                            NOT FOR PUBLICATION WITHOUT THE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-3939-15T3

STATE OF NEW JERSEY,

       Plaintiff-Respondent,

v.

JOEL S. HESTER, a/k/a
JOEWELL A. HESTER,

     Defendant-Appellant.
____________________________

                Submitted December 20, 2017 – Decided February 27, 2019

                Before Judges Fuentes and Koblitz

                On appeal from Superior Court of New Jersey, Law
                Division, Essex County, Indictment No. 11-04-0652.

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

                Robert D. Laurino, Acting Essex County Prosecutor,
                attorney for respondent (Camila Garces, Special
                Deputy Attorney General/Acting Assistant Prosecutor;
                of counsel and on the brief).

                Appellant filed a pro se supplemental brief.
      The opinion of the court was delivered by

FUENTES, P.J.A.D.

      Defendant Joel Hester was tried before a jury and convicted of murder,

N.J.S.A. 2C:11-3(a)(1), second degree unlawful possession of a handgun,

N.J.S.A. 2C:39-5(b), and second degree possession of a handgun for an unlawful

purpose, N.J.S.A. 2C:39-4(a). On December 17, 2012, the trial court merged

the murder conviction with the second degree handgun conviction and sentenced

defendant to a term of forty years, with thirty years of parole ineligibility. The

court also sentenced defendant to a concurrent ten-year term with five years of

parole ineligibility on the conviction for second degree unlawful possession of

a handgun.

      We affirmed defendant's conviction on direct appeal, State v. Joel Hester,

No. A-3066-12 (App. Div. October 3, 2014), and the Supreme Court denied his

petition for certification. See State v. Hester, 221 N.J. 219 (2015). In lieu of

restating the evidence presented by the State at trial, we incorporate by reference

the facts we described in our unpublished opinion affirming defendant's

conviction. Hester, slip op. at 2-5.




                                                                           A-3939-15T3
                                        2
      On March 23, 2015, defendant filed a pro se petition for post-conviction

relief (PCR), arguing ineffective assistance of trial counsel. The PCR judge1

appointed an attorney to represent defendant. PCR counsel thereafter amended

defendant's petition and submitted a brief in which he argued defendant's trial

attorney: (1) failed to call an alleged alibi witness; (2) failed to present a traffic

video that would have allegedly corroborated defendant's alibi defense; (3)

failed to request an identification charge that tracked the Supreme Court's

holding in State v. Henderson, 208 N.J. 208 (2011); and (4) failed to introduce

into evidence a photograph of a man known as "Dizzle," who allegedly

resembles defendant.

      After considering the arguments of counsel on December 22, 2015, the

PCR judge found sufficient grounds to conduct an evidentiary hearing. The

judge conducted the evidentiary hearing on February 22, 2016. PCR counsel

called four witnesses: defendant's trial counsel; Cysa Williams, an alleged alibi

witness; Francis J. Reilly, an investigator employed by the Public Defender's

Office; and defendant. The judge also viewed a traffic video that defendant

claimed showed he was present in a different location at the time of the murder.




1
  The judge assigned to adjudicate the PCR petition was not the same judge who
presided over the trial.
                                                                              A-3939-15T3
                                          3
     On April 1, 2016, the PCR judge denied defendant's petition.     In a

memorandum of opinion, the judge found defendant did not satisfy the two-

prong standard for ineffective assistance of counsel under Strickland v.

Washington, 466 U.S. 668, 687 (1984). In this appeal, defendant raises the

following arguments.

           POINT I

           TRIAL DEFENSE COUNSEL WAS INEFFECTIVE
           BECAUSE SHE FAILED TO REQUEST THAT THE
           COURT PROVIDE A JURY INSTRUCTION BASED
           UPON STATE V. HENDERSON, 208 N.J. 208 (2011)
           REGARDING    THE   INDENTIFICATION       OF
           DEFENDANT BY THE VARIOUS WITNESSES
           WHO TESTIFIED ON BEHALF OF THE STATE.

           POINT II

           TRIAL DEFENSE COUNSEL WAS INEFFECTIVE
           FOR NOT INTRODUCING INTO EVIDENCE THE
           PHOTOGRAPHS OF DEFENDANT AND "DIZZLE"
           TO DEMONSTRATE THIRD-PARTY GUILT.

           POINT III

           THE PCR COURT SHOULD HAVE GRANTED THE
           PETITION FOR POST-CONVICTION RELIEF UPON
           CONCLUSION OF THE EVIDENTIARY HEARING
           REGARDING CYSA WILLIAMS AND BECAUSE
           OF THE FAILURE TO PRESENT THE VIDEOTAPE
           TO THE JURY.




                                                                   A-3939-15T3
                                    4
Defendant also filed a pro se supplemental brief raising the

following arguments:

           POINT I

           AT THE PCR EVIDENTIARY HEARING THE
           DEFENDANT DID PRESENTED [SIC] A PRIMA
           FACIE CASE OF INEFFECTIVE ASSISTANCE OF
           COUNSEL WARRANTING POST-CONVICTION
           RELIEF.


           POINT II

           TRIAL COUNSEL ABANDON ITS DUTY OF
           LOYALTY     AND    RENDER     DEFENDANT
           INEFFECTIVE ASSISTANCE OF COUNSEL WHEN
           COUNSEL DISCREDIT DEFENDANT ALIBI
           WITNESS BASED ON THE 9:00 TO 9:30 TRAFFIC
           STOP THEORY. [SIC]

           POINT III

           THE PCR COURT OVERLOOKED DEFENDANT
           BROTHER MASSARAH DIRECT TESTIMONY
           WHICH ESTABLISHED THAT HE WAS NEVER IN
           THE PRESENT OF HIS BROTHER JOEL WHEN
           JOEL WAS COMMUNICATING WITH MS.
           WILLIAMS AND HER FRIEND AMANDA. [SIC]

     These arguments lack sufficient merit to warrant discussion in a written

opinion. R. 2:11-3(e)(2). We add only the following brief comments. We

acknowledge that the PCR judge did not address defendant's argument regarding

trial counsel's failure to request a jury instruction based on Henderson.

                                                                      A-3939-15T3
                                     5
However, this omission by the judge is legally inconsequential. Defendant's

trial began on July 10, 2012. The record shows defense counsel requested a

Henderson jury instruction at the charge conference held on July 19, 2012,

pursuant to Rule 1:8-7(b). However, the Henderson jury charge did not become

effective until September 4, 2012. Henderson, 208 N.J. at 302.2 With respect

to Argument Point II, although the actual photograph was not admitted into

evidence, trial counsel showed "Dizzle's" photograph to witnesses who testified

at trial in support of defendant's third-party defense strategy. Only one witness

recognized Dizzle, but denied he had any involvement in the victim's demise.

The remaining arguments were addressed and properly rejected by the PCR

judge.

      Affirmed.




2
    See also Model Jury Charges (Criminal), "Identification: Out-of-Court
Identification Only" (effective Sept. 4, 2012).
https://www.njcourts.gov/attorneys/assets/criminalcharges/idinout.pdf

                                                                         A-3939-15T3
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