                                 NOT FOR PUBLICATION WITHOUT THE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 l imited. R. 1:36-3.




                                                         SUPERIOR COURT OF NEW JERSEY
                                                         APPELLATE DIVISION
                                                         DOCKET NO. A-2098-18T4

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

JAHMIEL ROCK,

     Defendant-Appellant.
___________________________

                    Submitted January 7, 2020 – Decided January 21, 2020

                    Before Judges Hoffman and Firko.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Monmouth County, Indictment No. 12-02-
                    0273.

                    Joseph E. Krakora, Public Defender, attorney for
                    appellant (Brian D. Driscoll, Designated Counsel, on
                    the brief).

                    Christopher J. Gramiccioni, Monmouth County
                    Prosecutor, attorney for respondent (Monica Lucinda
                    do Outeiro, Assistant Prosecutor, of counsel and on the
                    brief; Heather Muh, Legal Assistant, on the brief).

PER CURIAM
      Defendant Jahmiel Rock appeals from the January 10, 2019 Law Division

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

evidentiary hearing. We affirm.

                                            I.

      We begin with a summary of the testimony elicited at the February 28,

2013 hearing on defendant's motion to suppress, which we set forth in our

opinion on defendant's direct appeal. State v. Rock, No. A-1814-14 (App. Div.

Aug 1, 2016) (slip op.), cert. denied, 228 N.J. 421 (2016). At the suppression

hearing, the State presented testimony from Detective Adam Mendes of the

Asbury Park Police Department. Detective Mendes provided the following

account:

            At about 10:00 p.m. on November 5, 2011, Officer
            Mendes was in an unmarked police SUV driven by
            Lieutenant Dave DeSane accompanied by Officer Eddy
            Raisin. They were on patrol in a very high-crime area
            known for gang activity, where Mendes had arrested
            persons for weapons and drug offenses in the past.

            On Bangs Avenue, Mendes observed three men who
            were walking east. Officer Mendes then observed a
            Monmouth County Sheriff's Department vehicle
            activate its lights to conduct a traffic stop further east.
            When they saw the sheriff's lights, the three men
            abruptly turned around and began walking west away
            from the vehicle, their pace quickening "like they didn't
            want to be near that cop car." Soon thereafter, the three
            men began walking up a house's driveway. Lieutenant

                                                                          A-2098-18T4
                                        2
           DeSane pulled the unmarked police SUV into the
           driveway and stopped halfway. DeSane did not activate
           the patrol lights or siren, and the officers did not say
           anything to the individuals.

           The officers exited the vehicle wearing t-shirts with
           "Police" printed on them. Defendant walked ahead of
           the other two men to the top of the driveway where a
           fence and shrubs made it impossible to cut through to
           another street. None of the officers had drawn their
           weapons when Lieutenant DeSane observed defendant
           take a handgun out of his waistband and discard it near
           some shrubbery at the fence. DeSane shouted "he's a
           41," which is a code used to advise other officers to
           perform an arrest. Defendant started walking back
           down the driveway, saying "I ain't doing nothing."
           Nonetheless, when Officer Mendes attempted to
           handcuff defendant, defendant violently swung his arm,
           slipped Mendes's grasp, and ran away. Mendes and
           Raisin gave chase, apprehended defendant, and placed
           him under arrest. The police recovered from near the
           shrubbery a revolver loaded with eight .22-caliber
           hollow-point bullets, and another .22-caliber bullet.

           [Id. at 2-3.]

     While defendant did not testify at the suppression hearing, he presented

the testimony of the two other men who were present when the incident

occurred. Both recounted that they were taking a shortcut through a yard of a

home on Bangs Avenue when a black SUV pulled up, police exited with their

guns drawn, and ordered all three individuals to get on the ground.




                                                                      A-2098-18T4
                                      3
Significantly, both men confirmed that defendant ran when the police

approached; in addition, the police recovered a handgun.

       In February 2012, a grand jury returned an indictment charging defendant

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

(count one); fourth-degree unlawful possession of "dum-dum or body armor

penetrating bullets," N.J.S.A. 2C:39-3(f) (count two); and third-degree resisting

arrest, N.J.S.A. 2C:29-2(a)(3) (count three).

       In March 2013, the motion court issued a written opinion denying

defendant's motion to suppress the handgun. In doing so, the court adopted the

facts testified to by Detective Mendes regarding Lieutenant DeSane's

observations and the resulting arrest of defendant and seizure of the handgun.

The court found that the officers' initial approach to defendant was a "field

inquiry," that "[d]efendant threw the handgun on the ground before police

stopped or questioned him," and that "the seizure of the handgun was lawful

pursuant to the abandoned property exception to the warrant requirement."

       At defendant's jury trial, his attorney attempted to question Lieutenant

DeSane regarding documents obtained pursuant to an OPRA 1 request. However,

defense counsel failed to provide the documents to the State prior to trial. As a


1
    Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 to – 13.
                                                                         A-2098-18T4
                                        4
result, the trial judge interrupted the testimony and addressed the admissibility

of the documents at a Rule 104 hearing.          N.J.R.E. 104.     The documents

concerned two civil settlement agreements involving Lieutenant DeSane. After

reviewing the documents and considering the arguments of counsel, the judge

rejected the admissibility of the documents, explaining:

            Just so the record is clear, I sat in civil for many years
            before I came over here, and the mechanism used to
            settle civil cases has absolutely nothing to do with the
            merits of a case whatsoever.

            Many times[,] cases are settled in lieu of counsel fees,
            carriers just want to cut their losses. Many insurers just
            want to make sure their premiums don't go out of
            whack. So there are many, many components to
            settlements, none of which have anything to do with
            this case whatsoever.

            We've got a gun that this witness has said came out of
            this defendant's waistband, was discarded by him in the
            headlights of a police car, and he retrieved the gun and
            its been marked into [e]vidence in this court. Those are
            the issues that are going to be presented to this jury, not
            some irrelevant information.

      On June 18, 2014, the jury returned its verdict, finding defendant guilty

on counts one and two; on count three, the jury found defendant guilty of a

lesser-included offense, disorderly persons resisting arrest.      The trial judge

sentenced defendant on count one to seven years of incarceration with three

years and six months of parole ineligibility. The judge imposed concurrent

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                                        5
sentences of eighteen months of incarceration on count two, and six months of

incarceration on count three.

      On December 15, 2014, defendant filed an appeal, and presented the

following two points of arguments:

            POINT I — THE ORDER DENYING DEFENDANT'S
            MOTION TO SUPPRESS SHOULD BE REVERSED
            BECAUSE THE INITIAL POLICE CONTACT WITH
            DEFENDANT       WAS    AN     UNLAWFUL
            INVESTIGATIVE DETENTION, NOT A FIELD
            INQUIRY, AND BECAUSE DEFENDANT DID NOT
            ABANDON THE HANDGUN.

            POINT II — THE SEVEN (7) YEAR BASE TERM
            WITH THREE AND ONE-HALF (3 1/2) YEARS OF
            PAROLE     INELIGIBILITY   IMPOSED   ON
            DEFENDANT'S CONVICTION FOR UNLAWFUL
            POSSESSION OF A WEAPON ON COUNT ONE
            WAS MANIFESTLY EXCESSIVE.

            [Id. at 4-5.]

      We rejected these arguments and affirmed defendant's conviction and

sentence. Id. at 6-14. On January 19, 2017, defendant filed his PCR petition,

alleging he received ineffective assistance of counsel.

      On September 21, 2018 the PCR judge heard oral argument on the

petition. Defendant argued his trial counsel provided ineffective assistance of

counsel when he failed to file a motion for a speedy trial. The PCR judge

rejected the argument, citing "insufficient evidence on th[e] record to support a

                                                                         A-2098-18T4
                                        6
finding that defense counsel's failure to file a speedy trial motion was deficient."

He explained, "Although the defendant's case did take two years and six months

to go to trial, that delay was caused, at least in part, by counsel's decision to file

a bail reduction motion as well as a motion to suppress on the defendant's

behalf." The judge further found that defendant failed to satisfy the second

prong of Strickland2 because, even if defense counsel filed a motion to dismiss

on speedy trial grounds, the motion would likely have been denied.

       Defendant also argued his trial counsel was deficient regarding the

settlement documents involving Lieutenant DeSane, which the trial judge

disallowed following the Rule 104 hearing.          The PCR judge rejected this

argument, concluding the trial judge excluded the settlement documents because

they had no relevance to defendant's case and "even if the report had been turned

over to the State prior to trial, it still would have been excluded as irrelevant."

Additionally, the PCR judge found defense counsel failing to serve the

settlement documents prior to trial had "no moment" to the trial judge's

determination to exclude the document as "utterly irrelevant." The PCR judge

concluded that defense counsel's alleged errors did not satisfy either prong of




2
    Strickland v. Washington, 466 U.S. 668 (1984).
                                                                              A-2098-18T4
                                          7
Strickland and found no basis for an evidentiary hearing on either of defendant's

claims.

      This appeal followed, with defendant raising the following points of

argument:

            POINT I:     THE   PCR   COURT   ERRED   IN
                         REFUSING     TO    HOLD    AN
                         EVIDENTIARY HEARING ON TRIAL
                         COUNSEL'S FAILURE TO PURSUE A
                         SPEEDY TRIAL.

            POINT II: THE   PCR  COURT    ERRED IN
                      REFUSING    TO     HOLD   AN
                      EVIDENTIARY HEARING ON TRIAL
                      COUNSEL'S      FAILURE    TO
                      INVESTIGATE AND TURN OVER A
                      REPORT REGARDING THE STATE'S
                      MAIN WITNESS.

                                             II.

      "A petitioner must establish the right to [post-conviction] relief by a

preponderance of the credible evidence." State v. Preciose, 129 N.J. 451, 459

(1992). To sustain that burden, the petitioner must set forth 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).

      A defendant must prove two elements to establish a PCR claim that trial

counsel was constitutionally ineffective: first, that "counsel's performance was


                                                                          A-2098-18T4
                                         8
deficient," that is, "that counsel made errors so serious that counsel was not

functioning as the 'counsel' guaranteed the defendant by the Sixth

Amendment[;]" second, that "there is a reasonable probability that, but for

counsel's unprofessional errors, the result of the proceeding would have been

different." Strickland, 466 U.S. at 694; accord State v. Fritz, 105 N.J. 42, 58

(1987).   "A reasonable probability is a probability sufficient to undermine

confidence in the outcome." State v. Harris, 181 N.J. 391, 432 (2004) (quoting

Strickland, 466 U.S. at 694).

      To prove the first element, a defendant must "overcome a strong

presumption that counsel exercised reasonable professional judgment and sound

trial strategy in fulfilling his responsibilities." State v. Nash, 212 N.J. 518, 542

(2013) (internal quotation marks omitted) (quoting State v. Hess, 207 N.J. 123,

147 (2011)). To prove the second element, a defendant must demonstrate "how

specific errors of counsel undermined the reliability of the finding of gui lt."

United States v. Cronic, 466 U.S. 648, 659 n.26 (1984).

      In assessing a Sixth Amendment speedy trial claim, this court must

consider: (1) the length of the delay, (2) the reason for the delay, (3) whether

the defendant asserted his right, and (4) whether defendant was prejudiced by

the delay. Barker v. Wingo, 407 U.S. 514, 530 (1972).


                                                                            A-2098-18T4
                                         9
      In this case, the PCR judge found defense counsel filed a bail reduction

motion and a motion to suppress, which in part caused the delay of defendant's

trial. The PCR judge found defense counsel acted appropriately in filing these

pretrial motions, and the resulting delay was not an unconstitutional denial of

defendant's right to a speedy trial. The record supports these determinations.

Defendant failed to rebut the strong presumption that counsel did not render

adequate assistance and make all significant decisions in the exercise of

reasonable professional judgment. Nash, 212 N.J. at 542.

      The PCR judge also concluded that defendant failed to satisfy the second

prong of Strickland because even if his counsel filed a speedy trial dismissal

motion, it would likely have been denied.        Therefore, the record reveals

defendant's attorney was not deficient in failing to raise a speedy trial claim on

defendant's behalf. Strickland, 466 U.S. at 694. Additionally, there was no

evidence that defendant was prejudiced by the passage of time, and no proof that

any witnesses' memories faded or were reluctant to become involved.

      PCR courts are not required to conduct evidentiary hearings unless the

defendant establishes a prima facie case and "there are material issues of

disputed fact that cannot be resolved by reference to the existing record." R.

3:22-10(b).   "To establish such a prima facie case, the defendant must


                                                                          A-2098-18T4
                                       10
demonstrate a reasonable likelihood that his or her claim will ultimately succeed

on the merits."     State v. Marshall, 148 N.J. 89, 158 (1997).         Speculative

assertions are insufficient to establish a prima facie case of ineffective assistance

of counsel. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div. 1999).

         Defendant argues the PCR judge erred by denying his petition without an

evidentiary hearing on his speedy trial claim. The record amply supports the

PCR judge's findings and conclusions. As noted, defendant did not show "there

is a reasonable probability that, but for counsel's unprofessional errors, the result

of the proceeding would have been different." Strickland, 466 U.S. at 694.

Unable to demonstrate the required prejudice, defendant failed to establish a

prima facie case for this claim. Preciose, 129 N.J. at 462. Accordingly, the PCR

judge did not abuse his discretion in denying an evidentiary hearing on this

issue.

         Additionally, defendant argues the PCR judge erred in denying an

evidentiary hearing based on trial counsel's failure to provide the State before

trial with the civil settlement documents involving Lieutenant DeSane. The

PCR judge reviewed the trial judge's conclusions regarding the documents and

found the judge excluded the documents based on relevancy. The PCR judge

also found the trial judge's ruling was not affected by counsel's failure to submit


                                                                             A-2098-18T4
                                        11
the documents to the State prior to trial. Having failed to establish a prima facie

case for this claim, defendant was not entitled to an evidentiary hearing.

Preciose, 129 N.J. at 462. Accordingly, we conclude the PCR judge did not

abuse his discretion in denying an evidentiary hearing on this issue.

      Affirmed.




                                                                           A-2098-18T4
                                       12
