                        NOT FOR PUBLICATION WITHOUT THE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-3990-14T2

STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

WAYNE PARKER,

     Defendant-Appellant.
_______________________________

              Submitted May 25, 2017 - Decided July 6, 2017

              Before Judges Lihotz and Mawla.

              On appeal from Superior Court of New Jersey,
              Law Division, Cumberland County, Indictment
              No. 04-02-0178.

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

              Jennifer    Webb-McRae,   Cumberland    County
              Prosecutor, attorney for respondent (Stephen
              C. Sayer, Assistant Prosecutor, of counsel and
              on the brief).

PER CURIAM
     Defendant Wayne Parker appeals from a January 19, 2015 order

denying his application for post-conviction relief (PCR).         For the

reasons stated below, we affirm.

     These facts are taken from the record.         On June 30, 2005,

defendant was convicted of two counts of first degree kidnapping

N.J.S.A.   2C:13-1(b)(1),   two   counts   of   third   degree   criminal

restraint N.J.S.A. 2C:13-2(a), one count of first degree robbery

and one count of second degree robbery N.J.S.A. 2C:15-1(a)(1), one

count of first degree conspiracy and one count of second degree

conspiracy N.J.S.A. 2C:5-2, one count of second degree burglary

N.J.S.A. 2C:18-2, two counts of second degree aggravated assault

N.J.S.A. 2C:12-1(b)(1), and one count of third degree aggravated

assault N.J.S.A. 2C:12-1(b)(7).

     After sentencing, defendant appealed from his conviction,

which we affirmed.   State v. Parker, No. A-1593-05 (App. Div. July

13, 2009).    Defendant filed a petition for PCR on January 29,

2010, which was denied without prejudice.         On October 18, 2010,

defendant re-filed his petition and it was denied following a non-

evidentiary hearing.     In this appeal, defendant advances the

following arguments:




                                   2                              A-3990-14T2
          POINT I

          MR. PARKER IS ENTITLED TO AN EVIDENTIARY
          HEARING ON HIS CLAIM THAT HIS ATTORNEY
          RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL.

          POINT II

          THIS MATTER MUST BE REMANDED BECAUSE THE PCR
          COURT DENIED RELIEF WITHOUT STATING FINDINGS
          OF FACT OR CONCLUSIONS OF LAW (NOT RAISED
          BELOW).

                          I.

     The PCR process affords an adjudged criminal defendant a

"last chance to challenge the 'fairness and reliability of a

criminal verdict[.']"   State v. Nash, 212 N.J. 518, 540 (2013);

see also Rule 3:22-1.   As to our standard of review, "where the

[PCR] court does not hold an evidentiary hearing, we may exercise

de novo review over the factual inferences the trial court has

drawn from the documentary record."   State v. O'Donnell, 435 N.J.

Super. 351, 373 (App. Div. 2014).

     A petition for PCR may be granted upon the following grounds:

          (a)   Substantial denial in the conviction
          proceedings of defendant's rights under the
          Constitution of the United States or the
          Constitution or laws of the State of New
          Jersey;

          (b)   Lack of jurisdiction of the court to
          impose the judgment rendered upon defendant's
          conviction;

          (c) Imposition of sentence in excess of or
          otherwise not in accordance with the sentence

                                3                          A-3990-14T2
          authorized by law if raised together with
          other grounds cognizable under paragraph (a),
          (b), or (d) of this rule. Otherwise a claim
          alleging the imposition of sentence in excess
          of or otherwise not in accordance with the
          sentence authorized by law shall be filed
          pursuant to R. 3:21-10(b)(5).

          (d)   Any    ground heretofore available as a
          basis for   collateral attack upon a conviction
          by habeas    corpus or any other common-law or
          statutory   remedy.

          [R. 3:22-2.]

"Post-conviction relief is neither a substitute for direct appeal,

[Rule] 3:22-3, nor an opportunity to relitigate cases already

decided on the merits, [Rule] 3:22-5."      State v. Preciose, 129

N.J. 451, 459 (1992).

          Consequently, petitioners may be procedurally
          barred from post-conviction relief under Rule
          3:22-4 if they could have, but did not, raise
          the claim in a prior proceeding, unless they
          satisfy one of the following exceptions:

               (a) that the ground for relief not
               previously   asserted   could   not
               reasonably have been raised in any
               prior proceeding; or (b) that
               enforcement of the bar would result
               in fundamental injustice; or (c)
               that denial of relief would be
               contrary to the Constitution of the
               United States or the State of New
               Jersey.

          [Ibid.]


                         II.


                                  4                         A-3990-14T2
     We first turn to defendant's argument he was entitled to an

evidentiary hearing to address his claim of ineffective assistance

of counsel.   In order to establish ineffective assistance of

counsel, defendant must satisfy the two-prong test set forth in

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

2064, 80 L. Ed. 2d 674, 693 (1984), and adopted by our Supreme

Court in State v. Fritz, 105 N.J. 42, 58 (1987).    Defendant must

show: (1) "counsel's performance was deficient[,]" which requires

defendant to prove "counsel made errors so serious that counsel

was not functioning as the 'counsel' guaranteed the defendant by

the Sixth Amendment" and (2) "the deficient performance prejudiced

the defendant" because "counsel's errors were so serious as to

deprive defendant of a fair trial[.]"   Fritz, supra, 105 N.J. at

52 (quoting Strickland, supra, 466 U.S. at 687, 104 S. Ct. at

2064, 80 L. Ed. 2d at 693).

     As to prong one, the Strickland Court "endorsed extreme

deference in evaluating the performance of counsel, requiring 'a

strong presumption that counsel's conduct falls within the wide

range of reasonable professional assistance. . . .'" Fritz, supra,

105 N.J. at 52 (quoting Strickland, supra, 466 U.S. at 688-89, 104

S. Ct. at 2065, 80 L. Ed. 2d at 694).   As to prong two, defendant

must prove he was prejudiced, it is not presumed.   Fritz, supra,

105 N.J. at 52 (citing Strickland, supra, 466 U.S. at 692-93, 104

                                5                          A-3990-14T2
S. Ct. at 2067, 80 L. Ed. 2d 696-97).                 Also, defendant must show

there   is:   "a    reasonable      probability       that,   but   for   counsel's

unprofessional errors, the result of the proceeding would have

been    different.          A   reasonable      probability   is    a   probability

sufficient to undermine confidence in the outcome."                     Strickland,

supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698.

"To establish a prima facie claim of ineffective assistance of

counsel, a defendant must demonstrate the reasonable likelihood

of succeeding under the test set forth in [Strickland.]" Preciose,

supra, 129 N.J. at 463.

                                           A.

       Defendant asserts his attorney was ineffective "for failing

to challenge the evidence elicited about [the victim's] injuries,

failing to present [a] conflict of interest issue adequately,

[and] failing to file motions to suppress evidence seized because

the warrants lacked probable cause . . . ."                          He states he

demonstrated a prima facie showing of ineffective assistance of

counsel to the PCR court, and "his overall claim is dependent on

evidence outside of the record, namely, testimony from his trial

attorney."         As   a   result,   he     argues   he   was     entitled    to    an

evidentiary hearing on this issue and challenges the PCR court's

findings to the contrary.



                                           6                                  A-3990-14T2
     An evidentiary hearing should only be granted if a defendant

has presented a prima facie claim of ineffective assistance of

counsel.    Id. at 462.

            Thus, in determining the propriety of an
            evidentiary hearing, the PCR court should
            ascertain whether the defendant would be
            entitled to post-conviction relief if the
            facts were viewed "in the light most favorable
            to defendant." If that inquiry is answered
            affirmatively, then the defendant generally is
            entitled to an evidentiary hearing in order
            to prove the allegations.         We observe,
            however, that there is a pragmatic dimension
            to the PCR court's determination.      If the
            court perceives that holding an evidentiary
            hearing will not aid the court's analysis of
            whether the defendant is entitled to post-
            conviction relief, or that the defendant's
            allegations are too vague, conclusory, or
            speculative to warrant an evidentiary hearing,
            then an evidentiary hearing need not be
            granted.

            [State v. Marshall, 148 N.J. 89, 158 (1997)
            (citations omitted).]

     At    defendant's    trial,   a   victim   and   two   police   officers

testified regarding the injuries the victim suffered leading to

defendant's conviction on aggravated assault.               Defendant claims

his counsel "failed to obtain and review [the victim's] medical

records, interview her doctors, or consult with an independent

medical expert."   As a result, he claims he was unable to exercise

his constitutional right to confront the victim and witnesses, as

to whether the victim's injuries were minor or serious.              He states


                                       7                               A-3990-14T2
his medical expert reviewed the victim's medical records in support

of defendant's PCR application, and concluded she had not suffered

significant bodily injuries.             Defendant argues expert testimony

and medical records would have allowed the jury to conclude the

victim exaggerated the incident.              He points to the fact the jury

acquitted him on other charges, despite the victim's testimony,

to    demonstrate   the    jury   may    have     also   acquitted    him   of   the

aggravated assault charge.

       The PCR court stated: "[defendant] ignores the fact that both

the    robbery   and     aggravated      assault    charges     [defendant]      was

convicted of require [him] to either cause serious bodily injury

or attempt to cause serious bodily injury.                 [Defendant's] report

does not and cannot speculate on whether [defendant] attempted to

cause serious bodily injury."                 We agree with the PCR judge.

Defendant failed to meet the second prong of Strickland because

the jury could have found him guilty whether he caused or attempted

to cause serious bodily injury by repeatedly striking the victim,

an eighty-year-old woman, in the face.

       Moreover,    we    agree   with    the     PCR    judge's   assessment      an

ineffective assistance of counsel claim does not arise merely

because medical expert testimony was not presented on defendant's

behalf.    We recognize trial counsel has discretion in defending a

prosecution.        "[C]ounsel      has       a   duty    to   make   'reasonable

                                          8                                 A-3990-14T2
investigations     or    to    make    a   reasonable        decision   that     makes

particular investigations unnecessary.'                   A failure to do so will

render the lawyer's performance deficient."                    State v. Chew, 179

N.J. 186, 205 (2004) (quoting State v. Savage, 120 N.J. 594, 617-

18 (1990)).

       Defendant   has    failed      to    meet    the    second    prong   of     the

Strickland test, because the arguments he advances do not show the

jury would have acquitted him of attempting to cause serious bodily

injury to the victim.         Also, the fact the jury acquitted defendant

of   other   charges     has    no    discernable      link    to    demonstrate       a

likelihood of acquittal for aggravated assault.                 Indeed, defendant

was acquitted of aggravated sexual assault, sexual assault, and a

count of first degree robbery, which are charges bearing different

characteristics than aggravated assault.

                                           B.

       Next, defendant argues his counsel was ineffective because

he failed to present a conflict of interest issue, namely, counsel

made   advances    towards     defendant's         fiancé,    Lena   Wilson,     which

compromised his representation.             He states, "trial counsel failed

to properly serve Lena Wilson pursuant to [Rule] 1:9-1 and [Rule]

1:9-3 because he left a subpoena at her home when she was not

there."   Defendant asserts his counsel's failure to produce Wilson

was important because "a report by his PCR counsel's investigator

                                           9                                   A-3990-14T2
indicat[ed] that Lena Wilson confirmed that trial counsel made a

sexual advance toward her and then ignored her when she rebuffed

[trial counsel]."

     Defendant      claims       the    trial    court    conducted       the    hearing

without Wilson and with trial counsel who could not adequately

represent him because of the conflict of interest.                           Defendant

asserts    trial    counsel's          conflict    of    interest       impacted       his

performance as demonstrated by the failure to file motions to

suppress   search      warrants        issued     without      probable      cause     for

Wilson's car and home and defendant's home.

     The PCR judge fully addressed this issue.                     He considered a

certification defendant submitted from Wilson claiming she was

never   served     with    the    subpoena.        The   PCR    judge     found     trial

counsel's query of Wilson: "If I scratch your back will you scratch

mine?" was not a sexual advance.                He found the assertion Wilson

never received the subpoena conflicts with the testimony of the

investigator     certifying       Wilson       called    him   after    he      left   the

subpoena   at    her      residence.       The     PCR    judge    noted     defendant

repeatedly played a "cat and mouse" game with the court by waiting

to the eve of a hearing, submitting last minute certifications,

such as the one from Wilson, requesting his counsel be relieved.

The PCR judge further stated:



                                          10                                      A-3990-14T2
            [Wilson's] assertion that her subjective
            perception of this one statement that was
            allegedly made is without support.        This
            assertion [in her certification] is actually
            less than that which was alleged and
            considered by the trial court. Furthermore,
            and most importantly, there is no argument
            that has been made or advanced that this newly
            presented certification would change the
            opinion of our Appellate Division which has
            already   concluded,    "Moreover,   defendant
            offers no evidence of defense counsel's
            failure to fulfil his ethical and professional
            responsibilities to him in conformity with the
            Rules of Professional Conduct. In contrast,
            the record supports the conclusion that
            counsel's   professional   representation   of
            defendant surpassed that required by the Sixth
            Amendment."

     "It is undisputed that a defendant has the right to counsel

whose   representation    is   unimpaired   and     whose   loyalty     is

undivided."    State v. Murray, 162 N.J. 240, 249 (2000).        When a

conflict has been alleged, "[t]he relevant inquiry in potential

conflict of interest situations is the potential impact the alleged

conflict will likely have upon defendant."        Id. at 250.   Here, we

previously held trial counsel's performance exceeded the standard

required by the Sixth Amendment under Strickland. Defendant offers

no proof trial counsel failed to make motions to suppress because

of an alleged sexual advance on Wilson.      The record contradicts

Wilson's unsupported certification claiming she was not served a

subpoena.   Defendant failed to provide prima facie evidence of how

her testimony would have led to a different outcome.

                                 11                              A-3990-14T2
                                   C.

     Defendant   also   argues   trial   counsel   was   ineffective   for

"failing to file motions to suppress evidence seized because the

warrants lacked probable cause."         Defendant asserts the warrant

for Wilson's car and home were based on: (1) an anonymous tip

whose veracity and basis were not identified; information from a

citizen contact indicating Wilson may have knowledge of the crime,

although Wilson then refused to speak with police; and (2) a

conversation with Lena Bricker, Wilson's grandmother, who informed

police Wilson told her defendant had the proceeds of the robbery.

Defendant contends Bricker told defendant's investigator she had

been threatened by two detectives into making Wilson cooperate

with the State's investigation.          Defendant asserts Wilson also

informed defense investigators she was threatened with removal of

her children if she failed to cooperate and implicate defendant.

He argues Wilson and Bricker's statements corroborate one another

and evidence the search warrant lacked probable cause.

     Defendant argues the search warrant for his home lacked

probable cause because it was based on the same information the

police used to secure the warrant for Wilson's car and home.

Specifically, he states, "[b]ecause the warrant for Lena Wilson's

home was issued based on an affidavit without probable cause . . .

the proceeds from that search were fruits of the poisonous tree,

                                  12                             A-3990-14T2
and could not be used to support a finding of probable cause in

this subsequent affidavit."

    Defendant contends trial counsel was ineffective because

anything derived from these invalid searches should have been

suppressed, yet counsel failed to make any such motion.

    The PCR judge addressed these claims at length and found:

         the State's Exhibits C and D show that
         [Wilson] initially reaffirmed her statement
         from Ms. Bricker which led to the warrant.
         Ms. Bricker's statement was sufficient to
         establish probable cause for the warrant, as
         she named petitioner and directly accused him
         of a specific crime for which he was already
         a reasonable suspect.    If trial counsel had
         challenged the warrant the challenge would
         have been fruitless. There is a high standard
         when one seeks suppression based upon a
         warrant. Assuming that statement to be false,
         it would still require the absence of probable
         cause with that information redacted.      The
         Petitioner has failed to establish how that
         application could have been successful in the
         absence of those statements.      Furthermore,
         assuming there was an omission of facts
         provided in the affidavit, e.g. where the
         challenger alleges the affidavit is fatally
         inaccurate by reason of omission, the issue
         is whether the information omitted from the
         affidavit is material.         The test for
         materiality is whether inclusion of the
         omitted information would defeat a finding of
         probable cause[.]   [See State v. Smith, 212
         N.J. 365, 399 (2012)].

         In the case at bar, the search warrants were
         based upon competent and credible evidence.
         The statements provided to the Office of the
         Public Defender were provided well after the
         warrant was prepared and executed.       The

                              13                          A-3990-14T2
           warrants were obtained based upon information
           available to the investigating officers.
           Therefore the petitioner cannot satisfy the
           Strickland test. As noted above, Strickland
           requires counsel to abide by professional
           norms.   Strickland, supra, 466 U.S. at 688.
           Here, a professional may have chosen not to
           object to the search because of the likelihood
           of failure.     Because a challenge to the
           warrant would have likely failed and counsel
           likely made the reasoned decision not to
           pursue based on the futility of that argument,
           Petitioner's argument fails.

     We agree with this assessment.         "[A] search executed pursuant

to a warrant is presumed valid[.]"           State v. Marshall, 199 N.J.

602, 612 (2009).       "Once the issuing judge has made a finding of

probable cause on the proof submitted and has issued a search

warrant, a reviewing court is obliged to pay substantial deference

to his determination."      State v. Sheehan, 217 N.J. Super. 20, 27

(App. Div. 1987).       "The facts should not be reviewed from the

vantage   point   of   twenty-twenty      hindsight   by   interpreting    the

supporting     affidavit    in   a   hypertechnical,       rather   than     a

commonsense manner." Id. at 27 (citing United States v. Ventresca,

supra, 380 U.S. 102, 109, 85 S. Ct. 741, 746, 13 L. Ed. 2d 684,

689 (1965)).

     It is undisputed the claims of threats by Wilson and Bricker

were made years after they gave their original statements and

after the warrants were issued.              Indeed, defendant does not

challenge the judge's findings of probable cause when issuing the

                                     14                             A-3990-14T2
warrants.     The standard is clear, it is not what is known later,

but what was known at the time, which governs the probable cause

to issue a warrant.       Therefore, the PCR judge was correct in

finding defendant failed to meet Strickland's requirements on this

issue.

      For these reasons, we reject defendant's assertion his trial

counsel was deficient for failing to file motions to suppress the

warrants.     "'Judicial scrutiny . . . must be highly deferential,'

and   must    avoid   viewing   [counsel's]   performance   under   the

'distorting effects of hindsight.'"       State v. Arthur, 184 N.J.

307, 318-319 (2005) (quoting State v. Norman, 151 N.J. 5, 37

(1997)).

             Because of the inherent difficulties in
             evaluating a defense counsel's tactical
             decisions from his or her perspective during
             trial, "a court must indulge a strong
             presumption that counsel's conduct falls
             within   the   wide   range    of   reasonable
             professional   assistance;    that   is,   the
             defendant must overcome the presumption that,
             under the circumstances, the challenged action
             'might be considered sound trial strategy.'"

             [Id. at 319 (citations omitted).]

      Trial counsel has latitude regarding tactical decisions up

to and during trial.      Moreover, as noted by the PCR judge, even

if trial counsel had filed a motion to suppress, it would have

been fruitless based on the viability of the warrants issued.         We


                                  15                           A-3990-14T2
agree.   Defendant failed to establish a prima facie case of

ineffective   assistance   of   counsel,   thereby   warranting    an

evidentiary hearing.

                                III.

    Defendant argues this matter must be remanded because the PCR

judge did not make findings relating to his ineffective counsel

claim, specifically the following five points:

         (1) failing to file a motion to question
         prospective jurors about drugs or a motion to
         exclude testimony about drugs at trial; (2)
         failing to challenge adequately the court's
         accomplice charge; (3) failing to request
         criminal records of the state's witnesses; (4)
         failing to object to the jury learning that
         [defendant] was in custody pretrial; and (5)
         failing to request a charge as to a
         cooperating co-defendant.

    Rule 3:22-4 states:

         (a) First Petition for Post-Conviction Relief.
         Any ground for relief not raised in the
         proceedings resulting in the conviction, or
         in a post-conviction proceeding brought and
         decided prior to the adoption of this rule,
         or in any appeal taken in any such proceedings
         is barred from assertion in a proceeding under
         this rule unless the court on motion or at the
         hearing finds:

               (1) that the ground for relief not
               previously   asserted  could   not
               reasonably have been raised in any
               prior proceeding; or

               (2) that enforcement of the bar to
               preclude claims, including one for
               ineffective assistance of counsel,

                                16                          A-3990-14T2
                 would    result           in     fundamental
                 injustice; or

                 (3) that denial of relief would be
                 contrary   to   a    new   rule   of
                 constitutional law under either the
                 Constitution of the United States or
                 the State of New Jersey.

                        . . . .

     Of the five issues raised, only the fifth -- "failing to

request a charge as to a cooperating co-defendant" -- was presented

on appeal. Therefore, pursuant to Rule 3:22-4, defendant is barred

from asserting the four aforementioned claims, unless he meets one

of the aforementioned exceptions.

     Defendant does not meet the exceptions under Rule 3:22-

4(a)(1) or (3).      Although he had ample opportunity to raise these

issues on appeal, he did not.          Further, the claims do not arise

from a new rule of constitutional law.                 As to Rule 3:22-4(a)(2),

"'[f]undamental injustice' within the meaning of [Rule] 3:22-

4(a)(2) expressly includes claims for ineffective assistance of

counsel."    Pressler & Verniero, Current N.J. Court Rules, cmt. 4

on R. 3:22-4(a)(2) (2017) (citing State v. Reevey, 417 N.J. Super.

134, (App. Div. 2010), certif. denied, 206 N.J. 64 (2011)).

     Additionally, the PCR judge did not address whether trial

counsel was ineffective as to the five claims raised by defendant.

However,    points   one   (failing    to       file    a   motion   to   question


                                      17                                   A-3990-14T2
prospective jurors about drugs or a motion to exclude testimony

about drugs at trial) and three (failing to request criminal

records of the State's witnesses) were not briefed and appeared

only as point headings.         Pursuant to Rule 3:22-10(c), "[a]ny

factual assertion that provides the predicate for a claim of relief

must be made by an affidavit or certification pursuant to [Rule]

1:4-4 and based upon personal knowledge of the declarant before

the court may grant an evidentiary hearing."            Additionally, Rule

3:22-10(e)(2)   states    a   court    shall   not   grant    an   evidentiary

hearing,   where   "the   defendant's      allegations       are   too    vague,

conclusory or speculative[.]"           Thus, defendant is barred from

asserting claims not attested to by affidavit or certification.

The PCR court was not required to make findings as to points one

and three and we do not consider them further.

     As to point two (failing to challenge adequately the court's

accomplice charge), defendant's PCR brief argues because the jury

requested clarification on the accomplice liability charge, they

were not adequately charged.          However, a jury charge will not be

grounds for appeal unless it amounts to plain error.                 State v.

Hock, 54 N.J. 526, 538 (1969), cert. denied, 399 U.S. 930, 90 S.

Ct. 2254, 26 L. Ed. 2d 797 (1970).         Plain error is shown by "legal

impropriety in the charge prejudicially affecting the substantial

rights of the defendant and sufficiently grievous to justify notice

                                      18                                 A-3990-14T2
by the reviewing court and to convince the court that of itself

the error possessed a clear capacity to bring about an unjust

result."    Ibid.      Defendant's argument is so sparse he has not

sufficiently briefed the issue.                R. 3:22-10(c).        Therefore, we

decline to address the assertions.

     Lastly, defendant correctly argues the PCR judge failed to

discuss    points   four      and   five,      even   though   the    issues   were

adequately briefed before the PCR court.              We address these issues.

     Following our review we conclude defendant does not prove

counsel's    failure     to     object        to   testimony   referencing      his

incarceration changed the outcome of his trial.                Importantly, the

trial judge instructed the jury on this issue stating:

            [A]s you know, there was some testimony that
            at some point, Mr. Parker was in the
            Cumberland County Correctional Facility, or
            that he had some form or relationship to that
            facility. This information is not to be used
            to show in any way that Mr. Parker is a bad
            person or that he is disposed to commit
            crimes. An innocent person could be in jail
            simply by reason of an inability to make bail
            on a given charge.      Whatever brought Mr.
            Parker to that facility is irrelevant to your
            determinations in this case, and you should
            not speculate about it.       You should not
            consider this in your deliberations in any
            way. This evidence is before you solely for
            the limited purpose as it pertains to the
            evidence introduced to show ... discussions
            between Mr. Parker and Mr. Palmer.




                                         19                                A-3990-14T2
      We are satisfied the limiting instruction given by the trial

judge clearly and expressly instructed the jury defendant's pre-

trial   incarceration      was   not   relevant       to   their   deliberation.

Defendant has not pointed to any evidence the jury either ignored

or misunderstood this instruction.            Jurors are presumed to follow

instructions. State v. Patterson, 435 N.J. Super. 498, 511 (2014).

      In point five, defendant argues trial counsel was ineffective

for failing to request the jury be given the New Jersey Criminal

Model Jury Charge: Testimony of a Cooperating Co-defendant or

Witness relating to testimony the State offered against defendant

by a co-defendant John Palmer.              He states that if the jury was

given the proper charge they would have been alerted to Palmer's

potentially biased testimony.

      Regarding credibility, we have previously stated "[i]n some

cases, the trial court may be required to give special instructions

to   guide    the   jury's    consideration      of    evidence        which     poses

particular credibility issues not adequately addressed by general

credibility instructions.         The kinds of evidence which require

special      credibility     instructions     include      .   .   .    accomplice

testimony . . . ."         State v. Walker, 322 N.J. Super. 535, 546

(App. Div. 1999).

             On the other hand, the court's instructions
             regarding the jury's assessment of credibility
             are provided solely to assist the jury in

                                       20                                      A-3990-14T2
         performing its fact-finding responsibilities.
         Thus,   general    credibility    instructions
         identify various factors, such as the manner
         in which a witness testified, his or her means
         of obtaining knowledge of the facts and his
         or her interest in the outcome of the trial,
         which the jury "may take into consideration"
         in determining credibility.        Model Jury
         Charges (Criminal) Criminal Final Charge:
         Credibility of Witness (Feb. 24, 1997).

               . . . .

         Moreover,   because    general    and    special
         credibility instructions relate to the jury's
         performance      of      its       fact-finding
         responsibilities, the prosecutor and defense
         counsel may comment at length in their
         summations regarding the criteria applicable
         to the jury's evaluation of the witnesses'
         credibility.    Therefore,    in    determining
         whether a trial court's failure to give a
         special credibility instruction constitutes
         reversible error, a reviewing court must
         consider not only the entire trial record,
         including the cross-examination of any witness
         whose   testimony    calls   for    a    special
         credibility   instruction,     but    also   the
         prosecutor's     and     defense       counsel's
         summations.

         [Id. at 547.]

    Here, the State offered Palmer's testimony, which addressed

his role in the crime and plea agreement.         He was subjected to

direct and cross-examination, giving the jury the opportunity to

assess his credibility.       Also,     both defense counsel and the

prosecutor   spoke   at   length   during   summations   regarding   the

credibility of Palmer.     Specifically, defendant's counsel argued


                                   21                           A-3990-14T2
"[w]hat's very important about your weighing of the testimony of

John Palmer is that he is not believable and that he is not

credible.    And the reason for this is that he has a reason and he

has a motive.   It's called the art of self-preservation."           Defense

counsel further argued to the jury there was "reasonable doubt"

and a basis to question Palmer's credibility, due to the fact his

sentence was directly tied to his testimony.              Defense counsel

argued "[Palmer] has a noose around his neck that opens and shuts

according to his testimony."

     The    prosecutor   also   addressed     Palmer's   sentence    in    her

summation,    stating:   "his   sentence      recommendation    is   ten    to

[twenty] years, [in] New Jersey State Prison, that will run

concurrent."    The prosecutor also argued, "not once has [Palmer]

ever said that it wasn't himself [sic] who committed this crime.

And not once has he ever said that it was anyone other than Keith

Kenion, Wayne Parker, and John Palmer who committed these crimes

against Mr. and Mrs. Young."

     Lastly,    the   trial   judge    gave   the   following   instruction

regarding credibility of witnesses generally:

            If you believe that any witness or party
            willfully or knowingly testified falsely to
            any material facts in the case with the intent
            to deceive you, you may give it such weight
            to his or her testimony as you may deem it to
            be entitled. You may believe some of it, or


                                      22                             A-3990-14T2
           you may in your discretion, disregard all of
           it.

    Even though the specific co-defendant credibility charge was

not given, defendant failed to show how this lapse impacted the

outcome.       There   was   an   expansive   discussion   of   Palmer's

credibility.     The judge's instructions provided the jury with

guidance on the issue.        The jury was able to assess Palmer's

credibility through the lens of his testimony and argumentation

of counsel.    The trial judge's charge instructing the jury on the

mechanics of determining credibility was sufficient.

    Affirmed.




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