                                NOT FOR PUBLICATION WITHOUT THE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-1878-18T1

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

JERMAINE S. FOSTER, a/k/a
JERMAINE ST. PATRICK
FOSTER,

     Defendant-Appellant.
_____________________________

                   Submitted March 16, 2020 – Decided May 20, 2020

                   Before Judges Fasciale and Moynihan.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Monmouth County, Indictment No. 11-06-
                   1212.

                   Joseph E. Krakora, Public Defender, attorney for
                   appellant (Angela Maione Costigan, Designated
                   Counsel, on the brief).

                   Christopher J. Gramiccioni, Monmouth County
                   Prosecutor, attorney for respondent (Ian D. Brater,
                   Assistant Prosecutor, of counsel and on the brief).
PER CURIAM

      Defendant Jermaine S. Foster was convicted by jury of first-degree

attempted murder, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3 (count one); second-

degree possession of a handgun for an unlawful purpose, N.J.S.A. 2C:39-4(a)

(count two); second-degree unlawful possession of a handgun, N.J.S.A. 2C:39-

5(b) (count three); and third-degree possession of a controlled dangerous

substance (CDS), cocaine, N.J.S.A. 2C:35-10(a)(1) (count four), after he shot

his ex-girlfriend outside the diner where she worked. 1

      He appeals from the order denying his post-conviction relief (PCR)

application without an evidentiary hearing, arguing:

            [POINT I]

            THE [PCR JUDGE] ERRED IN FAILING TO FIND
            THAT DEFENSE COUNSEL WAS INEFFECTIVE.

                  A.     DEFICIENCY PRONG

            1.    TRIAL COUNSEL WAS [INEFFECTIVE] FOR
                  FAILING TO REQUEST AN ATTEMPTED
                  PASSION/PROVOCATION/MANSLAUGHER
                  CHARGE.



1
   We affirmed his conviction, State v. Foster, A-4907-12 (App. Div. Jan. 21,
2016), and our Supreme Court denied defendant's petition for certification, State
v. Foster, 224 N.J. 527 (2016).


                                                                         A-1878-18T1
                                       2
2.   APPELLATE COUNSEL WAS INEFFECTIVE
     FOR FAILING TO RAISE ALL ISSUES ON
     APPEAL.

3.   TRIAL COUNSEL WAS INEFFECTIVE FOR
     FAILING TO NEGOTIATE A REASONABLE
     PLEA AGREEMENT.

4.   TRIAL COUNSEL WAS INEFFECTIVE FOR
     FAILING TO SEEK A SEVERANCE OF
     COUNTS TWO, THREE AND FOUR OF THE
     INDICTMENT.

5.   TRIAL COUNSEL WAS INEFFECTIVE FOR
     FAILING TO REQUEST EITHER A MISTRIAL
     OR A CURATIVE INSTRUCTION ON EMS
     TESTIMONY.

6.   TRIAL COUNSEL WAS INEFFECTIVE FOR
     FAILING TO SEEK AN INTOXICATION
     JURY INSTRUCTION.

7.   TRIAL COUNSEL WAS INEFFECTIVE FOR
     FAILING TO ENGAGE A BALLISTICS
     EXPERT.

8.   TRIAL COUNSEL WAS INEFFECTIVE FOR
     FAILING TO CALL ANY WITNESSES IN
     DEFENSE.

9.   TRIAL COUNSEL WAS INEFFECTIVE FOR
     FAILING TO ARGUE TO THE JURY ON
     LESSER INCLUDED CHARGES.

     B.   PREJUDICE PRONG




                                            A-1878-18T1
                    3
             [POINT II]

             THE [PCR JUDGE] ERRED IN FAILING TO HOLD
             AN EVIDENTIARY HEARING.

Unpersuaded, we affirm.

      Because the PCR judge did not hold an evidentiary hearing, we review

both the factual inferences drawn by the PCR court from the record and the

court's legal conclusions de novo. State v. Blake, 444 N.J. Super. 285, 294 (App.

Div. 2016). To establish a PCR claim of ineffective assistance of counsel, a

defendant must satisfy the two-pronged test formulated in Strickland v.

Washington, 466 U.S. 668, 687 (1984), and adopted by our Supreme Court in

State v. Fritz, 105 N.J. 42, 58 (1987), first by showing "that counsel made errors

so serious that counsel was not functioning as the 'counsel' guaranteed . . . by

the Sixth Amendment," Fritz, 105 N.J. at 52 (quoting Strickland, 466 U.S. at

687); then by proving he suffered prejudice due to counsel's deficient

performance, Strickland, 466 U.S. at 687, 691-92. Defendant must show by a

"reasonable probability" that the deficient performance affected the outcome.

Fritz, 105 N.J. at 58.

      We find no merit to defendant's contentions relating to the jury charge.

Even viewing the circumstances of this shooting in the light most favorable to

defendant, we determine a jury instruction on passion/provocation manslaughter

                                                                          A-1878-18T1
                                        4
was not warranted because "no jury could rationally conclude that the State had

not proven beyond a reasonable doubt that the asserted provocation was

insufficient to inflame the passions of a reasonable person[.]" State v. Mauricio,

117 N.J. 402, 412 (1990).

      One of the four elements of passion/provocation manslaughter is that "the

provocation must be adequate[.]"2 Id. at 411. Under that objective standard, id.

at 411-12,

             a jury must conclude that a reasonable person in the
             defendant's position would have been provoked
             sufficiently to "arouse the passions of an ordinary man
             beyond the power of his control." State v. King, 37 N.J.
             285, 301-02 (1962). "The generally accepted rule is that
             words alone, no matter how offensive or insulting, do
             not constitute adequate provocation to reduce murder to
             manslaughter." State v. Crisantos, 102 N.J. 265, 274
             (1986).

             [State v. Funderburg, 225 N.J. 66, 80 (2016).]

      The events leading up to the shooting involved nothing more than a verbal

dispute between defendant and the victim. Defendant interacted with the diner

manager after he arrived at the diner, followed the victim around as she worked,



2
  The other elements are: "the defendant must not have had time to cool off
between the provocation and the slaying; the provocation must have actually
impassioned the defendant; and the defendant must not have actually cooled off
before the slaying." Mauricio, 117 N.J. at 411.
                                                                          A-1878-18T1
                                        5
engaged in a thirty- to forty-minute verbal dispute when the victim would not

agree to leave with defendant, which escalated to the point that the diner

manager told them to leave the diner. As the verbal argument intensified and

the victim told defendant, who was standing at arm's distance, "I can't do this

anymore," and that she wished to end their relationship. Defendant responded,

"you think it's over because you say it's over." He turned as if to walk away,

turned and thrice shot the victim.

      Nothing in the record supports that a reasonable person would have been

adequately provoked by the verbal dispute to warrant a passion/provocation jury

instruction. Absent evidence of adequate provocation, "passion/provocation

manslaughter cannot be demonstrated," and "the trial court should withhold the

charge." Mauricio, 117 N.J. at 411-12. As such, counsel was not ineffective for

failing to request the instruction.

      Likewise, the proofs adduced at trial failed to warrant an intoxication jury

instruction. Notwithstanding defendant's claim that the witnesses' testimony

demonstrated his alcohol consumption and drug use on the night of and months

leading up to the shooting, the trial proofs did not establish

             a showing of such a great prostration of the faculties
             that the requisite mental state was totally lacking. That
             is, to successfully invoke the defense, an accused must
             show that he was so intoxicated that he did not have the

                                                                          A-1878-18T1
                                         6
              intent to commit an offense. Such a state of affairs will
              likely exist in very few cases.

              [State v. Cameron, 104 N.J. 42, 54 (1986) (quoting
              State v. Stasio, 78 N.J. 467, 495 (1979) (Pashman, J.,
              concurring and dissenting)).]

Defendant called the diner twice before going there to ascertain if the victim

was still working; drove to the diner and interacted with the diner manager,

helping him carry a bread delivery; and followed the victim around the diner as

she worked. Moreover, he turned and fired three shots at the victim, hitting her

each time. He, thereafter, fled the scene in his car, driving to Linden where he

secreted the gun in an acquaintance's kitchen cabinet. He also called three other

women after the shooting and disclosed to one that he "shot that bitch twice in

the face"; to another, "I shot her. I fucked up"; and left a voicemail to the third

which she described as "something along the lines of he wasn't playing, he used

the words[,] 'I shot the B in the head[.]'"

      The countering evidence, besides defendant's substance abuse leading up

to the night of the shooting, was that the diner manager served defendant one

drink after he arrived and several witnesses, two of which only talked to

defendant on the phone, who said he appeared intoxicated that night. The Court

in Mauricio



                                                                           A-1878-18T1
                                         7
            discussed six factors that are relevant to the issue [of
            intoxication]: "the quantity of intoxicant consumed,
            the period of time involved, the actor's conduct as
            perceived by others (what he said, how he said it, how
            he appeared, how he acted, how his coordination or lack
            thereof manifested itself), any odor of alcohol or other
            intoxicating substance, results of any test to determine
            blood-alcohol content, and the actor's ability to recall
            significant events."

            [117 N.J. at 419 (quoting Cameron, 104 N.J. at 56).]

In that none of the witnesses testified as to the amount of alcohol or drugs

defendant consumed prior to the shooting, save for the single drink at the diner,

and no evidence was proffered as to any tests related to defendant's intoxication,

the evidence relating to defendant's actions before, during and after the shooting,

including his ability to recount to the three females what he did, effectively

negated that defendant's faculties were so prostrated that he could not form the

requisite mental state for the crimes with which he was charged. Again, trial

counsel was not ineffective for failing to request an intoxication instruction.

      We reject defendant's arguments that trial counsel was ineffective for

failing to engage a ballistics expert and calling additional witnesses for the same

basic reason. Defendant has not submitted a proffer of what a defense ballistics

expert would have opined, nor what any defense witness would have said. A

"defendant must allege specific facts and evidence supporting his allegations,"


                                                                           A-1878-18T1
                                        8
State v. Porter, 216 N.J. 343, 355 (2013), and "do more than make bald

assertions that he was denied the effective assistance of counsel," State v.

Cummings, 321 N.J. Super. 154, 170 (App. Div. 1999). It is incumbent upon

defendant to assert what any witness's testimony "would have revealed,

supported by affidavits or certifications based upon the personal knowledge of

the affiant or the person making the certification." Ibid. "[B]ald assertions" of

deficient performance are insufficient to support a PCR application. Ibid.; see

also Porter, 216 N.J. at 356-57 (reaffirming these principles in evaluating which

of a defendant's various PCR claims warranted an evidentiary hearing). In other

words, a defendant must identify what any expert or witness would have

revealed and demonstrate the way the evidence probably would have changed

the result. Fritz, 105 N.J. at 64-65.

      Defendant has not retained a ballistics expert. Thus there is no support

for his bald assertion that "the position and the location" of the spent shell

casings found at the shooting scene "were critical to the determination of where

the shots were fired and how far away the shooter was," or that "[t]he gunpowder

residue was also critical because it would also determine how close the shooter

was to the victim." Nor has defendant submitted a sworn statement containing




                                                                         A-1878-18T1
                                        9
the proffered testimony of any witness not called at trial. His bald assertions do

not establish a prima facie case of trial counsel's ineffectiveness.

       Defendant's argument that trial counsel was ineffective for failing to

move to sever the possession of a handgun for an unlawful purpose and unlawful

possession of a handgun from the attempted murder charge is meritless. The

attempted murder was committed with the gun possessed by defendant, and the

attempted murder was his unlawful purpose. They were not other crimes that

should have been severed; they were crimes that were part of the same

transactional event. As such all three counts were properly joined under Rule

3:7-6 which provides, in part: "Two or more offenses may be charged in the

same indictment . . . in a separate count for each offense if the offenses charged

are of the same or similar character or are based on the same act[.]" As such,

defendant cannot show that a severance motion would have been successful if

filed. See State v. Fisher, 156 N.J. 494, 501 (1998).

       Defendant argues that counsel was ineffective for failing to move to sever

the count alleging possession of cocaine—found in the apartment where

defendant was arrested just after the shooting and where the gun was found. We

disagree. The woman to whose apartment defendant fled after the shooting

testified defendant brought the cocaine with him, placed it on her table when he


                                                                          A-1878-18T1
                                       10
walked in, and that they both used it that morning. Although not related to the

shooting, defense counsel marshalled that evidence and other trial testimony,

and argued in summation that "in the months leading up to [the shooting] there

was a descent and that [defendant] is getting deeper into drugs and alcohol.

Now, that doesn't justify anything. I'm not suggesting that it does. But that is

one factor to consider when you look at everything."            Counsel recounted

testimony that defendant was under the influence on the night of the shooting,

including the testimony of one of the victim's coworkers that defendant was

"high" on something other than alcohol on the night of the shooting, describing

his eyes as "bloodshot, discolored, and that the pupils were dilated[.]" Counsel

reiterated to the jury, "Again, not a justification for anything, but just one factor

that you can consider in all of this. That one factor, was among those that trial

counsel argued negated defendant's intent to kill the victim.

      The cocaine charge advanced that trial strategy. The fact that it was

unsuccessful does not render trial counsel ineffective. State v. Bey, 161 N.J.

233, 251 (1999). "Mere improvident strategy, bad tactics or mistake do not

amount to ineffective assistance of counsel unless, taken as a whole, the trial

was a mockery of justice." State v. Bonet, 132 N.J. Super. 186, 191 (App. Div.

1975). Inclusion of a simple possession of CDS count in an effort to win an


                                                                             A-1878-18T1
                                        11
acquittal on an attempted murder charge at trial certainly does not rise to that

level.

         We determine defendant's remaining arguments to be without sufficient

merit to warrant discussion here. R. 2:11-3(e)(2). We add only the following

comments. Trial counsel could not negotiate a better plea with the State which,

as it stated in its merits brief, was convinced of the strength of its case, and "was

simply not inclined to offer defendant anything other than the maximum

sentence in return for his guilty plea." Trial counsel's "failure" to tell the jury

of its ability to consider lesser-included offenses to the attempted murder was

not ineffective assistance because even if he had informed the jury, his

comments would have been countermanded by the trial judge's overarching

instruction to the jury that it was to consider those lesser-included offenses

sequentially.    Thus defendant suffered no prejudice from defense counsel's

purported failure; the jury is presumed to have followed the court's instructions.

State v. Miller, 205 N.J. 109, 126 (2011) ("We presume that the jury faithfully

followed [the court's] instruction[s.]"). Defendant's argument that counsel's

failure to request a mistrial or curative instruction when a paramedic testified he

was dispatched to the scene of the shooting on a call "for a medical emergency

and it was listed as an assault, a sexual assault," skews that testimony by


                                                                             A-1878-18T1
                                        12
omitting the explanation that dispatchers "categorize [the call] real quick and

easy like that," and that they do not distinguish between the typ e of assaults in

the dispatch. Nothing in the record supports defendant's bald conclusion that

defendant was prejudiced by the brief, explained remark or by counsel's failure

to respond to that testimony, especially since there was nothing presented during

the extended trial that otherwise mentioned a sexual assault. And, there was no

ground for any other meritorious argument appellate counsel could have made.

See State v. Worlock, 117 N.J. 596, 625 (1990) (holding "[t]he failure to raise

unsuccessful legal arguments does not constitute ineffective assistance of

counsel").

      Finally, we see no merit in defendant's argument that the PCR court's

denial of an evidentiary hearing was error. Defendant did not present a prima

facie case in support of his PCR application by demonstrating "the reasonable

likelihood of succeeding under the test set forth in" Strickland, to warrant an

evidentiary hearing. State v. Preciose, 129 N.J. 451, 463 (1992); R. 3:22-10(b).

"[I]n order to establish a prima facie claim, a petitioner must do more than make

bald assertions that he was denied the effective assistance of counsel."

Cummings, 321 N.J. Super. at 170. Defendant failed to meet that threshold. See

Preciose, 129 N.J. at 463; R. 3:22-10(b). And he has certainly failed to show


                                                                          A-1878-18T1
                                       13
any prejudice from counsel's alleged ineffective assistance. Furthermore, an

evidentiary hearing cannot be used to explore PCR claims.      See State v.

Marshall, 148 N.J. 89, 157-58 (1997). As such, an evidentiary hearing was

properly denied.

     Affirmed.




                                                                     A-1878-18T1
                                    14
