                        NOT FOR PUBLICATION WITHOUT THE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-2553-15T4


STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

ARIEL SERRANO,

     Defendant-Appellant.
_____________________________________

              Submitted June 1, 2017 – Decided July 5, 2017

              Before Judges Alvarez and Manahan.

              On appeal from Superior Court of New Jersey,
              Law Division, Hudson County, Indictment No.
              11-11-1901.

              Joseph E. Krakora, Public Defender, attorney
              for appellant (Lee March Grayson, Designated
              Counsel, on the brief).

              Esther Suarez, Hudson County Prosecutor,
              attorney for respondent (Frances Tapia Mateo,
              Assistant Prosecutor, on the brief).

PER CURIAM

        Defendant Ariel Serrano appeals from a Law Division order

denying his petition for post-conviction relief (PCR) after oral

argument, without an evidentiary hearing.               We affirm.
     In November 2011, defendant was indicted by a Hudson County

Grand Jury, charging him with second-degree possession of a handgun

for an unlawful person, N.J.S.A. 2C:39-4(a) (count one); second-

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

(count two); second-degree attempted aggravated assault, N.J.S.A.

2C:12-1(b)(1) (count three); third-degree attempted aggravated

assault with a deadly weapon, N.J.S.A. 2C:12-1(b)(2) (count four);

fourth-degree aggravated assault by pointing a firearm in the

direction of an unknown John Doe, N.J.S.A. 2C:12-1(b)(4) (count

five); fourth-degree obstructing administration of law, N.J.S.A.

2C:29-1 (count six); fourth-degree resisting arrest, N.J.S.A.

2C:29-2(a) (count seven); fourth-degree tampering with physical

evidence, N.J.S.A. 2C:28-6(1) (count eight); and second-degree

certain person not to have weapons, N.J.S.A. 2C:39-7(b) (count

nine).

     Prior to trial, the first eight counts of the indictment were

dismissed.   A jury convicted defendant on the remaining count in

September 2012.     On May 9, 2013, defendant was sentenced to a ten-

year term in state prison with a five-year parole disqualifier.

Additional fines and penalties were imposed.

     On July 24, 2013, defendant filed a notice of appeal.               We

affirmed defendant's conviction and sentence in an unpublished



                                      2                           A-2553-15T4
opinion. State v. Serrano, No. A-5561-12 (App. Div. Feb. 4, 2015).

We adopt the salient facts from our previous opinion:

               The State's first witness at trial was
          Jersey City Police Detective Christopher
          Baker, who testified that on May 30, 2011, at
          approximately 3:30 a.m., he was dispatched to
          "a large street fight" in the area of
          Washington Park.    Upon arrival, he observed
          "multiple groups fighting in the middle of the
          street," and updated the station so additional
          officers could be sent to the scene.       His
          attention was drawn to a man, whom he later
          identified as defendant, pointing a two-tone
          handgun at a person lying on the ground. Baker
          drew his own weapon and ordered defendant to
          stop. Defendant grabbed a woman also involved
          in the melee, pulled her close to him, and
          moved back towards the entranceway to the
          park.   Baker immediately put away his own
          weapon and dispatched a description of
          defendant.      Defendant continued backing
          towards the park, let the woman go, and began
          running with the firearm still in his hand.
          Baker followed.

               Because of the rush of others also
          fleeing the arrival of police, Baker was
          forced to stand on a wall to obtain a clear
          view. After seeing defendant run through the
          park onto a street, Baker began chasing him.
          Defendant threw the weapon to the side as he
          ran but was quickly apprehended by other
          officers who had gone to the location per
          Baker's directions. Baker said he never lost
          sight of defendant.

               A canine unit was called to the scene,
          and Baker directed that officer's attention
          to the relevant area. The dog located a two-
          tone semi-automatic in a trash can.

          [Id. slip op. at 2-3.]


                                3                          A-2553-15T4
     Defendant filed a pro se PCR petition, which was amended by

designated counsel and supplemented thereafter.   Oral argument on

the petition was heard on November 19, 2015.   On the same day, the

judge issued an order and oral opinion denying the petition.    This

appeal followed.

     Defendant raises the following arguments on appeal:

                             POINT I

          THE ORDER DENYING POST-CONVICTION RELIEF
          SHOULD BE REVERSED AND THE CASE REMANDED FOR
          A FULL EVIDENTIARY HEARING BECAUSE THE
          DEFENDANT MADE A PRIMA FACIE SHOWING OF
          INEFFECTIVE ASSISTANCE OF COUNSEL UNDER THE
          STRICKLAND/FRITZ1 TEST.

               A. Trial Counsel Was Ineffective
               Because He Did Not Challenge The
               Identification Evidence Or Move For
               Dismissal Of The Remaining Charge.

               B. Trial Counsel Was Ineffective
               Because He Did Not Subpoena A
               Critical Witness For Trial Who Was
               Expected   To  Testify   That  The
               Defendant Was Not The Man With The
               Gun.

               C. Trial Counsel Was Ineffective
               Because He Did Not Move To Have The
               Gun Fingerprinted.

               D.   Trial Counsel Was Ineffective
               Because He Did Not Request A Jury
               Visit To The Locations W[h]ere The
               Defendant Was Arrested and Where The
               Gun Was Found.

1
  Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L.
Ed. 2d 674 (1984); State v. Fritz, 105 N.J. 42 (1987).

                                4                          A-2553-15T4
                                 POINT II

           THE PCR COURT ERRED              BY    NOT    GRANTING    AN
           EVIDENTIARY HEARING.

      Having   considered   defendant's           arguments   in    light    of    the

record and controlling law, we affirm substantially for the reasons

set forth in the oral opinion of Judge Paul M. DePascale.                     We add

the following.

      "Post-conviction    relief   is       New    Jersey's    analogue      to    the

federal writ of habeas corpus."         State v. Preciose, 129 N.J. 451,

459 (1992). Under Rule 3:22-2(a), a criminal defendant is entitled

to post-conviction relief if there was a "[s]ubstantial denial in

the   conviction   proceedings     of       defendant's       rights   under       the

Constitution of the United States or the Constitution or laws of

the State of New Jersey[.]"           "A petitioner must establish the

right to such relief by a preponderance of the credible evidence."

Preciose, supra, 129 N.J. at 459 (citations omitted).                  "To sustain

that burden, specific facts" that "provide the court with an

adequate   basis   on    which   to     rest       its   decision[]"        must    be

articulated.    State v. Mitchell, 126 N.J. 565, 579 (1992).

      Claims of constitutionally ineffective assistance of counsel

are well suited for post-conviction review.               See R. 3:22-4(a)(2);

Preciose, supra, 129 N.J. at 460.                   In determining whether a

defendant is entitled to relief on the basis of ineffective


                                        5                                   A-2553-15T4
assistance of counsel, New Jersey courts apply the two-prong test

articulated by the United States Supreme Court in Strickland,

supra, 466 U.S. at 687, 694, 104 S. Ct. at 2064, 2068, 80 L. Ed.

2d at 693, 698, and United States v. Cronic, 466 U.S. 648, 658-

60, 104 S. Ct. 2039, 2046-47, 80 L. Ed. 2d 657, 667-68 (1984).

Preciose, supra, 129 N.J. at 463; Fritz, supra, 105 N.J. at 49-

50.

      Under the first prong of the Strickland test, a "defendant

must show that [defense] counsel's performance was deficient."

Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed.

2d at 693.   Under the second prong, a defendant must demonstrate

"a reasonable probability that, but for counsel's unprofessional

errors, the result of the proceeding would have been different."

Id. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698.

      Our review of an order granting or denying PCR contains

consideration of mixed questions of law and fact. State v. Harris,

181 N.J. 391, 415-16 (2004), cert. denied, 545 U.S. 1145, 125 S.

Ct. 2973, 162 L. Ed. 2d 898 (2005).     We defer to a PCR court's

factual findings and will uphold those findings that are "supported

by sufficient credible evidence in the record."     State v. Nash,

212 N.J. 518, 540 (2013).   However, a PCR court's interpretations

of law are provided no deference and are reviewed de novo.       Id.

at 540-41.

                                 6                         A-2553-15T4
       We first consider defendant's claim that defense counsel was

ineffective for failing to move for dismissal of the charges or

to challenge the identification evidence.             As the judge found, and

we agree, "[t]here was more than ample evidence in the Grand Jury

to support the charges."             Similarly, we reject as unfounded

defendant's assertion defense counsel neglected the identification

issue.       Again, the judge correctly determined that since the

identification witness was the arresting officer, there could be

no challenge to an identification procedure involving a civilian.

       Next, defendant argues that defense counsel was ineffective

because he failed to call the alleged victim as a defense witness.

In support thereof, defendant relies exclusively upon his self-

serving certification.         Defendant failed to produce any proof by

way of affidavit or certification from the victim to support his

claim that his testimony would have been favorable or would have

altered the outcome of the proceedings.              See State v. Porter, 216

N.J. 343, 355 (2013) (quoting State v. Cummings, 321 N.J. Super.

154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999)) ("Thus,

when     a   petitioner   claims     his     trial     attorney   inadequately

investigated     his   case,    he    must    assert    the   facts   that   an

investigation would have revealed, supported by affidavits or

certifications based upon the personal knowledge of the affiant

or the person making the certification.").               As the judge found,

                                       7                              A-2553-15T4
premised upon the inadequacy of defendant's PCR proofs on this

score,    defendant's   contention    is    nothing    more   than   a   "bald

assertion."    Ibid.    (quoting Cummings, supra, 321 N.J. Super. at

170).

     Defendant additionally argues defense counsel was ineffective

for failing to procure a fingerprint expert notwithstanding that

there were no fingerprints recovered and none to analyze.                 Even

if the absence of fingerprints was a suitable issue to raise

through an expert, as this court has held, the right to comment

on the lack of fingerprint evidence must be premised upon evidence

to support the contention that "if fingerprints had been obtained,

they would have exculpated defendant."          State v. Loyal, 386 N.J.

Super. 162, 173 (App. Div.), certif. denied, 188 N.J. 356 (2006).

Moreover, the judge noted and we agree, given the State's proofs,

the absence of fingerprints did "not in any way lessen the impact

of the State's case."

     Defendant's   argument   as     to    defense    counsel's   failure    to

request a jury visit also lacks merit. N.J.S.A. 2B:23-16(a) grants

the trial judge discretion to order a site visit of the "lands,

places or personal property in question to understand the evidence

better."    See also State v. Coleman, 46 N.J. 16, 25-26 (1965)

cert. denied, 383 U.S. 950, 86 S. Ct. 1210, 16 L. Ed. 2d 212

(1966).    We agree with the judge that, under these circumstances,

                                     8                               A-2553-15T4
it is unlikely this request would have been granted.                       See Madan

Russo v. Posado, 366 N.J. Super. 420, 430 (App. Div.) (noting

"[j]ury viewing of a scene is the exception, not the rule"),

certif. denied, 180 N.J. 448 (2004).

       Accordingly,       defendant    has        not    overcome    the     "strong

presumption that counsel's conduct falls within the wide range of

reasonable professional assistance."                Fritz, supra, 105 N.J. at

52 (quoting Strickland, supra, 466 U.S. at 689, 104 S. Ct. at

2065, 80 L. Ed. 2d at 694).           Further, with respect to the second

prong of the Strickland test, defendant has failed demonstrate how

either of these alleged deficiency resulted in a prejudice that,

"but   for    counsel's    unprofessional         errors,    the    result   of    the

proceeding would have been different."                  Fritz, supra, 105 N.J. at

52 (quoting Strickland, supra, 466 U.S. at 694, 104 S. Ct. at

2068, 80 L. Ed. 2d at 698).

       Finally, we reject defendant's argument the court erred in

denying      his   petition    without       an    evidentiary       hearing.      The

determination on whether to hold an evidentiary hearing on an

ineffective assistance of counsel claim is left to the sound

discretion of the PCR judge.          Preciose, supra, 129            N.J. at 462.

An evidentiary hearing is required where the defendant has shown

a prima facie case and the facts on which he relies are not already

of record.     Pressler & Verniero, Current N.J. Court Rules, comment

                                         9                                   A-2553-15T4
2 on R. 3:22-10 (2017).   The mere raising of a claim for PCR does

not entitle defendant to an evidentiary hearing.   Cummings, supra,

321 N.J. Super. at 170.

     Based upon our review of the record and applicable law, we

are satisfied defendant failed to establish a prima facie case of

ineffective assistance of counsel, as he has failed to show defense

counsel's performance was deficient or resulted in prejudice.

Consequently, he was not entitled to an evidentiary hearing.

Preciose, supra, 129 N.J. at 462-64.

     Affirmed.




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