                        NOT FOR PUBLICATION WITHOUT THE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-3940-15T1


STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

EDARIEL MELENDEZ, a/k/a
RIDDICK,

     Defendant-Appellant.
__________________________

              Submitted October 19, 2017 – Decided November 21, 2017

              Before Judges Simonelli and Haas.

              On appeal from Superior Court of New Jersey,
              Law Division, Union County, Indictment No. 08-
              11-0966.

              Joseph E. Krakora, Public Defender, attorney
              for appellant (Louis H. Miron, Designated
              Counsel, on the brief).

              Thomas K. Isenhour, Acting Union County
              Prosecutor, attorney for respondent (Meredith
              L.    Balo,    Special     Deputy    Attorney
              General/Acting   Assistant   Prosecutor,   of
              counsel and on the brief).

              Appellant filed a pro se supplemental brief.
PER CURIAM

      Defendant Edariel Melendez appeals from the April 1, 2016 Law

Division order, which denied his petition for post-conviction

relief (PCR) without an evidentiary hearing.                  We affirm.

      We incorporate herein the procedural history and facts set

forth in State v. Melendez, No. A-3829-10 (App. Div. June 27,

2014), certif. denied, 220 N.J. 100 (2014).                  The following facts

are pertinent to the present appeal.

      Following a second jury trial,1 defendant was convicted of

first-degree murder, N.J.S.A. 2C:11-3(a)(1) and (2) (counts two

and   twenty-one);2     second-degree           aggravated    assault,     N.J.S.A.

2C:12-1(b)(1) (counts three and six); third-degree aggravated

assault, N.J.S.A. 2C:12-1(b)(2) (counts four and seven); fourth-

degree aggravated assault, N.J.S.A. 2C:12-1(b)(4) (counts five and

eight); second-degree possession of a weapon for an unlawful

purpose, N.J.S.A. 2C:39-4(a) (counts nine and twenty-five); third-

degree   unlawful     possession   of       a    weapon,     N.J.S.A.    2C:39-5(b)

(counts ten, twenty-six and thirty-three); third-degree hindering

apprehension,   N.J.S.A.    2C:29-3(a)(3)           (count     thirty-four);     and



1
    The first trial ended in a mistrial because of juror misconduct.
2
   The court dismissed count one charging defendant with second-
degree conspiracy, N.J.S.A. 2C:5-2.


                                        2                                   A-3940-15T1
third-degree hindering apprehension, N.J.S.A. 2C:29-3(b)(1) (count

thirty-five).3     The charges stemmed from defendant's involvement

with co-defendants Bryant Lee and Monte Foster in two gang-related

murders.

       The trial court imposed two consecutive forty-year terms of

imprisonment      with   an      eighty-five    percent    period   of    parole

ineligibility pursuant to the No Early Release Act, N.J.S.A. 2C:43-

7.2.   Defendant also received two consecutive seven-year terms of

imprisonment on his second-degree aggravated assault convictions,

concurrent with the four-year sentence he received on his weapons

conviction. In addition, the court imposed a four-year consecutive

sentence for the hindering conviction.                Defendant's aggregate

sentence    was    98    years     with   a    79.9-year   period   of    parole

ineligibility.

       Defendant appealed his conviction and sentence.              We found no

abuse of discretion in the court's admission of evidence of

defendant's gang membership and photographs of his gang-related

tattoos, and no plain error in the prosecutor's summation comment

about defendant's tattoos.          Melendez, supra, (slip op. at 14, 18).



3
   Co-defendant Bryant Lee was charged in counts eleven through
nineteen, twenty-seven through thirty-two, and thirty-seven
through thirty-nine.   Co-defendant Monte Foster was charged in
counts forty and forty-one.


                                          3                              A-3940-15T1
We    specifically   found    the    prosecutor's     "comment     was   not    so

egregious as to have denied defendant a fair trial."               Id. at 18.

       Defendant filed a PCR petition, arguing that trial counsel

rendered ineffective assistance by failing to call J.G.4 as a

witness, meet with defendant sufficiently to prepare for trial,

and object to the prosecutor's improper summation comment about

his tattoos.    In a pro se supplemental brief, defendant added that

trial    counsel   failed    to   call   Lee   and   Foster   to   testify     and

investigate the biased testimony of two witnesses whose stepfather

interceded on their behalf with the court and the prosecutor.

       In an April 1, 2016 order and written opinion, the PCR judge

denied the petition.        The judge found the procedural bar of Rule

3:22-5 applied to defendant's argument about the prosecutor's

summation comment.     The judge also found the State called J.G. as

a witness, trial counsel engaged in a lengthy cross-examination,

bringing to light inconsistencies between J.G.'s testimony and his

statement to the police, and counsel attacked the photo array in

which J.G. participated.

       The PCR judge found there were no affidavits from Lee and

Foster, and trial counsel exercised reasonable strategy in not

calling them as witnesses.          The judge noted that Lee and Foster,



4
     We use initials to identify this witness to protect his privacy.

                                         4                               A-3940-15T1
who had pending charges relating to this matter, would have either

invoked their Fifth Amendment right not to testify, or their

testimony would have damaged the defense by presenting evidence

of co-defendants' shared gang membership with defendant.                           The

judge also found that, given the considerable amount of evidence

presented against defendant, Lee's and Foster's testimony would

not have changed the outcome.

      The PCR judge determined defendant did not show that trial

counsel's alleged failure to meet with him sufficiently to prepare

for   trial    rose   to    the   level       of    constitutionally-inadequate

representation.       The    judge   noted         that    trial    counsel    argued

reasonably on defendant's behalf in pre-trial motions, sought a

directed verdict at the close of the State's case, cross-examined

witnesses, and called alibi witnesses.               The judge emphasized there

were no affidavits or certifications showing that trial counsel

was   objectively     unreasonable        in       his    trial    preparation     and

strategy.     The judge concluded that defendant failed to establish

both prongs of Strickland v. Washington, 466 U.S. 668, 104 S. Ct.

2052, 80 L. Ed. 2d 674 (1984) to warrant an evidentiary hearing.

This appeal followed.

      On appeal, defendant raises the following contentions:

              I.   THE INEFFECTIVE ASSISTANCE OF TRIAL
                   COUNSEL DEPRIVED [DEFENDANT] OF A FAIR


                                          5                                   A-3940-15T1
                TRIAL AND RENDERED THE JURY'S VERDICT AS
                FUNDAMENTALLY UNRELIABLE.

                A.   Trial Counsel Failed to Represent
                     [Defendant] Effectively.

          II.   TRIAL   COUNSEL'S   ERRORS,   CONSIDERED
                CUMULATIVELY,     AMOUNTED    TO     THE
                INEFFECTIVE ASSISTANCE OF COUNSEL FOR
                [DEFENDANT]. (Not Raised Below).

         III.   THE PCR COURT SHOULD HAVE CONDUCTED AN
                EVIDENTIARY HEARING TO ADDRESS ALL OF
                [DEFENDANT'S] CLAIMS.

Defendant argues that trial counsel's cross-examination of the

State's witnesses, particularly J.G., was "woefully inadequate,"

and counsel failed to called Lee as a witness and investigate and

prepare for trial.

    Defendant raises the following contentions in his pro se

brief:

                              Point I

               The Defendant was entitled to a New Trial
          where he made a prima facie showing that trial
          counsel failed to render effective assistance
          of counsel and in particular counsel failed
          to interview and prepare alibi witnesses for
          trial, failed to pursue a dismissal because
          of a mistrial and failed to explore any
          challenges to statements, plea agreements and
          sentencing of Mr. Lee and Mr. Foster.
          Furthermore, a Charles Thomas wrote a letter
          to a Judge seeking consideration for testimony
          of his daughter.    His daughter did in fact
          testify at trial.    I never saw the letter.
          The content of the letter should have been
          used for impeachment purposes.


                                 6                         A-3940-15T1
     We    decline      to   address   defendant's         argument     that     trial

counsel's cross-examination of the State's witnesses was "woefully

inadequate."      We also decline to address defendant's argument in

his pro se brief that trial counsel failed to pursue a dismissal

because of a mistrial, explore any challenges to co-defendants'

statements,      plea    agreements,          and    sentencing,      and   use       an

investigator to investigate his case.                Defendant did not present

these arguments to the PCR judge and they do not involve the

court's jurisdiction or present a matter of great public interest.

State     v.   Robinson,     200   N.J.       1,    20   (2009);   R.   3:22-4(a).

Accordingly, we focus on defendant's remaining arguments.

     The mere raising of a claim for PCR does not entitle the

defendant to an evidentiary hearing.                State v. Cummings, 321 N.J.

Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999).

Rather, trial courts should grant evidentiary hearings and make a

determination on the merits only if the defendant has presented a

prima facie claim of ineffective assistance, material issues of

disputed facts lie outside the record, and resolution of the issues

necessitates a hearing.         R. 3:22-10(b); State v. Porter, 216 N.J.

343, 355 (2013).         We review a judge's decision to deny a PCR

petition without an evidentiary hearing for abuse of discretion.

State v. Preciose, 129 N.J. 451, 462 (1992).



                                          7                                    A-3940-15T1
     To establish a prima facie claim of ineffective assistance

of counsel, the defendant

          must satisfy two prongs.      First, he must
          demonstrate that counsel made errors "so
          serious that counsel was not functioning as
          the 'counsel' guaranteed the defendant by the
          Sixth    Amendment."         An     attorney's
          representation is deficient when it "[falls]
          below     an     objective     standard     of
          reasonableness."

               Second, a defendant "must show that the
          deficient    performance    prejudiced    the
          defense." A defendant will be prejudiced when
          counsel's errors are sufficiently serious to
          deny him a "fair trial."        The prejudice
          standard is met if there is "a reasonable
          probability    that,   but    for   counsel's
          unprofessional errors, the result of the
          proceeding would have been different."      A
          "reasonable probability" simply means a
          "probability    sufficient     to   undermine
          confidence in the outcome" of the proceeding.

          [State v. O'Neil, 219 N.J. 598, 611 (2014)
          (quoting Strickland, supra, 466 U.S. at 687-
          88, 694, 104 S. Ct. at 2064, 2068, 80 L. Ed.
          2d at 693, 698).]

     "[I]n order to establish a prima facie claim, [the defendant]

must do more than make bald assertions that he was denied the

effective assistance of counsel.     He must allege facts sufficient

to   demonstrate   counsel's   alleged   substandard   performance."

Cummings, supra, 321 N.J. Super. at 170.        The defendant must

establish, by a preponderance of the credible evidence, that he




                                 8                           A-3940-15T1
is entitled to the required relief.            State v. Nash, 212 N.J. 518,

541 (2013).

      When   a   defendant     claims   that   trial    counsel   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, supra, 216 N.J.

at   353   (quoting    Cummings,      supra,   321   N.J.     Super.   at     170).

Defendant provided no affidavit or certification

      In addition, deciding which witnesses to call to the stand

is "an art," and we must be "highly deferential" to such choices.

State v. Arthur, 184 N.J. 307, 321 (2005) (quoting Strickland,

supra, 466 U.S. at 689, 693, 104 S. Ct. at 2065, 2067, 80 L. Ed.

2d at 694, 697).       Furthermore,

             [d]etermining which witnesses to call to the
             stand is one of the most difficult strategic
             decisions that any trial attorney must
             confront. A trial attorney must consider what
             testimony a witness can be expected to give,
             whether the witness's testimony will be
             subject to effective impeachment by prior
             inconsistent statements or other means,
             whether the witness is likely to contradict
             the testimony of other witnesses the attorney
             intends to present and thereby undermine their
             credibility, whether the trier of fact is
             likely to find the witness credible, and a
             variety of other tangible and intangible
             factors.

             [Id. at 320-21 (citation omitted).]

                                         9                                  A-3940-15T1
Where the defendant asserts that his attorney failed to call

witnesses who would have exculpated him, "he 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. Super. 14, 23 (App. Div. 2002) (quoting Cummings, supra,

321 N.J. Super. at 170).

       Finally, simple mistakes, bad strategy, or bad tactics "do

not amount to ineffective assistance of counsel unless, taken as

a whole, the trial was a mockery of justice."          State v. Bonet, 132

N.J. Super. 186, 191 (App. Div. 1975).           The simple fact that a

trial strategy fails does not necessarily mean that counsel was

ineffective.     State v. Bey, 161 N.J. 233, 251 (1999) (citation

omitted), cert. denied, 530 U.S. 1245, 120 S. Ct. 2693, 147 L. Ed.

2d 964 (2000).

       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 discern no abuse of discretion in

the denial of defendant's PCR petition without an evidentiary

hearing, and affirm substantially for the reasons set forth in the

PCR judge's written opinion. We are satisfied that trial counsel's



                                     10                               A-3940-15T1
performance was not deficient, and defendant provided nothing more

than bald assertions to the contrary.

     Affirmed.




                               11                          A-3940-15T1
