                                NOT FOR PUBLICATION WITHOUT THE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-0101-17T4

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

RICHARD A. MUNOZ,

     Defendant-Appellant.
________________________

                    Submitted March 6, 2019 – Decided August 23, 2019

                    Before Judges Fuentes and Moynihan.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Hudson County, Indictment No. 11-02-0230.

                    Joseph E. Krakora, Public Defender, attorney for
                    appellant (Mark Zavotsky, Designated Counsel, on the
                    brief).

                    Esther Suarez, Hudson County Prosecutor, attorney for
                    respondent (Erin M. Campbell, Assistant Prosecutor,
                    on the brief).

PER CURIAM
      On March 13, 2013, defendant Richard A. Munoz was tried before a jury

over four non-sequential days on the charges of murder, N.J.S.A. 2C:11-3(a)(1)

or (2), felony murder, N.J.S.A. 2C:11-3(a)(3), first degree robbery, N.J.S.A.

2C:15-1, third degree possession of a weapon (knife) for an unlawful purpose,

N.J.S.A. 2C:39-4(d), and fourth degree unlawful possession of a knife, N.J.S.A.

2C:39-5(d). On March 23, 2013, the jury found defendant guilty of second

degree robbery as a lesser included offense of first degree armed robbery, and

acquitted him of all of the remaining charges.

      On May 10, 2013, the court sentenced defendant to a term of eight years,

subject to an eighty-five percent period of parole ineligibility and three years of

parole supervision, as mandated by the No Early Release Act, N.J.S.A. 2C:43-

7.2. On direct appeal, we affirmed defendant's conviction and sentence, State

v. Munoz, No. A-5733-12 (App. Div. November 18, 2015), and the Supreme

Court denied his petition for certification. State v. Munoz, 224 N.J. 247 (2016).

We incorporate by reference the facts we described in our opinion affirming

defendant's conviction. Munoz, slip op. at 2-5.

      On July 11, 2016, defendant filed a pro se post-conviction relief (PCR)

petition in which he argues the sentence imposed by the court was excessive and

that he did not receive a fair trial. The court assigned counsel to assist defendant


                                                                            A-0101-17T4
                                         2
prosecute the petition. PCR counsel thereafter filed an amended petition arguing

defendant received ineffective assistance by both trial and appellate counsel.

      The matter came for oral argument before Judge Martha T. Mainor on

April 27, 2017. PCR counsel argued appellate counsel should have raised on

direct appeal that defendant was denied a fair trial based on the trial judge's bias,

as evidenced by the judge's comments and interactions with defense counsel in

the presence of the jury. Judge Mainor found defendant presented sufficient

grounds to warrant an evidentiary hearing pursuant to Rule 3:22-10(b). See

State v. Preciose, 129 N.J. 451, 462-63 (1992).          The court conducted the

evidentiary hearing on June 22, 2017. The State called defendant's appellate

counsel as a witness. Defendant did not call any witnesses nor testify on his

own behalf. Judge Mainor found no grounds to find ineffective assistance of

counsel and denied defendant's PCR petition in an oral opinion delivered from

the bench.

      Defendant now appeals from the order of the Criminal Part raising the

following arguments.

             POINT I

             TRIAL COUNSEL WAS INEFFECTIVE FOR
             FAILING TO REQUEST THE JUDGE RECUSE
             HIMSELF   FOR  NUMEROUS    CONTEMPT
             THREATS AND THREAT UPON DEFENSE

                                                                             A-0101-17T4
                                         3
             COUNSEL'S LICENSE TO PRACTICE, ALL WHICH
             TAINTED THE JURY AND PREVENTED COUNSEL
             FROM       EXERCISING       DEFENDANT'S
             CONSTITUTIONAL RIGHT TO CONFRONT THE
             WITNESS AGAINST HIM.

             POINT II

             APPELLATE COUNSEL WAS INEFFECTIVE FOR
             NOT RAISING DEFENDANT'S CLAIM THAT
             TRIAL COUNSEL'S FAILURE TO OBJECT TO THE
             NUMEROUS     COURT      RULINGS     AND
             INTERJECTIONS THROUGHOUT THE TRIAL
             PRODUCED A CUMULATIVE EFFECT OF BIAS
             WARRANTNG A MISTRIAL.

      We reject these arguments and affirm. This court reviews a claim of

ineffective assistance of counsel under the two-prong test established by the

United States Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984),

and subsequently adopted by our Supreme Court in State v. Fritz, 105 N.J. 42,

58 (1987).     First, defendant must demonstrate that defense counsel's

performance was deficient. Strickland, 466 U.S. at 687. Second, he must show

there exists "a reasonable probability that, but for counsel's unprofessional

errors, the result of the proceeding would have been different." Id. at 694.

      Judge Mainor conducted an evidentiary hearing where she considered the

testimony of defendant's appellate counsel and found no legal basis to question

her professional judgment in this case. The record developed at this hearing


                                                                         A-0101-17T4
                                       4
supports Judge Mainor's decision to deny defendant's PCR petition. We thus

affirm substantially for the reasons expressed by Judge Mainor in her oral

decision delivered on June 22, 2017.

      Affirmed.




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