                        NOT FOR PUBLICATION WITHOUT THE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-5052-14T1

STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

CHARLES GOULD, a/k/a MISTER
A. YOUNG,

     Defendant-Appellant.
__________________________________

              Submitted September 11, 2017 – Decided September 15, 2017

              Before Judges Sabatino and Ostrer.

              On appeal from Superior Court of New Jersey,
              Law Division, Camden County, Indictment No.
              10-09-2503.

              Joseph E. Krakora, Public Defender, attorney
              for appellant (Peter B. Meadow, Designated
              Counsel, on the brief).

              Mary Eva Colalillo, Camden County Prosecutor,
              attorney for respondent (Patrick D. Isbill,
              Assistant Prosecutor, of counsel and on the
              brief).

              Appellant filed a pro se supplemental brief.

PER CURIAM
      Defendant Charles Gould appeals the trial court’s denial of

his   petition    for   post-conviction    relief   ("PCR")     without    an

evidentiary hearing.      We affirm, except to remand for a slight

correction   to   the   period   of    parole   ineligibility    expressed

imprecisely within defendant's judgment of conviction.

      As detailed in this court's prior opinion on direct appeal,

this prosecution of defendant arose out of the shooting of a drug

dealer, Brandon Adams, in an alleyway in the City of Camden on the

afternoon of March 30, 2010.          See State v. Gould, No. A-2756-11

(App. Div. Sept. 23, 2013).

      According to the State's proofs, shortly after Adams sold

drugs to others on the street for cash, defendant accosted him at

gunpoint and demanded the money in his possession.              Adams gave

defendant the cash. Still brandishing the gun, defendant commanded

Adams to take him to his remaining stash of drugs.        Adams brought

defendant to the alleyway, but they found no drugs stashed there.

At that point, defendant fired his gun multiple times at Adams,

wounding him severely.      Adams survived, but he did not identify

his shooter to the police.

      The shooting events were observed by three eyewitnesses. Each

of them identified defendant, who was known by the nickname

"Mister," to the police as the man who had attacked and shot Adams.

However, at the May 2011 jury trial, the eyewitnesses recanted,

                                      2                             A-5052-14T1
causing the State to move their prior inconsistent statements

identifying     defendant      into   evidence             pursuant     to   N.J.R.E.

803(a)(1)(A).      In his own case, defendant presented testimony from

Adams, who denied that defendant, a/k/a "Mister," was his attacker.

The State called in rebuttal Adams' mother, who recounted that

Adams had, in fact, told her after the attack that defendant was

the person who had shot him.

     The jury found defendant guilty of attempted murder, N.J.S.A.

2C:5-1 and 2C:11-3; robbery, N.J.S.A. 2C:15-1(a)(1); aggravated

assault, N.J.S.A. 2C:12-1(b)(1), (2), (4), and (7); and various

weapons offenses. The judge who presided over the trial, sentenced

defendant to an aggregate twenty-five-year term of incarceration,

subject to what was termed a "nineteen-and-a-half-year" period of

parole    ineligibility,      pursuant       to    the     No   Early   Release    Act

("NERA"), N.J.S.A. 2C:43-7.2.

     On   direct    appeal,    defendant          raised    the   following    issues

through his appellate counsel and in a pro se supplemental brief:

            POINT I

            THE   PROSECUTOR'S   MISUSE   OF   TESTIMONIAL
            HEARSAY,    FROM    NON-TESTIFYING     ALLEGED
            WITNESSES WHO IMPLICATED DEFENDANT DURING THE
            POLICE INVESTIGATION, VIOLATED DEFENDANT'S
            RIGHT TO CONFRONT WITNESSES AND TO DUE PROCESS
            OF LAW AND A FAIR TRIAL. U.S. CONST. AMEND.
            XIV; N.J. CONST. (1947) ART. I, PARS. 1, 9,
            10.


                                         3                                    A-5052-14T1
            POINT II

            DEFENDANT'S SENTENCE IS MANIFESTLY EXCESSIVE.

            PRO SE SUPPLEMENTAL POINT I

            THE COURT FAILED TO CONDUCT A WADE1 HEARING
            AND TO ACKNOWLEDGE THE VARIOUS DIFFERENT
            DESCRIPTIONS OF THE PERPETRATOR GIVEN BY
            SEVERAL DIFFERENT WITNESSES AT TRIAL THUS
            VIOLATING DEFENDANT[']S DUE PROCESS RIGHTS.

     We    affirmed    defendant's      convictions    and   sentence   in   our

unpublished opinion on direct appeal.           See State v. Gould, supra,

slip op. at 18.        The Supreme Court denied defendant's ensuing

petition for certification.          See State v. Gould, 217 N.J. 304

(2014).

     Thereafter, defendant filed the present PCR petition in June

2014.     Defendant argued that his trial counsel was ineffective

because she failed to: (1) move for the trial judge to recuse

himself because of his alleged bias, (2) request Wade hearings on

identification,       (3)   challenge    the   trial    court's   rulings      of

admissibility following the Gross2 hearings, (4) raise issues of

prosecutorial    misconduct,     and     (5)   investigate,     prepare,     and

present the case properly.



1
  United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed.
2d 1149 (1967).
2
  State v. Gross, 216 N.J. Super. 98 (App. Div. 1987), aff'd, 121
N.J. 1 (1990).

                                        4                               A-5052-14T1
     Defendant further argued that his counsel on direct appeal

was ineffective, because he allegedly failed to recognize and

appeal significant errors that had occurred at the trial level.

     Defendant also asserted that the trial court erred by giving

flawed instructions to the jury, and that prosecutorial misconduct

deprived him of his right to due process.

     Oral argument on defendant's PCR petition was heard on May

22, 2015 before Judge Kathleen M. Delaney.            After considering that

advocacy and the parties' written submissions, the judge concluded

that defendant's claims for relief were both procedurally and

substantively deficient.

     In her oral opinion, Judge Delaney initially noted that

defendant's PCR arguments could have been raised on direct appeal,

and thus were procedurally barred under Rule 3:22-4.                   According

to the judge, "[t]here [were] no facts outside the record that the

Appellate Division would have needed [in order] to address the

defendant's concerns."

     Turning      to   the   merits,       Judge    Delaney      likewise     found

defendant's petition unavailing.             She concluded that the trial

court did not err in admitting the eyewitnesses' prior inconsistent

statements   as    substantive   proof       of    guilt,   as    defendant      had

presented "no legal basis to challenge the [trial court’s] rulings

at the Gross [h]earings." Judge Delaney also discerned no evidence

                                       5                                    A-5052-14T1
of prosecutorial misconduct from the record of the trial.                Hence,

the judge found no basis to set aside the conviction on these

asserted grounds.

    As    to    defendant's    claims       of   ineffective     assistance    of

counsel, Judge Delaney was likewise satisfied that they lacked

merit and no evidentiary hearing was needed to address them.                  She

noted that "[a] defendant is not entitled to an [e]videntiary

hearing if the allegations in the certification are too vague,

conclusory, or speculative.          Defendant does not set forth any

facts    to    support   his   claims,       and,   therefore,      defendant's

submission is insufficient to establish a claim of ineffective

assistance of counsel."

    Rejecting defendant's argument that his trial counsel should

have moved for the trial judge to recuse himself, Judge Delaney

observed there was "nothing in the record which indicate[d] the

trial [c]ourt was anything but fair and impartial.                The defendant

cannot point to a single decision by the [c]ourt that was not

supported by applicable legal standards."

    Judge      Delaney   further     concluded      that   the    out-of-court

identifications     admitted    at      trial     were   "not    impermissibly

suggestive," and defendant's trial counsel therefore did not err

in failing to challenge their admission.             The judge noted in this

regard that this court had expressly addressed and rejected that

                                        6                               A-5052-14T1
very argument in our decision on defendant's direct appeal, in

which we specifically found that the identifications were not

"impermissibly suggestive."

     As to the failure to appeal the trial court's rulings from

the Gross hearing, Judge Delaney determined that "defendant ha[d]

not presented any evidence that the [trial] [c]ourt's findings

were misguided or unlawful, and an appeal of the Gross [rulings]

would not have been meritorious."

     Lastly,     Judge   Delaney   rejected   defendant's   assorted

challenges to various other tactical decisions his former counsel

made at trial.    She recognized in this regard that "a Court must

indulge a strong presumption that [trial] counsel's conduct falls

within the wide range of reasonable professional assistance[.]"

Applying that presumption, Judge Delaney detected no "acts or

omissions by counsel that were not the result of reasonable,

professional judgment."

     In now appealing the denial of his PCR petition, defendant

raises the following issues:

          POINT I

          THE POST-CONVICTION RELIEF COURT ERRED IN
          DENYING DEFENDANT'S PETITION WITHOUT THE
          BENEFIT OF AN EVIDENTIARY HEARING

          A. DEFENDANT ESTABLISHED A PRIMA FACIE CASE
          OF INEFFECTIVE ASSISTANCE OF COUNSEL.


                                   7                         A-5052-14T1
          B. DEFENDANT ESTABLISHED A PRIMA FACIE CASE
          OF   INEFFECTIVE  ASSISTANCE  OF  APPELLATE
          COUNSEL.

          POINT II

          DEFENDANT'S MANDATORY MINIMUM SENTENCE IS
          MISCALCULATED AND THEREFOR[E] ILLEGAL AND MUST
          BE CORRECTED.

Defendant also makes the following points in a supplemental brief:

          SUPPLEMENTAL POINT ONE

          THE POST CONVICTION RELIEF COURT ERRED IN
          DENYING DEFENDANT'S PETITION IN LIGHT OF THE
          FUNDAMENTAL   INJUSTICE  AND  CONSTITUTIONAL
          VIOLATIONS PRESENTED THEREIN.

               THE COURT ERRED BY GIVING THE JURY
               FATALLY FLAWED JURY INSTRUCTIONS
               DURING THE JURY CHARGE.

               THE COURT ERRED IN FAILING TO GIVE
               CURATIVE INSTRUCTIONS REGARDING A
               DETECTIVE OFFERING A GRATUITOUS
               CERTAINTY OF DEFENDANT'S GUILT.

          SUPPLEMENTAL POINT TWO

          THE POST CONVICTION RELIEF COURT ERRED IN
          DENYING DEFENDANT'S PETITION WITHOUT THE
          BENEFIT OF AN EVIDENTIARY HEARING, HAVING
          MISCONSTRUED OR IGNORED VITAL FACTS.

               THE   COURT  FAILED   TO   CONSIDER
               COUNSEL'S FAILURE TO REQUEST A WADE
               HEARING WHEN CONSIDERING COUNSEL'S
               EFFECTIVENESS.

               THE COURT IGNORED EVIDENCE IN THE
               DEFENDANT'S POSSESSION THAT WOULD
               HAVE ENLIGHTENED THE COURT TO AN
               ERROR.


                                8                          A-5052-14T1
       Having   fully    considered      these   arguments,       we   affirm     the

dismissal of defendant's PCR petition, substantially for the sound

reasons articulated in Judge Delaney's May 22, 2015 oral opinion.

We add only a few comments, along with a caveat respecting the

precise calculation of defendant's period of parole ineligibility.

       First, we generally endorse the trial court's observation

that   defendant's      claims   are   procedurally       barred,      except   with

respect to his discrete claims relating to the alleged deficiencies

of   his   appellate     counsel   and    the    legality    of   his    sentence.

Defendant's present arguments about the evidence admitted against

him and his other claims of trial error could have and should have

been raised in his direct appeal.            R. 3:22-4.     We disfavor the use

of PCR proceedings as a substitute for direct appeal.                     State v.

Murray, 315 N.J. Super. 535, 540 (App. Div. 1998).

       Moreover, as we have already noted, defendant's specific

argument    that   the   eyewitness      identifications      were      tainted    by

unduly suggestive means was rejected on direct appeal. That failed

argument cannot be renewed now through a PCR petition.                    R. 3:22-

4.

       Nor do we detect any merit in the substance of defendant's

arguments.      His claims of prosecutorial misconduct and unfairness

are not objectively borne out by the record.                  As the PCR judge

concluded, defendant received a fair trial.               The isolated matters

                                         9                                  A-5052-14T1
he complains of, including a trooper's brief testimony about his

observations of one eyewitness's physical demeanor when shown a

photo array, do not negate that overall conclusion.                There was no

imperative for curative or additional jury instructions under the

circumstances presented.          Nor did the prosecutor's questions in

examining witnesses or his remarks in summation exceed the fair

realm of zealous advocacy.

       We agree with the trial court that defendant's claims of

ineffective assistance of counsel failed to establish a prima

facie case to warrant an evidentiary hearing.                We recognize that

under the Sixth Amendment of the United States Constitution, a

person accused of crimes is guaranteed the effective assistance

of legal counsel in his defense.              Strickland v. Washington, 466

U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984).

To establish a deprivation of that right, a convicted defendant

must   satisfy      the   two-part    test    enunciated    in    Strickland    by

demonstrating that: (1) counsel's performance was deficient, and

(2) the deficient performance actually prejudiced the accused's

defense.    Id. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693; see

also   State   v.    Fritz,   105    N.J.     42,   58   (1987)   (adopting    the

Strickland two-part test in New Jersey).

       In reviewing such ineffectiveness claims, courts apply a

strong     presumption     that     defense    counsel     "rendered   adequate

                                       10                                A-5052-14T1
assistance and made all significant decisions in the exercise of

reasonable professional judgment."            Strickland, supra, 466 U.S.

at 690, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695.            "[C]omplaints

'merely of matters of trial strategy' will not serve to ground a

constitutional claim of inadequacy[.]"          Fritz, supra, 105 N.J. at

42, 54 (1987) (quoting State v. Williams, 39 N.J. 471, 489 (1963),

cert. denied, 374 U.S. 855, 83 S. Ct. 1924, 10 L. Ed. 2d 1075

(1963), overruled on other grounds by, State v. Czachor, 82 N.J.

392 (1980)).

     Moreover, an evidentiary hearing is not necessary unless

defendant establishes a prima facie claim of ineffectiveness.

State   v.   Preciose,    129   N.J.   451,    462-63   (1992).   "[B]ald

assertions" of deficient performance are insufficient to support

a PCR application.       State v. Cummings, 321 N.J. Super. 154, 170

(App. Div.) (noting that PCR relief requires more than "bald

assertions" by a defendant), certif. denied, 162 N.J. 199 (1999);

see also R. 3:22-10(b); see also State v. Porter, 216 N.J. 343,

354-55 (2013) (reaffirming these principles).

     Without exhaustively addressing defendant's ineffectiveness

claims individually here, we are satisfied that none of them rise

to a level calling for an evidentiary hearing.          For example, trial

counsel's decision to call Adams, who denied that defendant was

his attacker, was a reasonable tactical decision within counsel's

                                   11                              A-5052-14T1
zone    of    discretion,    despite   the       rebuttal   testimony   presented

thereafter from Adams' mother.              State v. Arthur, 184 N.J. 307,

320-21 (2005) (noting a court's review of a defense attorney's

decision whether to call a witness should be "highly deferential").

As Judge Delaney aptly noted, "[n]o one had a clear[er] view of

the shooter than the person who was shot[, a]nd while risky,

presenting him [Adams] as a witness was a reasonable decision for

the defense."

       We also reject defendant's claim that his conviction should

be set aside because his trial counsel allegedly told him that the

judge had made a negative remark about him off the record before

trial.       Even if this hearsay assertion about the judge's utterance

of     the    negative   remark    were     substantiated,      that    does      not

necessarily mean that a recusal motion would have been successful.

State v. J.J., 397 N.J. Super. 91, 103 (App. Div. 2007) ("although

the trial judge's comments were sometimes stern, they do not reveal

bias    or    prejudice"),    appeal   dismissed,       196   N.J.   459     (2008).

Moreover, trial counsel reasonably might have predicted that a

failed recusal motion could have detracted from the force of his

substantive arguments on other issues before the trial court.

Defendant's       speculative     claims    of    ineffectiveness      are    simply

unavailing, as he has not demonstrated a sufficient basis to reject

the PCR judge's assessment that he received an overall fair trial.

                                       12                                    A-5052-14T1
Regardless    of    whether   counsel    was   ineffective,   defendant    has

failed to establish the actual prejudice required under the second

prong of Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064,

80 L. Ed. 2d at 693.

     The remainder of defendant's claims of ineffectiveness are

similarly unavailing, both with respect to his trial counsel's

performance, and the advocacy of the attorney who represented him

on direct appeal.       We need not comment about them further.              R.

2:11-3(e)(2).

     Lastly, there is one minor need for correction of the sentence

within the judgment of conviction. The parole ineligibility period

mandated by NERA on the first-degree attempted murder conviction

requires defendant to serve a minimum of eighty-five percent of

his seventeen-year custodial sentence on that offense, which is

properly calculated as fourteen years, five months, and eleven

days.   See N.J.S.A. 2C:43-7.2.           In addition, the law requires

defendant to serve a minimum of five years without parole on his

separate   "certain     persons"   weapons     conviction.     See   N.J.S.A.

2C:39-7(b).        The combined effect of these convictions is that

defendant's aggregate period of parole ineligibility is nineteen

years, five months, and eleven days.              However, the judgment of

conviction    imprecisely       states     that    the   aggregate     parole

ineligibility term is "19 1/2 years," which overstates the period

                                    13                                A-5052-14T1
by about eighteen days.   The State does not dispute the correct

calculation.   Accordingly, we remand for the entry of a corrected

judgment of conviction to reflect the proper figure.

     The denial of the PCR petition is affirmed in all respects,

with the proviso that the trial court enter a corrected judgment

of conviction within forty-five days to reflect the accurate parole

ineligibility period.   We do not retain jurisdiction.




                                14                          A-5052-14T1
