                                 NOT FOR PUBLICATION WITHOUT THE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-1397-18T3

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

TYRON WILLIAMS,

     Defendant-Appellant.
____________________________

                   Submitted May 4, 2020 – Decided May 22, 2020

                   Before Judges Sabatino and Geiger.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Burlington County, Indictment No. 13-07-
                   0907.

                   Joseph E. Krakora, Public Defender, attorney for
                   appellant (Mark Zavotsky, Designated Counsel, on the
                   brief).

                   Scott A. Coffina, Burlington County Prosecutor,
                   attorney for respondent (Alexis R. Agre, Assistant
                   Prosecutor, of counsel and on the brief).

PER CURIAM
       Defendant Tyron Williams appeals from an August 20, 2018 order

denying his petition for post-conviction relief (PCR) without an evidentiary

hearing. We affirm.

       On March 26, 2013, at about 11:30 p.m., a Burlington Township

Patrolman Taylor F. Holba responded to a 9-1-1 domestic violence call from a

ten-year-old child, R.L., 1 who reported an altercation between his mother, T.D.,

and defendant, his mother’s then live-in boyfriend.2        R.L. said T.D. and

defendant were "fighting" and "hitting each other with things."

       When Holba arrived, defendant was not present. Holba observed R.L.

cleaning cake from the dining room floor and walls. Four other children were

also in the home including R.L.'s thirteen-year-old brother, T.L. Holba noticed

a television with a shattered screen in the master bedroom and a strong odor of

alcohol in the home. He did not observe any visible signs of injury on the victim,

T.D. No charges were filed that evening.

       Sometime after Holba left, T.D. became ill. She was taken to a hospital

emergency room experiencing abdominal pain and vomiting blood. A CAT scan



1
    We refer to the victim and witnesses by initials to preserve their
confidentiality. R. 1:38-3(d)(10).
2
    T.D. and defendant were not married at the time.
                                                                          A-1397-18T3
                                        2
revealed "an injury to her left kidney and injury to her small bowel and blood in

her abdominal/pelvic cavity."     T.D. was transferred to Cooper University

Hospital where doctors performed a laparotomy to remove a portion of her

bowel. T.D. told the medical staff that she hurt herself falling down the stairs.

      Meanwhile, T.D.'s mother and sister brought R.L. and T.L. to the

Burlington Township Police Station.         There, Detective Brandon Roberson

recorded both children's statements. R.L. stated he saw defendant pin T.D. in a

corner while he punched her in the side of her stomach.          T.L. stated that

defendant left a note in his room asking him to call defendant. When T.L. called,

defendant told him to tell R.L. not to say anything to the police.

      Roberson was the only grand jury witness. Roberson testified he met with

R.L., who stated that he went into T.D.'s bedroom, after hearing her "calling for

help," and observed defendant "punch" T.D. on "the side of her stomach" and

T.D. "strike [defendant] with an empty alcohol bottle." He testified he also met

with T.L., who stated that defendant told him to tell R.L. "not to say anything to

the police."

      The grand jury was not advised that R.L. and T.L. later recanted what they

had told police during an investigation by the Division of Child Protection and

Permanency (Division).


                                                                          A-1397-18T3
                                        3
        The grand jury returned an indictment charging defendant with second-

degree aggravated assault, N.J.S.A. 2C:12-1(b)(1) (count one), and third-degree

witness tampering, N.J.S.A. 2C:28-5(a)(2) (count two).

        Anticipating R.L. and T.L. would recant their original statements, the

court conducted a Gross3 hearing to determine the statements' reliability. During

the hearing, R.L. testified he lied to the police because he "was mad that [he]

got in trouble in school." T.L. testified he lied to the police, stating: "[M]y

grandmom and my aunt told us to tell lies that my stepdad hit my mom and

knocked her down the stairs" and "they threatened . . . if we didn't tell the police,

that we would go to [the Division] and then they would lock my mom up." The

court also heard from Detective Roberson. He testified R.L. was "calm" and

"polite" and did not appear "forced" or "coerced in to giving a statement" but

rather appeared to speak "freely and voluntarily." Detective Roberson testified

similarly regarding T.L.

        After reviewing the audio recordings of the 9-1-1 call and statements, the

court determined R.L. and T.L.'s original statements "do carry an indicia of

reliability" and, subject to certain redactions, were admissible at trial as prior

inconsistent statements.


3
    State v. Gross, 121 N.J. 1 (1990).
                                                                             A-1397-18T3
                                         4
      At trial, R.L. testified his aunt instructed him lie to the police during the

9-1-1 call and the statement he gave to Detective Roberson. Both R.L. and T.L.

denied defendant told them not to talk to the police. The State played the audio

recordings of R.L. and T.L.'s interviews during Detective Roberson's testimony.

The jury also heard the 9-1-1 call, which the parties stipulated was "a true and

accurate copy of the [9-1-1] recording made on March 26, 2013."

      During trial, the State and defense counsel agreed not to introduce certain

portions of T.D.'s medical records while at Cooper. T.D. testified that she

injured herself when she fell down the stairs while attempting to grab her puppy.

She also testified R.L. lied to the police.

      Tried by a jury, defendant was convicted of second-degree aggravated

assault and acquitted of tampering with a witness. On September 12, 2014, the

trial judge sentenced defendant to an eight-year prison term, subject to an eighty-

five percent period of parole ineligibility and mandatory parole supervision

mandated by the No Early Release Act, N.J.S.A. 2C:43-7.2.               Defendant

appealed. We affirmed defendant's conviction, rejecting his arguments that the

trial court erred by: (1) allowing the State to present the prior inconsistent

statements of R.L. and T.L. through Detective Roberson; (2) replaying the

recorded witness testimony during jury deliberation; and (3) permitting jurors


                                                                           A-1397-18T3
                                         5
to take notes during playback of recorded testimony. State v. Williams, No. A-

1756-14 (App. Div. Dec. 28, 2016). The Supreme Court denied certification.

State v. Williams, 230 N.J. 366 (2017).

      On August 31, 2017, defendant filed a pro se PCR petition, claiming he

was denied the effective assistance of counsel because his attorney failed to: (1)

obtain an "independent medical expert to challenge [the State's] medical

opinion"; (2) move "to suppress tapes"; (3) "object to the playback of [9-1-1]

tapes during the deliberations"; (4) "object to the playback of R.L.'s recorded

interview with Roberson"; (5) "object when the [S]tate was allowed to present

prior inconsistent statements of R.L. and T.L."; (6) "cross-examine R.L. and

T.L. after their admission of statements before the recordings were played to the

jury"; and (7) "object to jurors taking notes."

      Counsel was appointed to represent defendant. Counsel filed an amended

PCR petition that incorporated the arguments set forth in his pro se filings and

contended defendant was denied effective assistance of counsel because his

attorneys failed to:   (1) move to disclose the Division's records; and (2)

"investigate and raise the issue of the [State's] failure to present exculpatory

evidence to the grand jury." In his supporting certifications, defendant asserts

the Division conducted "an abuse investigation" that determined the allegations


                                                                          A-1397-18T3
                                         6
"were not sustained" and that no further actions were taken against him by the

Division. Defendant avers he informed his pre-trial counsel of the Division's

investigation but to no avail. He also claims that he "asked [his] trial counsel to

attempt to get the investigation records, and any other related records, from [the

Division] to assist in the defense of [his] case," but his "counsel never made any

such effort." Defendant "believe[s] that there very well may be information and

evidence relevant to [his] defense in the [the Division's] investigation recor ds."

T.D. certified R.L. and T.L. recanted their original statements "[w]ithin a few

days of the incident" and that such "information was promptly passed on to the

police." T.D. maintains defendant never hit her.

       Judge Jeanne T. Covert issued an order and nineteen-page written opinion

denying defendant PCR without an evidentiary hearing. She found defendant

failed to establish a prima facie case of ineffective assistance of counsel and was

not entitled to an evidentiary hearing, noting defendant "is unable to demonstrate

that he is likely to succeed under the Strickland 4 test and has failed to establish

that any motion he could have filed would have been meritorious."

       In rejecting defendant's Division records argument, the judge explained

that "[t]he information [defendant] claims is exculpatory was already presented


4
    Strickland v. Washington, 466 U.S. 668 (1984).
                                                                            A-1397-18T3
                                         7
to the jury" through R.L. and T.L.'s testimony and thus "at best it would simply

have been cumulative." She noted the "jury heard testimony from R.L. and T.L.

that both lied to police under pressure from their aunt and grandmother and

recanted their statements that [defendant] assaulted [T.D.]" The judge reasoned

that the Division's decision to close its investigation is not "clearly exculpatory

evidence regarding the assault of [T.D.]" because Division investigations focus

on children; "[the Division] does not investigate adult abuse cases." The judge

explained that defense counsel "made a strategic choice at trial not to file the

motion for in camera review" because of the potential negative inference that

may be conveyed to the jury from learning the Division investigated defendant.

      In rejecting defendant's indictment dismissal claim, the judge explained

that "recantation testimony is inherently unreliable and is not reliable enough t o

be clearly exculpatory." In rejecting defendant's independent medical expert

claim, the judge found defendant "provide[d] no evidence to make a showing of

how the testimony of a medical expert would have led to a different result." She

explained defendant failed to provide any expert report, or certification from

any potential expert, "demonstrating that they would have concluded something

different from the testimony presented at trial regarding [T.D.]"




                                                                           A-1397-18T3
                                        8
      Finally, the judge rejected defendant's remaining arguments, finding they

consisted of "bald assertion[s] unsupported by evidence" or matters "previously

adjudicated in his direct appeal." Citing Rule 3:22-5, the judge found the

following issues were barred: (1) "counsel failed to object to the playback of 9-

1-1 tapes during deliberations"; (2) "counsel failed to object to playback of

R.L.'s recorded interview with detective Roberson"; (3) "counsel failed to object

when [the] State was allowed to present prior inconsistent statements of R.L.

and T.L."; (4) "counsel failed to cross-examine R.L. and T.L. after the admission

of statements before recordings were played to the jury"; and (5) "counsel failed

to object to jurors taking notes." This appeal followed.

      Defendant argues trial counsel was ineffective by failing to move to

dismiss the indictment and failing to review Division records for exculpatory

evidence.5

      We review the factual findings made by a PCR court without conducting

an evidentiary hearing de novo. State v. Harris, 181 N.J. 391, 421 (2004). We

also owe no deference to the trial court's conclusions of law. Ibid. Applying


5
  In this appeal, defendant has raised and briefed only two of the nine arguments
he raised before the PCR court. His remaining arguments are deemed waived.
See Sklodowsky v. Lushis, 417 N.J. Super. 648, 657 (App. Div. 2011) ("An
issue not briefed on appeal is deemed waived." (citations omitted)); Pressler &
Verniero, Current N.J. Court Rules, cmt. 5 on R. 2:6-2 (2020) (same).
                                                                         A-1397-18T3
                                       9
this standard of review, we affirm the denial of defendant's PCR petition

substantially for the cogent reasons expressed by Judge Covert in her August

20, 2018 written decision. We add the following comments.

      We apply the familiar two-pronged Strickland standard to determine

whether defendant has shown that (1) his counsel’s performance was so deficient

that it "fell below an objective standard of reasonableness," and (2) there was "a

reasonable probability that, but for counsel’s unprofessional errors, the result of

the proceeding would have been different." 466 U.S. at 688, 694; accord State

v. Fritz, 105 N.J. 42, 49-50 (1987). "A reasonable probability is a probability

sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694.

      Defendant claims trial counsel was ineffective for not moving to dismiss

the indictment. We disagree.

      The State was not required to inform the grand jury that R.L. and T.L.

recanted their statements because such statements are not "clearly exculpatory."

See State v. Hogan, 144 N.J. 216, 239-40 (1996) (noting that recantation

"testimony is generally considered exceedingly unreliable" and its "sincerity

. . . is to be viewed with 'extreme suspicion'" (citations omitted)); State v.

Baldwin, 47 N.J. 379, 400 (1966) (a recantation is "inherently suspect").

Further, recanted statements are evidence "merely relat[ing] to credibility" and


                                                                           A-1397-18T3
                                       10
such issues "are reserved almost exclusively for the petit jury." Hogan, 144 N.J.

at 235, 240 (citations omitted).

      More fundamentally, once convicted a defendant cannot belatedly raise an

alleged impropriety of the State's grand jury presentation. United States v.

Mechanik, 475 U.S. 66, 70 (1986); State v. Cook, 330 N.J. Super. 395, 410-11

(App. Div. 2000). A "guilty verdict is universally considered to render error in

the grand jury process harmless." State v. Simon, 421 N.J. Super. 547, 551-52

(2011) (citations omitted). The guiding principle is that even as to claims that

exculpatory evidence was not presented, or that prejudicial evidence was

introduced, once the petit jury speaks, all errors become harmless. Cook, 330

N.J. Super. at 411 (citing Mechanik, 475 U.S. at 70; State v. Warmbrun, 277

N.J. Super. 51, 60 (App. Div. 1995)). As the United States Supreme Court stated

in Mechanik,

            the petit jury's subsequent guilty verdict means not only
            that there was probable cause to believe that the
            defendants were guilty as charged, but also that they are
            in fact guilty as charged beyond a reasonable doubt.
            Measured by the petit jury's verdict, then, any error in
            the grand jury proceeding connected with the charging
            decision was harmless beyond a reasonable doubt.

            [475 U.S. at 70.]

Accordingly, defendant cannot satisfy either prong of the Strickland/Fritz test.


                                                                         A-1397-18T3
                                      11
      Defendant also argues trial counsel was ineffective for failing to review

the Division's investigation records for exculpatory evidence relating to his

aggravated assault charge. We are unpersuaded by this argument.

      Defendant contends his counsel's inaction cannot be considered a strategic

decision because "he had no idea of [the investigation's] contents" and had there

been "evidence of criminal wrong-doing" by defendant, the Division "would

have been obligated to give that information to the State anyway."

      The judge noted the potential negative inference that may be conveyed to

the jury from knowing the Division investigated defendant. "[C]omplaints

'merely of matters of trial strategy' will not serve to ground a constitutional claim

of inadequacy of representation by counsel," Fritz, 105 N.J. at 54, particularly

where, as here, the jury heard the evidence defendant claims was improperly

withheld, see State v. Cusick, 219 N.J. Super. 452, 463 (App. Div. 1987)

(denying disclosure of Division records in part because "the information was

available elsewhere" and not "necessary for the conduct of the proceedings").

Defendant must rebut the presumption that the challenged action would be

"considered sound trial strategy." Strickland, 466 U.S. at 689 (quoting Michel

v. Louisiana, 350 U.S. 91, 101 (1955)). He has not rebutted that presumption.




                                                                             A-1397-18T3
                                        12
      As correctly found by the judge, the Division's "investigation would have

necessarily and properly focused on R.L. and T.L. and potential abuse to them

either directly or by witnessing the abuse of their mother. [The Division] does

not investigate adult abuse cases." Thus, the Division's investigation results

would not have provided "clearly exculpatory evidence regarding the assault of

[T.D.] or any information relevant to her abuse."

      The judge further found that trial counsel made a strategic decision not to

move for in camera review of the Division's records. The judge noted counsel

"was clearly aware of the [Division's] findings and deliberately wished to steer

clear of the entire issue before the jury, stating 'I think it's irrelevant and it opens

a whole can of worms.'"

      The judge concluded that defendant "cannot establish that an in camera

review of the [Division's] records would have produced a different result at trial.

In fact, everything [defendant] argues could have been exculpatory in the

[Division's] records was heard by the jury during the trial."

      For these reasons, even if counsel were deemed deficient for not reviewing

the Division's records, defendant failed to satisfy the second prong of the

Strickland/Fritz test because he did not demonstrate that but for counsel's

unprofessional errors, the outcome of the trial would have been different.


                                                                                A-1397-18T3
                                          13
      Last, we address defendant's argument that the trial court erred by not

conducting an evidentiary hearing.       The right to an evidentiary hearing is

governed by Rule 3:22-10(b), which provides:

                    A defendant shall be entitled to an evidentiary
              hearing only upon the establishment of a prima facie
              case in support of [PCR], a determination by the court
              that there are material issues of disputed fact that
              cannot be resolved by reference to the existing record,
              and a determination that an evidentiary hearing is
              necessary to resolve the claims for relief. To establish
              a prima facie case, defendant must demonstrate a
              reasonable likelihood that his or her claim, viewing the
              facts alleged in the light most favorable to the
              defendant, will ultimately succeed on the merits.

We review the denial of an evidentiary hearing for abuse of discretion. State v.

Brewster, 429 N.J. Super. 387, 401 (App. Div. 2013) (citing State v. Marshall,

148 N.J. 89, 157-58 (1997)).

      Judge Covert found that defendant was not entitled to an evidentiary

hearing because he did not establish a prima facies case of ineffective assistance

of counsel and testimony was not needed to resolve factual issues raised in the

petition. The record fully supports those findings. We discern no abuse of

discretion.

      Affirmed.




                                                                          A-1397-18T3
                                        14
