                        NOT FOR PUBLICATION WITHOUT THE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-1676-16T4

STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

JERMAINE A. WILLIAMS,
a/k/a BLACK,

     Defendant-Appellant.
______________________________

              Argued telephonically May 10, 2018 – Decided June 20, 2018

              Before Judges Yannotti and Carroll.

              On appeal from Superior Court of New Jersey,
              Law Division, Passaic County, Indictment No.
              00-03-0263.

              Jermaine A. Williams, appellant, argued the
              cause pro se.

              Christopher   W.   Hsieh,    Chief   Assistant
              Prosecutor, argued the cause for respondent
              (Camelia M. Valdes, Passaic County Prosecutor,
              attorney; Christopher W. Hsieh, on the brief).

PER CURIAM

        Defendant Jermaine A. Williams appeals from an order entered

by the Law Division on November 30, 2016, which denied his second
petition for post-conviction relief (PCR) and his application for

the assignment of counsel. We affirm.

                                     I.

     A Passaic County grand jury charged defendant with first-

degree felony murder, N.J.S.A. 2C:11-3(a)(3) (count one); first-

degree robbery, N.J.S.A. 2C:15-1 and 2C:2-6 (count two); second-

degree conspiracy to commit robbery, N.J.S.A. 2C:5-2, 2C:15-1

(count   three);    first-degree    aggravated          manslaughter,    N.J.S.A.

2C:11-4(a) (count four); second-degree possession of a weapon for

an unlawful purpose, N.J.S.A. 2C:39-4(a), 2C:2-6 (count five); and

third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b),

2C:2-6 (count six).

     Defendant was tried before a jury. At the trial, the State

presented evidence that, on the afternoon of September 26, 1999,

defendant and two of his friends, Stuart Jones and Jahkeam Francis,

gathered in Newark. They decided to travel by taxi to the home of

Jahkeam's cousin, A.C., in Paterson.1 Defendant was in possession

of a silver handgun. Defendant said he needed money and would rob

someone if he had the opportunity to do so.

     Late in the afternoon, defendant, Jones, and Francis took a

taxi to East Orange, and there they got into a livery cab that was


1
     In this       opinion,   we   use       initials    to   identify   certain
individuals.

                                         2                                A-1676-16T4
driven by another man. Defendant was seated in the rear with Jones.

Francis sat up front, alongside of the driver. The cab stopped at

A.C.'s mother's home and then proceeded to the intersection of

North Fourth Street and Haledon Avenue in Paterson.

     There, at approximately 5:30 p.m., defendant observed Miguel

"Danny" Mercado on the sidewalk in front of his father's grocery

store. Mercado, who was sixteen-years old, was talking to a friend.

Mercado was wearing a thick, gold chain around his neck. The car

stopped and defendant got out. He grabbed Mercado from behind,

placed the gun to the right side of Mercado's neck and demanded

that Mercado give him the chain.

     Mercado resisted and attempted to extricate himself from

defendant's grip. Mercado and defendant struggled. Defendant shot

Mercado in the abdomen, took the necklace, and got back into the

cab, which then drove off. Mercado died the following day as a

result of the internal hemorrhaging caused by the gunshot wound

in his abdomen.

     After the robbery, the driver drove defendant, Jones and

Francis to A.C.'s home. The driver dropped them off and left. A.C.

was at home with her boyfriend, Rasheem White, and her daughter.

Later that evening, defendant, Jones, and Francis went with A.C.

and White to a club. They left at around 2:30 a.m. A.C. dropped

defendant and Jones off at a location in Orange. Defendant told

                                3                           A-1676-16T4
Jones that he wanted to get rid of the gold chain. They sold the

chain in New York City two days later.

     Officers from the Paterson Police Department investigated the

matter, and that investigation led them to A.C. and White, who

gave statements to the police. Detective Richard Reyes testified

that A.C. and Francis had identified defendant, Jones, and Francis

from photo lineups. In October 1999, Jones was arrested. He

initially denied involvement in the incident, but later said that

defendant robbed and shot Mercado and he had been in the car at

the time. Francis was arrested in March 2000. On June 16, 2000,

defendant was arrested in York, Pennsylvania.

     On   count   four,    the       jury   found   defendant     not    guilty      of

aggravated manslaughter, but guilty of the lesser-included offense

of first-degree reckless manslaughter, N.J.S.A. 2C:11-4(a). The

jury found defendant guilty on the other counts. At sentencing,

the court merged counts two, three, and four with count one and

sentenced defendant on that count to life imprisonment, with a

thirty-year   period      of   parole       ineligibility.       On   count     five,

defendant was sentenced to a concurrent term of ten years, with a

five-year period of parole ineligibility. On count six, the court

sentenced   defendant     to     a    consecutive    term   of    five     years     of

incarceration,      with       two-and-one-half          years        of       parole

ineligibility.

                                            4                                 A-1676-16T4
    Defendant appealed his conviction and sentence and raised the

following issues:

         POINT I:
         THE PROSECUTOR COMMITTED MISCONDUCT, AND THUS
         DEPRIVED DEFENDANT OF A FAIR TRIAL, WHEN HE
         TOLD THE JURORS DURING SUMMATION THAT THEIR
         ROLE IN THE CASE WAS "ABOUT COURAGE" AND
         "ABOUT ALLOCATING RESPONSIBILITY."

         POINT II:
         THE COURT'S FAILURE TO INSTRUCT THE JURY TO
         APPLY SPECIAL SCRUTINY TO THE TESTIMONY OF
         ACCOMPLICES REQUIRES REVERSAL.

         POINT III:
         THE AGGREGATE SENTENCE OF LIFE PLUS FIVE
         YEARS, WITH A 32-1/2 YEAR PAROLE BAR, WAS
         MANIFESTLY   EXCESSIVE  UNDER ALL OF  THE
         APPLICABLE CIRCUMSTANCES.

         POINT IV:
         THE CONVICTION FOR POSSESSION OF A WEAPON FOR
         AN UNLAWFUL PURPOSE SHOULD HAVE BEEN MERGED
         INTO THE FELONY-MURDER CONVICTION.

    Defendant also filed a pro se brief and addendum in which he

raised the following issues:

         POINT I:
         PROSECUTOR IN SUMMATION CALLING DEFENSE
         WITNESS A "BUM" PRODUCED PREJUDICIAL ERROR
         REQUIRING REVERSAL.

         POINT II:
         COUNSEL WAS INEFFECTIVE FOR STATING DEFENDANT
         WAS IN GETAWAY CAR OF ROBBERY DURING [HIS]
         OPENING ARGUMENT.

         POINT III:
         THE COURT'S JURY CHARGE OF FLIGHT WAS
         INAPPROPRIATE. TRIAL JUDGE INSTRUCTED JURY
         THAT IT "COULD INFER THAT DEFENDANT HAD FLED

                               5                          A-1676-16T4
          SHORTLY AFTER ALLEGED COMMISSION OF CRIME";
          SUCH INSTRUCTION TO JURY MAY HAVE SUGGESTED
          THAT JUDGE BELIEVED DEFENDANT TO BE THE
          PERPETRATOR OF CRIME. THEREFORE REQUIRING
          REVERSAL.

          POINT IV:
          THE   COURT'S   CHARGE  TO   THE   JURY   ON
          IDENTIFICATION WAS INADEQUATE AND INCOMPLETE
          DEPRIVING DEFENDANT OF HIS RIGHT TO A FAIR
          TRIAL UNDER BOTH THE NEW JERSEY AND FEDERAL
          CONSTITUTION[S].

          POINT V:
          TRIAL COURT COMMITTED HARMFUL ERROR WHEN IT
          OVERRULED DEFENDANT'S OBJECTION TO AN ALLEGED
          OUT-OF-COURT IDENTIFICATION MADE BY SOMEONE
          OTHER THAN THE POLICE OFFICER TESTIFYING IN
          THE PROCEEDING. THUS, DEFENDANT WAS DENIED THE
          RIGHT   TO  CONFRONTATION,   AND   IN   EFFECT
          [DEPRIVED] OF A FAIR TRIAL.

          POINT VI:
          THE    HEARSAY     RULE    AND   DEFENDANT'S
          CONSTITUTIONAL RIGHT TO CONFRONTATION WERE
          VIOLATED DURING THE COURSE OF THE TRIAL WHEN
          [J.F.]   TESTIFIED   ABOUT  HER  BOYFRIEND'S
          KNOWLEDGE OF THE ASSAILANTS AND THE CRIME.
          CONSEQUENTLY, THE TRIAL COURT SHOULD HAVE
          TRIED TO CORRECT OR INSTITUTE CURATIVE
          MEASURES FOR THE HEARSAY TESTIMONY OF [J.F.]
          IN REGARDS TO WHAT SHE SAID HER BOYFRIEND
          ALLEGEDLY SAID.

     We affirmed defendant's convictions. State v. Williams, No.

A-3568-01 (App. Div. Feb. 26, 2004) (slip. op. at 10). We also

rejected defendant's contention that his sentences were excessive,

but vacated the separate concurrent sentence that the court had

imposed on the conviction for possession of a weapon for an

unlawful purpose. Ibid. We remanded the matter for entry of an

                                6                          A-1676-16T4
amended judgment of conviction merging the count charging that

offense with count one, charging felony murder. Ibid.

                                      II.

      In October 2004, defendant filed his first PCR petition, and

the trial court assigned counsel to represent defendant. On October

18,   2006,    the   court   denied   the   petition   without   a   hearing.

Defendant appealed and raised the following arguments:

              POINT I:

              THE [PCR] COURT SHOULD HAVE GRANTED THE
              DEFENDANT AN EVIDENTIARY HEARING ON THE
              DEFENDANT'S MOTION FOR POST-CONVICTION RELIEF
              ON THE BASIS OF INEFFECTIVE ASSISTANCE OF
              TRIAL COUNSEL.

              A:   TRIAL  COUNSEL   FAILED  TO   ADEQUATELY
              INVESTIGATE AND PREPARE FOR TRIAL BY FAILING
              TO INTERVIEW AND CALL AN ALIBI WITNESS.

              B: TRIAL COUNSEL FAILED TO ADEQUATELY ADVISE
              THE DEFENDANT ON HIS RIGHT TO TESTIFY.

              POINT II:
              THE DEFENDANT'S MOTION FOR POST-CONVICTION
              RELIEF SHOULD HAVE BEEN GRANTED DUE TO
              PROSECUTORIAL    MISCONDUCT    IN KNOWINGLY
              PRESENTING PERJURED TESTIMONY.

              POINT III:
              APPELLATE COUNSEL WAS INEFFECTIVE DUE TO HIS
              FAILURE TO RAISE THE ISSUE, ON DIRECT APPEAL
              REGARDING PROSECUTORIAL MISCONDUCT IN THE
              OPENING STATEMENTS.

              POINT IV:
              DEFENDANT'S MOTION FOR POST-CONVICTION RELIEF
              SHOULD HAVE BEEN GRANTED BASED UPON A FLAWED
              JURY SELECTION PROCESS; THE DEFENDANT WAS NOT

                                       7                              A-1676-16T4
         PERMITTED BY HIS ATTORNEY TO PARTICIPATE IN
         JURY SELECTION.

    Defendant also filed a pro se brief in which he raised the

following points:

         POINT I:
         POST-CONVICTION RELIEF COUNSEL FAILED TO
         ADVANCE ALL CLAIMS BY PETITIONER IN HIS PRO-
         SE PETITION. FAILURE OF COUNSEL TO [BRIEF],
         AND ARGUE INEFFECTIVE ASSISTANCE CLAIMS
         VIOLATES [RULE] 3:22-6(d)[.] COUNSEL ALSO
         FAILED TO ADVANCE GROUNDS INSISTED UPON BY
         DEFENDANT.

         POINT II:
         THE COURT ERRED IN REFUSING TO SET ASIDE
         DEFENDANT'S CONVICTIONS ON THE BASIS OF THE
         INEFFECTIVE ASSISTANCE OF COUNSEL CLAIMS. THAT
         CLEARLY VIOLATED THE [SIXTH] AMENDMENT.

    We affirmed the denial of PCR. State v. Williams, No. A-1494-

06 (App. Div. Sept. 25, 2008) (slip op. at 16-17). Defendant then

petitioned the Supreme Court for certification. The Court denied

the petition. State v. Williams, 197 N.J. 259 (2008).

    It appears that in April 2009, defendant filed a petition for

a writ of habeas corpus in the United States District Court for

the District of New Jersey. On September 4, 2009, defendant filed

his second PCR petition in the Law Division. On September 24,

2010, the Law Division dismissed the petition without prejudice.

The court indicated that defendant could re-file the petition

after his federal claims had been resolved.



                               8                          A-1676-16T4
     On    January   22,   2015,      the       federal   district   court    denied

defendant's habeas petition and refused to issue a certificate of

appealability. Williams v. Ricci, No. 09-1822, 2015 U.S. Dist.

LEXIS 7618, at *36 (D.N.J. Jan. 22, 2015). It appears defendant's

Third     Circuit    appeal      of   that        decision    was    unsuccessful.

Thereafter, the Supreme Court of the United States denied his

petition for a writ of certiorari. Williams v. Johnson, 136 S. Ct.

849 (2016).

                                        III.

     On February 9, 2016, defendant filed his PCR petition, in

which he alleged: (1) James F. Avigliano, who represented co-

defendant Jones, had a conflict of interest because he later became

County    Prosecutor;      (2)    the       assistant      prosecutor   committed

misconduct and violated R.P.C. 3.8(a) by prosecuting a case that

was not supported by probable cause; (3) the prosecutor violated

Brady v. Maryland, 373 U.S. 83 (1963), because he failed to turn

over certain exculpatory evidence to the defense; (4) his trial

attorney was ineffective because he did not file a motion to

dismiss the indictment; and (5) appellate counsel was ineffective

because he failed to raise Avigliano's alleged conflict of interest

on appeal.

     The PCR court found that the petition was barred under Rule

3:22-12(a)(2) and Rule 3:22-4(b). The court nevertheless addressed

                                            9                                A-1676-16T4
the claims and found that they lacked merit. The court also found

that defendant had not established good cause under Rule 3:22-6(b)

for the assignment of counsel. This appeal followed.

     On appeal, defendant raises the following arguments:

          I. DEFENDANT['S] SECOND [PCR] IS TIMELY UNDER
          [RULE] 3:22-12[] BECAUSE IT WAS FILED BEFORE
          THE NEWLY AMENDED ONE-YEAR TIME REQUIREMENT,
          THE SECOND [PCR] HERE WAS FILED WITHIN THE
          [FIVE]-YEAR STIPULATION OF THE INITIAL [PCR]
          AND DISMISSED WITHOUT PREJUDICE BY THE TRIAL
          COURT   BELOW,   AND  THEREFORE   SHOULD   BE
          CONSIDERED TIMELY (Not Raised Below).

          II. FORMER HEAD PASSAIC COUNTY PROSECUTOR
          JAMES F. AVIGLIANO COMMITTED A CONFLICT OF
          INTEREST DURING THE APPELLANT'S TRIAL AND
          APPEAL PROCESS. FIRST BY FAILING TO ALERT THE
          TRIAL COURT THAT HE WAS CAMPAIGNING[] AND
          SEEKING EMPLOYMENT WITH THE PASSAIC COUNTY
          PROSECUTOR'S OFFICE[] WHILE ASSISTING THE
          APPELLANT'S   CO-DEFENDANT    IN    TESTIFYING
          AGAINST APPELLANT[] KNOWING WEEKS AFTER THE
          APPELLANT'S TRIAL, HE WOULD BE THE BOSS OF THE
          [INDIVIDUALS]   THAT    HE   NEGOTIATED    THE
          UNCONSITUTIONAL DEALS WITH. SECONDLY, DURING
          THE APPELLANT['S] FIRST [PCR] MR. AVIGLIANO
          ALSO COMMITTED A CONFLICT OF INTEREST[]
          BECAUSE HE NOW REPRESENTED THE PASSAIC COUNTY
          PROSECUTOR'S OFFICE, AND IT WAS ONLY WHEN THE
          APPELLANT WAS APPEALING HIS FIRST [PCR] THAT
          THE ATTORNEY GENERAL REVEALED THE CONFLICT IN
          VIOLATION OF THE APPELLANT'S [FIFTH, SIXTH,
          AND FOURTEENTH] AMENDMENT RIGHTS UNDER THE
          U.S. CONSTITUTION.

          III. FORMER PROSECUTOR WILLIAM J. PURDY
          COMMITTED MISCONDUCT BY PROSECUTING A CASE
          THAT WAS NOT SUPPORTED    BY PROBABLE CAUSE
          UNDER [RPC] 3.8(a). THE APPELLANT'S CO-
          DEFENDANT RASHEEM WHITE WAS THE FIRST OF THE
          [SUSPECTS]   INITIALLY  ARRESTED,   AND  THE

                               10                           A-1676-16T4
PROSECUTOR'S CASE HINGED OFF [SIC] HIS ILLEGAL
INVOLUNTARY, INADMISSIBLE STATEMENT[] BECAUSE
THE COMPLAINT (ARREST WARRANT) WAS SIGNED BY
A POLICE OFFICER[ ]WHO WAS NOT AUTHORIZED TO
ISSUE A WARRANT UNDER NEW JERSEY LAW[][.] IT
WAS NOT SIGNED UNDER OATH BY THE PROPER
JUDICIAL OFFICER. THE LAW ENFORCEMENT OFFICER
WHO TOOK THE COMPLAINT, IN FACT[,] ISSUED THE
WARRANT, AND THIS WAS IN VIOLATION OF THE
APPELLANT'S [FOURTH AND FOURTEENTH] AMENDMENT
CONSITUTIONAL DUE PROCESS RIGHTS. THE NEW
JERSEY CONSTITUTION, ART. 1, PARA 7, STATES:
THAT NO WARRANT SHALL ISSUE EXCEPT UPON
PROBABLE   CAUSE,   SUPPORTED   BY   OATH   OR
AFFIRMATION.

IV. THE PROSECUTOR COMMITTED A DUE PROCESS
VIOLATION OF BRADY[] BY FAILING TO [TURN OVER]
EXCULPATORY EVIDENCE TO THE DEFENSE. THE
APPELLANT'S TRIAL COUNSEL HAD REQUESTED THE
9-1-1 TAPE DURING THE TRIAL, AND THE
PROSECUTOR FAILED TO [TURN OVER] THE TAPE TO
THE DEFENSE, AND CONTINUES TO WITHHOLD THE
EVIDENCE[] IN VIOLATION OF THE APPELLANT'S DUE
PROCESS RIGHTS UNDER THE U.S. CONSTITUTION,
AND THE [PROSECUTOR'S] DISCLOSURE DUTIES.

V.   TRIAL    COUNSEL   THOMAS    KAISER   WAS
INEFFECTIVE[] FOR FAILING TO MOVE TO GET THE
INDICTMENT DISMISSED AGAINST THE APPELLANT,
DUE TO THE DEFECTIVE WARRANT THAT WAS IN
VIOLATION OF THE APPELLANT'S FEDERAL[] AND
STATE PROVISIONS [SIC]. THE PROSECUTOR WOULD
NOT HAVE BEEN ABLE TO MOVE THE CASE FORWARD
WITHOUT THE DEFECTIVE WARRANT, INVOLUNTARY[]
AND INADMISSIBLE STATEMENT OF RASHEEM WHITE[]
THAT TRIAL COUNSEL MR. KAISER FAILED TO HAVE
SUPPRESSED, IN VIOLATION OF THE APPELLANT'S
[SIXTH]    AMENDMENT   RIGHT   TO    EFFECTIVE
ASSISTANCE OF COUNSEL UNDER THE STATE AND U.S.
CONSTITUTION[S].

VI. APPELLANT'S INITIAL [PCR] APPEAL COUNSEL
. . . WAS INEFFECTIVE DURING THE APPELLANT'S
APPEAL PROCESS[] FOR FAILING TO ADDRESS THE

                     11                          A-1676-16T4
           NEWLY DISCOVERED APPELLATE GROUND OF CONFLICT
           OF INTEREST THAT WAS REVEALED AGAINST THE NOW
           FORMER PROSECUTOR JAMES F. AVIGLIANO, IN
           VIOLATION OF THE APPELLANT'S [SIXTH] AMENDMENT
           RIGHTS UNDER THE U.S. CONSTITUTION.

                                    IV.

     As   stated   previously,     although     the    PCR    court    found   the

petition was barred under Rules 3:22-12(a)(2) and 3:22-4(b), the

court addressed the merits of the claims and found they were

entirely without merit. We agree.

     A. Conflict of Interest

     Defendant     argues   that   James   F.    Avigliano,      who    was    co-

defendant Jones's trial attorney, had a conflict of interest.

Defendant asserts that Jones pled guilty, obtained a favorable

plea agreement, and agreed to testify against defendant. Defendant

notes that several months after the trial, Avigliano became County

Prosecutor.

     Defendant     alleges    Avigliano         "had    his     hat     in     the

prosecutor['s] arena" before his trial. He claims "everyone" in

the prosecutor's office "had to feel some sort of pressure" from

Avigliano knowing "he would soon be their boss." Defendant also

notes that the Attorney General assumed responsibility for his

direct appeal, which was pending after Avigliano became County

Prosecutor.



                                    12                                   A-1676-16T4
     The PCR court found that Avigliano's representation of co-

defendant Jones did not result in the denial of defendant's

constitutional right to a fair trial. The record supports the

court's finding. Indeed, there is no evidence in the record to

support   defendant's   claim   that   Avigliano    and   persons   in   the

prosecutor's office knew at the time of trial that he would be

appointed as County Prosecutor, or that Avigliano worked with the

prosecutor's office to obtain a favorable plea agreement for Jones

and prosecute defendant.

     Moreover, the Attorney General stepped in and superseded the

Passaic County Prosecutor's Office (PCPO) in the handling of

defendant's direct appeal because Avigliano had become County

Prosecutor, and he had previously represented one of the defendants

charged in the indictment. The Attorney General's decision to

supersede the PCPO for the appeal does not support defendant's

claim that Avigliano had a conflict of interest during the trial

court proceedings.

     B. Alleged Prosecutorial Misconduct

     Defendant    argues    the    assistant       prosecutor   committed

misconduct by purportedly prosecuting this case without probable

cause. According to defendant, co-defendant White was arrested on

the basis of a warrant that was not signed by a judicial officer



                                  13                                A-1676-16T4
and not supported by probable cause. He claims White's unlawful

arrest tainted his conviction.

     Defendant argues that the statement White provided to the

police regarding the robbery and shooting of Mercado should have

been excluded at trial. The record shows, however, that White's

statement was not the product of an allegedly invalid warrant.

White was arrested at around 11:30 p.m. on September 29, 1999,

based on an outstanding warrant for an unrelated crime. The police

questioned White about the Mercado robbery and shooting. At around

2:45 a.m., White provided a statement. White then was arrested and

charged.

     Defendant claims that White's arrest on the charges related

to the Mercado robbery and shooting was the product of an invalid

arrest warrant. However, even if there was some technical flaw in

the warrant, White's statement was not the product of that arrest.

As noted, White provided his statement before that warrant was

issued.

     Moreover, as the PCR court noted, the State did not use

White's statement as evidence against defendant at trial. Instead,

the defense called White as a witness in an effort to exculpate

defendant. White testified that although he was not in the car at

the time of the shooting, he signed a typed statement placing him



                                 14                        A-1676-16T4
in the car because he was told to sign it and he did "whatever

they told [him] to do."

     In any event, the PCR court correctly found that defendant's

claim that the assistant prosecutor pursued a matter without

probable cause was entirely without merit. Wholly aside from

White's statement, the State had sufficient evidence to support

defendant's indictment.

     C. Brady Violation

     Defendant asserts the State violated Brady by failing to

provide   the   defense   with   a   copy   of   a   9-1-1   call   to    police

headquarters on September 26, 1999. The record shows that the

assistant prosecutor agreed to provide the defense with a copy of

the 9-1-1 recording. The assistant prosecutor told the court an

unknown person made the call and reported the shooting. It was,

the prosecutor stated, a "very brief call."

     To establish a Brady violation, the defendant must show that

"(1) the prosecution suppressed evidence; (2) the evidence is

favorable to the defense; and (3) the evidence is material." State

v. Martini, 160 N.J. 248, 268 (1999) (citation omitted). Here,

there is no evidence that the State failed to provide the defense

with a copy of the recording of the 9-1-1 call.

     Moreover, defendant has not shown that the recording was

exculpatory and material to the defense. According to the assistant

                                     15                                  A-1676-16T4
prosecutor, the caller merely reported the shooting and did not

identify    herself.      The    PCR       court     correctly       determined    that

defendant had not shown that the State violated its obligation

under   Brady    to    provide       the   defense     with      material,   favorable

evidence.

     D. Ineffective Assistance of Trial and PCR Counsel

     Defendant        further    argues         he   was    denied    the    effective

assistance of counsel because his trial attorney did not seek

dismissal of his indictment on the ground that White's arrest

warrant was illegal. He also claims he was denied the effective

assistance of PCR counsel because his attorney did not raise a

claim regarding Avigliano's purported conflict of interest in the

first PCR proceeding.

     To establish a claim of ineffective assistance of counsel,

the defendant must meet the two-part test established in Strickland

v. Washington, 466 U.S. 668, 686 (1984), and adopted by our Supreme

Court in State v. Fritz, 105 N.J. 42, 58 (1987)). The defendant

first must show that his attorney made errors "so serious that

counsel    was   not    functioning        as    the   'counsel'      guaranteed     the

defendant by the Sixth Amendment." Strickland, 466 U.S. at 687.

Counsel's    performance        is    deficient        if   it    "[falls]   below    an

objective standard of reasonableness." Id. at 688.



                                           16                                  A-1676-16T4
         The defendant also must show that his counsel's "deficient

performance prejudiced the defense." Id. at 687. The defendant

must establish that "there is a reasonable probability that, but

for counsel's unprofessional errors, the result of the proceeding

would have been different." Id. at 694. A "reasonable probability"

is   a    "probability   sufficient   to   undermine   confidence   in   the

outcome" of the proceeding. Ibid.

         Here, defendant failed to show that his trial attorney was

deficient in failing to seek the dismissal of his indictment based

on White's alleged illegal arrest warrant and his alleged coerced

statement. As we stated previously, wholly aside from White's

statements, there was probable cause for the indictment. Thus, if

defendant's attorney had made such a motion, it would have been

denied.

         Defendant also failed to show that his PCR counsel erred by

failing to raise Avigliano's purported conflict of interest in the

first PCR petition. The claim was meritless and the result of that

proceeding would not have been different if counsel had raised the

issue.

         In view of our decision, we need not address defendant's

contention that the PCR court erred by finding that his second PCR

petition was barred by Rules 3:22-12(a)(2) and 3:22-4(b).

         Affirmed.

                                      17                            A-1676-16T4
