                        NOT FOR PUBLICATION WITHOUT THE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-3871-14T3

STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

JANEAN OWENS,

     Defendant-Appellant.
______________________________

              Submitted November 7, 2016 – Decided June 8, 2017

              Before Judges Nugent and Haas.

              On appeal from Superior Court of New Jersey,
              Law Division, Middlesex County, Indictment
              Nos. 07-01-00155 and 07-01-00158.

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

              Andrew C. Carey, Middlesex County Prosecutor,
              attorney for respondent (Nancy A. Hulett,
              Assistant Prosecutor, of counsel and on the
              brief).

PER CURIAM

        Defendant    Janean    Owens    appeals    from   a    January     29,   2015

Criminal      Part   order    denying   her   petition    for    post-conviction

relief (PCR) without an evidentiary hearing.                  We affirm.
     In   January   2007,     a    Middlesex   County    grand   jury   charged

defendant and a co-conspirator in a ten-count indictment with

murder and other offenses for shooting the homicide victim in the

back of the head and disposing of his body.             In 2009, a jury found

defendant guilty of first-degree aggravated manslaughter, N.J.S.A.

2C:11-4(a); third-degree conspiracy to commit theft by unlawful

taking, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:20-3; two counts of third-

degree theft by unlawful taking, N.J.S.A. 2C:20-3; second-degree

possession of a weapon for unlawful purposes, N.J.S.A. 2C:39-4(a);

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

and fourth-degree certain persons not to have weapons, N.J.S.A.

2C:39-7(a).    On the aggravated manslaughter count, the court

sentenced defendant to a custodial term of twenty-five years

subject to the No Early Release Act, N.J.S.A. 2C:43-7.2(a).                  The

court imposed four-year terms on counts three, five and six,

concurrent to each other but consecutive to the sentence for

aggravated manslaughter; a concurrent ten-year term with five

years of parole ineligibility on count eight; a concurrent five-

year term on count nine; and a consecutive eighteen-month custodial

term on the certain persons not to have weapons count.

     On   direct    appeal,       we   affirmed   defendant's    convictions,

reversed the decision to make the four-year aggregate sentence for

the theft offenses consecutive to the sentence on the aggravated

                                         2                              A-3871-14T3
manslaughter count, and vacated the sentence for possession of a

weapon for an unlawful purpose, which should have been merged.

State v. Owens, No. A-0803-09 (App. Div. Sept. 4, 2012) (slip op.

at 2).   The Supreme Court denied certification.    State v. Owens,

215 N.J. 485 (2013).

     Five months after the Supreme Court denied certification,

defendant filed her PCR petition.   In her petition, she alleged

her trial counsel was ineffective because he failed to forcefully

advocate on her behalf when she was sentenced.     She also alleged

her due process rights were violated when a defense witness

testified in "clearly identifiable prison clothing," and her right

to a fair and impartial jury was violated because Juror Number 1

fell asleep several times during the trial.

     After defendant filed her PCR petition, the court appointed

counsel, who filed a memorandum on behalf of petitioner in support

of her petition.   The memorandum raised two additional points:

trial counsel was ineffective for failing to raise the defenses

of diminished capacity and duress. Defendant sought an evidentiary

hearing on these issues. Following oral argument, the court denied

defendant's petition in a January 29, 2015 order.

     On appeal, defendant raises the following arguments:

          POINT I
          THE TRIAL COURT ERRED IN DENYING DEFENDANT'S
          MERITORIOUS PETITION FOR POST[-]CONVICTION

                                3                           A-3871-14T3
          RELIEF OR, AT LEAST, AFFORDING HER AN
          EVIDENTIARY HEARING TO DETERMINE THE MERITS
          OF HER CONTENTION THAT SHE WAS DENIED THE
          RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL.

               A.   The      Prevailing       Legal
               Principles   Regarding   Claims   Of
               Ineffective Assistance Of Counsel,
               Evidentiary Hearings And Petitions
               For Post[-]Conviction Relief.

               B.   Trial     Counsel     Rendered
               Ineffective Legal Representation By
               Virtue Of His Failure To Raise The
               Defense Of Diminished Capacity As A
               Result Of Defendant's Intoxication
               During The Incident In Question.

               C.   The Trial Counsel Rendered
               Ineffective Legal Representation By
               Virtue Of His Failure To Raise The
               Defense Of Duress Which Resulted
               From Defendant's Relationship With
               Co-defendant [].

               D.   Defendant Is Entitled To A
               Remand To The Trial Court To Afford
               Her An Evidentiary Hearing To
               Determine   The   Merits   Of   Her
               Contention That She Was Denied The
               Effective   Assistance   Of   Trial
               Counsel.

     For the reasons that follow, we reject these arguments and

affirm.

     The facts underlying defendant's convictions are detailed in

our previous opinion and need not be recounted in their entirety.

We repeat only those facts relevant to the issues on this appeal:

               On the evening of Thursday, October 19,
          2006, Owens went to a bar in Carteret for

                                4                         A-3871-14T3
drinks with Timisha Sanford, whom she had
known for about ten years. Robert Funderberk,
also known as "EZ," was at the bar and bought
drinks for Owens.    She knew Funderberk and
told Sanford that "he liked her."

     When the bar closed at 2:00 a.m., Owens
and Sanford left together but headed in
different directions.     After Sanford had
walked a few blocks, Owens "rode up" to her
in a gray Suburban driven by Funderberk.
Owens asked Sanford to ride with them to
purchase cigarettes.   Funderberk drove them
to Owens' apartment to pick up co-defendant
Keith McBride, also known as "Special" or
"SP."

     When they arrived at the apartment, Owens
went upstairs to get McBride. They returned
about six or seven minutes later. Owens and
McBride then stood behind the Suburban talking
"for a minute or two."     Sanford exited the
vehicle "to see what they [were] talking
about.   What was going on."     McBride told
Sanford "to handle it" and "[g]ave her
something wrapped up in a red towel." Based
on the weight, Sanford thought the towel
contained a gun. She said that she "wasn't
doing it," and Owens "snatched" the package
from her and told her "she was going to get
[Funderberk]."    Sanford thought they were
talking about a robbery.

     Owens got back into the Suburban and sat
in the back seat behind Funderberk, next to
Sanford. McBride sat in the front passenger
seat. While Funderberk was driving, Sanford
saw that Owens "had a gun in the back of
[Funderberk's] head and she asked [McBride]
should she pull it." He said "trill," which,
according to Sanford, is slang for "yes."
Owens then pulled the trigger.     Funderberk
"[s]lumped to the side," "ran off the road,"
and the vehicle stopped.


                      5                          A-3871-14T3
              McBride "said what the fuck did you do."
         Owens helped McBride move Funderberk to the
         front passenger seat. Owens and McBride then
         got in the back seat, and McBride told Sanford
         to drive to Newark.     According to Sanford,
         Owens was acting "[l]ike herself" and was
         "[n]ot really too bothered."

              After they arrived in Newark, McBride
         told Sanford to stop the Suburban near a
         building because it was a "good place" for the
         body. Owens assisted McBride in getting the
         body out of the vehicle and placing it next
         to a dumpster.       They drove away, but
         eventually abandoned the Suburban and walked
         to the home of Owens' aunt.

         [Owens, supra, No. A-0803-09 (slip op. at 2-
         4) (alterations in original).]

    Defendant confessed to police after they arrested her, though

she claimed the gun "just really went off" while she and McBride

were robbing the victim.   Id. (slip op. at 7).   She later moved,

unsuccessfully, to suppress her confession.   During the hearing

on her motion, she presented the testimony of Dr. Gerald Cooke, a

clinical and forensic psychologist.

         According to Cooke, Owens had a borderline
         personality disorder with antisocial and
         paranoid    features,   alcohol   and    drug
         dependency, and "adjustment disorder with
         mixed anxiety and depressed mood." He opined
         that Owens was "very susceptible to being
         manipulated by others, though she can also
         manipulate others as well." He also described
         her as "easily distracted," and as having
         "very   great   difficulty   sustaining   her
         attention."    He testified that, if Owens
         wanted to terminate questioning, she "doesn't
         know how to go about actually doing that, to

                                6                          A-3871-14T3
            be assertive to follow through on what she
            wants."

                 Cooke outlined the results of IQ testing,
            which placed Owens in "the borderline range
            of intellectual functioning," "at about the
            fifth percentile of the population."       But
            because she had a tendency to "give[] up
            almost before she starts," Cooke concluded
            that the IQ score "really underestimate[d] her
            ability" and that she was "brighter than
            that."    He estimated Owens' intellectual
            function as in the low average range.

            [Id. (slip      op.   at        9)   (alterations     in
            original).]

     On appeal, defendant asserts she should have been granted an

evidentiary hearing on her arguments asserting her trial counsel

was ineffective for failing to assert defenses of diminished

capacity and duress; and the trial court erred by finding to the

contrary.    We disagree.

     We review defendant's arguments under well-known standards.

To prove ineffective assistance of counsel, a defendant must

satisfy the Strickland two-part test by demonstrating "counsel's

performance was deficient," that is, “that counsel made errors so

serious   that   counsel    was   not       functioning   as    the    ‘counsel’

guaranteed the defendant by the Sixth Amendment"; and "there is a

reasonable probability that, but for counsel's unprofessional

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

Strickland v. Washington, 466 U.S. 668, 687, 694, 104 S. Ct. 2052,


                                        7                                A-3871-14T3
2064, 2068, 80 L. Ed. 2d 674, 693, 698 (1984); accord, State v.

Fritz, 105 N.J. 42, 58 (1987).        When defendants establish a prima

facie claim of ineffective assistance of counsel, they are entitled

to a hearing on their claims.         State v. Preciose, 129 N.J. 451,

462 (1992); R. 3:22-10(b).

      A defendant must establish by a preponderance of the credible

evidence that he or she is entitled to the relief requested in the

PCR petition.      State v. Nash, 212 N.J. 518, 541 (2013) (citations

omitted).     To sustain that burden, the defendant must allege and

articulate specific facts that "provide the court with an adequate

basis on which to rest its decision."          State v. Mitchell, 126 N.J.

565, 579 (1992).         In other words, a defendant must do more than

make bald assertions that he was denied effective assistance of

counsel; he must allege specific facts sufficient to demonstrate

counsel's alleged substandard performance.             State v. Cummings, 321

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

(1999).

      Here,   defendant       first   argues     her    trial     counsel       was

ineffective for failing to raise the defense of diminished capacity

"as   a   result   of    [her]   intoxication    during    the    incident        in

question."    She asserts she informed an expert as well as the

police    during   her    interrogation   that    she    had    consumed     large

quantities of alcohol immediately before the shooting and that she

                                      8                                    A-3871-14T3
consumed   alcohol   and    drugs   on       a   daily   basis.    Her   specific

allegation is her attorney "at no time . . . call[ed] the expert,

namely, Dr. Gerald Cooke, to testify at trial about defendant's

intoxication."

     It is difficult to determine whether defendant is claiming

her trial counsel should have pursued a defense based on diminished

capacity, intoxication, or both.             Defendant cites N.J.S.A. 2C:4-2

and asserts the statute governs the diminished capacity defense.

The statute permits a defendant to admit evidence she "suffered

from a mental disease or defect . . . whenever it is relevant to

prove that the defendant did not have a state of mind which is an

element of the offense."        Ibid.        Defendant identifies no mental

disease    or   defect     specifically,         but     rather   discusses     her

intoxication on the night of the homicide, and asserts her trial

attorney should have called Dr. Cooke as a witness to testify

about her intoxication.

     Defendant's     argument   overlooks          N.J.S.A.   2C:2-8(c),      which

provides that "[i]ntoxication does not, in itself, constitute

mental disease within the meaning of chapter 4."                  To the extent

defendant is asserting trial counsel should have asserted a defense

of intoxication, the defense fails for two reasons.                First, though

Dr. Cooke diagnosed defendant with alcohol and drug dependency,

he did not opine she was intoxicated to the extent her "mental or

                                         9                                 A-3871-14T3
physical      capacities   .   .   .,   because   of   the   introduction     of

intoxicating substances into the body, [were] so prostrated as to

render [her] incapable of purposeful or knowing conduct."                State

v. Cameron, 104 N.J. 42, 58 (1986).             Rather, he opined, "[u]nder

the circumstances of intoxication, combined with being surprised

by the plan to rob [the victim] and the presence of a gun, it is

consistent that she would have felt threatened and intimidated by

[the co-defendant], and that this would have been a contributing

factor   to    her    commission   of   the    offense."     Second,   "[w]hen

recklessness establishes an element of the offense, if the actor,

due to self-induced intoxication, is unaware of a risk of which

he would have been aware had he been sober, such unawareness is

immaterial."         N.J.S.A. 2C:2-8(b); see also, State v. Baum, 224

N.J. 147, 162 (2016). Defendant has not explained how intoxication

would have changed the outcome of her conviction for aggravated

manslaughter.

     Defendant's second argument — her attorney was ineffective

for failing to assert the defense of duress by the co-defendant —

is without sufficient merit to warrant extended discussion.                   R.

2:11-3(e)(2). The trial court, before trial, excluded Dr. Cooke's

testimony concerning defendant's mental health as to the defense

of duress.       The court did not exclude the doctor's testimony

concerning certain other issues.             Defendant has not appealed the

                                        10                             A-3871-14T3
trial court's pre-trial ruling.       Moreover, "[i]n a prosecution for

murder, the defense of duress is only available to reduce the

degree   of   the   crime   to   manslaughter."   N.J.S.A.   2C:9-3(b).

Defendant's speculation the jury might have found her guilty of a

lesser degree of manslaughter is precisely the type of              bald

assertion that is inadequate to sustain an ineffective-assistance

claim.   Cummings, supra, 321 N.J. Super. at 170.

      Affirmed.




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