                        NOT FOR PUBLICATION WITHOUT THE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-3402-15T3


STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

LUIS HERNANDEZ,

        Defendant-Appellant.

____________________________________________

              Submitted September 25, 2017 – Decided October 10, 2017

              Before Judges Accurso and O'Connor.

              On appeal from Superior Court of New Jersey,
              Law Division, Passaic County, Indictment No.
              04-03-0323.

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

              Camelia M. Valdes, Passaic County
              Prosecutor, attorney for respondent
              (Christopher W. Hsieh, Chief Assistant
              Prosecutor, of counsel and on the brief).

PER CURIAM
    Defendant Luis Hernandez appeals from a February 5, 2016

order denying his petition for post-conviction relief (PCR).

Following our review of the record and applicable law, we

affirm.

    In June 2005, a jury convicted defendant of first-degree

aggravated manslaughter, causing death during an eluding,

N.J.S.A. 2C:11-4(a)(2); first-degree death by auto within 1000

feet of a school, N.J.S.A. 2C:11-5(b)(3); second-degree eluding,

N.J.S.A. 2C:29-2(b); third-degree leaving the scene of a motor

vehicle accident resulting in death, N.J.S.A. 2C:11-5.1; third-

degree operating a motor vehicle that was involved in an

accident resulting in death while driving with a suspended

driver's license, N.J.S.A. 2C:40-22(a); and third-degree

endangering an injured victim by leaving the scene of an

accident, N.J.S.A. 2C:12-1.2(a).

    In August 2005, defendant was sentenced in the aggregate to

a term of life in prison.   Defendant appealed from his

convictions and sentence.   We affirmed his convictions but, for

reasons not relevant to the issues raised in this appeal,

remanded the matter for resentencing.   See State v. Hernandez,

No. A-1280-05 (App. Div. August 6, 2007).   The Supreme Court

denied defendant's petition for certification, 194 N.J. 269

(2008).

                                2                           A-3402-15T3
    On remand, the trial judge imposed the same sentence.

Defendant appealed and, again, for reasons not pertinent to any

issue raised here, we remanded for resentencing.     See

State v. Hernandez, No.   A-5489-07 (App. Div. Apr. 5, 2011).

While his matter was on appeal, on July 1, 2010, defendant filed

a PCR petition but later withdrew that petition because of the

pending appeal.

    On June 24, 2011, defendant was sentenced in the aggregate

to a forty-year term of imprisonment.    On January 16, 2013, the

excessive sentencing panel affirmed this sentence.     State v.

Hernandez, No. A-3541-11 (App. Div. January 16, 2013).

    The facts underlying defendant's convictions are set forth

in our previous opinions and need not be repeated, except to

provide the following brief summary of the evidence.

    In November 2003, defendant was pulled over by a Clifton

police officer for a routine traffic stop.    Although he

initially stopped, defendant panicked and sped away because he

did not have a valid driver's license.   The officer chased

defendant on his motorcycle.   Eventually, defendant ran through

a stop sign and collided with the officer on his motorcycle, who

had entered the intersection from a cross street.    The impact

caused the officer to be thrown from the motorcycle to his

death.   Defendant jumped out of his vehicle and ran away, but

                                3                           A-3402-15T3
was returned to the scene by two members of the public.

Defendant later agreed to give blood and urine samples to the

police, and waived his Miranda1 rights.

       On December 27, 2013, defendant refiled his petition for

PCR.   Among other things, defendant asserted counsel was

ineffective because he failed to investigate whether one of the

police officers who handled his matter was prejudiced against

him because he is Hispanic.    On February 5, 2016, the PCR court

denied defendant's petition on substantive grounds, but also

determined the petition was time-barred under Rule 3:22-12(a).

       On appeal, defendant raises the following points for our

consideration:

           POINT I: DEFENDANT'S PCR PETITION SHOULD
           NOT HAVE BEEN PROCEDURALLY BARRED.

           POINT II: THIS MATTER MUST BE REMANDED FOR
           AN EVIDENTIARY HEARING BECAUSE DEFENDANT
           ESTABLISHED A PRIMA FACIE CLAIM OF TRIAL
           COUNSEL'S INEFFECTIVENESS FOR FAILING TO
           ADEQUATELY INVESTIGATE HIS CASE.

Although we are inclined to agree defendant's petition was time-

barred, we need not address this issue as defendant failed to

make a prima facie showing counsel was ineffective, warranting

we affirm the PCR court's determination to dismiss the petition.



1
     Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed.
2d 694 (1966).

                                 4                          A-3402-15T3
    The standard for determining whether counsel's performance

was ineffective for purposes of the Sixth Amendment was

formulated in Strickland v. Washington, 466 U.S. 668, l04 S. Ct.

2052, 80 L. Ed. 2d 674 (1984), and adopted by our Supreme Court

in State v. Fritz, l05 N.J. 42 (l987).   In order to prevail on a

claim of ineffective assistance of counsel, defendant must meet

the following two-prong test: (l) counsel's performance was

deficient and he or she made errors so egregious counsel was not

functioning effectively as guaranteed by the Sixth Amendment to

the United States Constitution; and (2) the defect in

performance prejudiced defendant's rights to a fair trial such

that there exists a "reasonable probability that, but for

counsel's unprofessional errors, the result of the proceeding

would have been different."   Strickland, supra, 466 U.S. at 687,

694, l04 S. Ct. at 2064, 2068, 80 L. Ed. 2d at 693, 698.

    Here, defendant argues trial counsel was ineffective

because he failed to investigate whether any of the police

officers who handled his matter were prejudiced against him

because of his ethnic background.   However, defendant proffers

no evidence any officer was in fact prejudiced against him on

the basis of his ethnicity, or what counsel would have

discovered had he investigated this particular claim.    In short,



                                5                           A-3402-15T3
defendant's claim the officers were prejudiced against him is

merely a bald assertion devoid of any substance.

    When a defendant asserts his attorney has inadequately

investigated his matter, "'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.'"     State v. Porter, 216

N.J. 343, 353 (2013) (citing State v. Cummings, 321 N.J. Super.

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

Here, defendant failed to meet this standard.

    Accordingly, we are satisfied from our review of the record

defendant failed to make a prima facie showing of

ineffectiveness of trial counsel under the Strickland-Fritz

test.     The PCR court correctly concluded an evidentiary hearing

was not warranted.    See State v. Preciose, 129 N.J. 452, 462-63

(1992).

    Affirmed.




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