                        NOT FOR PUBLICATION WITHOUT THE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-4223-16T1


STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

MARVIN BROOKS, a/k/a SERB,

     Defendant-Appellant.
____________________________

              Submitted May 14, 2018 – Decided August 1, 2018

              Before Judges Ostrer and Whipple.

              On appeal from Superior Court of New Jersey,
              Law Division, Hudson County, Indictment No.
              13-03-0706.

              Joseph E. Krakora, Public Defender, attorney
              for appellant (Kevin G. Byrnes, Designated
              Counsel, on the brief).

              Esther Suarez, Hudson County Prosecutor,
              attorney for respondent (Svjetlana Tesic,
              Assistant Prosecutor, on the brief).

PER CURIAM

        Defendant Marvin Brooks appeals the trial court's March 16,

2017 denial of his petition for post-conviction relief (PCR) after

an evidentiary hearing.          We affirm.
      On October 27, 2012, defendant entered the apartment of his

former girlfriend (the victim).         Defendant and the victim once

lived together, but defendant moved out after the couple had broken

up.   The victim reported to the police that defendant called her

that morning and said he was coming over.        While she was talking

on the phone with a friend, the victim saw defendant on the fire

escape, but he went away when he noticed her.           Later, he was

banging on and kicking her apartment door and told her to let him

inside.   She said she was not going to open the door and told him

to go away.     Minutes later, he went onto the fire escape and

punched a window.   He took a brick out of his pocket, broke the

window with it, and came into the apartment.         Defendant hit the

victim with his hands and fists.       They were fighting on the floor,

and defendant then stopped, stood up, and left.        The police came

thereafter.

      Defendant was charged with second-degree burglary, third-

degree eluding, and resisting arrest.1

      At trial, the victim presented a different account, telling

the jury she had posted embarrassing naked photographs of defendant

on an internet website the day before the incident because she was

mad at him for being romantically involved with another woman.         He



1
    The resisting arrest and eluding charges were dismissed.

                                   2                            A-4223-16T1
had called her that morning and said he was coming over after she

refused to take the photographs down.     When defendant arrived, he

knocked on her door and asked to enter.        The victim initially

refused him entry, and he walked around to the back of the building

to the fire escape.    He cracked a window with his hand and then

broke it with a brick.     The victim testified she agreed to let

defendant into the apartment through the front door.     Once inside,

they argued, and defendant assaulted her.         She explained her

inconsistencies, stating she told the police defendant entered the

apartment without her consent because "she wanted [defendant] to

be locked up" and she "was mad because he put his hand on [her]".

     Defendant conceded he entered the apartment and committed

assault but disputed he entered the apartment without consent, the

element that elevated the charge to second-degree burglary.          He

argued the outcome hinged on which of the victim's stories were

credible.

     Defendant   was   convicted   of   second-degree   burglary   and

sentenced to eight years in prison with an eighty-five percent

term of parole ineligibility.      On direct appeal, we affirmed the

conviction, but remanded to correct an erroneous judgment of

conviction.

     On January 19, 2016, defendant filed a petition for PCR,

asserting ineffective assistance of counsel because his counsel

                                   3                          A-4223-16T1
did not contact an eyewitness, Hassan Bethea, to testify at trial.

On March 16, 2016, the judge held an evidentiary hearing.

      Bethea testified he lived diagonally across the hall from the

victim, and he clearly observed defendant and the victim in front

of the victim's apartment door.      Bethea stated the victim appeared

to be laughing and defendant was a "little upset."            He testified

the victim voluntarily allowed defendant into her apartment, but

he did not observe anything after the door was closed.          Bethea was

not   contacted   about   this   incident   until   after   defendant   was

convicted.

      Defendant testified Bethea observed the incident unfold, and

he told his trial counsel about Bethea during jury selection.

Under questioning by the court, defendant stated he raised Bethea

as a potential witness to his trial counsel when he realized the

"realness of the situation."

      Defendant's trial counsel then testified.             She stated she

represented defendant in three separate matters and remembered the

details of this case.      In preparation for trial, she went to the

scene of the crime, spoke with defendant and the victim, reviewed

the police reports, and sent an investigator to talk to the

victim's neighbors, specifically those who called 9-1-1.                The

investigator was unable to gain entry into the apartment complex

because it had a locked entrance, and therefore, the investigator

                                     4                             A-4223-16T1
did not interview anyone.         Counsel testified defendant did not

identify    any   potential     witnesses,        except       the     victim,     in

preparation for trial.

       The court denied defendant's PCR petition, finding counsel

attempted to investigate, and defendant did not provide her with

a potential witness until jury selection.              The court further noted

it was unclear what defendant told counsel at jury selection.                     The

judge found "defendant failed to provide the name or information

regarding [Bethea]. It was not that the attorney failed to explore

all avenues."     The court reasoned Bethea was not presented "as a

viable,    identifiable   and    firm       witness    that    would    have     been

available to testify for him on his behalf."                  The court noted if

defendant had presented Bethea as a viable witness, counsel would

have testified to that effect at the PCR hearing, and the trial

record would have contained evidence of defendant's desire to have

Bethea testify.     The judge found if Bethea had testified, the

outcome of the trial may have been altered because Bethea would

have    corroborated   the      victim's       trial    testimony       that     she

voluntarily allowed defendant into the apartment.

       This appeal followed, and on appeal, defendant argues:

            TRIAL   COUNSEL   FAILED    TO   CONDUCT  AN
            INVESTIGATION THAT OBJECTIVELY REASONABLE
            COUNSEL WOULD HAVE CONDUCTED, RESULTING IN
            SUBSTANTIAL   UNFAIR    PREJUDICE    TO  THE
            DEFENDANT'S CASE.

                                        5                                  A-4223-16T1
      To prevail on a claim of ineffective assistance of counsel,
                                                             2
defendant    must   satisfy   the   two-prong   Strickland       test:    (l)

counsel's performance was deficient, and she made errors that were

so egregious counsel was not functioning effectively as guaranteed

by the Sixth Amendment to the United States Constitution; and (2)

"defendant must show that there is a reasonable probability that,

but   for   counsel's    unprofessional   errors,   the   result     of   the

proceeding would have been different."          Strickland, 466 U.S. at

687; State v. Fritz, 105 N.J. 42, 52 (1987).

      Under the first prong, "counsel is strongly presumed to have

rendered adequate assistance and made all significant decisions

in the exercise of reasonable professional judgment."            Strickland,

466 U.S. at 690.        The court must determine whether the acts or

omissions of counsel "were outside the wide range of professionally

competent assistance."      Ibid.   Adequate assistance of counsel must

be measured by a standard of "reasonable competence."              State v.

Jack, 144 N.J. 240, 248 (1996) (citing Fritz, 105 N.J. at 53).

      Under the second prong of Strickland, defendant must prove

prejudice.    Fritz, 105 N.J. at 52.       He must show a "reasonable

probability" that counsel's deficient performance affected the

outcome of the proceeding.          Strickland, 466 U.S. at 694.             A


2
    Strickland v. Washington, 466 U.S. 668 (1984).

                                     6                               A-4223-16T1
reasonable probability is defined as "a probability sufficient to

undermine confidence in the outcome."                 Ibid.

     We review a PCR petition with deference to the trial court's

factual    findings.        State       v.   Nash,   212    N.J.    518,    540    (2013)

(citations omitted).            We "give deference to those findings of the

trial judge which are substantially influenced by his opportunity

to hear and see the witnesses and to have the 'feel' of the case,

which a reviewing court cannot enjoy."                 State v. Elders, 192 N.J.

224, 244 (2007) (quoting State v. Johnson, 42 N.J. 146, 161

(1964)).    "An appellate court's reading of a cold record is a pale

substitute for a trial judge's assessment of the credibility of a

witness    he    has    observed       firsthand."         Nash,    212    N.J.   at   540

(citation   omitted).            Nevertheless,       all    legal    conclusions       are

reviewed de novo.          State v. Harris, 181 N.J. 391, 415 (2004)

(citing Toll Bros. v. Twp. of W. Windsor, 173 N.J. 502, 549

(2002)).

     Defendant         argues    his    trial    counsel      was    ineffective       for

failing to properly investigate and produce Bethea as a witness

at trial.       According to defendant, the central issue was whether

the victim allowed defendant to enter her apartment and his counsel

was objectively ineffective for only interviewing the victim and

himself.    Defendant also asserts the PCR court erroneously imposed



                                             7                                    A-4223-16T1
an   obligation      on   him   to    provide      his   trial      counsel     with    all

information surrounding the crime.                 We disagree.

      As to the first prong of Strickland, the PCR judge determined

defendant's trial counsel rendered effective assistance.                                The

judge   found     her     a   credible      witness      and    noted     she    sent    an

investigator     to     the   scene    of    the    crime      to   try   to    interview

neighbors.      The judge found defendant did not tell counsel about

Bethea as a potential witness until jury selection, and it was

uncertain exactly what defendant told counsel about Bethea.                             The

judge reasoned if defendant had told counsel that Bethea was a

necessary witness, counsel would have testified to this effect at

the PCR hearing or the record from the trial would have indicated

either an attempt to bring Bethea in as a witness or defendant's

complaints about Bethea not being called as a witness.                           Without

such evidence, the judge thought it likely defendant may have

mentioned Bethea in passing as a potential witness and only truly

sought Bethea as a witness after trial when he fully realized the

gravity of the situation.

      "A fair assessment of attorney performance requires that

every effort be made to eliminate the                       distorting effects of

hindsight,      to      reconstruct      the       circumstances          of    counsel's

challenged conduct, and to evaluate the conduct from counsel's

perspective at the time."             Strickland, 446 U.S. at 689.                  Here,

                                            8                                     A-4223-16T1
even if counsel only learned of the existence of Bethea during

jury selection, it is unclear how defendant presented him as a

potential    witness.   Counsel      attempted   to   investigate     and

interviewed the two known main witnesses – defendant and the

victim.     Despite defendant's contention that it was counsel's

obligation   to   uncover   Bethea   as   a   potential   witness,   when

evaluating her performance from her perspective, she rendered

effective assistance of counsel because she investigated all known

leads at the time.      Only with the benefit of hindsight does

defendant now contend her performance was ineffective.

     Regarding prong two, the PCR judge found the outcome of the

trial may have been altered if Bethea was secured as a witness by

counsel. However, because we agree with the PCR judge that counsel

provided effective assistance, we need not consider the second

prong of Strickland. See Nash, 212 N.J. at 542 (noting a defendant

must establish both Strickland prongs) (citations omitted).

     Affirmed.




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