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                                NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
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                                                         SUPERIOR COURT OF NEW JERSEY
                                                         APPELLATE DIVISION
                                                         DOCKET NO. A-0229-18T1

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

SAMUEL WOODY,

     Defendant-Appellant.
_________________________

                    Submitted October 29, 2019 – Decided November 14, 2019

                    Before Judges Messano and Vernoia.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Middlesex County, Indictment No. 12-06-
                    0497.

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

                    Lyndsay V. Ruotolo, Acting Union County Prosecutor,
                    attorney for respondent (Carlos Paul Morrow, Special
                    Deputy Attorney General/Acting Assistant Prosecutor,
                    of counsel and on the brief).

PER CURIAM
      Defendant Samuel Woody appeals from an order denying his post-

conviction relief (PCR) petition without an evidentiary hearing. He contends

the court erred by failing to find he established a prima facie case of ineffective

assistance of his trial counsel entitling him to either PCR or an evidentiary

hearing. We disagree and affirm.

                                        I.

      We summarized the evidence supporting defendant's convictions for

second-degree official misconduct, N.J.S.A. 2C:30-2, and fourth-degree

criminal sexual contact, N.J.S.A. 2C:14-3(b), in our opinion affirming the

convictions, State v. Samuel Woody, No. A-4281-13 (Apr. 18, 2016) (slip

opinion at 2–8). We briefly restate the pertinent evidence, as supplemented by

additional facts supported by the PCR proceeding record.

      K.C. was romantically involved with Plainfield Police Officer Fernando

Sanchez. She became upset when she believed Officer Sanchez visited another

woman's home. She removed his cellphone from his patrol car that was parked

outside the woman's home and called the woman in an attempt to contact Officer

Sanchez.

      Defendant, who was also employed as a Plainfield police officer, later

called defendant and requested that she return Officer Sanchez's cellphone. K.C.


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                                        2
knew of defendant and went to police headquarters to return the phone. K.C.

spoke to defendant and Lieutenant Richard Urbanski at the headquarters,

acknowledged she took the phone, and was photographed, fingerprinted and

served with papers. At that point, she realized she was being charged with a

crime, but she did not understand she had been arrested. Defendant advised

K.C. she was free to leave the headquarters.

      Defendant followed K.C. outside of the headquarters and asked her to

meet him. She agreed and traveled to a location near her home. Defendant

arrived in his police vehicle, was dressed in his police uniform, and had his

police radio. He directed that K.C. follow him to another location near his

cousin's home, and she complied.

      Once at the location, K.C. and defendant parked their cars next to each

other. Defendant exited his patrol vehicle, stood outside of K.C.'s vehicle, and

told her she could receive five years in prison for taking the phone. He also said

he would file the paperwork and enter the charge in the computer , and that he

could "get rid of the paperwork." K.C. understood defendant's statement to

mean he could dismiss the charges. Defendant said he could lose his job if he

did so.




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                                        3
      As K.C. was prepared to leave, defendant asked to see her vaginal area.

K.C. placed her phone in the vehicle's ashtray and activated a recorder. She

acceded to defendant's request to expose her vaginal area because she had a child

and did not want to go to jail. The recording of the ensuing colloquy between

K.C. and defendant, while she exposed her vaginal area to him, was the

centerpiece of the State's evidence. It showed defendant requesting that K.C.

expose her vaginal area in exchange for his agreement K.C. would not go to jail

or court and would not get a summons. Because defendant stood outside of

K.C.'s vehicle, she could not see him from the waist down. On the recording ,

K.C. asked defendant why his "hand [was] down there," and defendant

responded, "I'm jerking on my dick."

      Later that day, defendant served K.C. with a summons and a complaint

with upgraded charges. K.C. asked defendant, "what about what I did," and he

replied, "that never happened."

      Defendant disputed K.C.'s version of the events, and testified he and K.C.

had a dating relationship. He explained that he was off duty when he met with

K.C. and that the recorded colloquy occurred during a consensual interaction.

He denied masturbating or touching himself, and testified he never told K.C. to

touch herself and that she did not touch herself.


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                                        4
        The jury convicted defendant of second-degree official misconduct and

fourth-degree criminal sexual contact.        As noted, we affirmed defendant's

conviction on his direct appeal, Woody, slip op. at 21, and the Supreme Court

denied defendant's petition for certification, State v. Woody, 227 N.J. 111

(2016).

        Defendant filed a timely pro se PCR petition generally alleging that "he

was denied effective assistance of counsel at [the] trial level." The petition did

not assert any facts detailing the alleged deficiencies in defendant's trial

counsel's performance supporting the ineffective assistance of counsel claim.

Defendant also filed a pro se brief arguing his trial counsel was ineffective. 1

        Defendant's assigned counsel subsequently filed a brief in support of the

PCR petition.2 The brief incorporated by reference the arguments in defendant's

pro se brief, including claims that his trial counsel failed to: investigate an alibi

defense and material witnesses; timely obtain grand jury transcripts; and

impeach prosecution witnesses and object to their testimony. Defendant's PCR


1
    Defendant's pro se brief is not included in the record on appeal.
2
  Defendant's PCR counsel's brief is included in defendant's appendix on appeal
and refers to an "amended [PCR] petition." The amended petition is not included
in defendant's appendix on appeal. In defendant's brief on appeal, he does not
cite to either his original or amended petitions as support for any of the factual
assertions upon which he relies.
                                                                             A-0229-18T1
                                          5
counsel further argued that defendant's trial counsel was ineffective by failing

to visit the crime scene and failing to interview Officer Sanchez and Lieutenant

Urbanski.    PCR counsel argued Lieutenant Urbanski would have testified

defendant was off duty when he left police headquarters with K.C. and defendant

did not take a patrol car when he left the headquarters.

      PCR counsel's brief further argued that defendant's trial counsel's

performance was deficient by failing to call Officer Sanchez as a witness. PCR

counsel argued Sanchez would have testified that K.C. was extorting money

from him and that K.C. "was in this for the money and had financial difficulty."

He also alleged trial counsel did not call Officer Sanchez as a witness because

Officer Sanchez's attorney and defendant's trial counsel were de facto partners

who shared office space, and therefore his trial counsel had a conflict of interest.

      PCR counsel further argued trial counsel was ineffective by failing to

subpoena cellphone and GPS records that would have shown the incident took

place in defendant's driveway and that defendant and K.C. communicated

numerous times over the months prior to the incident.          According to PCR

counsel, trial counsel was also ineffective by failing to obtain police records that

would have shown defendant did not have a patrol car when the incident

occurred. Last, PCR counsel alleged defendant and his trial counsel were "at


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                                         6
odds" up to the time of jury selection because of a dispute concerning trial

counsel's fees.

      The PCR court heard argument on the petition. Defendant's PCR counsel

relied on the arguments asserted in his brief but focused on the claim that trial

counsel should have called Officer Sanchez to testify that K.C. had looked to

him for financial support. PCR counsel also reprised the claim that Officer

Sanchez's counsel and defendant's trial counsel shared office space and were de

facto partners, and therefore trial counsel had a conflict and failed to call Officer

Sanchez as a witness at trial as a result.

      The court rejected the claims, finding defendant failed to present any

evidence that the purported error in not calling Officer Sanchez at trial resulted

in prejudice. The court noted defendant testified at trial he had previously

offered K.C. money and that the case was "about" money. The court also found

the recording of the incident was "devastating," "unambiguous," "clear," and

"was a tape of the actual incident," and that the recording showed "an unguarded

moment of truth of [defendant] looking to take advantage of his position." Thus,

the court concluded Sanchez's putative testimony would not have affected the

trial outcome.




                                                                             A-0229-18T1
                                         7
      The court further found defendant failed to make any showing there were

alibi witnesses whose testimony would have supported a defense, or that either

Officer Sanchez or Lieutenant Urbanski would have provided any testimony

supporting a defense to the charges. The court rejected defendant's other claims

based on its conclusion defendant failed to demonstrate that any alleged failure

of his trial counsel to investigate alibi witnesses, obtain GPS or cellphone

records, or cross-examine witnesses differently would have effectively refuted

the compelling recording of defendant's commission of the crimes with which

he was charged and convicted.     This appeal followed the court's entry of an

order denying the PCR petition.

      Defendant offers the following arguments for our consideration.

            POINT I

            DEFENDANT WAS DENIED THE EFFECTIVE
            ASSISTANCE OF TRIAL COUNSEL ENTITLING
            HIM TO POST-CONVICTION RELIEF OR AN
            EVIDENTIARY HEARING ON THE ISSUE OF THE
            FAILURE    TO   CALL   SANCHEZ   AS   A
            CORROBORATING WITNESS TO HIS DEFENSE
            THAT [K.C.'S] CLAIM WAS ONLY A FORM OF
            EXPLOITATION AS A MEANS TO GAIN A
            FINANCIAL WINDFALL[.]

            A. APPLICABLE LAW[.]

            B. COUNSEL WAS INEFFECTIVE FOR FAILING
            TO ADEQUATELY PREPARE FOR TRIAL IN

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                                       8
            HAVING FOREGONE A DEFENSE WITNESS
            WHOSE TESTIMONY WOULD HAVE HAD THE
            LIKELY EFFECT OF CHANGING THE OUTCOME
            OF THE TRIAL[.]

                                       II.

      We review the legal conclusions of a PCR court de novo. State v. Harris,

181 N.J. 391, 419 (2004) (citing Manalapan Realty, LP v. Twp. Comm. of

Manalapan, 140 N.J. 366, 378 (1995)). The de novo standard of review applies

to mixed questions of fact and law. Harris, 181 N.J. at 420. Where, as here, an

evidentiary hearing has not been held, it is within our authority "to conduct a de

novo review of both the factual findings and legal conclusions of the PCR court."

Id. at 421. We apply that standard here.

      An evidentiary hearing on a PCR petition is required where a defendant

establishes a prima facie case for PCR under the standard established by the

United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 686

(1984), and the existing record is inadequate to resolve defendant's claim, State

v. Porter, 216 N.J. 343, 354 (2013) (citing R. 3:22-10(b)); see also State v.

Preciose, 129 N.J. 451, 462–63 (1992). Under Strickland, a defendant first must

show that his or her attorney's handling of the matter "fell below an objective

standard of reasonableness." Strickland, 466 U.S. at 688; see also State v. Fritz,

105 N.J. 42, 58 (1987). A defendant also must show there exists a "reasonable

                                                                          A-0229-18T1
                                        9
probability that, but for counsel's unprofessional errors, the result of the

proceeding would have been different." Strickland, 466 U.S. at 694; see also

Fritz, 105 N.J. at 60–61. A failure to satisfy either prong of the Strickland

standard requires the denial of a PCR petition. Strickland, 466 U.S. at 700; State

v. Nash, 212 N.J. 518, 542 (2013); Fritz, 105 N.J. at 52.

      Here, the court did not err in denying defendant's PCR petition. All of the

purported factual allegations supporting his claim that trial counsel's

performance was deficient are untethered to any competent evidence. PCR

petitions must be "accompanied by an affidavit or certification by defendant, or

by others, setting forth with particularity," State v. Jones, 219 N.J. 298, 312

(2014), "facts sufficient to demonstrate counsel's alleged substandard

performance," ibid. (quoting Porter, 216 N.J. at 355). "[B]ald assertions" are

insufficient to sustain a defendant's burden of establishing a prima facie case of

ineffective assistance under the Strickland standard. State v. Cummings, 321

N.J. Super. 154, 170 (App. Div. 1999).

      When a defendant asserts that his or her counsel failed to call exculpatory

witnesses, "he [or she] must assert the facts that would have been revealed,

'supported by affidavits or certifications based upon the personal knowledge of

the affiant or the person making the certification.'" State v. Petrozelli, 351 N.J.


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                                       10
Super. 14, 23 (App. Div. 2002) (quoting Cummings, 321 N.J. Super. at 170).

Defendant's claim his trial counsel was ineffective by failing to call Officer

Sanchez and Lieutenant Urbanski as witnesses at trial is unsupported by any

competent evidence about their putative testimony. Defendant's claims about

what they would have said if called as witnesses is based on supposition and is

founded solely on the arguments of counsel made to the PCR court. Thus,

defendant presented the PCR court with a record bereft of any competent

evidence about the testimony he contends the witnesses would have provided.

Lacking such evidence, defendant could not, and did not, satisfy his burden of

demonstrating that his trial counsel's performance was deficient based on his

alleged error in not calling either of the witnesses at trial. The lack of evidence

also requires a finding that defendant failed to establish that had the witnesses

been called, there is a reasonable probability the result of the trial would have

been different.

      Defendant's claims concerning his trial counsel's alleged other errors

suffer from the same fatal infirmity.       There was no competent evidence

presented to the PCR court establishing that GPS or cellphone data would have

yielded evidence relevant to the determination of defendant's guilt or innocence,

or that records would show defendant was off duty or did not have a patrol car


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                                       11
when the recorded incident occurred.        There was no evidence establishing

defendant's trial counsel and Officer's Sanchez's counsel shared office space or

were de facto partners, that defendant's trial counsel had a conflict of interest,

or that defendant and his trial counsel were "at odds" prior to trial over a fee

dispute.   Defendant did not provide any competent evidence supporting a

purported alibi defense or establishing what additional pretrial investigation

would have yielded that would have supported his defense or made a difference

at trial. As our Supreme Court has explained, "when a petitioner 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." Porter, 216 N.J. at 353 (quoting Cummings, 321 N.J. Super. at

170). Defendant provided no such evidence here. 3

      In sum, defendant's claims that his trial counsel's performance was

deficient constitute nothing more than bald assertions and arguments that are

wholly unsupported by any competent evidence presented to the PCR court.


3
   We do not suggest that had defendant produced some competent evidence
supporting his numerous factual claims that he would have sustained his burden
under the Strickland standard. A determination of whether a defendant satisfies
the Strickland standard is dependent on a consideration of competent evidence
supporting a defendant's PCR petition. No such evidence was presented here.
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                                       12
The court correctly determined defendant failed to satisfy his burden of

presenting evidence establishing that his trial counsel's performance was

deficient. See Strickland, 466 U.S. at 688.    Defendant also failed to present

competent evidence demonstrating there is reasonable probability that but for

his trial counsel's purported errors the result of his trial would have been

different.4 Id. at 694. Because defendant failed to present evidence satisfying

both prongs of the Strickland standard, he was not entitled to an evidentiary

hearing. See id. at 700.

      Affirmed.




4
  We also observe that even if we accepted defendant's unsupported allegations
concerning the purported errors of his trial counsel, he fails to establish
prejudice under the second prong of the Strickland standard. As aptly noted by
the PCR court, the incident giving rise to the charges against defendant was
recorded, and the recording overwhelmingly established defendant's guilt; the
recording demonstrates defendant suggested to K.C. that if she exposed her
vaginal area to him, he would take action, as he could only in his role as police
officer, to ensure she did not go to jail or court, or receive a summons. As a
result, and as the PCR court found, even if defendant's trial counsel committed
the alleged errors, defendant did not demonstrate but for those errors there is a
reasonable probability the result of his trial would have been different.
Strickland, 466 U.S. at 694.
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                                      13
