                                      RECORD IMPOUNDED

                                 NOT FOR PUBLICATION WITHOUT THE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-1523-17T4

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

REGINALD ROACH, a/k/a
REGINALD W. HOLMES,

     Defendant-Appellant.
___________________________

                   Submitted April 8, 2019 – Decided May 7, 2019

                   Before Judges Sabatino and Sumners.

                   On appeal from Superior Court of New Jersey, Law
                   Division, Middlesex County, Indictment No. 06-03-
                   0342.

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

                   Andrew C. Carey, Middlesex County Prosecutor,
                   attorney for respondent (David M. Liston, Assistant
                   Prosecutor, of counsel and on the briefs).

                   Appellant filed a pro se supplemental brief.
PER CURIAM

        After a 2007 jury trial, defendant Reginald Roach was found guilty of

aggravated sexual assault, burglary, and other offenses. His crimes arose out of

the home invasion and sexual assault of a sixty-four-year-old woman, H.H.1 He

was sentenced to a forty-four-year aggregate prison term.

        On direct appeal, we upheld defendant's conviction and sentence in an

unpublished opinion, except for requiring the merger of one of his offenses.

State v. Roach, No. A-1890-07 (App. Div. Aug. 1, 2011). The Supreme Court

upheld his conviction as well, rejecting defendant's argument that the trial cou rt

violated his Confrontation Clause rights by admitting certain DNA evidence

against him through the testimony of the State's expert witness. State v. Roach,

219 N.J. 58 (2014). The United States Supreme Court denied his petition for

certiorari. State v. Roach, 135 S. Ct. 2348 (2015).

        Defendant subsequently filed a timely petition in the Law Division for

post-conviction relief ("PCR"), principally claiming his trial attorney was

constitutionally ineffective in his advocacy with respect to the State's DNA

proofs that identified him as the perpetrator in the home invasion and sexual

assault.     Among other things, defendant alleges his trial attorney was


1
    We use initials to protect the victim's privacy.
                                                                           A-1523-17T4
                                          2
inadequately prepared, ineffective in cross-examining the State's testifying

expert, and should have retained a competing DNA expert. The same judge who

had presided over the trial rejected defendant's PCR petition, without finding an

evidentiary hearing necessary.

      In his present appeal, defendant makes the following points in his

counseled brief:

            POINT I

            THIS MATTER MUST BE REMANDED FOR AN
            EVIDENTIARY HEARING BECAUSE DEFENDANT
            ESTABLISHED A PRIMA FACIE CASE OF TRIAL
            COUNSEL'S INEFFECTIVENESS, IN THAT TRIAL
            COUNSEL, BY HIS OWN ADMISSION, WAS
            UNPREPARED AND FAILED TO MOUNT A
            COMPLETE DEFENSE DUE TO LACK OF
            INVESTIGATION.

            POINT II

            THIS MATTER MUST BE REMANDED FOR
            FINDINGS OF FACT AND CONCLUSIONS OF
            LAW REGARDING PREVIOUSLY UNADDRESSED
            CLAIMS. (NOT RAISED BELOW).

Defendant also advances three points in a pro se supplemental brief:

            PRO SE POINT I

            THE PCR COURT COMMITTED "HAR[M]FUL
            ERROR"  WHEN    IT   TRIVIALIZED   THE
            IMPORTANCE OF A DNA EXPERT FOR THE
            DEFENDANT, AND USED EVIDENCE OF A "NON

                                                                         A-1523-17T4
                                       3
            EXISTING" PRIOR CONVICTION TO JUSTIFY
            VIOLATING DEFENDANT'S VI AMENDMENT,
            AND TO "DIRECT EVIDENCE" OF THE USE OF
            CONTAMINATED DNA. (NOT RAISED BELOW)

            PRO SE POINT II

            PROSECUTORY [SIC] MISCONDUCT, AND
            ULTIMATE COLLUSION BY THE COURT,
            SUBSTANTIALLY      PREJUDICED     THE
            DEFENDANT AND MISLED THE JURY DURING
            THEIR    FACT-FINDING    DELIBERATION,
            VIOLATING HIS VI AND XIV AMENDMENTS
            UNDER THE CONSTITUTION, (NOT RAISED
            BELOW)

            PRO SE POINT III

            TRIAL COUNSEL WAS INEFFE[C]TIVE, ILL
            PREPARED, AND UNINFORMED: PRIOR TO
            TRIAL,   DURING   TRIAL    AND   DURING
            SENTENCING. HE NEGLECTED TO HAVE A DNA
            EXPERT, IN A DNA TRIAL, DIMINISHING THE
            STATE'S RESPONSIBILITY, VIOLATING VI AND
            XIV AMENDMENTS TO THE CONSTITUTION.
            (NOT RAISED BELOW)

      For the reasons that follow, we affirm the PCR denial.

                                      I.

      The facts and procedural history were already canvassed in our prior

opinion and the Supreme Court's opinion. We repeat portions relevant to the

present appeal.



                                                                    A-1523-17T4
                                      4
      The victim, H.H., testified at the jury trial that when she was sixty-four

years old, she lived in a two-story townhouse in North Brunswick. H.H. testified

that she awoke at approximately 1:30 a.m. on November 5, 2005, to find a man

sitting on her bed, holding a pointed object to her neck and telling her to follow

his orders so she will not "get hurt." The man then demanded money. When

H.H. said she had some downstairs, they both went downstairs to get it whi le

the man remained "very close" to her with the pointed object in his hand.

      Once downstairs, H.H. opened a kitchen drawer for the man, but when she

went to lift up the cutlery tray under which money was hidden, the man told her

not to touch it. He lifted up the tray instead and took the money. Then the man

ordered her back upstairs and told her to lie face-down on the bed. According

to H.H., the man proceeded to sexually assault her. After the man fled the scene,

H.H. called the police. Roach, 219 N.J. at 61.

      North Brunswick Police Officer David Incle responded to the scene. The

officer took H.H. to a hospital and then to a rape crisis center, where Registered

Nurse Eileen Aiossa performed a forensic examination and prepared a sexual

assault kit. During this examination, Aiossa took fingernail, oral, vaginal, and

anal swabbings for DNA analysis. Aiossa also collected dry secretions from the

inner aspect of H.H.'s left and right thighs. Finally, Aiossa collected head and


                                                                          A-1523-17T4
                                        5
pubic hair combings, an external genital specimen, and the nightgown H.H. was

wearing when she was sexually assaulted.

      Aiossa also observed several injuries on H.H. Specifically, Aiossa saw a

cut one-and-a-half centimeters long on the left side of H.H.'s neck and a cut a

half-centimeter long on her neck's right side. Aiossa also observed two tears in

H.H.'s vaginal opening, as well as fresh blood.

      Aiossa individually sealed each of the collected specimens, and put the

sealed specimens in a standardized sexual assault kit. She then gave this kit to

Patrolman Incle.

      After receiving the rape kit from Aiossa, Patrolman Incle brought both

H.H. and the rape kit back to the North Brunswick Police Department. The rape

kit specimens were delivered to the State Police Forensic Laboratory ("the State

Lab").

      H.H. was interviewed by Lead Investigator Paul Miller from the

Middlesex County Prosecutor's Office. H.H. described her attacker to the police

as "slim, soft-spoken, and taller than she." Id. at 62. She was unable to identify

him because she had not seen his face.

      After investigating H.H.'s residence and the surrounding area, the police

spoke to neighbors who initially identified a male "E.A." as a potential suspect.


                                                                          A-1523-17T4
                                         6
A buccal swab was obtained from E.A. and sent to the State Police Lab for

analysis. Ibid.

      Defendant was thereafter developed as a suspect, based initially on a tip

from a confidential informant. Upon learning that defendant lived less than a

mile away from H.H., investigators went to his residence to talk to him.

Defendant was not home when the investigators arrived, and Investigator Miller

left his business card. Several days later, Miller received a phone message from

defendant denying any knowledge about the crime. Defendant refused Miller's

request to voluntarily submit a buccal swab sample.

      Miller testified that, after defendant refused to provide a sample, he

realized that a previous DNA sample from defendant was already in the

Combined DNA Index System ("CODIS") because defendant was a convicted

felon. Miller accordingly asked the State Lab to compare the DNA sample taken

from H.H. to defendant's prior sample in CODIS. The State Lab informed Miller

that defendant's previous DNA sample matched the sample taken from H.H., and

defendant was subsequently arrested. Pursuant to a court order, investigators

obtained defendant's fingerprints and a new buccal swab sample, which was

used to again confirm the CODIS match, and as evidence in the trial.




                                                                        A-1523-17T4
                                       7
       Charles Williams, a forensic scientist in the Biochemistry Department of

the State Lab, tested the items in the sexual assault kit for the presence of blood

and sperm. Id. at 62. According to Williams, "the vaginal slide tested positive

for sperm, the external genital specimen and anal swab tested positive for blood,

and the dried secretions from H.H.'s thighs tested positive for both blood and

sperm." Ibid. Those specimens were passed along to the DNA Department of

the State Lab along with H.H.'s buccal swab. Ibid.

       Thereafter, Lydia 2 Schiffner, a forensic scientist with the DNA

Department of the State Lab, received the items from H.H.'s sexual assault kit,

as well as the buccal swabs taken from H.H. and E.A. Id. at 64. Specifically,

Schiffner analyzed H.H.'s buccal swabs, vaginal swabs, anal swabs, and

swabbings from the left and right-thigh areas and generated DNA profiles from

those swabs. Schiffner performed a differential extraction on each specimen to

separate the sperm cells from the skin cells, creating separate sperm-cell

fractions ("SCF") and non-sperm-cell fraction ("NSCF") samples from each

specimen. Ibid.

       Based on the analysis that Schiffner performed, she was able to create a

full DNA profile for the individual who had contributed the sperm ce lls to the


2
    The Supreme Court opinion spells the expert's first name "Linnea."
                                                                           A-1523-17T4
                                        8
specimens taken from H.H., as well as DNA profiles for H.H. and E.A. from

their respective buccal swabs. Id. at 64. Schiffner's report concluded that E.A.

was excluded as a possible contributor to the DNA profiles from the sperm cell

fractions of the inner thigh samples. Ibid.

      After Schiffner generated her report in December 2005, she relocated to a

distance state and the H.H. file was assigned to Jennifer Banaag, another

forensic scientist in the DNA Department of the State Lab. Ibid. Banaag

eventually testified for the State at trial as an expert in DNA analysis.

      Banaag reviewed Schiffner's entire case file and, as she put it,

"independently" agreed with Schiffner's analysis.          Banaag testified that

Schiffner analyzed the swabs from H.H. and came up with a DNA profile of a

suspect who was the secondary contributor (H.H. being the primary contributor)

to the DNA recovered from H.H.'s thigh swabs. In the meantime, Banaag

analyzed the DNA taken from defendant's buccal swab and generated a full DNA

profile for him. Ibid. Banaag testified that her DNA analysis revealed that

defendant's DNA matched that of the secondary contributor to the secretion

found on the two thigh swabs from H.H. in thirteen locations of alleles.

      Banaag testified that the DNA profile found in defendant's samples was

estimated to occur in only one in approximately 1.3 quintillion African


                                                                            A-1523-17T4
                                        9
Americans, one in 339 quintillion Caucasians, and one in 7.42 quintillion

Hispanics.   Ultimately, Banaag concluded, "within a reasonable degree of

scientific certainty," that defendant was the source of the DNA taken from H.H.'s

thigh swabs. Ibid.

      On cross-examination of Banaag, defendant's trial counsel focused

extensively on potential flaws in the procedures used by the State Lab to ensure

accurate testing and results. Defense counsel asked Banaag detailed questions

about the process of detecting, separating, and amplifying the DNA samples.

After asking Banaag to explain that process, defense counsel followed up with

a question asking Banaag to explain if the "reagents" she just mentioned were

called "primers," a term that Banaag did not use previously in her testimony on

direct. Banaag confirmed that the substances are called primers, and at defense

counsel's request, she explained what a primer is.       Defense counsel then

followed up with a question about whether the State Lab uses "buffers" – another

term not previously mentioned by Banaag – and Banaag confirmed that they

used such buffers and explained what they are.

      Defense counsel then proceeded to probe Banaag with questions about

where the State Lab purchases their testing kits from; the intricacies of the

machine used to generate and mix the samples, including questions about the


                                                                         A-1523-17T4
                                      10
accuracy of those machines and how the computer generates the results from the

machine; the accuracy of her statistical calculations; and the quality controls and

procedure used by the scientists in the Lab. Counsel also highlighted the fact

that Banaag discussed only the alleles generated from H.H.'s thigh samples, but

did not mention the results of the other samples contained in the rape kit.

      Before summations, the trial judge complimented defense counsel outside

of the jury's presence on his cross-examination of Banaag:

            THE COURT: You did a good job on cross. For
            someone who claims doesn't know much about DNA
            you did a good job. Let the record reflect that you did.

            PROSECUTOR: He could have fooled me.

            DEFENSE COUNSEL: I'm a quick learner.

      During summations, defense counsel spoke at length about the DNA

evidence and pointedly called Banaag's testimony into question.           Counsel

suggested to the jury that the DNA samples could have mislabeled, the testing

machines could have been inaccurate, and that the scientists could have

accidently contaminated the specimens by not following protocol. As such, the

summation reinforced the attack defense counsel presented earlier in his cross-

examination of Banaag.




                                                                           A-1523-17T4
                                       11
      Despite this advocacy by defense counsel, the jury returned a verdict in

the State's favor. On direct appeal, we rejected defendant's argument that his

confrontation rights were violated by the forensic evidence introduced through

Banaag's testimony. State v. Roach, No. A-1890-07 (App. Div. Aug. 1, 2011).

The Supreme Court upheld that conclusion. Roach, 219 N.J. at 82.

      A crucial facet of the Supreme Court's decision was the fact that Banaag

had independently reviewed and verified Schiffner's results and did not "merely

parrot" Schiffner's findings. Id. at 79. The Court emphasized, however, that

such "testimony must be provided by a truly independent and qualified

reviewer." Ibid. Concluding that Banaag's testimony appropriately "explained

how she used her scientific expertise and knowledge to independently review

and analyze the graphic raw data . . . generated [from] Schiffner's testing," id.

at 81, the Court ruled that the defense "had the opportunity to confront Banaag

on her conclusions and on the facts that she independently reviewed, verified,

and relied on in reaching those conclusions." Id. at 82-83.

      Having thus failed to demonstrate on direct appeal that the trial court erred

in admitting the State's DNA expert's testimony, defendant turned his sights on

his former counsel in a PCR petition. In particular, he complained his attorney

was unprepared to deal with the DNA proofs at trial and should have retained a


                                                                           A-1523-17T4
                                       12
competing DNA expert. He also alleged ineffective assistance on other aspects

of the case. We turn to those claims of ineffectiveness.

                                       II.

      Under the Sixth Amendment of the United States Constitution, a person

accused of crimes is guaranteed the effective assistance of legal counsel in his

defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). To establish a

deprivation of that right, a convicted defendant must satisfy the two-part test

enunciated in Strickland by demonstrating that: (1) counsel's performance was

deficient, and (2) the deficient performance actually prejudiced the accused's

defense. Ibid.; see also State v. Fritz, 105 N.J. 42, 58 (1987) (adopting the

Strickland two-part test in New Jersey).

      When reviewing such claims of ineffectiveness, courts apply a strong

presumption that defense counsel "rendered adequate assistance and made all

significant decisions in the exercise of reasonable professional judgment."

Strickland, 466 U.S. at 690. "[C]omplaints 'merely of matters of trial strategy'

will not serve to ground a constitutional claim of inadequacy . . . ." Fritz, 105

N.J. at 54 (citation omitted); see also State v. Echols, 199 N.J. 344, 357-59

(2009).




                                                                         A-1523-17T4
                                      13
      "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." State v.

Castagna, 187 N.J. 293, 314 (2006) (citing State v. Marshall 123 N.J. 1, 165

(1991)). "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.'" Id. at

314-15 (alteration in original) (quoting State v. Buonadonna, 122 N.J. 22, 42

(1991)). Moreover, "'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.'" State v. Allegro, 193 N.J. 352, 367 (2008) (quoting

Castagna, 187 N.J. at 314).

      The applicable law further instructs that, in order to obtain an evidentiary

hearing on a PCR petition based upon claims of ineffective of assistance of

counsel, a defendant must make a prima facie showing of both deficient

performance and actual prejudice. State v. Preciose, 129 N.J. 451, 463 (1992).

"To establish such a prima facie case, the defendant must demonstrate a

reasonable likelihood that his or her claim will ultimately succeed on the

merits." Marshall, 148 N.J. at 158; see also R. 3:22-10(b).


                                                                          A-1523-17T4
                                       14
      "When determining the propriety of conducting an evidentiary hearing,

the PCR court should view the facts in the light most favorable to the defendant."

State v. Jones, 219 N.J. 298, 311 (2014) (citing Marshall, 148 N.J. at 158). See

also Preciose, 129 N.J. at 462-63. "However, a defendant is not entitled to an

evidentiary hearing if the 'allegations are too vague, conclusory, or speculative

to warrant an evidentiary hearing.'" State v. Porter, 216 N.J. 343, 355 (2013)

(quoting Marshall, 148 N.J. at 158).

      When, as here, 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." State v.

Cummings, 321 N.J. Super. 154, 170 (App. Div. 1999) (citing R. 1:6-6). "Bald

assertions" of deficient performance are insufficient to support a PCR

application.   Ibid.   See also R. 3:22-10(b); Porter, 216 N.J. at 356-57

(reaffirming these principles in evaluating which of a defendant's various PCR

claims warranted an evidentiary hearing).

      Having applied these well-established standards to defendant's present

appeal, we affirm the trial court's denial of his PCR petition.        We do so

substantially for the sound reasons set forth by Judge Dennis V. Nieves in his


                                                                          A-1523-17T4
                                       15
comprehensive written opinion dated August 31, 2017. We amplify the judge's

analysis with a few additional comments.

      We agree with Judge Nieves that defendant has not made a prima facie

showing on the first prong of Strickland, i.e., deficient performance by trial

counsel relating to the DNA evidence.        From our own review of the trial

transcripts, we share the judge's assessment that defense counsel capably

attempted to undermine the State's DNA proofs linking him to the semen and

genetic material found on the victim. The fact that the jury ultimately was

persuaded by the State's evidence and found defendant guilty does not mean that

defense counsel's efforts fell below the standards of professional competency.

      Defendant stresses that his trial counsel asserted to the court at a pretrial

hearing on January 3, 2007 that he was "unprepared" to proceed to trial and

would need about "a year or two" to educate himself sufficiently enough to

counter the State's DNA evidence. These comments by defense counsel seeking

a long postponement of the looming trial appear, in context, to be hyperbole.

When the trial convened a week later, defense counsel nonetheless exhibited

substantial knowledge of the subject matter. He strenuously advocated his

client's interests in attempting to impeach the State's DNA expert. Moreover, as




                                                                           A-1523-17T4
                                       16
we have already noted, the trial judge complimented counsel after his cross-

examination, a compliment that appears from the transcript to be well-deserved.

      Defense counsel also competently preserved, through a timely objection,

defendant's constitutional argument of a denial of confrontation rights stemming

from Schiffner's absence at trial.     This was an important legal issue with

widespread implications that was not resolved until the Supreme Court's 2014

opinion in this case and in the two companion opinions the Court issued that

same day. See, e.g., State v. Michaels, 219 N.J. 1 (2014); State v. Williams, 219

N.J. 89 (2014). Although defendant's constitutional argument was ultimately

not adopted by the Supreme Court majority, that is no indication of any failure

of competent advocacy.

      The PCR court reasonably rejected defendant's claim that his trial attorney

was professionally deficient because he did not present testimony from an

opposing DNA expert. As Judge Nieves observed in his PCR opinion, defense

counsel attempted to retain one or more DNA experts but "they were not much

help" because they required additional documents. Defense counsel then sought

to obtain those documents by moving to compel discovery. On the whole, the

judge found "[i]t is clear that trial counsel investigated the issues related to DNA




                                                                            A-1523-17T4
                                        17
evidence and that defense counsel attempted to hire a DNA expert well before

the onset of trial."

      Furthermore, defendant has failed to supply a report or certificate from a

DNA expert attesting to opinions that could support a prima facie claim of a

Sixth Amendment violation. The mere "bald assertions" of defendant himself

that further investigation and advocacy concerning the DNA proofs are

inadequate to warrant relief or justify an evidentiary hearing. Porter, 216 N.J.

at 349.

      Given the statistical force of the DNA match in this case, it may well be

that no opposing expert or a more experienced lawyer could have done more to

undermine those proofs effectively. In sum, both prongs of Strickland, i.e.,

deficient attorney performance and actual prejudice stemming from alleged

subpar advocacy, are simply not present here.

      The remaining arguments posed by defendant in his appellate brief and

pro se supplemental brief lack sufficient merit to warrant discussion in this

written opinion, beyond the cogent analysis already set forth in Judge Nieves'

written opinion. R. 2:11-3(e)(2).

      As one minor aside, we find no merit in defendant's pro se assertion that

the PCR judge critically overlooked Point "F" of his pro se PCR supplemental


                                                                        A-1523-17T4
                                      18
brief challenging the accuracy of a November 17, 2006 pretrial transcript

concerning a confidential informant.        Defendant provides no evidence to

substantiate that the transcript is incorrect.      He does not disprove the

transcriber's presumptively valid certification of accuracy. See Rule 2:5-5(a);

see also State v. Kuske, 109 N.J. Super. 575, 592-93 (App. Div. 1970) (finding,

on a motion to settle the record, the court reporter's affidavit that the trial

transcript was "true and correct" more credible than defendant's pro se

accusation of transcription errors).

      Affirmed.




                                                                       A-1523-17T4
                                       19
