                                NOT FOR PUBLICATION WITHOUT THE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-0639-18T1

STATE OF NEW JERSEY,

         Plaintiff-Respondent,

v.

JUAN CASTILLO,

     Defendant-Appellant.
________________________

                   Submitted January 23, 2020 – Decided February 13, 2020

                   Before Judges Koblitz and Gooden Brown.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Union County, Indictment No. 06-05-0485.

                   Joseph E. Krakora, Public Defender, attorney for
                   appellant (Steven M. Gilson, Designated Counsel, on
                   the brief).

                   Lyndsay V. Ruotolo, Acting Union County Prosecutor,
                   attorney for respondent (Milton Samuel Leibowitz,
                   Special Deputy Attorney General/Acting Assistant
                   Prosecutor, of counsel and on the brief).

PER CURIAM
      Defendant Juan Castillo appeals from a June 25, 2018 order, entered after

our second remand, denying his petition for post-conviction relief (PCR) after

oral argument but without a plenary hearing. We twice remanded to allow oral

argument. State v. Castillo, No. A-4704-15 (App. Div. Nov. 27, 2017). We now

affirm.

      A jury convicted defendant in 2008 of first-degree murder, N.J.S.A.

2C:11-3(a)(1); fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-

5(d); and third-degree possession of a weapon for an unlawful purpose, N.J.S.A.

2C:39-4(d). Defendant stabbed the victim to death in a fight between two groups

of men in front of a bar in Elizabeth. The trial court sentenced defendant to an

aggregate term of forty-five years imprisonment, subject to eighty-five percent

parole ineligibility pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2(a).

We affirmed on direct appeal, remanding only for the merger of one count. State

v. Castillo, No. A-3067-08 (App. Div. June 28, 2011) (slip op. at 2), certif.

denied, 208 N.J. 600 (2011).

      Defendant raises the following issues on appeal:

            POINT I: THIS MATTER MUST BE REMANDED
            FOR AN EVIDENTIARY HEARING BECAUSE THE
            DEFENDANT ESTABLISHED A PRIMA FACIE
            CASE OF TRIAL COUNSEL'S INEFFECTIVENESS
            FOR FAILING TO AGGRESSIVELY PURSUE AN
            INTOXICATION DEFENSE AND FAILING TO

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            OBJECT TO THE PROSECUTOR'S IMPROPER
            REMARKS IN SUMMATION.

            A. TRIAL COUNSEL FAILED TO AGGRESSIVELY
            PURSUE AN INTOXICATION DEFENSE.

            B. TRIAL COUNSEL FAILED TO OBJECT TO THE
            PROSECUTOR'S IMPROPER REMARKS IN
            SUMMATION.

      We review a judge's denial of PCR without an evidentiary hearing de

novo. State v. Jackson, 454 N.J. Super. 284, 291 (App. Div. 2018). "Post-

conviction relief is neither a substitute for direct appeal, R. 3:22-3, nor an

opportunity to relitigate cases already decided on the merits, R. 3:22-5." State

v. Preciose, 129 N.J. 451, 459 (1992). A defendant raises a cognizable PCR

claim if it is based upon a "[s]ubstantial denial in the conviction proceedings of

defendant's rights under the Constitution of the United States or the Constitution

or laws of the State of New Jersey." R. 3:22-2(a).

      To reverse a conviction based on ineffective assistance of counsel, a

defendant must demonstrate that both: (1) "counsel's performance was deficient"

and (2) "counsel's errors were so serious as to deprive the defendant of a fair

trial." Strickland v. Washington, 466 U.S. 668, 687 (1984); see State v. Fritz,

105 N.J. 42, 58 (1987) (adopting the Strickland two-part test in New Jersey).

Under the first prong, counsel's representation must be objectively


                                                                         A-0639-18T1
                                        3
unreasonable. State v. Pierre, 223 N.J. 560, 578 (2015). Under the second

prong, a "reasonable probability [must exist] that, but for counsel's

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

Id. at 583 (quoting Strickland, 466 U.S. at 694).

      "[W]hile evidentiary hearings are not required," a PCR judge has the

discretion to grant such a hearing. State v. Jones, 219 N.J. 298, 311 (2014). A

defendant seeking PCR is entitled to an evidentiary hearing when (1) he or she

sets forth a prima facie case of ineffective assistance of counsel; (2) the court

determines "there are material issues of disputed fact that cannot be resolved by

reference to the existing record"; and (3) the court determines "that an

evidentiary hearing is necessary to resolve the claims for relief." R. 3:22-10(b).

"The judge deciding a PCR claim should conduct an evidentiary hearing when

there are disputed issues of material facts related to the defendant's entitlement

to PCR, particularly when the dispute regards events and conversations that

occur off the record or outside the presence of the judge." State v. Porter, 216

N.J. 343, 354 (2013).     In making this determination, the PCR judge must

consider the facts "in the light most favorable to [the] defendant." Jones, 219

N.J. at 302.




                                                                         A-0639-18T1
                                        4
      Defense counsel elicited testimony that the fight occurred after a night of

drinking and the participants were drunk. Defendant's statement to the police

included his acknowledgement that he was drunk. He said he was "[r]eally

drunk, really, really drunk." The jury heard the audio statement. Trial counsel

also requested and obtained a jury charge on the intoxication defense consistent

with both Model Jury Charges (Criminal), "Intoxication Negating an Element of

the Offense (N.J.S.A. 2C:2-8(a))" (rev. Oct. 18, 2005) and Model Jury Charges

(Criminal), "Effect of Intoxication on Jury's Consideration of Lesser Offenses

Involving Recklessness (N.J.S.A. 2C:2-8(b))" (approved Feb. 27, 1989). In

summation, counsel relied on the inconsistencies in the State's evidence, but

mentioned intoxication as well. She could not reasonably dwell on intoxication

while maintaining defendant did not stab the victim. Her decision not to , as

defendant claims, "aggressively pursue" the intoxication defense in summation

was clearly a strategic decision, not grounds for PCR. See Strickland, 466 U.S.

at 690-91.

      Defendant also claims that his trial counsel was ineffective in not

objecting to the end of the State's summation, when, in describing the events

leading up to the stabbing and the stabbing itself, the prosecutor referred to the

defendant as "the baddest guy on the block" twelve times.          The evidence


                                                                         A-0639-18T1
                                        5
supported the inference that the fight was a result of men from two different

countries, who had been drinking and belonged to rival gangs, engaging in

violence as retaliation for having been "disrespected." Castillo, No. A-3067-08

(slip op. at 3, 9-10). The prosecutor has wide latitude in advocating to the jury

but is not permitted to inflame the jury with unsubstantiated rhetoric. See State

v. Smith, 187 N.J. 158, 177 (2001).

      Even assuming defense counsel should have objected to the State's final

words and assuming the objection would have been sustained, defendant did not

receive an unfair trial and thus the second prong of the Strickland-Fritz test is

not met. The evidence of defendant's guilt was overwhelming. Not only did he

confess, but several eyewitnesses saw defendant fighting with and stabbing the

victim. Additionally, the trial judge charged the jury that the summations were

not evidentiary.

      Affirmed.




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