                                NOT FOR PUBLICATION WITHOUT THE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-1259-18T4

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

ROBERTO BURGOS,

     Defendant-Appellant.
________________________

                   Submitted May 13, 2020 – Decided June 4, 2020

                   Before Judges Fuentes and Mayer.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Hudson County, Indictment No. 14-09-1449.

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

                   Esther Suarez, Hudson County Prosecutor, attorney for
                   respondent (Ednin D. Martinez, Assistant Prosecutor,
                   on the brief).

PER CURIAM
      Defendant Roberto Burgos appeals from an August 30, 2018 order

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

hearing. We affirm.

      On September 10, 2014, defendant was indicted by a Hudson County

grand jury on the following charges: third-degree possession of controlled

dangerous substances (CDS), N.J.S.A. 2C:35-10(a)(1) (count one); third-degree

distributing or dispensing CDS, N.J.S.A. 2C:35-5(a)(1), (b)(3) (count two);

third-degree distributing or dispensing CDS in a school zone, N.J.S.A. 2C:35-7

(count three); and second-degree distributing or dispensing CDS within 500 feet

of a public park, N.J.S.A. 2C:35-7.1 (count four).

      We briefly summarize the facts. A Jersey City police officer was on

routine surveillance for suspected drug activity. The officer observed certain

activities that, based on the officer's training and experience, caused the officer

to believe defendant was selling drugs. The officer saw a minivan pull directly

in front of his car, providing the officer with an unobstructed view. The officer

then saw defendant place a plastic bag containing white powder on the front

passenger seat of the minivan. The driver of the minivan, co-defendant Paola

Greenwood, gave money to defendant. Suspecting the bag contained cocaine,

the officer arrested defendant.


                                                                           A-1259-18T4
                                        2
        Prior to trial, defendant moved to suppress the drug evidence and the judge

held an evidentiary hearing. In a March 18, 2015 order and accompanying

written decision, the judge denied the suppression motion.

        The jury trial began on May 26, 2015, and defendant was found guilty on

all counts. The trial judge merged counts one, two, and three with count four,

and sentenced defendant to a term of eight years, with four years of parole

ineligibility.

        Defendant appealed his conviction and sentence. This court affirmed the

conviction and sentence on direct appeal. State v. Burgos, No. A-0740-15 (App.

Div. June 8, 2017).       The Supreme Court denied defendant's petition for

certification. State v. Burgos, 231 N.J. 315 (2017).

        Defendant filed a PCR petition on March 14, 2018, and an amended PCR

petition on May 31, 2018, alleging ineffective assistance of counsel because: (1)

trial counsel failed to obtain defendant's cellphone records; (2) trial counsel

stipulated to the State's lab report confirming the substance sold by defendant

was cocaine; (3) trial counsel failed to request the judge conduct a

Sands/Brunson1 analysis before defendant elected not to testify at trial; and (4)

appellate counsel "failed to appeal the trial court's denial of defendant's motion


1
    State v. Sands, 76 N.J. 127 (1978); State v. Brunson, 132 N.J. 377 (1993).
                                                                           A-1259-18T4
                                         3
to suppress evidence despite multiple inconsistencies in the arresting officer's

testimony at the suppression hearing and at trial."

      The PCR judge heard argument on defendant's petition. In an August 30,

2018 order, the judge denied defendant's PCR petition and request for an

evidentiary hearing.

      In her oral decision, the PCR judge concluded trial counsel was not

ineffective in failing to obtain defendant's cellphone records.           Defendant

claimed his cellphone records should have been obtained to disprove that he

spoke to co-defendant on the date of his arrest. However, the judge determined

there was strong evidence against defendant and the cellphone records would

not have led to a different outcome based on the testimony of the arr esting

officer, who saw defendant on his cellphone prior to the arrest, and co-

defendant, who testified she texted defendant about buying cocaine. In rejecting

defendant's argument on this point, the judge explained trial counsel "does not

need to pursue every investigative path that is suggested by their client if they

do not believe the method will be productive or effective. Counsel . . . has the

right to choose which strategic path they see fit for the [defendant]." The judge

held trial counsel's failure to obtain defendant's cellphone records "did not affect

the trial to such an extent that it was impossible to obtain a fair trial."


                                                                              A-1259-18T4
                                          4
      The PCR judge also rejected defendant's claim that his trial counsel was

ineffective in stipulating to the State's lab report and failing to explain the import

and consequences of that report. The report confirmed the substance sold by

defendant to Greenwood was cocaine.            The judge determined defendant's

claimed failure to understand the lab report would be used as evidence against

him at trial was nothing more than "a bald assertion." She concluded defendant

was "quite naïve" to believe the State would not use the report, which identified

the substance that established the primary evidence against defendant.

      In addition, the PCR judge determined trial counsel was not ineffective in

failing to file a Sands/Brunson motion prior to defendant deciding whether he

would testify. She found such a motion would not have aided defendant's

decision whether to testify at trial because defendant's prior convictions could

have been introduced at trial provided the trial judge sanitized the convictions

to include "only the number, degree, and date of the defendant's prior similar

convictions." Brunson, 132 N.J. at 394. The judge inferred trial counsel was

familiar with the existing case law regarding the use of prior convictions at trial.

Therefore, she concluded defense counsel exercised appropriate trial strategy by

advising defendant not to testify at trial. If defendant testified, the State would

have cross-examined him regarding the prior convictions and the PCR judge


                                                                              A-1259-18T4
                                          5
noted such cross-examination would likely have been detrimental to defendant's

case.

        Further, the PCR judge determined appellate counsel was not ineffective

in failing to appeal the trial judge's ruling on the motion to suppress the drug

evidence. The judge deemed the evidence against defendant was strong based

on the testimony of the officer who witnessed the drug transaction. In addition,

Greenwood, who purchased cocaine from defendant, testified against defendant

at trial. Both witnesses were extensively cross-examined by defendant's trial

attorney.    The PCR judge concluded there was strong proof supporting

admission of the drug evidence under the plain view doctrine and therefore any

appeal regarding the denial of the suppression motion would have been

meritless.

        On appeal, defendant raises the following arguments:

        POINT ONE

             THE PCR COURT ERRED IN DENYING
             DEFENDANT'S        PETITION   FOR   POST-
             CONVICTION        RELIEF    DESPITE  THE
             INEFFECTIVE ASSISTANCE OF TRIAL AND
             APPELLATE COUNSEL AS ESTABLISHED BY
             THE U.S. CONST. AMEND. VI AND BY THE N.J.
             CONST. ART. I, ¶10.

             (a) Legal Standards Governing Applications for Post-
             Conviction Relief.

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                                        6
           (b) The PCR Court's Rulings.

           (c) The PCR Court Erred in Rejecting Defendant's
           Claim that Trial Counsel's Refusal to Subpoena Cell
           Phone Records Constituted Ineffective Assistance of
           Counsel.

           (d) The PCR Court Erred in Rejecting Defendant's
           Claim that Trial Counsel's Failure to File a
           Sands/Brunson Motion Constituted Ineffective
           Assistance of Counsel.

           (e) The PCR Court Erred in Rejecting Defendant's
           Claim that Trial Counsel's Failure to Properly Explain
           the Import and Consequence of the State Lab Report
           Constituted Ineffective Assistance of Counsel.

           (f) The PCR Court Erred in Rejecting Defendant's
           Claim that Appellate Counsel's Failure to Appeal the
           Suppression Court's Ruling Constituted Ineffective
           Assistance of Counsel.

           (g) The PCR Court Erred in Rejecting Defendant's
           Claim that the Errors of His Trial Counsel and His
           Appellate    Counsel      Cumulatively  Constituted
           Ineffective Assistance of Counsel.

     POINT TWO

           THE COURT ERRED IN REFUSING TO GRANT
           DEFENDANT'S REQUEST FOR AN EVIDENTIARY
           HEARING REGARDING DEFENDANT'S CLAIMS
           OF INEFFECTIVE ASSISTANCE OF TRIAL AND
           APPELLATE COUNSEL.

     We review a claim of ineffective assistance of counsel under the two-

prong test established by the United States Supreme Court in Strickland v.

                                                                    A-1259-18T4
                                     7
Washington, 466 U.S. 668 (1984), and subsequently adopted by our Supreme

Court in State v. Fritz, 105 N.J. 42, 58 (1987). First, defendant must demonstrate

that defense counsel's performance was deficient. Strickland, 466 U.S. at 687.

Second, defendant must show there exists "a reasonable probability that, but for

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

different." Id. at 694.

      The mere raising of a claim of ineffective assistance of counsel does not

entitle the defendant to an evidentiary hearing. State v. Cummings, 321 N.J.

Super. 154, 170 (App. Div. 1999). An evidentiary hearing is necessary only if

a petitioner presented sufficient facts to make out a prima facie claim of

ineffective assistance of counsel. State v. Preciose, 129 N.J. 451, 462 (1992);

R. 3:22-10(b).

      Having reviewed the record, we are satisfied that defendant failed to make

a prima facie showing of ineffective assistance of trial or appellate counsel under

the Strickland/Fritz analysis.

      We first consider defendant's claim that appellate counsel should have

appealed the denial of his motion to suppress the drug evidence. However,

defendant failed to demonstrate that an appeal from the denial of his suppression

motion would have been meritorious. Defendant baldly asserted that the seized


                                                                           A-1259-18T4
                                        8
evidence was not in plain view of the arresting officer. However, the judge who

handled the suppression motion and the PCR judge deemed the evidence

admissible based on the arresting officer's knowledge and experience in illegal

drug sales, and the officer's eyewitness account of the transaction. "Experienced

advocates since time beyond memory have emphasized the importance of

winnowing out weaker arguments on appeal and focusing on one central issue if

possible, or at most a few key issues." Jones v. Barnes, 463 U.S. 745, 751-52

(1983). Because the issues were vigorously litigated at a suppression hearing,

appellate counsel's failure to appeal the trial judge's denial of the suppression

motion was not ineffective assistance of counsel.

      Defendant also argues his trial counsel was ineffective because he failed

to file a Sands/Brunson motion and never told defendant that his prior

convictions might be used for impeachment purposes if defendant testified at

trial. At the discretion of the trial judge, the State would have been permitted

to introduce sanitized evidence of defendant's prior drug related convictions for

impeachment purposes, subject to the exclusion of any convictions based on

remoteness. Brunson, 132 N.J. at 391-92; Sands, 76 N.J. at 144-45. Trial

counsel was aware defendant would have been subject to vigorous cross-

examination based on his extensive prior history of criminal convictions and


                                                                         A-1259-18T4
                                       9
therefore counsel made a strategic decision in advising against defendant

testifying at trial. We agree with the PCR judge that a pre-trial application

pursuant to Sands/Brunson would not have changed the outcome of the trial and

trial counsel was not ineffective in failing to file such a motion.

      We next consider defendant's claim that trial counsel inadequately

investigated his case and failed to subpoena his cellphone records on the day of

his arrest. The officer testified he saw defendant talking on a cellphone prior to

the observed drug transaction although the officer did not know who was on the

other end of the telephone conversation. The officer was subject to extensive

cross-examination at the suppression hearing and at trial, and defense counsel

tested the officer's credibility and veracity. In addition, Greenwood testified

that she texted defendant to buy cocaine.           Defense counsel challenged

Greenwood's testimony by way of cross-examination and elicited that the

charges against her were downgraded in return for her trial testimony against

defendant.     Defendant presented no facts, supported by affidavits or

certifications based upon personal knowledge, demonstrating presentation of his

cellphone records would have changed the outcome of the trial. See Cummings,

321 N.J. Super. at 170.




                                                                          A-1259-18T4
                                       10
      We turn to defendant's claim that trial counsel was ineffective as a result

of stipulating to the admission of the State's lab report. The lab report confirmed

the substance defendant sold to Greenwood was cocaine. Defendant is not

challenging the method by which the laboratory performed the test or any flaw

in the actual testing. Rather, defendant argues he was unaware the evidence

would be used against him at trial. Experienced trial attorneys often stipulate to

the contents of an uncontested lab report as part of trial strategy. See State v.

Marshall, 123 N.J. 1, 165 (1991) (holding trial strategy decisions by counsel

made after an investigation of the law and facts are almost always unassailable).

Defendant failed to explain how his counsel's stipulation to the State's lab report

was deficient, particularly where there was no independent report suggesting the

tested substance was not cocaine. We agree with the PCR judge that it would

have been naïve of defendant to believe the State would not rely on the primary

physical evidence against him as a result of his trial counsel stipulating to the

findings in the lab report.      See N.J.S.A. 2C:35-19, which "codifies the

procedures under which a defendant may assert or waive objections to the

admission of a laboratory certificate in a given case." State v. Simbara, 175 N.J.

37, 48 (2002).




                                                                           A-1259-18T4
                                       11
      We are satisfied the record fully supports a conclusion that defendant has

failed to meet both prongs of the Strickland/Fritz test. The evidence against

defendant was overwhelming. Defendant's claims regarding trial counsel and

appellate counsel are nothing more than improper bald assertions that are

insufficient to establish ineffective assistance of counsel. There is no merit to

defendant's position that counsels' representation of his interests before the trial

court or appellate court was substandard.

      Because defendant failed to make a prima facie showing of ineffective

assistance of counsel, an evidentiary hearing was not warranted. Preciose, 129

N.J. at 462-63 (1992).

      Affirmed.




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                                        12
