                                NOT FOR PUBLICATION WITHOUT THE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-3923-17T2

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

JEAN P. MORALES,

     Defendant-Appellant.
____________________________

                    Submitted April 9, 2019 – Decided August 28, 2019

                    Before Judges Rothstadt and Gilson.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Union County, Indictment No. 00-06-0676.

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

                    Michael A. Monahan, Acting Union County Prosecutor,
                    attorney for respondent (Frank Lawrence Valdinoto,
                    Special Deputy Attorney General/Acting Assistant
                    Prosecutor, of counsel and on the brief).

PER CURIAM
      Defendant Jean P. Morales appeals from the Law Division's March 22,

2018 order denying his petition for post-conviction relief (PCR) without an

evidentiary hearing. For the reasons that follow, we affirm.

      In 2007, a jury convicted defendant of aggravated manslaughter, N.J.S.A.

2C:11-4(a) and weapons possession charges, N.J.S.A. 2C:39-4(d) and N.J.S.A.

2C:39-5(d), after it acquitted him of first-degree murder, N.J.S.A. 2C:11-3(a)(1)

or -3(a)(2).1 On May 4, 2007, the trial judge merged the weapons offenses and

imposed an aggregate sentence of thirty years, subject to the eighty-five percent

parole disqualification provision of the No Early Release Act (NERA), N.J.S.A.

2C:43-7.2.

      Defendant appealed and we affirmed his convictions and sentence in an

unpublished opinion. State v. Morales, No. A-5846-06 (App. Div. Sept. 22,

2010) (slip op. at 5-20). The Supreme Court denied his petition for certification.

State v. Morales, 205 N.J. 101 (2011).

      The facts underlying defendant's convictions are set forth in our opinion

and need not be repeated at length here. See Morales, slip op. at 3-5. Suffice it


1
   In 2002, a jury convicted defendant of all of the crimes for which he was
indicted, including first-degree murder. However, we reversed due to the trial
court's failure to sua sponte instruct the jury on passion/provocation
manslaughter as a lesser-included offense. See State v. Castagna, 376 N.J.
Super. 323, 331 (App. Div. 2005), rev'd on other grounds, 187 N.J. 293 (2006).
                                                                          A-3923-17T2
                                         2
to say, defendant's victim had been involved in an altercation at a bar where

defendant was also a patron. The victim was pursued by a crowd of people,

including defendant, who ultimately beat him until he fell to the ground. At that

point, defendant dropped a twenty-five pound cement block on the victim's head,

which caused injuries that left him in a coma for five months before he died. Id.

(slip op. at 4-5).

      Defendant filed a PCR petition on May 6, 2011, in which he argued that

trial counsel failed to properly investigate his matter by not contacting potential

witnesses who would have been helpful to his defense. See State v. Morales,

No. A-3088-13 (App. Div. Apr. 15, 2016) (Morales II) (slip op. at 4). The PCR

judge, who was also the judge at defendant's second trial, denied defendant's

application on July 25, 2013, without providing him with an opportunity for oral

argument or granting an evidentiary hearing. Id. (slip op. at 2-3).

      Defendant appealed the denial of PCR and we affirmed in another

unpublished opinion.     Id. (slip op. at 3-7).   However, the Supreme Court

summarily reversed our decision and remanded the matter back to the trial judge

because it found the PCR judge's reasons for not allowing oral argument to be

insufficient. State v. Morales, 227 N.J. 373 (2016).




                                                                           A-3923-17T2
                                        3
        Prior to the PCR judge's consideration of the matter on remand, on July

17, 2017, defendant submitted a letter brief as a supplement to his original PCR

brief, amending claims that counsel failed to investigate. He indicated that the

supplemental information only became available following the appeal of the

denial of his original PCR petition.

        The supplementary information related to one of the State's witnesses ,

A.V.,2 who testified at trial that he and defendant were drinking heavily before

they parted company and defendant went to the bar. A.V. later found out from

defendant that he was involved in the victim's beating, although defendant could

not initially recall what happened due to his intoxication, but subsequently

remembered having the cement block. During direct and cross-examination at

trial, A.V. testified to his numerous prior arrests and convictions, including

seven convictions for indictable offenses, his then-current incarceration, and

whether he was testifying in exchange for a promise of leniency as to pending

charges.

        Defendant argued that trial counsel failed to conduct a general internet

search, which would have uncovered that A.V. was "a drug lord who was

overheard discussing illegal activities" involving a New Jersey State Trooper


2
    We use initials to maintain witnesses' confidentiality.
                                                                        A-3923-17T2
                                          4
and a multi-jurisdictional heroin ring operation, based out of Union County, in

a later, unrelated matter. Moreover, defendant asserted that a search of the court

system's criminal case database would have yielded information about A.V.'s

guilty pleas to a second-degree resisting arrest/eluding offense and for

involvement in the heroin ring operation.

       Defendant explained that he learned about this information while his

appeal from the judge's earlier denial of PCR was pending from a cellmate who

was one of A.V.'s co-defendants in the drug-related racketeering case. That

individual gave defendant "a series of memos and police reports" from 2005

from the Union County Prosecutor's Office. Defendant maintained that had trial

counsel performed his due diligence, the jury would have been made more aware

of the extent of A.V.'s status as a drug dealer. Defendant also explained that he

attempted to file a pro se motion for a Brady3 violation, but his application would

not be accepted due to the pending PCR appeal.

       The parties appeared before the PCR judge on February 23, 2018, for oral

argument on defendant's petition. Defendant argued that the information about

A.V. was readily available and counsel had an obligation to ask for discovery

on the racketeering case, even if the State did not have an obligation to turn over


3
    Brady v. Maryland, 373 U.S. 83 (1963).
                                                                           A-3923-17T2
                                        5
any documents. In opposition, the State argued that it was not its obligation to

turn over the documents pertaining to A.V. It raised questions of admissibility

under Rule 404(b) because of evidence rules precluding impeachment with

specific acts of conduct.

      On March 22, 2018, the PCR judge denied defendant's petition. In a

written decision that accompanied his order, the judge concluded that defendant

failed to meet the first prong of Strickland v. Washington, 466 U.S. 668, 687

(1984), as adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (l987),

which required a showing that counsel's performance fell below the prevailing

standard. The judge found that testimony about defendant's intoxication from

two potential witnesses identified in defendant's PCR petition, L.C. and B.T.,

would be duplicative of A.V.'s and other witnesses' testimony. The judge found

B.T., who was A.V.'s wife, was the only one who submitted an affidavit as to

her knowledge, but even if L.C. submitted one too, neither would have added

anything to defendant's case because his intoxication was "well documented" in

the trial record.

      Turning to defendant's argument relating to A.V., the judge observed that

during trial, A.V. testified about his prior indictable convictions. The judge




                                                                          A-3923-17T2
                                        6
noted that A.V. was subjected to a thorough examination and testified as to his

numerous convictions.

      The judge also found that defendant failed to meet the second Strickland

prong, which required a demonstration that there was a reasonable probability

that but for counsel's deficient performance, the result of the proceedings would

have been different. He found no indication that B.T.'s or L.C.'s proposed

testimonies would have impacted the outcome because the record already

reflected defendant's level of intoxication. Moreover, there was no indication

that A.V.'s connection to the heroin ring or details of his other charges would

have impacted the outcome. The judge observed that "[t]here was overwhelming

evidence that . . . defendant crushed the victim's head with a block," including

testimony from other individuals who were present. For these reasons, the judge

found that defendant failed to establish a prima facie case of ineffective

assistance of counsel and was not entitled to an evidentiary hearing. This appeal

followed.

      Defendant presents the following issues for our consideration in his

appeal.

            POINT I

            THIS MATTER MUST BE REMANDED FOR AN
            EVIDENTIARY     HEARING     BECAUSE

                                                                         A-3923-17T2
                                       7
             DEFENDANT ESTABLISHED A PRIMA FACIE
             CASE OF TRIAL COUNSEL'S INEFFECTIVENESS
             FOR   INADEQUATE    PREPARATION    AND
             INVESTIGATION.

             POINT II

             THIS MATTER MUST BE REMANDED FOR
             FINDINGS OF FACT AND CONCLUSIONS OF
             LAW REGARDING DEFENDANT'S BRADY
             CLAIM. (NOT RAISED BELOW).

             POINT III

             THIS MATTER MUST BE REMANDED FOR A NEW
             PCR HEARING FOR COUNSEL TO ADVANCE
             DEFENDANT'S BRADY CLAIM. (NOT RAISED
             BELOW).

      When a petition for PCR is decided without an evidentiary hearing, our

review is de novo because claims of ineffective assistance of counsel generally

give rise to legal issues. State v. Harris, 181 N.J. 391, 419 (2004). "[I]t is within

our authority 'to conduct a de novo review of both the factual findings and legal

conclusions of the PCR court.'" State v. Reevey, 417 N.J. Super. 134, 146-47

(App. Div. 2010) (quoting Harris, 181 N.J. at 421 (2004)).

      Applying our de novo standard of review, we conclude that the PCR judge

correctly denied defendant's petition substantially for the reasons expressed in

the judge's thorough twenty-one page decision that accompanied his order

denying relief. We add only the following comments.

                                                                             A-3923-17T2
                                         8
      In reaching his decision, the judge identified defendant's assertion of a

Brady violation in the context of his PCR petition. The judge explained that

according to defendant, had counsel properly investigated his claim, like his

cellmate who provided him with information about the details of A.V.'s illicit

drug activities, defendant could have obtained the same information for his trial

if counsel pursued a Brady claim seeking production of the prosecutor's files in

A.V.'s drug related racketeering matter.

      On appeal, defendant contends the PCR judge failed to address

defendant's Brady based contention. He explains that "counsel did not explore

the background of the charges from . . . [A.V.'s drug i]ndictment . . . ." He

claims it would have demonstrated that A.V. was "a bona fide drug lord who

was selling kilos of cocaine for a dirty [New Jersey] State Trooper Narcotics

Detective." According to defendant, this information was available to trial

counsel but he failed to investigate any aspect other than the charges and penal

ties themselves.

      In order to establish a claim under Brady, a defendant must show: "(1)

the prosecution suppressed evidence; (2) the evidence is favorable to the

defense; and (3) the evidence is material." State v. Martini, 160 N.J. 248, 268

(1999). Evidence is material "if there is a reasonable probability that, had the


                                                                         A-3923-17T2
                                       9
evidence been disclosed to the defense, the result of the proceeding would have

been different." State v. Parsons, 341 N.J. Super. 448, 455 (App. Div. 2001)

(quoting United States v. Bagley, 473 U.S. 667, 682 (1985)).          "The mere

possibility that an item of undisclosed information might have helped the

defense, or might have affected the outcome of the trial, does not establish

'materiality' in the constitutional sense." United States v. Agurs, 427 U.S. 97,

109-10 (1976).

      Here, the PCR judge found that the information defendant received from

his cellmate was not material in that the outcome of the trial would not have

been different had it been disclosed. As the judge found, A.V. was subject to

vigorous examination about his criminal background and therefore any

additional information would not have impacted the outcome. Under these

circumstances, although as defendant argues to us on appeal, the judge did not

expressly state there was no Brady violation for trial counsel to have pursued,

we discern the same by inference from his findings about the information not

being material, assuming it was discoverable in the first instance.

      In sum, we are satisfied from our review of the record that defendant failed

to make a prima facie showing of ineffectiveness of trial counsel under the

Strickland-Fritz test. Accordingly, the PCR judge correctly concluded that an


                                                                          A-3923-17T2
                                      10
evidentiary hearing was not warranted as to claims of ineffective assistance by

trial counsel. See State v. Preciose, 129 N.J. 451, 462-63 (1992).

      Finally, to the extent defendant contends the matter must be remanded

because PCR counsel was deficient in not properly advancing the Brady claim

or any other claim, we conclude such matters are better considered in a second

PCR petition. See R. 3:22-4(a)(2).

      Affirmed.




                                                                       A-3923-17T2
                                      11
