                                NOT FOR PUBLICATION WITHOUT THE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-1452-18T2

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

STEPHEN V. MAURRASSE,

          Defendant-Appellant.


                   Submitted April 28, 2020 – Decided May 12, 2020

                   Before Judges Accurso and Rose.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Somerset County, Indictment No. 12-03-
                   0208.

                   Joseph E. Krakora, Public Defender, attorney for
                   appellant (Kevin G. Byrnes, Designated Counsel, on
                   the briefs).

                   Michael H. Robertson, Somerset County Prosecutor,
                   attorney for respondent (Amanda Paige Frankel,
                   Assistant Prosecutor, of counsel and on the brief).

PER CURIAM
       Defendant Stephen Maurrasse appeals an order denying his petition for

post-conviction relief (PCR) without an evidentiary hearing.            Because

defendant's petition is procedurally barred under Rule 3:22-5, we affirm.

       Following the denials of his motions to suppress his statement and

evidence seized from his apartment, a jury convicted defendant of armed

robbery and weapons offenses, charged in the same Somerset County indictment

as his co-defendant, Jeremy Grant.       The judge sentenced defendant to an

aggregate thirteen-year prison term subject to the No Early Release Act,

N.J.S.A. 2C:43-7.2.

       On direct appeal, we affirmed defendant's convictions and sentence. State

v. Grant, No. A-5470-13 (App. Div. Mar. 13, 2017) (slip op. at 32). The

Supreme Court denied certification on October 16, 2017.1 We incorporate by

reference the facts and procedural history set forth in our prior opinion . Id. at

1-9.

       Pertinent to this appeal, Grant provided a statement to police inculpating

himself and defendant in the knife-point robbery of a victim, who had responded

to a Craigslist advertisement for discounted cellphones and tablets. Id. at 1-4.



1
  Defendant was tried separately from Grant, but we consolidated their appeals
and issued one opinion.
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                                        2
The cellphone number listed in the advertisement was subscribed to defendant's

girlfriend.   Id. at 4.     Pursuant to a communication data warrant, police

intercepted incriminating text messages that had been exchanged between that

cellphone number and Grant's cellphone on the day of the robbery. Id. at 5.

       After Grant gave his statement, the police responded to defendant's

apartment. Ibid. Defendant's girlfriend answered the door and told police

defendant was not home. Ibid. But, "police saw a man in the back of the

apartment." Ibid. "An officer called out [defendant]'s name, stated that he

wanted to talk with him, and [defendant] began walking towards the officer."

Id. at 5. The police entered the apartment and arrested defendant without a

warrant. Id. at 5, 29.

       When police asked defendant's girlfriend to accompany them to

headquarters, she responded that "she needed to bring her child and gather her

belongings." Id. at 6. Accompanying the girlfriend to the bedroom, the police

observed a cellphone on the bed, and seized it after confirming it was identified

with the same number listed in the Craigslist advertisement. Ibid. After waiving

his Miranda2 rights, defendant gave a statement implicating Grant and himself

in the robbery. Id. at 6.


2
    Miranda v. Arizona, 384 U.S. 436 (1966).
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                                        3
      On direct appeal, defendant argued the trial court erroneously denied his

suppression motions. Id. at 10-11. Defendant claimed police coerced him to

make the statement, asserting they would otherwise arrest his pregnant

girlfriend; and "the cellphone should have been suppressed because the police

entered his apartment without a warrant, and saw and seized the phone when

they illegally followed his girlfriend into a bedroom." Id. at 27. We rejected

both arguments. Id. at 27, 29-30.

      In reaching our decision, we expressly recognized:

                   [Defendant] argues that the police did not have a
            warrant and they entered the apartment without
            consent. He goes on to argue that there were no other
            exceptions justifying the entry into the apartment. In
            response, the State argues that [defendant] never
            challenged the entry into the apartment before the trial
            court.

                   We need not over analyze those contentions. The
            record developed during the suppression hearing
            demonstrates that [defendant] raised an issue as to the
            entry into the apartment. The trial court, however,
            properly rejected that argument finding that there was
            probable cause to arrest [defendant]. Thus, when the
            detectives saw [defendant] in the apartment, they had
            the right to step into the apartment and arrest him.

            [Id. at 29-30 (emphasis added).]

      We distinguished "[t]he facts as found by the trial court" from those in

State v. Legette, 227 N.J. 460 (2017):

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                                         4
             In Legette, the [C]ourt held that it is not permissible for
             the police to follow the suspect into his home during an
             investigatory stop. Here, in contrast, the trial court
             found that the police had probable cause to arrest
             [defendant]. Moreover, the police did not enter the
             apartment until they saw and verified that [defendant]
             was present. Under these circumstances, the entry into
             the apartment was lawful.

             [Grant, slip op. at 30 (emphasis added).]

      Defendant filed a pro se PCR petition claiming his trial and appellate

counsel were ineffective. Defendant asserted trial counsel should have moved

to suppress his statement "because it was the product of an illegal arrest and

unattenuated detention." Acknowledging the trial court found probable cause

existed "to arrest him, in the context of the seizure of plain-view evidence,"

defendant nonetheless asserted his trial attorney should have called him to

testify to explain the circumstances of his arrest were not as police described.

Defendant also acknowledged his "appellate attorney argued that the entry into

his home was illegal," but asserted that "argument was made in the context of

suppressing the cellphone that was seized" and not to support his claim that his

post-arrest statement was the fruit of an illegal arrest.

      Following oral argument, the PCR judge, who did not decide defendant's

suppression motions, issued the order under review accompanied by a thorough

written decision. Citing our opinion on defendant's direct appeal, the judge

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                                         5
determined, "regardless of the context in which appellate counsel argued the

[suppression] issue, the Appellate Division found the arrest lawful." Because

we had previously adjudicated the claims defendant raised on PCR, the judge

determined they were procedurally barred under Rule 3:22-5.

      The PCR judge also addressed the merits of defendant's assertion that trial

counsel was ineffective for failing to permit him to testify on his own behalf at

the suppression hearing.     The judge recognized the existence of several

"strategic reasons for a defense attorney to refrain from calling a defendant " as

a witness in a suppression hearing. Those reasons may include "prematurely

reveal[ing] trial strategy [thereby] hinder[ing] one's defense," and using that

testimony against the defendant should he testify at trial. Accordingly, the judge

concluded "under Strickland,3 trial counsel's assistance did not fall below an

objective standard of reasonableness, and furthermore, [defendant] was not

prejudiced by counsel's decision."

      On appeal, defendant raises the following points for our consideration:


3
   Strickland v. Washington, 466 U.S. 668, 687 (1984) (enunciating a two-
pronged test a defendant must satisfy to establish a prima facie case of
ineffective assistance of counsel: that counsel was deficient or made egregious
errors, so serious that counsel was not functioning effectively as guaranteed by
the Sixth Amendment of the United States Constitution; and counsel's deficient
performance actually prejudiced the accused's defense); see also State v. Fritz,
105 N.J. 42, 58 (1987) (adopting the Strickland analysis in New Jersey).
                                                                          A-1452-18T2
                                        6
                                   POINT I

            TRIAL COUNSEL WAS INEFFECTIVE BY
            FAILING TO RAISE THE ISSUE OF WHETHER
            THE POLICE WERE REQUIRED TO HAVE AN
            ARREST WARRANT PRIOR TO ENTERING THE
            DEFENDANT'S PREMISES AND ARRESTING HIM

                                   POINT II

            THE DEFENDANT IS ENTITLED                     TO    AN
            EVIDENTIARY HEARING

                                   POINT III

            THE DEFENDANT IS ENTITLED TO DE NOVO
            REVIEW, AND NO DEFERENCE SHOULD BE
            GIVEN TO THE ERRONEOUS CONCLUSION
            BELOW.

      More particularly, defendant contends his PCR petition was not

procedurally barred because trial counsel "never challenged the illegal and

warrantless police entry" and, as such, we did not decide that issue on appeal.

Defendant claims our decision concerning defendant's arrest was dictum

because the record was not fully developed before us to decide the issue.

Defendant abandons his arguments against appellate counsel and that trial

counsel was ineffective for failing to call him as a witness at trial. Instead,

defendant seeks a new trial, or an evidentiary hearing so that trial counsel can




                                                                         A-1452-18T2
                                       7
"explain why he thought that the police may enter a residence based solely on

probable cause" without a warrant.

       Because defendant's contentions on appeal challenge the PCR judge's

legal conclusions, our review is de novo. State v. Parker, 212 N.J. 269, 278

(2012).    Having conducted that review here, we conclude defendant's

contentions lack sufficient merit to warrant discussion in a written opinion. R.

2:11-3(e)(2). We affirm substantially for the reasons set forth by the PCR judge

in his well-reasoned decision, adding only the following comments.

       When an issue has been determined on the merits in a prior appeal it

cannot be re-litigated in a later appeal of the same case, even if of constitutional

dimension. R. 3:22-5; State v. McQuaid, 147 N.J. 464, 484 (1997). The Rule

3:22-5 bar will preclude a PCR argument if the issue "is identical or

substantially equivalent" to the issue previously adjudicated on its merits.

McQuaid, 147 N.J. at 484. The procedural bar is consistent with New Jersey's

public policy, which aims "to promote finality in judicial proceedings." Id. at

483.

       As the PCR judge correctly determined, we expressly addressed

defendant's warrantless arrest on direct appeal. Grant, slip op. at 29-30. And,

as we observed, trial counsel "raised an issue as to the entry into the apartment"


                                                                             A-1452-18T2
                                         8
before the trial court.   Id. at 29. Accordingly, because that "substantially

equivalent" issue was raised in defendant's PCR petition and decided on direct

appeal, Rule 3:22-5 precluded the PCR judge's consideration of defendant's

argument.

      Affirmed.




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