                                      RECORD IMPOUNDED

                                NOT FOR PUBLICATION WITHOUT THE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-5573-17T1

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

ELMO M. RIVADENEIRA,

     Defendant-Appellant.
___________________________

                   Submitted April 1, 2020 – Decided May 19, 2020

                   Before Judges Gooden Brown and Mawla.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Hudson County, Indictment No. 07-03-0435.

                   Joseph E. Krakora, Public Defender, attorney for
                   appellant (Janet Anne Allegro, Designated Counsel, on
                   the briefs).

                   Esther Suarez, Hudson County Prosecutor, attorney for
                   respondent (Erin M. Campbell, Assistant Prosecutor,
                   on the briefs).

                   Appellant filed a supplemental pro se brief.

PER CURIAM
      Without granting an evidentiary hearing, the trial court entered a February

1, 2018 order, denying defendant's petition for post-conviction relief (PCR)

based on newly discovered evidence and ineffective assistance of counsel (IAC).

Following a limited remand to address whether newly discovered FBI records

warranted a change in the PCR court's prior denial, the court entered a

September 12, 2019 order, "find[ing] the newly discovered evidence [did] not

change th[e] [c]ourt's previous decision." Defendant now appeals, challenging

the denial of his PCR petition, raising substantially the same arguments rejected

by the PCR court, and urging us to reverse and remand for an evidentiary hearing

or, in the alternative, a new trial. Based on our review of the record and the

applicable legal principles, we affirm.

      Following a 2011 jury trial, defendant was convicted of first-degree

kidnapping, N.J.S.A. 2C:13-1(b); three counts of first-degree aggravated sexual

assault, N.J.S.A. 2C:14-2(a); fourth-degree child abuse, N.J.S.A. 9:6-1 and -3;

third-degree aggravated criminal sexual contact, N.J.S.A. 2C:14-3(a); first-

degree robbery, N.J.S.A. 2C:15-1; third-degree aggravated assault, N.J.S.A.

2C:12-1(b)(1); and third-degree terroristic threats, N.J.S.A. 2C:12-3(b). The

convictions stemmed from defendant forcibly abducting a sixteen-year-old,




                                                                         A-5573-17T1
                                          2
A.T.,1 on May 17, 2005, while she was walking home, and driving her to

deserted locations overgrown with weeds where he repeatedly raped her before

ultimately releasing her at a car repair facility. In addition to A.T., the original

indictment included similar charges involving two other victims, V.S. and A.R.,

both of whom were severed for trial purposes. At the time of trial, defendant

was also suspected of committing other sexual assault related offenses involving

different victims in the New Jersey and New York metropolitan area. However,

the State was precluded from introducing evidence of other crimes at trial

pursuant to N.J.R.E. 404(b).2

      We incorporate herein the facts set forth in State v. Rivadeneira, No. A-

3348-11 (App. Div. May 4, 2016) (slip op. at 2-3), certif. denied, 227 N.J. 239

(2016), wherein we affirmed the convictions and aggregate fifty-year No Early

Release Act (NERA), N.J.S.A. 2C:43-7.2, sentence, but remanded "for the

limited purpose" of "correcting . . . errors in the judgment of conviction (JOC),"



1
  We use initials to protect the privacy of the victims. See N.J.S.A. 2A:82-46;
R. 1:38-3(c)(9), (12).
2
  In denying the State's motion, the trial court found there was "nothing in any
of these cases that would satisfy the [State v. Cofield, 127 N.J. 328 (1992)]
analysis in terms of identification sufficient to justify its admissibility under
[N.J.R.E.] 404(b)." However, the court "warn[ed]" defense counsel that if "the
door" was "open[ed]," then the State could use the evidence "in rebuttal."
                                                                            A-5573-17T1
                                         3
none of which "affect[ed] the aggregate term." In our decision, we detailed the

proofs adduced at trial, recounting A.T.'s testimony that "the assailant wore a

condom and, after the assaults, . . . wiped her genital and anal areas with a liquid,

which he said would avoid leaving evidence on her body."                 Id. at 3-4.

Additionally, A.T. "could not see [the assailant's] face during the attacks,"

because he "had a stocking [3] over his head and face" and "also wore blue latex

gloves." Id. at 4.

      However, A.T. "saw [the assailant's] eyes, which she described as large

and bulging," and heard his voice, which she described as "very distinctive."

She testified his voice "sounded like 'Kermit the Frog' because he sounded as

though 'he was talking through his throat.'" Ibid. She also "described the

assailant as thin and short but very strong." Ibid. Further, "as the assailant drove

her from one location to another, she smelled cigar smoke and he told her that

he was smoking Black and Mild cigars." Ibid.

      When the assailant finally released A.T. at "a car repair facility in Newark,

where he . . . placed her in a white Toyota parked in the facility's lot," and the




3
 "It appears from the record that the stocking was one leg cut from a pair of
women's panty hose." Id. at 14 n.6.
                                                                             A-5573-17T1
                                         4
police subsequently "drove [her] around Newark until she was able to identify

the car repair lot . . . as well as the white Toyota parked there,"

             [n]ear the spot where the victim was released, the police
             found a black sheer stocking which, upon being tested,
             proved to have the victim's DNA on the outside and
             defendant's DNA on the inside. The police also found
             a blue latex glove on the ground near the location where
             the victim was initially kidnapped. The State presented
             testimony that defendant had previously worked as an
             auto mechanic in the area of Newark where the victim
             was released, that he typically wore blue latex gloves at
             work, and that the car repair facility where the victim
             was released had a business relationship with
             defendant's employer.

             [Id. at 4-5.]

      "One of defendant's former girlfriends, Ms. Teicher," testified for the

State and confirmed "that defendant had a very distinctive raspy voice, . . . was

short, thin, and muscular," and "smoked Black and Mild cigars." Id. at 5. "She

also testified that on multiple occasions during their relationship, defendant

would direct her to drive him to vacant lots overgrown with high weeds, where

they would have sex in the back of her car." Ibid.

      Another witness, Alex Cancinos, who had worked with defendant at a

garage,

             testified that in 2006, when defendant was in jail
             awaiting trial in this case, defendant sent Cancinos a
             letter asking him to "stage" a rape, with the cooperation

                                                                         A-5573-17T1
                                         5
            of a female friend, and leave some of defendant's blood
            and pubic hair at the scene. Defendant enclosed
            packets, apparently containing blood and hair, with the
            letter. Defendant explained to Cancinos that, if
            Cancinos did as he asked, it would then appear that
            someone was trying to frame defendant for a second
            rape, which he could not possibly have committed
            because he was in jail. Defendant believed that
            evidence would, in turn, cast doubt on the State's DNA
            evidence in the upcoming prosecution. According to
            Cancinos, he refused defendant's request, and burned
            the letter.

                   Ms. Dahl, who had been defendant's girlfriend at
            the time, corroborated Cancinos's testimony. She
            testified that Cancinos, who was a mutual friend of hers
            and defendant, told her about defendant's request, and
            asked her advice. She testified that Cancinos also
            showed her the letter, which was in defendant's
            handwriting, and that she read it. She advised Cancinos
            not to go along with defendant's plan.

            [Id. at 5-6 (footnote omitted).]

      In 2016, defendant filed a timely PCR petition. The focus of defendant's

petition was his suspected involvement in other sexual assault related offenses

committed against two New York victims, H.T. and K.R., and another New

Jersey victim, N.W. N.W. was attacked in Elizabeth by two male assailants.

Her description of one of the assailants matched Cancinos, whom she later

identified. Although N.W. never identified defendant as the second assailant,

both Cancinos and defendant were subsequently indicted in connection with her


                                                                       A-5573-17T1
                                        6
attack, and charged with aggravated sexual assault and related offenses, which

charges were ultimately dismissed by the State.

       On September 15, 2004, an assailant attempted to abduct H.T. from a New

York City street. H.T. successfully fought off the assailant, who fled in a car.

Although H.T.'s description of the assailant did not match defendant, during the

attack, the assailant dropped a cell phone which contained epithelial DNA

matching defendant and a SIM4 card belonging to N.W. Subsequently, on June

24, 2005, K.R. was sexually assaulted in New York City. Like A.T., she was

abducted and driven to various locations by the assailant. New York authorities

initially reported that defendant's DNA was discovered on a scarf used by the

attacker to cover K.R.'s eyes during the assaults. However, subsequent testing

excluded defendant as a match to the scarf. Nonetheless, defendant's DNA was

found inside the car in which K.R. was allegedly abducted.

       In his PCR petition, defendant asserted there was newly discovered

exculpatory evidence pertaining to these three victims that the State withheld

until after the trial, thus precluding him from introducing the evidence at trial to

establish a third-party guilt defense. Specifically, defendant stated he was not

notified until after the trial that he was excluded as a match to the DNA found


4
    Subscriber Identification Module.
                                                                            A-5573-17T1
                                         7
on the scarf in K.R.'s case, that N.W. identified Cancinos as one of the two

assailants who attacked her, that the physical description provided by H.T. did

not match defendant, and that there was no blood DNA matching defendant

found on the cell phone recovered after H.T.'s attack. Regarding the latter,

defendant asserted that the presence of defendant's epithelial DNA, rather than

blood DNA, on the phone recovered in the H.T. attack could be explained by the

fact that he had owned the phone but got rid of it years before the incident.

According to defendant, by excluding him from other attacks believed to have

been committed by the same man who attacked A.T., the withheld evidence was

essential to challenge the State's case at trial.

      Further, defendant argued he was deprived of effective assistance of trial

and appellate counsel. Defendant asserted his trial attorney failed to conduct a

complete investigation of Cancinos to undermine the veracity of the letter

defendant allegedly sent to Cancinos from prison requesting Cancinos to stage

a rape with defendant's DNA. According to defendant, an investigation into the

prison's procedures would have confirmed that the jelly packets purportedly

containing defendant's DNA were not distributed in his prison, and the prison

mail log documented all outgoing mail. Further, an investigation would have

uncovered evidence to discredit Dahl's corroboration of Cancinos's testimony.


                                                                        A-5573-17T1
                                          8
Defendant asserted his attorney should have undermined Dahl's ability to

recognize defendant's handwriting on the letter with more persuasive evidence

than the testimony of defendant's father, which was presented to the jury to

refute Dahl's purported familiarity with defendant's signature.

      Defendant also asserted trial counsel failed to investigate Cancinos as

A.T.'s attacker to establish a third-party guilt defense. Defendant indicated that

because he and Cancinos were friends and worked together in a garage in

Kearny, Cancinos had access to defendant's belongings and thereby opportunity

to frame him. According to defendant, there was compelling evidence pointing

to Cancinos as the actual culprit, including N.W.'s identification of Cancinos as

one of her two attackers, dismissal of the charges in N.W.'s attack in exchange

for his testimony against defendant at trial, N.W.'s SIM card found in the cell

phone recovered at the scene of H.T.'s attack, and Cancinos's arrest while

driving a customer's vehicle that was similar to the car spotted on surveillance

footage where A.T. was kidnapped.

      Defendant further asserted that his trial attorney failed to investigate the

claims made by the New York assistant district attorney (ADA) regarding DNA

discovered on the scarf in the K.R. case and the cell phone in the H.T. case.

According to defendant, his attorney's failure to investigate these claims, which


                                                                          A-5573-17T1
                                        9
turned out to be erroneous, not only prevented him from introducing a third-

party guilt defense but also deprived him of a favorable global plea offer from

the New Jersey prosecutor, who stated in a letter dated August 19, 2011, that he

was "withdrawing the previously extended plea offer of thirty years on the New

Jersey cases," after noting that the New York ADA told him that "[t]hey now

have [defendant's] DNA on a second case."5

      Additionally, defendant asserted his trial attorney failed to effectively

consult and communicate with the defense DNA expert. Although defendant

acknowledged that the defense expert agreed with the findings of the State's

expert regarding the DNA found on the stocking recovered at the scene, he

asserted trial counsel failed to consult with the defense expert to facilitate

effective cross-examination of the State's expert, and failed to ensure that the

defense expert tested other specimens collected in the case that proved to have

no evidential value. Moreover, his attorney failed to investigate and introduce

evidence, including photographs, showing that defendant wore a stocking on his




5
  In the letter, the New Jersey prosecutor also indicated that his withdrawal of
the plea offer was "moot" because "defendant was not interested in pleading
guilty to anything," having previously rejected the offer and professed his
innocence on the record when questioned by the trial court.
                                                                        A-5573-17T1
                                      10
head from an early age, to provide a reasonable explanation for defendant's DNA

on the stocking.

      To support his claim that he received ineffective assistance of appellate

counsel, defendant asserted counsel failed to raise on appeal that the trial court

erred in overruling trial counsel's objection to admitting testimony regarding the

letter allegedly sent to Cancinos under N.J.R.E. 404(b), and erred in preventing

trial counsel from cross-examining Cancinos about the details of the rape charge

involving N.W., of which defendant was a co-defendant and which was

ultimately dismissed by the State in exchange for Cancinos's testimony against

defendant.

      Following oral argument, on February 1, 2018, the PCR court denied

defendant's petition.   In an oral decision, the judge reviewed the factual

background and procedural history of the case, applied the governing legal

principles, and concluded defendant "woefully failed" to satisfy all three prongs

of the test enunciated in State v. Carter, 85 N.J. 300, 314 (1981) to warrant

granting a new trial. The judge found defendant failed to establish that the

claimed newly discovered evidence was "material" to the case involving A.T.,

failed to "identif[y]" when the evidence was discovered or show that the




                                                                          A-5573-17T1
                                       11
evidence was not "discoverable at trial,"6 and failed to establish that the evidence

was of the sort that would probably change the jury's verdict if a new trial was

granted.

      Additionally, the judge determined defendant failed to establish a prima

facie case of IAC. The judge found defendant failed to show that either counsel's

performance fell below the objective standard of reasonableness set forth in

Strickland v. Washington, 466 U.S. 668, 687 (1984), and adopted by our

Supreme Court in State v. Fritz, 105 N.J. 42, 49-53 (1987), or that the outcome

would have been different without the purported deficient performance as

required under the second prong of the Strickland/Fritz test.          In rejecting

defendant's assertion that he was entitled to an evidentiary hearing, the judge


6
   Although defendant claimed he only became aware of the evidence after he
was tried and convicted in New Jersey and extradited to New York to face the
New York charges, the claim was never substantiated by competent evidence in
the record and the reports from the New York authorities all predate the trial.
Moreover, because the New Jersey prosecutor was not obligated to turn over
reports prepared by the New York or FBI authorities, any failure to disclose the
reports could not constitute a violation of Brady v. Maryland, 373 U.S. 83
(1963). Even if the reports could be construed as exculpatory evidence, they
exculpate defendant of the New York rapes, not A.T.'s. Notably, the judge
rejected defendant's contention that "a joint investigation" was confirmed by the
prosecutor's "affirmation" in an April 19, 2011 letter. Instead, the judge
explained the prosecutor was "inartful in his words." See State v. Knight, 283
N.J. Super. 98, 115 (App. Div. 1995) (finding that the "mere transfer of
information or notification of the potential existence of a criminal in another's
jurisdiction will not establish an agency relationship.").
                                                                            A-5573-17T1
                                        12
concluded defendant failed to present any issues that could not be resolved by

reference to the existing record.

      In conducting the Carter analysis, the judge stated that the introduction of

evidence "that may or may not exonerate" him in the attacks on the New York

victims, H.T. and K.R., would not have exonerated him of the crimes involving

A.T. The judge noted that the

            rapes were separate events. Evidence of exoneration
            for a New York rape would not exonerate . . . defendant
            for the rape of a New Jersey victim. Just because the
            State may have believed at one time the rapes were
            committed by the same individual, . . . does not mean
            that if found not guilty of one rape, you're not guilty of
            both.

      Moreover, as the judge pointed out, "[a]t best, if all [defendant's] claims

. . . are true," the newly discovered DNA evidence only challenged "one piece

of evidence" in each New York case. Thus, the proffered newly discovered

evidence did not exonerate him entirely of the New York charges, was not

"probative of any issue" in the New Jersey case, and had no "relevanc[e] to . . .

the A.T. trial." Further, defendant "[b]eing exculpated in the rape of N.W.

would not affect [defendant's] conviction in regards to A.T."

      The judge explained that because "the trial court denied the State's

[N.J.R.E.] 404(b) motion before the trial," "if the defense tried to introduce that


                                                                           A-5573-17T1
                                       13
other evidence, it certainly would have opened up the door to other evidence ,"

would have resulted in "trials within trials," and, "in fact, would also likely

backfire on . . . defendant." The judge concluded that "evidence that may or

may not exculpate [defendant] on a completely separate crime is not probative

to the trial of A.T. Even if a jury were to hear the evidence [defendant] argues

should have been presented, even if they heard the defense of third-party guilt,

it would not matter." According to the judge, the "State presented . . . numerous

amounts of evidence at trial against [defendant], all of which remain[ed]

uncontested in this PCR."

      Turning to defendant's IAC claims, the judge found that "[a]ll of

[defendant's] hand-picked issues with his trial and appellate counsels [did] not

amount to [IAC]." According to the judge, defendant "failed to articulate a

single reason why [his] appellate attorney should have raised [these] issue[s] on

appeal, or why his trial attorney['s] strategy fell below the objectively reasonable

standard; therefore [defendant] cannot succeed on prong one." As to prong two,

the judge concluded,

            [e]ven if all the evidence and trial strategies were used,
            . . . [defendant] has not proven that the outcome of the
            trial would have been different.

                  The State, at the trial, relied on the DNA of
            [defendant] found on the nylon stocking and also

                                                                            A-5573-17T1
                                        14
            containing . . . the DNA of A.T. Again, it was found
            near the place where A.T. was left after being raped,
            and A.T. testified the man wore the stocking on his
            face. [Defendant] has not shown how any of the
            irrelevant evidence or trial strategies would have
            overcome the State's case in chief. As such, . . .
            defendant fails [Strickland]'s prong two.

      In rejecting defendant's contention that he was entitled to an evidentiary

hearing, the judge found that "[a]n evidentiary hearing [would] not aid [the

court] in this case" because "the allegations are quintessentially speculative and

not relevant," and defendant "failed to establish a likelihood [of] . . . success"

on the merits. The judge explained

            I find this because even if [defendant] could present
            evidence that his claims in the PCR are true, it would
            still all be irrelevant to the trial for the sexual assault of
            A.T. [Defendant's] . . . fatal flaw throughout this entire
            [PCR] . . . is that he argued that if there was exculpatory
            evidence in a separate unrelated trial not used in the
            State's case in chief here, it would somehow be relevant
            to the trial of . . . A.T.

                   This assertion . . . is inaccurate. It does not matter
            that the State believed all the aforementioned victims
            were assaulted by the same individual, because the
            trials were severed or separated by jurisdiction. The
            trial that [defendant] has motion[ed] for [PCR] only
            pertains to the trial of A.T.

      Defendant appealed from the February 1, 2018 order denying his PCR

petition. While the appeal was pending, he moved for a limited remand. In


                                                                             A-5573-17T1
                                        15
support, PCR counsel certified that "[d]uring the pendency of th[e] appeal,"

"defendant notified [her] that FBI records existed detailing the investigation of

[K.R.'s] sexual assault." According to PCR counsel, the records prepared by the

FBI in 2006 "indicated the car investigated in the K.R. assault was originally

owned by defendant's friend's sister and defendant did work on the interior of

the car and assisted in the sale of th[e] car." Counsel explained that the FBI

records "establish[ed] a logical explanation for defendant's DNA being found in

th[e] car" to counter the State's argument "that the fact defendant was excluded

from the DNA sample on . . . K.R.['s] scarf [was] irrelevant because there was a

match to defendant's DNA" found "inside the car" in which "K.R. was

abducted."

      On June 26, 2019, we granted defendant's motion for a limited remand for

the PCR judge to consider the FBI records. On September 12, 2019, following

oral argument, the judge determined that the newly discovered FBI records did

not "change [the court's] opinion whatsoever." The judge explained that while

the evidence may affect the K.R. case, "there [was] no link to [the] A.T. [case],"

and, in all likelihood, a judge would never have admitted the evidence as third-

party guilt evidence. See State v. Koedatich, 112 N.J. 225, 301 (1988) (noting




                                                                          A-5573-17T1
                                       16
"[t]here must be some link between the [proffered] evidence and the victim or

the crime" to support the admission of third-party guilt evidence).

      On appeal, in his counseled brief, defendant raises the following points

for our consideration:

            POINT I

            THE     STATE    WITHHELD    MATERIAL,
            EXCULPATORY EVIDENCE OBTAINED FROM A
            JOINT INVESTIGATION WITH NEW YORK AND
            BY    DOING   SO   GREATLY   IMPACTED
            DEFENDANT'S ABILITY TO CONDUCT A
            COMPLETE DEFENSE THEREBY WARRANTING
            A NEW TRIAL.

            POINT II

            DEFENDANT WAS DEPRIVED THE EFFECTIVE
            ASSISTANCE OF TRIAL COUNSEL DUE TO
            COUNSEL'S FAILURE TO PURSUE THE
            NECESSARY     FORENSIC    EVALUATION,
            ESTABLISH DEFENDANT'S DNA COULD HAVE
            REASONABLY    BEEN   FOUND   ON   THE
            STOCKING, INVESTIGATE THE VERACITY OF
            THE LETTER PURPORTEDLY SENT TO ALEX
            CANCINOS AND INVESTIGATE REASONABLE
            CLAIMS TO SUPPORT A THIRD-PARTY GUILT
            DEFENSE.

                  A. INEFFECTIVE ASSISTANCE OF
                  TRIAL COUNSEL TO PURSUE THE
                  NECESSARY            FORENSIC
                  EVALUATIONS              AND
                  CONSULTATIONS.


                                                                      A-5573-17T1
                                      17
     B. INEFFECTIVE ASSISTANCE OF
     TRIAL COUNSEL DUE TO FAILURE
     TO ESTABLISH DEFENDANT'S DNA
     COULD HAVE REASONABLY BEEN
     FOUND ON STOCKING BECAUSE
     DEFENDANT WORE A STOCKING ON
     HIS HEAD FROM A YOUNG AGE.

     C. INEFFECTIVE ASSISTANCE OF
     TRIAL COUNSEL DUE TO FAILURE
     TO INVESTIGATE VERACITY OF
     LETTER PURPORTEDLY SENT TO
     ALEX CANCINOS.

     D. INEFFECTIVE ASSISTANCE OF
     TRIAL COUNSEL DUE TO FAILURE
     TO INVESTIGATE THE K.R. AND H.T.
     ATTACKS, DEPRIVING DEFENDANT
     OF A THIRD-PARTY GUILT DEFENSE
     AND A FAVORABLE GLOBAL PLEA.

     E. INEFFECTIVE ASSISTANCE OF
     TRIAL COUNSEL DUE TO FAILURE
     TO INVESTIGATE ALEX CAN[C]INOS
     FOR THIRD-PARTY GUILT DEFENSE.

POINT III

DEFENDANT WAS DEPRIVED OF EFFECTIVE
ASSISTANCE OF APPELLATE COUNSEL DUE TO
COUNSEL'S FAILURE TO RAISE THAT THE
TRIAL COURT ERRED IN ALLOWING INTO
EVIDENCE TESTIMONY REGARDING THE
PURPORTED LETTER SENT TO ALEX CANCINOS
AND    ERRONEOUSLY     LIMITED   TRIAL
COUNSEL'S CROSS-EXAMINATION OF ALEX
CANCINOS.


                                         A-5573-17T1
                   18
                  A. INEFFECTIVE ASSISTANCE OF
                  APPELLATE COUNSEL REGARDING
                  THE TRIAL COURT'S ERRONEOUS
                  RULING ALLOWING TESTIMONY
                  ABOUT AN ALLEGED LETTER FROM
                  DEFENDANT.

                  B. INEFFECTIVE ASSISTANCE OF
                  APPELLATE COUNSEL REGARDING
                  THE TRIAL COURT'S ERRONEOUS
                  LIMITATION ON TRIAL COUNSEL'S
                  CROSS-EXAMINATION OF ALEX
                  CANCINOS.

      In his counseled brief submitted following the limited remand, defendant

raises the following additional point for our consideration:

            [POINT IV]

            ON A LIMITED REMAND, THE PCR COURT
            MIS[]APPLIED THE LEGAL STANDARD FOR
            ADMISSION OF THIRD-PARTY GUILT AND
            OTHER CRIME EVIDENCE IN CONCLUDING
            THERE WAS NOT A SUFFICIENT LINK BETWEEN
            THE EXCULPATORY EVIDENCE SUBMITTED BY
            DEFENDANT REGARDING THE K.R. CASE AND
            THE CURRENT MATTER.

      In his pro se brief, defendant raises the following points for our

consideration:

            POINT I

            BECAUSE THE DEFENDANT UNAMBIGUOUSLY
            SHOWED THAT THE STATE DISTORTED AND
            WITHHELD    MATERIAL,   EXCULPATORY

                                                                      A-5573-17T1
                                      19
            EVIDENCE FROM THE DEFENSE AND BECAUSE
            IT IMPACTED THE DEFENSE'S STRATEGIES
            PREPARATIONS, AND ABILITY TO PRESENT A
            COMPLETE DEFENSE, INCLUDING A THIRD-
            PARTY GUILT DEFENSE, THE PCR COURT
            SHOULD HAVE GRANTED HIS MOTION FOR
            [PCR], AT A MINIMUM, THE PCR COURT
            SHOULD HAVE HELD AN EVIDENTIARY
            HEARING ON THE ISSUE.

                   ....

            POINT II

            BECAUSE TRIAL COUNSEL WAS A DEPUTY
            MAYOR, COUNCILMAN, AND MUNICIPAL
            PROSECUTOR IN AND AROUND THE COUNTIES
            THE ATTACKS OCCURRED AND WERE
            INVESTIGATED, AND THE DEFENDANT WAS
            CHARGED AND INDICTED FOR THE ATTACKS,
            TRIAL COUNSEL'S DUAL REPRESENTATION
            CREATED A CONFLICT THAT UNDERMINED
            THE IMPARTIALITY OF TRIAL COUNSEL THAT
            VIOLATED THE DEFENDANT'S RIGHT TO FAIR
            TRIAL, INCLUDING EFFECTIVE ASSISTANCE OF
            [COUNSEL]. THE PCR COURT SHOULD HAVE
            GRANTED THE DEFENDANT'S PCR MOTION ON
            THIS CLAIM, AT A MINIMUM, THE PCR COURT
            SHOULD HAVE HELD AN EVIDENTIARY
            HEARING ON THE ISSUE.

      In evaluating these arguments, we apply well-established legal principles.

Regarding the new trial motion, "[a] jury verdict rendered after a fair trial should

not be disturbed except for the clearest of reasons." State v. Ways, 180 N.J. 171,

187 (2004). "A motion for a new trial is addressed to the sound discretion of

                                                                            A-5573-17T1
                                        20
the trial court, and its determination will not be reversed on appeal unless there

has been a clear abuse of that discretion." State v. Puchalski, 45 N.J. 97, 107

(1965) (quoting State v. Artis, 36 N.J. 538, 541 (1962)).

      In particular, motions for a new trial based on newly discovered evidence

are "not favored and should be granted with caution by a trial court since [they]

disrupt[] the judicial process." State v. Conway, 193 N.J. Super. 133, 171 (App.

Div. 1984) (citing State v. Haines, 20 N.J. 438, 443 (1956)). "Newly discovered

evidence must be reviewed with a certain degree of circumspection to ensure

that it is not the product of fabrication, and, if credible and material, is of

sufficient weight that it would probably alter the outcome of the verdict in a new

trial." Ways, 180 N.J. at 187-88. However, we "must keep in mind that the

purpose of post-conviction review in light of newly discovered evidence is to

provide a safeguard in the system for those who are unjustly convicted of a

crime." Id. at 188.

      To that end, to obtain a new trial based upon a claim of newly discovered

evidence, a criminal defendant must establish that the evidence is: "(1) material

to the issue and not merely cumulative or impeaching or contradictory; (2)

discovered since the trial and not discoverable by reasonable diligence

beforehand; and (3) of the sort that would probably change the jury's verdict if


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                                       21
a new trial were granted." Carter, 85 N.J. at 314. All three prongs of the Carter

test must be satisfied before a new trial is warranted, Ways, 180 N.J. at 187, and

defendant bears the burden of establishing each prong, State v. Smith, 29 N.J.

561, 573 (1959).

      As to the first prong, evidence is material if it "would 'have some bearing

on the claims being advanced.'" Ways, 180 N.J. at 188 (quoting State v. Henries,

306 N.J. Super. 512, 531 (App. Div. 1997)). "Clearly, evidence that supports a

defense, such as . . . third-party guilt, . . . would be material." Ibid. Because

determining whether evidence is material "requires an evaluation of the probable

impact such evidence would have on a jury verdict," our "focus properly turns

to prong three of the Carter test." Id. at188-89. Thus, the "analysis of newly

discovered evidence essentially merges the first and third prongs of the Carter

test," State v. Behn, 375 N.J. Super. 409, 432 (App. Div. 2005), which are

"inextricably intertwined." State v. Nash, 212 N.J. 518, 549 (2013).

      Under that rubric, "[t]he characterization of evidence as 'merely

cumulative, or impeaching, or contradictory' is a judgment that such evidence is

not of great significance and would probably not alter the outcome of a verdict."

Ways, 180 N.J. at 189. In contrast, evidence "that would have the probable

effect of raising a reasonable doubt as to the defendant's guilt would not be


                                                                          A-5573-17T1
                                       22
considered merely cumulative, impeaching, or contradictory." Ibid. In short,

the "power of the newly discovered evidence to alter the verdict is the central

issue, not the label to be placed on that evidence," id. at 191-92, and the "central

issue" is whether the newly discovered evidence has the power to "shake the

very foundation of the State's case and almost certainly alter the earlier jury

verdict." Nash, 212 N.J. at 549-50.

      The second prong of the Carter test "recognizes that judgments must be

accorded a degree of finality." Ways, 180 N.J. at 192. That prong therefore

requires that the "defense . . . 'act with reasonable dispatch in searching for

evidence before the start of the trial.'" Nash, 212 N.J. at 550 (quoting Ways,

180 N.J. at 192).      Under that prong, the evidence must not have been

discoverable prior to trial through "the exercise of 'reasonable diligence'" in the

context of the specific circumstances of each case. Behn, 375 N.J. Super. at

428. Reasonable diligence does not, however, require "totally exhaustive or

superhuman effort." Ibid. That said, evidence "clearly capable of altering the

outcome of a verdict that could have been discovered by reasonable diligence at

the time of trial would almost certainly point to [IAC]." Nash, 212 N.J. at 550

(quoting Ways, 180 N.J. at 192).




                                                                            A-5573-17T1
                                        23
      To establish a prima facie claim of IAC, a defendant must satisfy the two-

prong Strickland/Fritz test, and "bears the burden of proving" both prongs of an

IAC claim "by a preponderance of the evidence." State v. Gaitan, 209 N.J. 339,

350 (2012). Specifically, a defendant must show that (l) "counsel's performance

was deficient" and he "made errors so serious that counsel was not functioning

as the 'counsel' guaranteed . . . by the Sixth Amendment" to the United States

Constitution; and (2) "there is a reasonable probability that, but for counsel's

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

Strickland, 466 U.S. at 687, 694; see also Fritz, 105 N.J. at 52. A "reasonable

probability" is defined as "a probability sufficient to undermine confidence in

the outcome." Strickland, 466 U.S. at 694. This test applies equally to a

defendant's claim of ineffective assistance of trial or appellate counsel. State v.

Gaither, 396 N.J. Super. 508, 513 (App. Div. 2007).

      Under the first Strickland prong, "a defendant must overcome a 'strong

presumption' that counsel exercised 'reasonable professional judgment' and

'sound trial strategy' in fulfilling his responsibilities." State v. Hess, 207 N.J.

123, 147 (2011) (quoting Strickland, 466 U.S. at 689-90). While "counsel is

strongly presumed to have rendered adequate assistance," Strickland, 466 U.S.

at 690, as measured by a standard of "reasonable competence[,]" Fritz, 105 N.J.


                                                                           A-5573-17T1
                                       24
at 53, "'[r]easonable competence' does not require the best of attorneys," State

v. Davis, 116 N.J. 341, 351 (1989), and "[n]o particular set of detailed rules for

counsel's conduct can satisfactorily take account of the variety of circumstances

faced by defense counsel or the range of legitimate decisions regarding how best

to represent a criminal defendant." Strickland, 466 U.S. at 688-89.

      For that reason,

            an otherwise valid conviction will not be overturned
            merely because the defendant is dissatisfied with his or
            her counsel's exercise of judgment during the trial. The
            quality of counsel's performance cannot be fairly
            assessed by focusing on a handful of issues while
            ignoring the totality of counsel's performance in the
            context of the State's evidence of defendant's guilt. As
            a general rule, strategic miscalculations or trial
            mistakes are insufficient to warrant reversal except in
            those rare instances where they are of such magnitude
            as to thwart the fundamental guarantee of a fair trial.

            [State v. Castagna, 187 N.J. 293, 314-15 (2006)
            (citations, internal quotation marks, and brackets
            omitted).]

Thus, "[j]udicial scrutiny of counsel's performance must be highly deferential."

Strickland, 466 U.S. at 689.

      Under the second Strickland prong, defendant must prove prejudice.

Fritz, 105 N.J. at 52. "An error by counsel, even if professionally unreasonable,

does not warrant setting aside the judgment of a criminal proceeding if the error


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                                       25
had no effect on the judgment." Strickland, 466 U.S. at 691. This prong "is an

exacting standard" and "'[t]he error committed must be so serious as to

undermine the court's confidence in the jury's verdict or the result reached.'"

State v. Allegro, 193 N.J. 352, 367 (2008) (alteration in original) (quoting

Castagna, 187 N.J. at 315).

      Merely raising a claim for PCR does not entitle a defendant to relief or an

evidentiary hearing. See State v. Cummings, 321 N.J. Super. 154, 170 (App.

Div. 1999). Rather, trial courts should grant evidentiary hearings only if the

defendant has presented a prima facie claim of IAC, material issues of disputed

fact lie outside the record, and resolution of those issues necessitates a hearing.

R. 3:22-10(b); State v. Porter, 216 N.J. 343, 355 (2013). A PCR court deciding

whether to grant an evidentiary hearing "should view the facts in the light most

favorable to a defendant."      State v. Preciose, 129 N.J. 451, 463 (1992).

However, "[a] court shall not grant an evidentiary hearing" if "the defendant's

allegations are too vague, conclusory or speculative." R. 3:22-10(e)(2). Indeed,

the defendant "must do more than make bald assertions that he was denied the

effective assistance of counsel. He must allege facts sufficient to demonstrate

counsel's alleged substandard performance." Cummings, 321 N.J. Super. at 170.




                                                                           A-5573-17T1
                                       26
      In turn, "we review under the abuse of discretion standard the PCR court's

determination to proceed without an evidentiary hearing." State v. Brewster,

429 N.J. Super. 387, 401 (App. Div. 2013). "If the court perceives that holding

an evidentiary hearing will not aid the court's analysis of whether the defendant

is entitled to post-conviction relief, . . . then an evidentiary hearing need not be

granted." Ibid. (alteration in original) (quoting State v. Marshall, 148 N.J. 89,

158 (1997)). We also typically review a PCR petition with "deference to the

trial court's factual findings . . . 'when supported by adequate, substantial and

credible evidence.'" State v. Harris, 181 N.J. 391, 415 (2004) (alteration in

original) (quoting Toll Bros., Inc. v. Twp. of W. Windsor, 173 N.J. 502, 549

(2002)). However, where, as here, "no evidentiary hearing has been held, we

'may exercise de novo review over the factual inferences drawn from the

documentary record by the [PCR judge].'" State v. Reevey, 417 N.J. Super. 134,

146-47 (App. Div. 2010) (alteration in original) (quoting Harris, 181 N.J. at

421). We also review de novo the legal conclusions of the PCR judge. Harris,

181 N.J. at 415-16 (citing Toll Bros., 173 N.J. at 549).

      Applying these principles, we first address defendant's contention that the

claimed newly discovered evidence prevented him from effectively raising a

third-party guilt defense at trial. Like the PCR court, we conclude defendant


                                                                            A-5573-17T1
                                        27
failed to establish all three prongs of the Carter test. When examining the impact

of newly discovered evidence, it must be "placed in context with the trial

evidence" and considered in relation to the State's proofs at trial. Ways, 180

N.J. at 195 (characterizing State's proofs as "far from overwhelming"). Here,

the nylon stocking found at the scene containing both defendant's and A.T.'s

DNA constitutes compelling and uncontested evidence of defendant's guilt that

is untainted by a third-party guilt defense. Thus, focusing on prongs one and

three of the Carter test, we are satisfied the claimed newly discovered evidence

would not "shake the very foundation of the State's case" nor "alter the earlier

jury verdict."   Nash, 212 N.J. at 549 (quoting Ways, 180 N.J. at 189).

Accordingly, defendant's motion for a new trial was properly denied.

      For the same reason, defendant's IAC claim must fail. Even if defense

counsels' performance was deficient as defendant asserts, defendant cannot

demonstrate the requisite prejudice under the second Strickland prong, given the

State's compelling evidence of defendant's guilt. Defendant argues that if his

attorney had investigated his claim that he wore nylon stockings on his head

from a young age, it would have provided a reasonable explanation for the

presence of his DNA on the stocking found at the scene. Indeed, an attorney's

failure to investigate "is a serious deficiency that can result in the reversal of a


                                                                            A-5573-17T1
                                        28
conviction." Porter, 216 N.J. at 353. "[C]ounsel has a duty to make reasonable

investigations or to make a reasonable decision that makes particular

investigations unnecessary." Strickland, 466 U.S. at 691.

      Here, defendant's argument overlooks the fact that the stocking contained

both his DNA and the victim's, A.T., and no amount of investigation of

defendant's past practice would change that fact.           Similarly, we reject

defendant's contention that he was prejudiced by trial counsel's purported failure

to effectively challenge the DNA evidence found on the stocking because even

the defense DNA expert agreed with the findings of the State's experts. We also

reject defendant's assertion that he was prejudiced by counsels' purported failure

to discredit Cancinos because Cancinos's involvement had no impact on the

State's most damning evidence, the stocking found at the scene with defendant's

and the victim's DNA. Additionally, defendant's claim that he was prejudiced

by missing out on the New Jersey prosecutor's global plea offer is belied by the

record where he expressly rejected the offer, and adamantly professed his

innocence.

      Based on our decision, we need not address defendant's remaining

arguments, which lack sufficient merit to warrant discussion here. R. 2:11-

3(e)(2). Briefly, we reject defendant's argument that there is a presumption of


                                                                          A-5573-17T1
                                       29
prejudice because his trial attorney had a conflict of interest arising from dual

representation.    According to defendant, his attorney held various local

governmental positions in Essex and Hudson County at the time of the trial,

including serving "as the municipal prosecutor in a number of towns." We reject

defendant's assertion as unsupported by any competent evidence in the record.

There is no affidavit or certification to support the claim. "That type of showing

is necessary to advance defendant's PCR claim." Gaither, 396 N.J. Super. at

514.

       Affirmed.




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