                                NOT FOR PUBLICATION WITHOUT THE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-5060-17T3

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

MANUEL RAMIREZ,
a/k/a BIMPY,

     Defendant-Appellant.
___________________________

                    Submitted August 27, 2019 – Decided September 4, 2019

                    Before Judges Gilson and Mawla.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Bergen County, Indictment No. 11-11-1906.

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

                    Mark Musella, Bergen County Prosecutor, attorney for
                    respondent (Nicole Paton, Assistant Prosecutor, of
                    counsel and on the brief).

PER CURIAM
      Defendant Manuel Ramirez appeals from a January 12, 2018 order

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

      A jury convicted defendant of second-degree reckless manslaughter,

N.J.S.A. 2C:11-4(b)(1), as a lesser-included offense of murder, and two counts

of third-degree hindering by flight and providing false information, N.J.S.A.

2C:29-3(a)(2) and (b)(4). We upheld defendant's convictions and sentences, but

remanded for a restitution hearing and amendment of the judgment for reasons

unrelated to this appeal. State v. Ramirez, No. A-5307-12 (App. Div. March 4,

2016) (slip op. at 1).

      We recite the relevant facts from our prior decision:

             [D]efendant was attending a party with several friends,
             including Gabriel Pujols and Frederick DeLeon. Pujols
             and DeLeon both testified that they and defendant were
             members of the Dominicans Don't Play (DDP) street
             gang.

                   During the evening, defendant, Pujols and
             another acquaintance left the party to go to a deli.
             While at the deli, there was a confrontation involving
             several individuals, including a former member of DDP
             and members of another Dominican street gang. The
             confrontation at the deli involved verbal exchanges, but
             did not escalate into a physical fight, and the two groups
             involved went their separate ways.




                                                                          A-5060-17T3
                                         2
                     Later that evening, defendant was driving with
              Pujols, DeLeon and DeLeon's former girlfriend, C.C. 1
              to drop C.C. home. While driving, defendant saw
              several people in front of a house and recognized some
              of the people as individuals from the earlier
              confrontation at the deli. Defendant made a U-turn,
              parked the car near the group, and Pujols and DeLeon
              exited the car. There was conflicting testimony at trial
              as to whether defendant also got out of the car. DeLeon
              then threw beer bottles at the group and the group of
              men began to run, with Pujols and DeLeon pursuing
              them. Pujols caught V.G. [the victim], who he
              mistakenly thought was someone he had confronted
              earlier at the deli. Pujols and DeLeon then physically
              attacked V.G. and during that assault, Pujols pulled out
              a knife and stabbed V.G. three times. DeLeon testified
              that defendant also participated in the assault and
              kicked V.G. twice. Pujols, in contrast, testified that
              defendant was not involved in the assault. After V.G.
              was stabbed, defendant, Pujols and DeLeon fled the
              scene in the car. V.G. was taken to a hospital and died
              eight days later of his stab wounds.

                     Defendant, Pujols and DeLeon were arrested and
              charged in connection with the death of V.G.
              Defendant gave a statement to the police denying his
              involvement in the stabbing incident. Defendant also
              denied having any current gang affiliation. The trial
              judge found defendant's statement admissible, and it
              was presented to the jury. Defendant elected not to
              testify at trial.

                    Before trial, the State moved to admit evidence
              that defendant was a member of a street gang as proof
              of motive for the stabbing. Specifically, the State
              wanted to have witnesses testify about defendant's gang

1
    We use initials for witnesses and the victim to protect privacy interests.
                                                                            A-5060-17T3
                                          3
            affiliation and how that affiliation played a role in the
            murder of V.G. The State also proposed to have an
            expert testify as to how Dominican street gangs
            operated. The trial court conducted a hearing, and
            found that the gang-related evidence was admissible
            pursuant to N.J.R.E. 404(b) to show motive. The judge
            also allowed testimony from the State's expert on street
            gangs.

                  Pujols and DeLeon pled guilty to aggravated
            manslaughter and testified as witnesses for the State at
            defendant's trial. As part of its case-in-chief, the State
            also presented testimony from C.C. She testified that
            before the stabbing, she heard defendant, Pujols and
            DeLeon discuss that they were upset about their friend
            being "jumped" and they all said they wanted "to do
            something about it."

            [Id. at 2-4.]

      Defendant filed a certification in support of his PCR petition alleging

ineffective assistance of trial counsel. Specifically, he asserted the following

claims:

                  I . . . did not have discovery and was in the dark
            about many of the allegations against me. I feel I could
            not properly defend myself because I was unaware of
            the evidence against me. The State came to my prison
            cell and took my discovery because my co-defendant
            allegedly sent me an incriminating letter; however, my
            attorney never gave me any discovery after that and I
            had requested such several times.

                   . . . My attorney also failed to negotiate a plea
            offer on my behalf and I was not given the names of the
            witnesses who were going to testify against me.

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                                        4
Defendant argued he was entitled to an evidentiary hearing to prove his claims.

      The PCR judge issued an oral decision. He concluded defendant had not

made a prima facie showing of ineffective assistance of counsel because there

was "no other independent or corroborating evidence" to support the claim

defendant did not receive discovery or had expressed a concern regarding

missing discovery before trial. The judge noted the "matter was thoroughly

litigated and the parties, including . . . defendant, w[ere] aware of the discovery."

The judge found defendant acknowledged receiving discovery and did not

identify what was missing. He concluded even if defendant had identified the

missing discovery, there was no evidence its absence had prejudiced defendant

or the outcome.

      The judge signed the order denying defendant's petition. This appeal

followed.

      Defendant raises the following point on appeal

             THIS MATTER MUST BE REMANDED FOR AN
             EVIDENTIARY       HEARING      BECAUSE
             DEFENDANT ESTABLISHED A PRIMA FACIE
             CASE OF TRIAL COUNSEL'S INEFFECTIVENESS
             FOR FAILING TO PROVIDE HIM WITH
             CONFISCATED DISCOVERY, INCLUDING THE
             NAMES OF THE WITNESSES WHO WERE GOING
             TO TESTIFY AGAINST HIM.



                                                                             A-5060-17T3
                                         5
                                           I.

      To establish ineffective assistance of counsel, defendant must satisfy a

two-prong test:

                     First, the defendant must show that counsel's
             performance was deficient. This requires showing that
             counsel made errors so serious that counsel was not
             functioning as the "counsel" guaranteed the defendant
             by the Sixth Amendment. Second, the defendant must
             show that the deficient performance prejudiced the
             defense. This requires showing that counsel's errors
             were so serious as to deprive the defendant of a fair
             trial, a trial whose result is reliable. Unless a defendant
             makes both showings, it cannot be said that the
             conviction . . . resulted from a breakdown in the
             adversary process that renders the result unreliable.

             [State v. Fritz, 105 N.J. 42, 52 (1987) (alteration in
             original) (quoting Strickland v. Washington, 466 U.S.
             668, 687 (1984)).]

      Counsel's performance is evaluated with extreme deference, "requiring 'a

strong presumption that counsel's conduct falls within the wide range of

reasonable professional assistance[.]'" Fritz, 105 N.J. at 52 (quoting Strickland,

466 U.S. at 688-89). "To rebut that strong presumption, a [petitioner] must

establish . . . trial counsel's actions did not equate to 'sound trial strategy.'" State

v. Castagna, 187 N.J. 293, 314 (2006) (quoting Strickland, 466 U.S. at 689).

"Mere dissatisfaction with a 'counsel's exercise of judgment' is insufficient to



                                                                               A-5060-17T3
                                           6
warrant overturning a conviction." State v. Nash, 212 N.J. 518, 542 (2013)

(quoting State v. Echols, 199 N.J. 344, 358 (2009)).

      To demonstrate prejudice, "'actual ineffectiveness' . . . must [generally] be

proved[.]" Fritz, 105 N.J. at 52 (quoting Strickland, 466 U.S. at 692-93). A

defendant must show the existence of "a reasonable probability that, but for

counsel's unprofessional errors, the result of the proceeding would have been

different. A reasonable probability is a probability sufficient to undermine

confidence in the outcome." Ibid. (quoting Strickland, 466 U.S. at 694). Indeed,

            [i]t is not enough for [a] defendant to show that the
            errors had some conceivable effect on the outcome of
            the proceeding. Virtually every act or omission of
            counsel would meet that test . . . and not every error that
            conceivably could have influenced the outcome
            undermines the reliability of the result of the
            proceeding.

            [Strickland, 466 U.S. at 693 (citation omitted).]

      To sustain this burden, defendant must articulate specific facts to "provide

the court with an adequate basis on which to rest its decision." State v. Mitchell,

126 N.J. 565, 579 (1992). Defendant "must do more than make bald assertions

that he was denied the effective assistance of counsel." State v. Petrozelli, 351

N.J. Super 14, 23 (App. Div. 2002) (quoting State v. Cummings, 321 N.J. Super.

154, 170 (App. Div. 1999)); see also Rule 3:22-10(b).


                                                                           A-5060-17T3
                                        7
      A PCR judge should grant evidentiary hearings only if a defendant has

presented a prima facie claim of ineffective assistance of counsel. State v.

Preciose, 129 N.J. 451, 462 (1992). To do so, defendant "must allege facts

sufficient to demonstrate counsel's alleged substandard performance[,]"

Cummings, 321 N.J. Super. at 170, and "must demonstrate a reasonable

likelihood that his or her claim will ultimately succeed on the merits." Marshall,

148 N.J. at 158 (citing Preciose, 129 N.J. at 463). Moreover,

            [i]f 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, . . . or
            that the defendant's allegations are too vague,
            conclusory, or speculative to warrant an evidentiary
            hearing, . . . then an evidentiary hearing need not be
            granted.

            [Ibid. (citations omitted); see also Rule 3:22-10(e).]

      "[W]here the [PCR] court does not hold an evidentiary hearing, we may

exercise de novo review over the factual inferences the trial court has drawn

from the documentary record." State v. O'Donnell, 435 N.J. Super. 351, 373

(App. Div. 2014) (citing State v. Harris, 181 N.J. 391, 420-21 (2004)). Thus, if

warranted, we may "conduct a de novo review of both the factual findings and

legal conclusions of the [trial] court." Harris, 181 N.J. at 419.




                                                                          A-5060-17T3
                                        8
                                       II.

         We affirm substantially for the reasons expressed by the PCR judge and

add the following observations. As we recounted in our prior decision, there

was no mystery as to the underlying facts, or the participants in the events that

occurred prior to, or during, the assault on V.G. Defendant received the State's

list of potential witnesses prior to the commencement of trial. Moreover, the

record supports the judge's conclusion the matter was "thoroughly litigated" and

defendant did not want for discovery. Defendant's counsel filed pretrial motions

and participated in pre-trial evidentiary hearings, that collectively spanned a

seven-day period, prepared an opening and a summation, which demonstrated

he had a firm grip on the facts and defendant's defense of the allegations, and

effectively cross-examined more than two dozen of the State's witnesses during

trial.   For these reasons, notwithstanding defendant's failure to specifically

articulate the discovery he lacked or the witness testimony he would have

adduced, there was no prejudice caused by counsel's performance to warrant an

evidentiary hearing.

         Affirmed.




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