                                NOT FOR PUBLICATION WITHOUT THE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-5063-17T1

STATE OF NEW JERSEY,

          Plaintiff-Appellant,

v.

ADAM A. REED,

     Defendant-Appellant.
____________________________

                    Submitted January 21, 2020 – Decided January 29, 2020

                    Before Judges Fasciale and Rothstadt.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Camden County, Indictment No. 11-10-2446.

                    Joseph E. Krakora, Public Defender, attorney for
                    appellant (Andrew Robert Burroughs, Designated
                    Counsel, on the brief).

                    Jill S. Mayers, Acting Camden County Prosectuor,
                    attorney for respondent (Linda A. Shashoua, Special
                    Deputy Attorney General/Acting Assistant Prosecutor,
                    on the brief).

                    Appellant filed a pro se supplemental brief.
PER CURIAM

      Defendant appeals from a February 16, 2018 order denying his petition

for post-conviction relief (PCR). Defendant maintains that his trial counsel

rendered ineffective assistance of counsel. Judge Michele M. Fox, who also

served as the trial judge, entered the order and rendered a fifty-seven page

written opinion.1

      In September 2013, a grand jury indicted and charged defendant with

third-degree possession of a controlled dangerous substance (CDS), N.J.S.A.

2C:35-10(a)(1) (count one); second-degree possession of a CDS with intent to

distribute, N.J.S.A. 2C:35-5(b)(2) (count two); third-degree possession of a

CDS with intent to distribute within 1000 feet of a school, N.J.S.A. 2C:35-7

(count three); second-degree possession of a CDS with intent to distribute within

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

resisting arrest/eluding, N.J.S.A. 2C:29-2(b) (count five); fourth-degree

resisting arrest, N.J.S.A. 2C:29-2(a)(2) (count six); first-degree attempted

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

aggravated assault, N.J.S.A. 2C:12-1(b)(1) (count eight); third-degree



1
  The order denying defendant's PCR petition is dated February 16, 2018 but
was filed on February 20, 2018.
                                                                         A-5063-17T1
                                       2
aggravated assault with a deadly weapon, N.J.S.A. 2C:12-1(b)(2) (count nine);

fourth-degree aggravated assault by pointing, N.J.S.A. 2C:12-1(b)(4) (count

ten); third-degree resisting arrest, N.J.S.A. 2C:29-2(a)(3) (count eleven); fourth-

degree possession of hollow nose bullets, N.J.S.A. 2C:39-3(f) (count twelve);

second-degree possession of a weapon for unlawful purpose, N.J.S.A. 2C:39-

4(a) (count thirteen); second-degree unlawful possession of a weapon, N.J.S.A.

2C:39-5(b) (count fourteen); and second-degree certain persons not to have

weapons, N.J.S.A. 2C:39-7(b) (count fifteen). The judge bifurcated the certain

persons charge (count fifteen).

      Judge Fox presided over a jury trial, which began on May 14, 2013. On

May 31, 2013, the jury returned a guilty verdict as to all charges (counts one

through fourteen). On June 3, 2013, the same jury returned a guilty verdict

convicting defendant of the certain persons offense (count fifteen). The judge

sentenced defendant to an aggregate term of sixty-six years in prison, subject to

forty-seven years and three months of parole ineligibility. 2


2
  The judge merged counts one and three with count two; count six and eleven
with count five; counts eight, nine, ten, and thirteen with count seven; and counts
twelve and fourteen with count fifteen. As to count seven, the judge sentenced
defendant to forty-five years in prison, mandatory extended term subject to the
No Early Release Act, N.J.S.A. 2C:43-7.2, with five years of post-release parole
supervision. As to count two, the judge sentenced defendant to eight years in


                                                                           A-5063-17T1
                                        3
      Defendant filed a direct appeal and raised the following arguments:

            POINT I

            REPEATED INSTANCES OF PROSECUTORIAL
            MISCONDUCT DENIED [DEFENDANT] HIS
            RIGHTS TO DUE PROCESS AND A FAIR TRIAL.
            U.S. CONST., AMENDS. V, VI, XIV; N.J. CONST.
            ART. I., ¶¶ 1, 10. (Not Raised Below).

            POINT II

            INSOFAR AS THE STATE FAILED TO PROVIDE
            ANY EVIDENCE THAT [DEFENDANT] WAS
            PROPERLY LIABLE FOR THE ELUDING UNDER
            THE STATE'S THEORY OF ACCOMPLICE
            LIABILITY, THAT CONVICTION MUST BE
            VACATED. (Partially Raised Below).

            POINT III

            INSOFAR AS THE STATE FAILED TO PROVIDE
            ANY      EVIDENCE  THAT      [DEFENDANT]
            POSSESSED ANY CDS WITH THE INTENT TO
            DISTRIBUTE SAME WITHIN 500 FEET OF A PARK
            AS DEFINED BY N.J.S.A. 2C:35-7.1, THAT
            CONVICTION MUST BE VACATED. (Partially
            Raised Below).




prison consecutive to count seven and subject to four years of parole
ineligibility. As to count four, the judge sentenced defendant to seven years in
prison concurrent to count two but consecutive to count seven. As to count five,
the judge sentenced defendant to an eight-year prison term consecutive to counts
two, four, and seven. Finally, as to count fifteen, the judge sentenced defendant
to a five-year prison term with five years of parole ineligibility, consecutive to
counts two, four, five, and seven.
                                                                          A-5063-17T1
                                        4
           POINT IV

           BECAUSE THE CREDIBLE EVIDENCE WAS
           INSUFFICIENT       TO PROVE BEYOND   A
           REASONABLE DOUBT THAT [DEFENDANT] WAS
           GUILTY OF THE SCHOOL ZONE OFFENSE, THE
           TRIAL [JUDGE] SHOULD HAVE ENTERED A
           JUDGMENT OF ACQUITTAL ON THAT COUNT.
           (Not Raised Below).

           POINT V

           THE SENTENCING [JUDGE] IMPROPERLY
           FAILED TO MERGE THE POSSESSION WITH
           INTENT TO DISTRIBUTE AND THE SCHOOL
           ZONE OFFENSE INTO THE PUBLIC PROPERTY
           OFFENSE.

           POINT VI

           THE   SENTENCING   [JUDGE]   ERRED IN
           ORDERING CONSECUTIVE SENTENCES FOR
           THE THREE "GROUPINGS" OF OFFENSES.

           POINT VII

           [DEFENDANT]'S SENTENCE IS EXCESSIVE,
           UNDULY PUNITIVE, AND MUST BE REDUCED.

In a supplemental pro se brief, defendant made the following additional

arguments, which we have renumbered:




                                                                A-5063-17T1
                                   5
             POINT VIII

             THE STATE COMMITTED DISCOVERY AND
             [BRADY3] VIOLATIONS WHEN IT FAILED TO
             DISCLOSE TO DEFENSE COMPUTER[-AIDED]
             DISPATCH RECORDS [CAD] AND INFORMATION
             THAT [OFFICER] MARTIN WAS A MATERIAL
             WITNESS WHO MADE STATEMENTS OVER THE
             POLICE DISPATCHER EXCULPATORY TO THE
             DEFENSE AND CONTRADICTING [OFFICER]
             GONZALEZ'S    CLAIM    OF   []ATTEMPTED
             MURDER[]. DEFENDANT'S CONSTITUTIONAL
             RIGHT TO A FAIR TRIAL AND DUE PROCESS OF
             LAW WAS VIOLATED. HIS CONVICTIONS MUST
             BE REVERSED AND A NEW TRIAL GRANTED.

             POINT IX

             DEFENDANT['S] CONSTITUTIONAL RIGHT TO
             DUE PROCESS WAS VIOLATED WHEN OFFICER
             . . . SIMPSON OF THE CAMDEN COUNTY POLICE
             DEPT[MENT]       ALLOWED    POLICE   RADIO
             TRANS[MISSIONS]       WITH    EXCULPATORY
             VALUE TO BE ERASED (DESTROYED) THUS
             INTERFERING WITH DEFENDANT[']S RIGHT TO
             PRESENT        A     COMPLETE      DEFENSE.
             DEFENDANT[']S      CONVICTION    MUST   BE
             REVERSED AND HIS INDICTMENT DISMISSED.

             POINT X

             [THE] TRIAL [JUDGE] COMMITTED REVERSIBLE
             ERROR WHEN IT ALLOWED [OFFICER] SIMPSON
             TO TESTIFY AS A SURROGATE IN PLACE OF THE
             ACTUAL CRIME SCENE INVESTIGATOR WHO
             PROCESSED BALLISTIC EVIDENCE, MADE THE

3
    Brady v. Maryland, 373 U.S. 83 (1963).
                                                           A-5063-17T1
                                       6
POLICE REPORTS AND SIGNED THE CHAIN OF
CUSTODY. [THE] TRIAL [JUDGE] COMMITTED
REVERSIBLE ERROR BY ALLOWING THE STATE
TO MOVE THE FOLLOWING INTO EVIDENCE
VIA THE BUSINESS RECORD EXCEPTION:
TESTIMONY      OF    [OFFICER]     SIMPSON
(PERTAINING TO)[] ALL BALLISTIC EVIDENCE
DOCUMENTATION,      BALLISTIC     EVIDENCE
MENTIONED THEREIN ALL CHAIN OF CUSTODY
IN VIOLATION OF DEFENDANT[']S U.S. CONST.
[SIXTH] AMEND. CONFRONTATION CLAUSE
AND N.J. CONSTITUTION ART[.] I PARA[.] 10.

POINT XI

TRIAL COUNSEL WAS INEFFECTIVE FOR
FAILING TO MOVE FOR AN ADVERSE
INFERENCE   INSTRUCTION   AND    OTHER
DEFENSE     LEVER[A]GING     DISCOVERY
SANCTIONS WHEN IT WAS REALIZED THAT
THE STATE HAD VIOLATED DEFENDANT[']S
DUE PROCESS BY ALLOWING THE RADIO
TRANSMISSION EVIDENCE TO BE DESTROYED
VIOLATING DEFENDANT[']S U.S. CONST.
[SIXTH] AMENDMENT RIGHT TO COUNSEL.

POINT XII

DEFENDANT      RECEIVED     INEFFECTIVE
ASSISTANCE OF COUNSEL WHEN TRIAL
COUNSEL EVINCED IGNORANCE OF RELEVANT
AND BINDING LAW BY FAILING TO OBJECT TO
THE STATE[']S AND TRIAL COURT[']S LEGAL
REMEDY OF ADMITTING INCOMPETENT
BALLISTIC EVIDENCE, DOCUMENTATION AND
CHAIN OF CUSTODY VIA THE BUSINESS
RECORDS EXCEPTION, WHICH DOES NOT


                                             A-5063-17T1
                    7
           APPLY TO LAW ENFORCEMENT[] GENERATED
           DOCUMENTS.

           POINT XIII

           TRIAL COUNSEL WAS INEFFECTIVE FOR
           FAILING TO FAMILIARIZE HIMSELF WITH THE
           CAMDEN        POLICE         DEPARTMENT
           COMMUNICATIONS      PROCEDURE     BEFORE
           CROSS[]EXAMINING [OFFICER] SIMPSON AND
           OTHER OFFICERS CONCERNING ERASED
           RADIO      TRANSMISSIONS       VIOLATING
           DEFENDANT[']S U.S. CONST. [SIXTH] AMEND.
           RIGHT TO COUNSEL AND RIGHT TO CONFRONT
           WITNESSES AGAINST HIM.

           POINT XIV

           TRIAL COUNSEL WAS INEFFECTIVE FOR
           FAILING TO OBTAIN EXCULPATORY [CAD]
           RECORDS ALTHOUGH THEY WERE AVAILABLE
           TO HIM UPON REQUEST AND SUPPORT THE
           DEFENSE THAT [OFFICER] GONZALEZ'S STORY
           OF []ATTEMPTED MURDER[] WAS NOT TRUE[,]
           VIOLATING DEFENDANT'S U.S. CONST. [SIXTH]
           AMEND. RIGHT TO ASSISTANCE OF COUNSEL.

           POINT XV

           [DEFENDANT]'S   CONVICTION  MUST     BE
           REVERSED BECAUSE OF THE CUMULATIVE
           ERROR[S] THAT OCCURRED DURING TRIAL.

We affirmed the convictions and sentence. State v. Reed, No. A-1074-13 (App.

Div. Feb. 11, 2016). The Supreme Court denied certification. State v. Reed,

224 N.J. 529 (2016). Defendant filed his pro se PCR petition in July 2016.

                                                                     A-5063-17T1
                                     8
Defendant and his PCR counsel submitted a total of twenty-six arguments.

Judge Fox conducted oral argument, entered the order under review, and

rendered an extensive written decision.

      On this appeal, defendant argues:

            POINT I

            THE PCR [JUDGE] ERRED WHEN [SHE] FOUND
            DEFENDANT HAD FAILED TO ESTABLISH A
            PRIMA   FACIE   CASE   OF  INEFFECTIVE
            ASSISTANCE OF COUNSEL.

            1. Trial counsel was ineffective for failing to request
            the CAD report.

            2. Trial counsel failed to cross[]examine Officers
            Gonzalez and Diaz about their respective medical
            records.

            3. Trial counsel was ineffective by failing to have
            [d]efendant's clothing tested for gun powder residue.

            4. Trial counsel was ineffective for not demanding the
            State disclose all notes taken from officers involved in
            the case.

            5. Trial counsel was ineffective by failing to ask the
            trial [judge] for an adverse inference charge related to
            the State's destruction of the audio recordings.

            6. Trial counsel was ineffective when he failed to
            investigate Officer Frucci's history of civil rights and
            excessive force [c]omplaints.



                                                                       A-5063-17T1
                                          9
7. Trial counsel was ineffective for not objecting to the
admission of Exhibit 7-A depicting marijuana because
. . . [d]efendant was not indicted on a CDS charge
involving possession of marijuana.

8. Trial counsel failed to raise the issue of prosecutorial
misconduct for the State's failure to preserve the video
of the scene, or for not asking for an adverse inference
charge.

9. Trial counsel was ineffective for failing to challenge
the State's motion for an extended term sentence under
the Graves Act.

10. Trial counsel was ineffective for not calling
[Officer] Martin as a witness as he possessed
exculpatory  evidence   [c]ontradicting  [Officer]
Gonzalez's testimony of shots being fired by
[d]efendant.

11. Trial counsel's cumulative errors denied his client
effective legal representation.

POINT II

THE PCR [JUDGE] ERRED WHEN [SHE] DENIED
DEFENDANT'S CLAIM THAT HE WAS ENTITLED
TO A NEW TRIAL ON THE GROUNDS OF NEWLY
DISCOVERED EVIDENCE AND VIOLATION OF
HIS DUE PROCESS RIGHTS UNDER [BRADY].

POINT III

AS THERE WERE GENUINE ISSUES                           OF
MATERIAL    FACTS   IN   DISPUTE,                      AN
EVIDENTIARY HEARING WAS REQUIRED.



                                                              A-5063-17T1
                           10
     In a pro se supplemental brief, defendant raises the following arguments,

which we have renumbered:

           [POINT IV]

           THE PCR [JUDGE] ABUSED [HER] DISCRETION
           IN   NOT   GRANTING       DEFENDANT[]  AN
           EVIDENTIARY HEARING ON HIS INEFFECTIVE
           ASSISTANCE OF COUNSEL CLAIMS WHEN A
           FAIR ADJUDICATION REMAINS IMPOSSIBLE
           WITHOUT     RESOLUTION       OF  DISPUTED
           MATERIAL FACTS[] IN ADDITION TO RULING
           ON [INEFFECTIVE ASSISTANCE OF COUNSEL]
           CLAIMS BEFORE HEARING TRIAL COUNSEL'S
           TESTIMONY AS TO HIS DECISION MAKING
           PROCESS. (Not Raised Below).

           A. TRIAL COUNSEL WAS INEFFECTIVE FOR
           FAILING TO MOVE FOR AN ADVERSE
           INFERENCE   INSTRUCTION   AND    OTHER
           DEFENSE     LEVER[AG]ING     DISCOVERY
           SANCTIONS WHEN IT WAS REALIZED THAT
           THE STATE HAD VIOLATED DEFENDANT'S DUE
           PROCESS   BY   ALLOWING    THE   RADIO
           TRANSMISSION EVIDENCE TO BE DESTROYED.

           B. DEFENDANT RECEIVED INEFFECTIVE
           ASSISTANCE OF COUNSEL WHEN TRIAL
           COUNSEL EVINCED IGNORANCE OF RELEVANT
           AND BINDING LAW BY FAILING TO OBJECT TO
           THE STATE AND TRIAL [JUDGE'S] LEGAL
           REMEDY OF ADMITTING INCOMPETENT
           BALLISTIC EVIDENCE, DOCUMENTATION AND
           CHAIN OF CUSTODY VIA THE BUSINESS
           RECORD EXCEPTIO[N].



                                                                      A-5063-17T1
                                    11
C. TRIAL COUNSEL WAS INEFFECTIVE FOR
FAILING TO FAMILIARIZ[E] HIMSELF WITH THE
CAMDEN         POLICE        DEPARTMENT
COMMUNICATIONS      PROCEDURE     BEFORE
CROSS EXAMINATION [OF OFFICER] SIMPSON
AND OTHER OFFICERS CONCERNING ERASED
RADIO TRANSMISSIONS.

D. TRIAL COUNSEL WAS INEFFECTIVE FOR
FAILING TO OBTAIN EXCULPATORY AND
IMPEACHMENT EVIDENCE IN THE FORM OF
[CAD] RECORDS ALTHOUGH THEY WERE
AVAILABLE TO HIM UPON REQUEST AND
SUPPORTED THE DEFENSE THAT [OFFICER]
GONZALEZ'S   STORY    OF []ATTEMPTED
MURDER[] WAS NOT TRUE.

E. TRIAL COUNSEL WAS INEFFECTIVE WHEN
HE FAILED TO IMPEACH THE CHARACTER OF
OFFICER FRUCCI BY USING THE RECORD OF
MULTIPLE EXCESSIVE FORCE CLAIMS LODGED
AGAINST HIM, TO DEMONSTRATE THAT
FRUCCI HAS A PENCHANT FOR COMBAT AND A
REASON FOR BIAS IN PROTECTING HIMSELF
AGAINST FURTHER CIVIL ACTIONS AND
DISCIPLINARY REPERCUSSIONS. DEFENDANT
WAS DENIED A COMPLETE DEFENSE BASED ON
COUNSEL'S FAILURE TO PRESENT ANY
EVIDENCE TO CHALLENGE THE COUNTS OF
THE INDICTMENT ALLEGING ASSAULT ON
FRUCCI.

F. THE STATE COMMITTED DISCOVERY AND
[BRADY] VIOLATIONS WHEN IT FAILED TO
DISCLOSE TO DEFENSE COMPUTERIZED
DISPATCH RECORDS (CAD) AND INFORMATION
THAT [OFFICER] MARTIN WAS A MATERIAL
WITNESS WHO MADE STATEMENTS OVER THE

                                            A-5063-17T1
                   12
             POLICE DISPATCHER EXCULPATORY TO THE
             DEFENSE AND CONTRADICTING [OFFICER]
             GONZALEZ'S   CLAIM   OF   []ATTEMPTED
             MURDER[].

             G. DEFENDANT'S CONVICTION MUST BE
             REVERSED BECAUSE OF THE CUMULATIVE
             ERRORS THAT OCCURRED DURING TRIAL;
             BECAUSE . . . COUNSEL'S INEFFECTIVENESS
             RESULTED IN DEFENDANT BEING DENIED A
             COMPLETE DEFENSE AND THE STATE'S
             CUMULATIVE DESTRUCTION OF EVIDENCE
             AND [BRADY] VIOLATIONS RESULTED IN A
             TRIAL THAT WAS FUNDAMENTALLY UNFAIR.

We conclude that defendant's appeal lacks sufficient merit to warrant discussion

in a written opinion. R. 2:11-3(e)(2). We affirm substantially for the reasons

given by Judge Fox and add the following brief remarks.

      Claims of ineffective assistance of counsel are considered under the two-

part test enumerated 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). The

Strickland test requires a defendant to show that the performance of his attorney

was deficient, and that counsel's deficient performance prejudiced the defense.

Strickland, 466 U.S. at 687. We are satisfied from our review of the record that

defendant failed to demonstrate the ineffectiveness of his trial counsel under the

Strickland-Fritz test.



                                                                          A-5063-17T1
                                       13
      To meet the first part of the Strickland test, a defendant must establish that

his attorney "made errors so serious that counsel was not functioning as the

'counsel' guaranteed the defendant by the Sixth Amendment."              Ibid. The

defendant must rebut the "strong presumption that counsel's conduct falls within

the wide range of reasonable professional assistance[.]" Id. at 689. Defendant

failed to do so here.

      To satisfy the second part of the Strickland test, a defendant must show

"that counsel's errors were so serious as to deprive the defendant of a fair trial,

a trial whose result is reliable." Id. at 687. A defendant must establish "a

reasonable probability that, but for counsel's unprofessional errors, the result of

the proceeding would have been different." Id. at 694. The second prong of the

Strickland test also requires a defendant to show that counsel's alleged

deficiency caused prejudice. Fritz, 105 N.J. at 52.

      We are convinced the PCR judge correctly determined that the record

failed to present a prima facie case of ineffective assistance of counsel. We

further reject defendant's contention that an evidentiary hearing was required as

defendant failed to demonstrate a "reasonable likelihood of succeeding" on his

ineffective assistance claim.    State v. Preciose, 129 N.J. 451, 463 (1992).

Because defendant failed to make out a prima facie case of ineffective assistance


                                                                            A-5063-17T1
                                       14
of counsel, the judge properly adjudicated the petition without an evidentiary

hearing.

      Affirmed.




                                                                      A-5063-17T1
                                     15
