                        NOT FOR PUBLICATION WITHOUT THE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-2992-16T1


STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

ERIC NIEVES, a/k/a JASON NIEVES,

     Defendant-Appellant.
__________________________________

              Submitted July 9, 2018 – Decided July 19, 2018

              Before Judges Yannotti and Haas.

              On appeal from Superior Court of New Jersey,
              Law Division, Union County, Indictment No. 10-
              02-0238.

              Joseph E. Krakora, Public Defender, attorney
              for appellant (Monique D. Moyse, Designated
              Counsel, on the brief).

              Andrew C. Carey, Middlesex County Prosecutor,
              attorney for respondent (Susan L. Berkow,
              Special Assistant Prosecutor, of counsel and
              on the brief).

PER CURIAM

        Defendant Eric Nieves appeals from an order entered by the

Law Division on November 18, 2016, which denied his petition for
post-conviction relief (PCR) without an evidentiary hearing. We

affirm.

                                           I.

      Defendant was charged under Middlesex County Indictment No.

10-02-0238      with   third-degree        conspiracy     to    commit    burglary,

N.J.S.A.   2C:5-2,      N.J.S.A.        2C:18-2   (count      one);    third-degree

burglary, N.J.S.A. 2C:18-2 and N.J.S.A. 2C:2-6 (counts eighteen,

thirty-four,      forty,       and     forty-two);   third-degree        theft,        by

unlawful taking, N.J.S.A. 2C:20-3(a) and N.J.S.A. 2C:2-6 (counts

nineteen, thirty-five, and forty-one); third-degree trafficking

in stolen property, N.J.S.A. 2C:20-7.1(b) (count twenty-one); and

third-degree receiving stolen property, N.J.S.A. 2C:20-7 (count

twenty-three).

      The charges arose from four residential home burglaries and

related crimes that were committed in 2009. Defendant was charged

alone in counts forty, forty-one, and forty-two. Co-defendants

Victor Torres or Andrew Zeleniak, or both, were charged with

defendant in the other counts.

      Sometime after the indictment was returned, this matter was

transferred     to     Union    County.     The   trial       court    later     denied

defendant's motion to suppress the recorded statements he gave to

the   police.    Defendant       was    tried   before    a    jury,    which     found

defendant guilty of all charges. The court sentenced defendant to

                                           2                                    A-2992-16T1
an aggregate term of twenty-five years in state prison, with

twelve-and-one-half   years   of   parole   ineligibility.   The     court

ordered defendant to pay restitution in the amount of $4767.

     Defendant appealed from the judgment of conviction dated

September 30, 2011, and raised the following arguments:

          I. THE COURT ERRED IN ACCEPTING THE STATE'S
          LEGALLY ERRONEOUS ARGUMENT THAT A LESSER-
          INCLUDED OFFENSE OF THEFT SHOULD NOT BE
          CHARGED WITH RESPECT TO THE ALVAREZ BURGLARY
          BECAUSE IT WAS A DISORDERLY PERSONS OFFENSE –
          THAT IS, THE VALUE OF THE STOLEN ITEM WAS LESS
          THAN $200 – AND COMPOUNDED THE ERROR BY
          CHARGING     A     LESSER-INCLUDED     OFFENSE
          UNSUPPORTED BY THE RECORD. (Not Raised Below).

          II. THE JURY INSTRUCTIONS ON ACCOMPLICE
          LIABILITY DID NOT COMPLY WITH STATE V.
          BIELKIEWICZ [267 N.J. Super. 520 (App. Div.
          1993)].

          III. THE RESTITUTION ORDER SHOULD BE VACATED
          BECAUSE IT WAS PREDICATED UPON A VAGUE
          POSSIBILITY THAT DEFENDANT MIGHT WIN THE
          LOTTERY, WHICH SHOULD BE REJECTED AS AN
          ILLEGITIMATE   CONSIDERATION   IN   ASSESSING
          DEFENDANT'S FURTURE ABILITY TO PAY.

          IV.   NOTWITHSTANDING   DEFENDANT'S   CRIMINAL
          RECORD, THE TWENTY-FIVE-YEAR SENTENCE WITH [A]
          TWELVE-AND-A-HALF-YEAR PAROLE DISQUALIFIER
          WAS MANIFESTLY EXCESSIVE FOR A HANDFUL OF
          THIRD-DEGREE BURGLARIES AND THEFTS.

     We affirmed defendant's conviction, but remanded the matter

to the trial court for reconsideration of the consecutive sentences

imposed and the restitution ordered. State v. Nieves, No. A-2010-

11 (App. Div. Mar. 7, 2014) (slip op. at 20-21). On remand, the

                                   3                               A-2992-16T1
trial court imposed the same sentence, and again ordered defendant

to pay restitution in the amount of $4767.

     Defendant appealed from the amended judgment of conviction

dated June 3, 2014, and we heard the appeal on our excessive

sentence   oral   argument   calendar.   R.   2:9-11.   We   affirmed   the

sentence. State v. Nieves, No. A-0372-14 (App. Div. Mar. 10, 2015).

The Supreme Court denied defendant's petition for certification.

State v. Nieves, 222 N.J. 17 (2015).

                                  II.

     On December 14, 2015, defendant filed a timely PCR petition.

He alleged his trial attorney was ineffective because he failed

to: (1) inform him of the details of the State's last plea offer;

(2) obtain a log book from a hospital where he claimed to be when

some of the crimes were committed; (3) investigate potential

witnesses that would support an alibi defense; and (4) file a

motion seeking the disqualification of the assistant prosecutor.

     Defendant also claimed appellate counsel was ineffective for

failing to argue on appeal that: (1) the change of venue for his

trial was improper; (2) the resentencing judge should have recused

himself; and (3) the trial court erred by failing to entertain his

application for substitute counsel. In addition, he argued that

his sentence was illegal and the ordered restitution was improper.

The PCR court assigned counsel to represent defendant.

                                   4                               A-2992-16T1
     The PCR court conducted a non-evidentiary hearing on November

18, 2016. The court filed a written opinion, in which it found

that many of defendant's claims were either barred by Rule 3:22-5

because they had been raised and adjudicated in prior proceedings,

or barred by Rule 3:22-4 because they could have been raised on

direct appeal.

     The court nevertheless considered the merits of the claims

presented. The court found that defendant had not presented a

prima facie case of ineffective assistance of trial or appellate

counsel, and that an evidentiary hearing was not required. The

court entered an order dated November 18, 2016, denying PCR. This

appeal followed.

                              III.

     On appeal, defendant argues that the PCR court erred by

failing to conduct an evidentiary hearing on his petition. We

disagree.

     The PCR court should conduct an evidentiary hearing on a PCR

petition if the defendant presents a prima facie case in support

of PCR, the court determines there are material issues of fact

that cannot be resolved based on the existing record, and the

court finds that an evidentiary hearing is required to resolve the

claims presented. R. 3:22-10(b); see also State v. Porter, 216

N.J. 343, 354 (2013) (citing R. 3:22-10(b)).

                                5                          A-2992-16T1
      Here, defendant claims he was denied the effective assistance

of trial and appellate counsel. The Sixth Amendment to the United

States Constitution and Article I, Paragraph 10 of the New Jersey

Constitution    guarantee      criminal      defendants      the    right    to   the

effective assistance of counsel. State v. O'Neil, 219 N.J. 598,

610 (2014) (citing Strickland v. Washington, 466 U.S. 668, 686

(1984); State v. Fritz, 105 N.J. 42, 58 (1987)).

      To succeed on a claim of ineffective assistance of counsel,

the     defendant   must    meet   the       two-part      test    established      by

Strickland, 466 U.S. at 686, and adopted by our Supreme Court in

Fritz, 105 N.J. at 58. Under Strickland, a defendant first must

show his or her 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.

      A    defendant    also   must      show      that    counsel's      "deficient

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

must establish "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.

                                         6                                   A-2992-16T1
      A. Alleged Ineffective Assistance Of Trial Counsel

      1. Failure To Investigate

      Defendant     alleges   that    his   trial   attorney   was   deficient

because he failed to investigate adequately and present additional

witnesses at trial.

      In its opinion, the PCR court noted that defendant did not

identify the witnesses trial counsel should have called, or the

testimony these witnesses would have provided. The court found

that defendant had not shown how counsel's failure to call these

unidentified witnesses fell below a standard of reasonableness,

or how counsel's "purported failure led to a prejudicial result."

The record supports the court's findings.

      Indeed, it is well established that a claim of ineffective

assistance must rest on more than "bald assertions." State v.

Jones, 219 N.J. 298, 311-12 (2014) (quoting Porter, 216 N.J. at

355). Where, as here, a defendant claims his attorney failed to

adequately investigate the case, the defendant must state the

facts that an investigation would have revealed, supported by

affidavits or certifications. Porter, 216 N.J. at 353 (citing

State v. Cummings, 321 N.J. Super. 154, 170 (App. Div. 1999)).

      Defendant failed to present such evidence to the PCR court.

Therefore, the PCR court correctly determined that defendant had

not   shown   his   attorney    was    deficient    because    he    failed    to

                                       7                                A-2992-16T1
investigate and present testimony from additional, unidentified

witnesses. Defendant also failed to show that counsel's alleged

deficient performance prejudiced his defense.

      2. Failure To Obtain Evidence

      Defendant claims his trial attorney was deficient because he

failed    to    obtain    the    logbook   and     surveillance     video    from    a

hospital. Defendant claims he was in the hospital when "some of

the crimes were committed."

      In its opinion, the PCR court noted that defendant told the

police he was in the hospital beginning on August 8, 2009, for the

birth of his child. He also said he was in the hospital on August

16, 2009, because he had fallen. The court found, however, that

the   dates     of    defendant's      purported    hospitalizations        did   not

coincide with the dates upon which the burglaries for which he was

convicted were committed. The record supports that finding.

      As indicated in our opinion on defendant's direct appeal, the

charges    against       defendant      related      to     burglaries      at    four

residential dwellings – the Singh, Claudino, Miranda, and Alvarez

residences. Nieves, No. A-2010-11, slip op. at 4-5. The Singh

burglary took place on August 22, 2009; the Claudino burglary

occurred on August 24, 2009; the burglary of the Miranda home

occurred       on    September   25,    2009,    and      the   Alvarez   home     was



                                           8                                 A-2992-16T1
burglarized on October 6, 2009. The dates of defendant's purported

hospitalizations do not coincide with these dates.

     The PCR court noted that defendant had not explained how the

purported hospitalizations supported his claim of ineffective

assistance of counsel. The court also pointed out that in affirming

defendant's    convictions,    we   determined   that       the    State   had

presented sufficient evidence to prove beyond a reasonable doubt

that defendant committed the charged offenses on the dates alleged.

     Therefore, defendant failed to show that his trial attorney

was deficient because counsel did not obtain the logbook and

surveillance   video   from   the   facility   where   he    was    allegedly

hospitalized. He also failed to show that his attorney's alleged

deficient performance prejudiced his defense.

     3. Advice Regarding The State's Plea Offer

     Defendant claims his trial attorney was deficient because he

did not advise him adequately concerning the State's plea offer.

Defendant alleges that prior to going to trial, his attorney did

not inform him that the State's last plea offer was for a fifteen-

year custodial sentence with a seven-year, eight-month period of

parole   ineligibility,   rather    than   a   fourteen-year        custodial

sentence subject to the No Early Release Act, N.J.S.A. 2C:43-7.2.

The PCR court determined that the existing record did not support

defendant's claim.

                                     9                                A-2992-16T1
     The court noted that defendant's pre-trial memorandum stated

that the State's last plea offer was for a fifteen-and-one-half-

year prison sentence, with seven years and nine months of parole

ineligibility. Defendant signed the pre-trial memorandum, which

showed that his attorney had informed him of the State's final

plea offer.

     Defendant also claims that his attorney did not give him the

information he needed to make an informed decision about the plea

offer.   However,   defendant   has    not   identified   the   additional

information he needed to make an informed decision regarding the

State's plea offer.

     Therefore, defendant did not establish that his attorney

rendered ineffective assistance regarding his plea. He did not

establish that his attorney's advice was deficient. He also failed

to show that but for counsel's alleged deficient advice, he would

have accepted the State's plea offer instead of proceeding to

trial.

     B. Claims Of Ineffective Assistance of Appellate Counsel

     1. Change of Venue

     Defendant argues that appellate counsel was deficient because

counsel did not argue on direct appeal that the decision to change

venue from Middlesex County to Union County was improper. The PCR

court noted that defendant's future mother-in-law was employed by

                                  10                               A-2992-16T1
the Superior Court in Middlesex County. The Assignment Judge for

the Middlesex County vicinage decided to transfer venue of the

case to Union County to avoid the appearance of impropriety. The

PCR court found that the decision to change venue was reasonable

and consistent with the judiciary's policy in such matters. We

agree.

      2. Recusal of Assistant Prosecutor

      Defendant contends his trial attorney was deficient because

he   failed   to   move   for   recusal   of   the   assistant   prosecutor.

Defendant had claimed the assistant prosecutor had a working

relationship with his future mother-in-law, who worked in the

office for criminal case management in Middlesex County. Defendant

also argues his appellate counsel was ineffective for failing to

raise this issue on direct appeal.

      The record shows, however, that at the suppression hearing,

defendant's attorney sought the disqualification of the assistant

prosecutor due to the alleged relationship between the assistant

prosecutor and defendant's future mother-in-law. In opposing the

motion, the assistant prosecutor informed the judge she did not

have a working or personal relationship with defendant's future

mother-in-law. The judge denied the application.

      Defendant has not shown that the judge's ruling was factually

or legally incorrect. Accordingly, there is no merit to defendant's

                                     11                              A-2992-16T1
claim that appellate counsel was deficient in failing to raise

this issue on appeal. Defendant also failed to show that the appeal

would have been decided differently if the issue had been raised.

     3. Recusal of Judge

     Defendant argues his appellate counsel was deficient because

counsel failed to argue on appeal that the judge who decided the

suppression motion and sentenced him should have recused himself.

It appears that during the suppression hearing, the judge expressed

some displeasure with receiving another case on transfer from

Middlesex County. Based on those remarks, defendant's attorney

sought the judge's recusal. The judge denied the application.

     The PCR court found that defendant failed to show that the

judge erred by denying the recusal motion. The record supports

that determination. The judge's remarks did not indicate he had

any bias against defendant, or that he could not handle the matter

fairly. Appellate counsel did not err by failing to raise this

meritless issue on appeal.

     We therefore conclude that defendant failed to present a

prima facie case of ineffective assistance of trial or appellate

counsel, and the existing record was sufficient to resolve the

claims. Accordingly, the PCR court correctly determined that an

evidentiary hearing was not required.

     Affirmed.

                               12                           A-2992-16T1
