.J. 577 (2014).

The Supreme Court reversed and remanded for a third evidentiary

hearing.   State v. Pierre-Louis, 216 N.J. 577, 579-80 (2014).        The

Court stated:

           At the [remand] hearing, the parties should
           present live testimony of the witnesses they
           intend to rely on so that the court can make
           credibility    findings    and   draw    legal
           conclusions as to both prongs of the
           Strickland/Fritz1 test. The court may invite
           the parties to submit proposed findings of
           fact after the presentation of evidence. We
           offer no opinion as to the appropriate outcome
           of the hearing.

           [Id. at 580].

     On remand, Judge Joseph P. Donohue, who did not conduct the

initial    PCR   proceedings,2   conducted   an   evidentiary   hearing

regarding defendant's claim that trial counsel failed to present

his alibi defense that was he was home when Dr. Perchick was

murdered. Ibid. After the three-day hearing, Judge Donohue issued


1
  Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052,
2064, 80 L. Ed. 2d 674, 693 (1984), adopted by New Jersey in State
v. Fritz, 105 N.J. 42, 58 (1987)).
2
  The Court held due to "the history of this case and the prior
rulings entered in connection with the PCR petition, we direct,
in an abundance of caution, that a different judge be assigned to
conduct the new evidentiary hearing." Pierre-Louis, supra, 216
N.J. at 580.


                                   4
                                                                A-0790-15T1
a thorough and well-reasoned written decision denying PCR because

defendant     did   not   satisfy   the    two-prong   Strickland-Fritz3

ineffective    assistance   of   counsel   standard,   which   requires    a

showing of the particular manner in which counsel's performance

was deficient and that the deficiency prejudiced his right to a

fair trial.

     Judge Donohue found that the testimony provided by defendant

and his three witnesses, his father, sister, and a friend, was not

believable.     He noted that in December 2002, before defendant

received the discovery from the State, defendant advised his first

counsel to present an alibi defense that he was in school when the

murder occurred.     Defendant's alibi changed in June 2006, a year

after he received the discovery. Since his school classes were

over at 9:30 p.m., defendant told his second trial counsel that

he was home playing videogames          with friends when the murder

occurred.     The judge also pointed out that despite giving three

statements to police shortly following the murder in 2002, it was

not until June 2006 that defendant mentioned the videogames alibi.

     The judge further noted that defendant's father and sister

did not give formal statements supporting his videogame alibi




3
  Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L.
Ed. 2d at 693; Fritz, supra, 105 N.J. at 58.



                                    5
                                                                  A-0790-15T1
until August 2008, and that his friend also waited years to give

an alibi statement for defendant, but could not recall to whom he

gave the statement.         In sum, the judge found defendant and his

witnesses to be vague and evasive.

         On the other hand, Judge Donohue found the State's witnesses,

defendant's      two    counsel   and   the    Office    of   Public    Defender

investigator, were credible and not "deceitful or disingenuous,"

and that a more than adequate defense investigation was conducted.

Before discovery was provided to the defense, defendant's first

counsel had the investigator speak with defendant and obtain his

school records, which indicated that defendant was absent the day

of the murder.        The investigator also spoke to two of defendant's

teachers and several of his friends, who stated they were in school

with defendant from 3:00 p.m. to 9:00 p.m. the day of the murder.

After the second defense counsel took over, he decided not to

pursue the school alibi because the murder occurred around 10:15

p.m., forty-five minutes after defendant's last class.                   Counsel

then focused his investigation on the strength of defendant's

newly raised videogame alibi.

         After   meeting   defendant's      father      and   sister,   counsel

determined they lacked credibility and would not be good witnesses.

At   a    pre-trial    N.J.R.E.   404(b)    hearing     regarding   defendant's

alleged     possession     of   the   murder   weapon,    counsel    subpoenaed



                                        6
                                                                        A-0790-15T1
defendant's friends who were allegedly playing videogames with him

when the murder occurred.     Counsel concluded they gave "angry,

inconsistent, and unbelievable" testimony and would not be good

alibi witnesses.   Defendant's friend, who Judge Donohue noted was

not credible at the PCR evidentiary hearing, did not testify at

the 404(b) hearing.      Importantly, the second defense counsel

testified that defendant agreed with his trial strategy not to

present the alibi defense because his friends and family would not

be good witnesses.    Hence, counsel pursued the strategy of third

party guilt and the State's inability to prove defendant's guilt

beyond a reasonable doubt.

     Applying his factual findings, Judge Donohue reasoned that

defendant failed to demonstrate that his counsel were ineffective

as required by the first prong of Strickland/Fritz test.        The

judge determined that there was no "lack of investigation or

preparation" and counsel provided "sound legal strategy [] not

[to] put forward an alibi defense."     As for the test's second

prong, the judge found there was no prejudice to defendant by not

presenting the alibi defense because his family and friends did

not provide credible testimony to support an alibi, and his

friends' 404(b) testimony linked him to the murder weapon.    This

appeal followed.




                                 7
                                                          A-0790-15T1
     Where, as here, the judge conducts an evidentiary hearing,

we must uphold the judge's factual findings, "so long as those

findings are supported by sufficient credible evidence in the

record."    State v. Rockford, 213 N.J. 424, 440 (2013) (quoting

State v. Robinson, 200 N.J. 1, 15 (2009)).         Additionally, we defer

to a trial judge's findings that are "substantially influenced by

[the trial judge's] opportunity to hear and see the witnesses and

to have the 'feel' of the case, which a reviewing court cannot

enjoy."    Ibid. (alteration in original) (quoting Robinson, supra,

200 N.J. at 15).   We owe particular deference to the trial judge's

credibility determinations.          See State v. Locurto, 157 N.J. 463,

470-71 (1999).

     A defense attorney's trial strategy is generally not second-

guessed in a PCR proceeding.         State v. Gary, 229 N.J. Super. 102,

115-16 (App. Div. 1988). To the contrary, trial counsel's informed

strategic decisions demand our heightened deference, and "are

virtually unchallengeable."          Strickland, supra, 466 U.S. at 690,

104 S. Ct. at 2066, 80 L. Ed. 2d at 695.

     We have considered defendant's contentions in light of the

record and applicable legal principles and conclude they are

without    sufficient   merit   to    warrant   discussion   in   a   written

opinion. R. 2:11-3(e)(2). We affirm substantially for the reasons




                                       8
                                                                      A-0790-15T1
expressed by Judge Donohue in his thorough and well-reasoned

written decision.

    Affirmed.




                             9
                                                     A-0790-15T1
