                                NOT FOR PUBLICATION WITHOUT THE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-1079-17T3

STATE OF NEW JERSEY,

           Plaintiff-Respondent,

v.

ROBERT SABATINI,

     Defendant-Appellant.
______________________________

                    Submitted September 13, 2018 – Decided September 27, 2018

                    Before Judges Reisner and Mawla.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Cumberland County, Indictment No. 10-04-
                    0223.

                    Joseph E. Krakora, Public Defender, attorney for
                    appellant (Alison S. Perrone, Designated Counsel;
                    William Welaj, on the brief).

                    Jennifer    Webb-McRae,        Cumberland       County
                    Prosecutor, attorney for respondent (Stephen C. Sayer,
                    Assistant Prosecutor, of counsel and on the brief).

                    Appellant filed a pro se supplemental brief.
PER CURIAM

      Defendant Robert Sabatini appeals from a July 24, 2017 order denying his

petition for post-conviction relief (PCR). We affirm.

                                     I.

      Defendant was convicted of first-degree murder and was sentenced to fifty

years in prison subject to the No Early Release Act, N.J.S.A. 2C:43-7.2. We

affirmed the conviction and sentence on defendant's direct appeal. State v.

Sabatini, No. A-1740-12 (App. Div. Feb. 11, 2016), certif. denied, 226 N.J. 212

(2016).

      Our opinion summarized the trial evidence, and the summary provides

useful context for this appeal:

                  The trial concerned the murder of Charles Ray on
            Back Neck Road, an isolated country road in
            Cumberland County, in the late evening of September
            13, 2008 or the early morning of September 14. The
            murder occurred within a few hundred feet of
            defendant's house, which was the only house on that
            part of Back Neck Road. Apart from expert testimony,
            which will be discussed in detail later, the State's case
            was fairly straightforward albeit not airtight.
            Defendant lived not far from the murder scene. An
            impartial witness encountered defendant and pointed
            out Ray's body lying in the road. Defendant claimed to
            be shocked at hearing this news. Defendant was
            wearing a gray tank top and pants which, on later
            analysis, proved to be stained with Ray's blood.
            Defendant knew Ray's habits, knew Ray would be

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driving down the darkened back road that night, and
knew Ray would pull over if flagged down by someone
he knew. Defendant had flagged down Ray on prior
occasions to ask for money. Defendant needed money
to buy crack cocaine that night, and made multiple
phone calls to two different drug dealers. According to
two witnesses, defendant had previously expressed
disdain for Ray and said he should be killed for
encouraging the drug trade on Back Neck Road.

       The defense case was that there were a number of
other individuals living on or near Back Neck Road
who had personal or financial motives to kill Ray, and
that the police had focused too quickly on defendant as
a suspect and ignored other possible suspects. The
defense also contended that defendant had approached
Ray's body after the murder and could have gotten a bit
of Ray's blood on his clothing at that time. The defense
also contended to the jury that, given the extent of Ray's
wounds and the amount of blood they produced, his
attacker would have been drenched in blood, as
compared to the few drops on defendant's clothing.

       Much of the State's lengthy trial presentation was
devoted to responding to those aspects of the defense,
by showing that the police investigated every possible
suspect, and that defendant did not approach Ray's body
after the murder. The State also presented expert
testimony designed to show that the drops of Ray's
blood on defendant's clothing were similar in shape and
pattern of distribution to those on Ray's clothing.
According to the expert, the blood drops on defendant's
shirt were typical of the spatter pattern caused by blows
with a blunt object, rather than a swipe pattern caused
by accidentally touching Ray's bloody clothing or the
blood near his body. The expert also explained to the
jury how, during an attack with a blunt object, an
attacker might get very little blood on his own clothing.

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           [Id. slip op. at 3-5. ]

     In his current appeal, defendant raises many of the same arguments

presented to and rejected by the PCR judge. His counseled brief presents the

following points of argument:

           POINT I:

           THE POST-CONVICTION RELIEF COURT ERRED
           IN DENYING THE DEFENDANT'S PETITION FOR
           POST-CONVICTION     RELIEF     WITHOUT
           AFORDING HIM AN EVIDENTIARY HEARING TO
           FULLY ADDRESS HIS CONTENTION THAT HE
           FAILED TO RECEIVE ADEQUATE LEGAL
           REPRESENTATION FROM TRIAL COUNSEL.

           A.   THE PREVAILING LEGAL PRINCIPLES
           REGARDING    CLAIMS  OF  INEFFECTIVE
           ASSISTANCE OF COUNSEL, EVIDENTIARY
           HEARINGS AND PETITIONS FOR POST-
           CONVICTION RELIEF.

           B.  THE DEFENDANT DID NOT RECEIVE
           ADEQUATE LEGAL REPRESENTATION FROM
           TRIAL COUNSEL AS A RESULT OF TRIAL
           COUNSEL'S FAILURE TO CALL SEVERAL
           WITNESSES WHO WOULD HAVE PROVIDED
           BENEFICIAL      AND      POTENTIALLY
           EXCULPATORY    TESTIMONY   FOR   THE
           DEFENDANT.

                 1.  TRIAL COUNSEL'S FAILURE TO
                 MAKE APPROPRIATE ARRANGEMENTS TO
                 PRESENT THE TESTIMONY OF THE


                                                                     A-1079-17T3
                                     4
                  DEFENDANT'S      FATHER,               THOMAS
                  SABATINI, TO THE JURY.

                  2.   TRIAL COUNSEL'S FAILURE TO
                  PRESENT     RELEVANT   TESTIMONY
                  THROUGH THE DEFENDANT'S SISTER,
                  LISA HILES.

            C.  THE DEFENDANT DID NOT RECEIVE
            ADEQUATE LEGAL REPRESENTATION FROM
            TRIAL COUNSEL AS A RESULT OF TRIAL
            COUNSEL'S FAILURE TO REQUEST THE TRIAL
            COURT INSTRUCT THE JURY REGARDING THE
            LESSER     INCLUDED     OFFENSE     OF
            PASSION/PROVOCATION MANSLAUGHTER.

            D.  THE DEFENDANT DID NOT RECEIVE
            ADEQUATELEGAL REPRESENTATION FROM
            TRIAL COUNSEL AS A RESULT OF TRIAL
            COUNSEL'S FAILURE TO TAKE APPROPRIATE
            ACTION WHEN INFORMED A JUROR HAD
            POSSIBLY BEEN SLEEPING THROUGH PART OF
            THE TRIAL.

      Defendant's pro se supplemental brief argues that the trial court should

have held an evidentiary hearing on his petition. He also presents the following

points, which we have formatted for clarity.

            POINT II:

            PETITIONER'S CLAIM THAT DEFENSE TRIAL
            COUNSEL WAS INEFFECTIVE.

            A.    Alleged failure to retain experts.



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                                       5
            B.    State did not submit evidence concerning DNA
                  not belonging to the defendant or the decedent.

            C.    Counsel failed to investigate original crime scene
                  reports.

            D.    Trial court allowed the state to enter suppressed
                  evidence.

            E.    Petitioner's argument that appellate counsel was
                  ineffective

            F.    Alleged failure to take appropriate action when
                  juror slept.

            G.    Petitioner[']s claim that the court failed to include
                  lesser included offenses.

            POINT III:

            ARGUMENTS MADE IN PETITIONER'S PRO SE
            SUBMISSIONS.

            A.    Trial counsel failure to move to dismiss
            indictment.

            B.   Petitioner's     allegation      of    prosecutorial
            misconduct.

      After reviewing the record in light of the applicable legal standards, we

conclude that defendant's arguments are uniformly without merit, and we affirm

substantially for the reasons stated by Judge Jean S. Chetney in her twenty-seven

page written opinion. We add the following brief comments.



                                                                          A-1079-17T3
                                        6
      Defendant contends that his attorney should have arranged for a de bene

esse deposition of his ailing father (now deceased), who defendant asserts could

have provided him with an alibi. After reading the father's written statement to

the police, we conclude that the father's testimony would not have provided an

alibi. According to the father, on the night of the murder, defendant kept

periodically leaving the house for a few minutes at a time and then returning.

The murder took place close to defendant's house, and the father did not know

how long defendant was gone during his last absence. The father's testimony

would not have eliminated the possibility that on one of his excursions outside

the house, defendant flagged down Ray's car and killed him.

      Contrary to defendant's argument, his trial counsel was not ineffective in

failing to request a passion/provocation manslaughter charge. There was no

evidentiary basis to charge the jury as to passion/provocation manslaughter.

Moreover, such a charge would have been inconsistent with the defense theory

that defendant liked the victim and had nothing to do with killing him.

      Like the PCR judge, we find no merit in defendant's claim that the trial

judge should have interviewed a juror who defendant now claims may have been

sleeping. The issue of whether the juror was remaining "alert" was raised at the

beginning of a trial day.   The trial judge indicated that he had personally


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                                       7
observed the juror. Neither the judge nor the attorneys stated that the juror had

been sleeping. None of the attorneys asked the judge to interview the juror or

take any further action at that time. The issue did not come up again that day or

any other day during the trial. Defendant's PCR argument is not supported by

legally competent evidence that the juror was asleep at any time during the trial.

"[B]ald assertions" are insufficient to create a prima facie case of ineffective

assistance of counsel. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.

1999).

      Because defendant did not present a prima facie case of ineffective

assistance, the PCR judge did not err in deciding the petition without an

evidentiary hearing.    See State v. Preciose, 129 N.J. 451, 462 (1992).

Defendant's remaining appellate arguments are without sufficient merit to

warrant discussion in a written opinion. R. 2:11-3(e)(2).

      Affirmed.




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