                             RECORD IMPOUNDED

                        NOT FOR PUBLICATION WITHOUT THE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-4645-15T1

STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

D.D.Z.,

        Defendant-Appellant.

_______________________________

              Submitted September 19, 2017 – Decided October 24, 2017

              Before Judges Yannotti and Mawla.

              On appeal from Superior Court of New Jersey,
              Law Division, Middlesex County, Indictment No.
              03-06-0881.

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

              Andrew C. Carey, Middlesex County Prosecutor,
              attorney   for  respondent   (Joie   Piderit,
              Assistant Prosecutor, of counsel and on the
              brief).

              Appellant filed a pro se supplemental brief.

PER CURIAM
     Defendant D.D.Z. appeals from an order entered by the Law

Division on March 11, 2016, which denied his petition for post-

conviction relief (PCR) without an evidentiary hearing. We affirm.

     A Middlesex County grand jury indicted defendant of second-

degree sexual assault of a child less than thirteen years old,

N.J.S.A. 2C:14-2(b) (Count One); and third-degree endangering the

welfare of a child, N.J.S.A. 2C:24-4(a) (Count Two).     Defendant

was tried before a jury.

     The following facts are taken from the record.     The State

alleged defendant sexually assaulted and endangered the welfare

of a child, specifically, his nephew S.Z.1   The State alleged the

incident that formed the basis for the charges occurred sometime

between February 1997 and February 1998, when S.Z. was between the

ages of four and five, in defendant's parent's home.

     S.Z. testified defendant touched his "private parts," which

he defined as his "penis and butt."      S.Z. said the incident

occurred when he was five years old in the bathroom of his

grandparent's home.   S.Z. testified defendant had asked him to

remove his clothes and said it was okay to do so because he was a

doctor.   S.Z. stated defendant also told him "to keep this hush-




1
  We use initials to protect the identities of the minor and his
mother.

                                2                          A-4645-15T1
hush," which was why he did not tell anyone about the incident for

several years.

       S.Z.'s mother, defendant's former sister-in-law, testified

at trial.     She stated she had a conversation with defendant's

nephews, R.Z. and S.Z., during which she informed them defendant

"had a sickness, and it was called pedophilia."                 She then told

R.Z.    and   S.Z.    pedophilia       meant   their    uncle   touched     boys

inappropriately, and no one had the right to do so.                After this

conversation, S.Z. told his mother he remembered something, but

he did not know if the memory was real or not.                  S.Z.'s mother

instructed him not to worry whether the memory was real and to

tell her what he remembered.          S.Z. then relayed the details of the

bathroom encounter to his mother. Shortly after this conversation,

S.Z.'s mother notified the police who conducted an investigation.

       Defendant     was   convicted    on   both   counts.     Defendant    was

sentenced to a seventeen-year term on Count One, and a concurrent

five-year term on Count Two.            Both sentences were subject to a

parole disqualifier under the No Early Release Act (NERA), N.J.S.A.

2C:43-7.2.

       Defendant     appealed   and    we    affirmed   his   conviction,    but

remanded for resentencing.         State v. D.D.Z., No. A-3328-04 (App.

Div. Feb. 25, 2008).         Defendant then filed a petition for PCR,



                                         3                             A-4645-15T1
however    the   petition      was   dismissed   without   prejudice      since

defendant had not yet been resentenced.

    Defendant filed a PCR petition on January 7, 2014, claiming

ineffective assistance of counsel because counsel: (1) deprived

him of his right to testify; (2) failed to request a "taint"

hearing pursuant to State v. Michaels, 136 N.J. 299 (1994); (3)

failed    to   conduct    proper     cross   examination   of   the    State's

witnesses, including S.Z. and S.Z.'s mother; (4) failed to call

expert    witnesses;     (5)   was   hostile   toward   defendant     after    he

rejected a plea deal; and (6) failed to conduct a sufficient

investigation prior to trial.

    Defendant also argues the jury instructions were improper and

prosecutorial misconduct occurred during both summation and the

grand jury proceedings, depriving him of a fair trial.                Although

defendant's PCR petition was filed after the five-year time limit

in Rule 3:22-12(a)(1), he contends it should not be time-barred

because the failure to address the important issues raised in it

would result in a fundamental injustice.

    On April 23, 2015, the PCR court considered oral argument and

issued a written opinion on March 11, 2016, denying defendant's

petition.      The PCR court found defendant's petition was time-

barred pursuant to Rule 3:22-12(a)(1) because he had five years

from the date of his conviction, January 28, 2005, to file his

                                        4                               A-4645-15T1
petition.     The   PCR   court    found     defendant    had   not    received

ineffective     assistance    of     counsel,       the   court's      limiting

instructions were proper, and defendant's contentions regarding

prosecutorial    misconduct   were        without   merit.      This     appeal

followed.

    On appeal, defendant raises the following claims through

counsel:

                                   POINT I

            THE TRIAL COURT ERRED IN DENYING THE
            DEFENDANT'S PETITION FOR POST CONVICTION
            RELIEF, IN PART, UPON PROCEDURAL GROUNDS
            PURSUANT TO RULE 3:22-12(a)(1).

                                   POINT II

            THE TRIAL COURT ERRED IN DENYING THE
            DEFENDANT'S PETITION FOR POST CONVICTION
            RELIEF WITHOUT AFFORDING HIM AN EVIDENTIARY
            HEARING TO FULLY ADDRESS HIS CONTENTION THAT
            HE   FAILED   TO   RECEIVE  ADEQUATE   LEGAL
            REPRESENTATION AT THE TRIAL LEVEL IN SEVERAL
            DIFFERENT RESPECTS.

                 A.   THE      PREVAILING       LEGAL
                 PRINCIPLES   REGARDING   CLAIMS   OF
                 INEFFECTIVE ASSISTANCE OF COUNSEL,
                 EVIDENTIARY HEARINGS AND PETITIONS
                 FOR POST CONVICTION RELIEF.

                 B.   THE DEFENDANT DID NOT RECEIVE
                 ADEQUATE LEGAL REPRESENTATION FROM
                 TRIAL COUNSEL AS A RESULT OF
                 COUNSEL'S DECISION TO PERMIT THE
                 STATE TO ELICIT TESTIMONY FROM THE
                 VICTIM'S MOTHER CHARACTERIZING THE
                 DEFENDANT AS A "PEDOPHILE."


                                      5                                 A-4645-15T1
                 C.   TRIAL    COUNSEL    DID    NOT
                 ADEQUATELY REPRESENT THE DEFENDANT
                 ARISING OUT OF HIS FAILURE TO
                 THOROUGHLY DISCUSS WITH HIS CLIENT
                 ALL     RELEVANT      RAMIFICATIONS
                 ASSOCIATED   WITH    THE   DECISION
                 WHETHER OR NOT TO TESTIFY, AS A
                 RESULT OF WHICH THE DEFENDANT DID
                 NOT TESTIFY IN HIS OWN DEFENSE.

Defendant also raises the following points in his supplemental pro

se brief:

                               POINT I

            DEFENDANT WAS DENIED DUE PROCESS OF LAW AND
            THE RIGHT TO PREPARE HIS DEFENSE WHERE THE
            PROSECUTOR WITHHELD MATERIALS FROM THE GRAND
            JURY THAT WOULD BE EXCULPATORY TO THE
            DEFENDANT.

                              POINT II

            THE DEFENDANT WAS DENIED HIS CONSTITUTIONAL
            RIGHT TO EFFECTIVE REPRESENTATION BY COUNSEL
            BY VIRTUE OF HIS COURT-APPOINTED LAWYER'S
            FAILURE   TO    ADEQUATE   INVESTIGATE   THE
            DEFENDANT'S CASE AND FAILURE TO PRESENT
            EVIDENCE AT TRIAL.

                              POINT III

            THE DEFENDANT WAS PREJUDICED BY THE PREMATURE
            COMMENCEMENT OF HIS TRIAL.

                              POINT IV

            SEEN EVEN UNDER THE MOST LENIENT LIGHT, JUDGE
            NIEVES' REMARKS, MADE JUST BEFORE HE WAS TO
            PRESIDE BEFORE A CHILD SEX ABUSE CASE WERE NOT
            ONLY    IMPROPER,   BUT    MORE    IMPORTANTLY
            UNDOUBTEDLY PREJUDICED THE COURT AGAINST
            [D.D.Z.]   AFTER   THOSE   REMARKS,   IT   WAS


                                  6                          A-4645-15T1
            IMPOSSIBLE FOR [D.D.Z.], OR ANY DEFENDANT IN
            HIS SITUATION, TO RECEIVE AN UNBIASED HEARING.

                                      POINT V

            DENIAL OF APPELLANT'S APPLICATION WAS CONTRARY
            TO ESTABLISHED LAW REGARDING INEFFICIENT
            ASSISTANCE OF COUNSEL.

                                        I.

    Defendant argues the trial court erred in denying his PCR

petition on grounds it was time-barred pursuant to Rule 3:22-

12(a)(1).     We disagree.

    Rule 3:22-12(a)(1) states:

            [N]o petition shall be filed pursuant to this
            rule more than [five] years after the date of
            entry . . . of the judgment of conviction that
            is being challenged unless:

            (A) it alleges facts showing that the delay
            beyond said time was due to defendant's
            excusable neglect and that there is a
            reasonable probability that if defendant's
            factual assertions were found to be true
            enforcement of the time bar would result in a
            fundamental injustice[.]

    The     burden    rests    with    defendant     to   establish    excusable

neglect.    State v. Milne, 178 N.J. 486, 492 (2004).                  "The New

Jersey   Supreme     Court    has   required     a   showing   of   'compelling,

extenuating     circumstances'         or,      alternatively,      'exceptional

circumstances,' to relax the time limitation for a PCR petition."

State v. Brewster, 429 N.J. Super. 387, 400 (App. Div. 2013)

(quoting Milne, supra, 178 N.J. at 492).              The Court has explained

                                         7                               A-4645-15T1
the   decision   to   relax   the   time   bar   should   occur   only   under

exceptional circumstances and the court should consider: (1) "the

extent and cause of the delay"; (2) "the prejudice to the State";

and (3) "the importance of the petitioner's claim in determining

whether there has been an 'injustice' sufficient to relax the time

limits."   State v. Afanador, 151 N.J. 41, 52 (1997) (quoting State

v. Mitchell, 126 N.J. 565, 580 (1992)).

      Defendant argues that his petition for PCR is not time-barred

because he established excusable neglect as shown by the "apparent

failure of the defendant's attorneys to have abided by their

responsibilities      and     obligations        toward   the     defendant."

Specifically, defendant argues that the trial court and trial

counsel's failure to advise defendant of the time frame to file a

petition for PCR constitutes excusable neglect.

      The record shows that defendant initially filed his PCR

petition on August 15, 2010.         However, defendant's petition was

denied without prejudice, because we had previously remanded the

matter for resentencing, which had not yet occurred.               Defendant

then refiled his PCR petition on January 22, 2014.




                                      8                               A-4645-15T1
       Defendant's judgment of conviction was dated January 28,

2004.2    Therefore, pursuant to Rule 3:22-12(a)(1), defendant's PCR

petition should have been filed by January 28, 2009.           Defendant's

initial petition was one year and eight months late, and his

present petition is five years late.

       Defendant argues that the trial court and trial counsel's

failure to inform him of the time within which a PCR petition must

be   filed     constitutes    excusable   neglect.     We    disagree.      A

"[d]efendant's assertion that he lacks sophistication in the law

does     not   [constitute]   exceptional   circumstances."       State    v.

Murray, 162 N.J. 240, 246 (2000).

       Additionally, defendant does not meet the criteria outlined

in Afanador, supra, to relax the time bar.           He has not provided

an adequate reason for the delay in filing the PCR petition, and

has not demonstrated that enforcement of the time-bar would result

in a fundamental injustice.       Therefore, we conclude the PCR judge

correctly      found   that   defendant's   petition   was    time-barred.

Notwithstanding, the PCR judge addressed the merits of defendant's

petition, which we turn to next.




2
 Defendant's brief, the State's brief and the trial court's order
all indicate defendant was originally sentenced on January 28,
2005. However, we utilize the date on the Judgment of Conviction,
which is January 28, 2004.

                                     9                              A-4645-15T1
                                         II.

       Defendant asserts the PCR court erred because it denied him

an    evidentiary     hearing    to   address     his   claim    of   ineffective

assistance of counsel relating to his trial.              We disagree.

       Rule 3:22-10(b) provides:

              A   defendant  shall   be    entitled   to  an
              evidentiary    hearing     only    upon    the
              establishment of a prima facie case in support
              of post-conviction relief, 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.

       Furthermore, Rule 3:22-10(e) provides the court shall not

grant an evidentiary hearing if: (1) it "will not aid [in] the

court's analysis of the defendant's entitlement to post-conviction

relief";       (2)   "the     defendant's      allegations      are   too     vague,

conclusory or speculative"; or (3) the defendant is attempting to

use    the     hearing   to    explore    or    investigate      other      possible

unsubstantiated PCR claims.

       The decision as to whether to hold an evidentiary hearing on

a PCR petition is committed to the sound discretion of the PCR

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


                                         10                                  A-4645-15T1
certif. denied, 162 N.J. 199 (1999).              The judge should grant an

evidentiary hearing and make a determination on the merits of a

defendant's claim only if the defendant has presented a prima

facie claim of ineffective assistance.              Preciose, supra, 129 N.J.

at 462.

     In   determining    whether       a    prima    facie      claim    has     been

established,    the   facts   should       be   viewed    "in   the     light    most

favorable to a defendant."         Id. at 462-63.            Additionally, "[a]

petitioner     must   establish    the      right    to   such     relief       by   a

preponderance of the credible evidence."             Id. at 459.        "To sustain

that burden, specific facts must be alleged and articulated" to

"provide the court with an adequate basis on which to rest its

decision."   Mitchell, supra, 126 N.J. at 579.

     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 or death sentence resulted from a
          breakdown in the adversary process that
          renders the result unreliable.

                                    11                                      A-4645-15T1
            [Strickland v. Washington, 466 U.S. 668, 687,
            104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693
            (1984); State v. Fritz, 105 N.J. 42, 52 (1987)
            (quoting Strickland, supra, 466 U.S. at 687,
            104 S. Ct. at 2064, 80 L. Ed. 2d at 693).]

     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, supra, 105 N.J. at 52 (quoting Strickland, supra, 466 U.S.

at 688-89, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694.).          "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 (2005) (quoting Strickland, supra,

466 U.S. at 688-89, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694; see

also State v. Savage, 120 N.J. 594, 618 (1990) ("[C]ounsel has a

duty to make reasonable investigations or to make a 'reasonable

decision that makes particular investigations unnecessary.'               A

failure to do so will render the lawyer's performance deficient.")

(citation   omitted).     "Mere   dissatisfaction   with   a   counsel's

exercise of judgment is insufficient to warrant overturning a

conviction."    State v. Nash, 212 N.J. 518, 542 (2013)(internal

quotations omitted).

     To prove prejudice, "'actual ineffectiveness' . . . must

[generally] be proved."    Fritz, supra, 105 N.J. at 52.       Petitioner


                                  12                              A-4645-15T1
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."

Savage, supra, 120 N.J. at 614 (quoting Strickland, supra, 466

U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698).

           It 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, supra, 466 U.S. at 693, 104 S.
           Ct. at 2067, 80 L. Ed. 2d at 691 (internal
           citation omitted).]

Prejudice may be presumed when "counsel entirely fails to subject

the   prosecution's    case   to   meaningful   adversarial   testing[.]"

United States v. Cronic, 466 U.S. 648, 659, 104 S. Ct. 2039, 2047,

80 L. Ed. 2d 657, 667-68 (1984).

      Defendant contends trial counsel erroneously permitted the

State to elicit testimony from S.Z.'s mother, who characterized

defendant as a "pedophile."         He claims the PCR court summarily

dismissed the issue by incorrectly concluding that the testimony

had been given outside the presence of the jury.        Defendant argues




                                    13                               A-4645-15T1
the trial court erred by dismissing            these claims without an

evidentiary hearing.

     The testimony in question was initially addressed before

trial.     The court asked the prosecutor if she had considered how

to present to the jury that S.Z.'s mother told S.Z. defendant was

a pedophile.     The prosecutor responded she had, and if there was

an objection, a limiting instruction would be appropriate. Defense

counsel stated he preferred the jury not hear that "sort of

allegation," but it was important the jury hear an explanation of

how the allegation arose and that it was not spontaneously reported

by the child.       Following this exchange, the court stated counsel

should agree before the testimony of S.Z.'s mother.

     S.Z.'s mother then testified during a N.J.R.E. 401 hearing,

stating she:

            sat the boys down to tell them that [she] had
            found out some information about their uncle.
            And [she] sat them down and told them that
            Uncle [D.D.Z.] had a sickness, and that it was
            called pedophilia. And what it meant was that
            he touched boys inappropriately, and no one
            had any right to do that to anybody . . .
            whether they're a stranger or family member
            . . . no one has any right to do that.

     The    trial    court   found   S.Z.'s   mother's   statements   were

admissible, but reiterated "this question of the defendant being

characterized as a pedophile has to be addressed." Defense counsel

stated he wanted the jury to hear S.Z.'s mother's characterization

                                     14                           A-4645-15T1
of defendant as a pedophile because it would raise questions about

the authenticity of S.Z.'s statements, but he did not want S.Z.'s

mother to testify as to how she obtained that information.       The

prosecutor indicated she could instruct S.Z.'s mother to limit her

testimony as long as it was clear the State was not attempting to

elicit "some type of bad character evidence."      The trial court

concurred.

     During trial, S.Z.'s mother testified as follows:

          I was talking to my sons about pedophilia.
          And I told them that their uncle had a disease,
          and it was called pedophilia. And it meant
          that he touched children inappropriately. And
          I told them that no one had any right to do
          that to them, whether it was a stranger or a
          family member, that it was just wrong.

In addition, during defense counsel's opening, cross-examination

and summation, as well as during S.Z.'s and S.Z.'s mother's

testimony, defendant was characterized as a pedophile.

     The court instructed the jury on S.Z.'s mother's testimony

regarding how S.Z. informed her sons about the charges against

defendant.   The court stated:

          you [] heard some evidence that [S.Z.'s
          mother] told her sons that their uncle, the
          defendant, was a pedophile and that he had
          inappropriately touched boys. Now, normally
          in a criminal case evidence like that would
          never be permitted . . . however from time to
          time our rules do permit evidence when it's
          offered for a limited purpose . . . in this
          particular case this evidence was allowed for

                                 15                         A-4645-15T1
            a limited purpose . . . so that you could hear
            the discussions . . . between [S.Z.'s mother]
            and [S.Z.], and . . . evaluate whether you
            think anything [S.Z.'s mother] said to [S.Z.]
            in any way . . . influenced his statements
            about what happened to him . . . You cannot
            . . . conclude that because [S.Z.'s mother]
            characterized the defendant as a pedophile
            that he must be guilty of the crimes charged
            in this indictment.

During the jury charge, the trial court reiterated the limiting

instruction as to how the jury should consider S.Z.'s mother's

statements to her sons that defendant was a pedophile.

    Now defendant claims counsel's decision to agree to a limiting

instruction, rather than seek to bar the statements, demonstrates

ineffective assistance of counsel.         Defendant claims the second

prong of Strickland is satisfied because the use of the term

"pedophile" clearly prejudiced the jury.        In response, the State

contends the testimony in question "was a necessary component in

assessing the trustworthiness of the victim's disclosure," "[t]he

trial court admitted the statements . . . and the Appellate

Division affirmed that ruling."

    Although we agree with defendant the PCR court was mistaken

in finding the testimony in question occurred outside of the

presence of the jury, it does not change the outcome.             Defense

counsel's    decision   to   allow   the   testimony   with   a   limiting

instruction was a tactical decision, which should be afforded


                                     16                            A-4645-15T1
"extreme deference."         State v. Arthur, 184 N.J. 307, 322 (2005)

(citations    omitted).           Defendant    must    therefore       demonstrate

counsel's decision constitutes a serious error that prejudiced the

jury.

      Defendant's argument does not meet the first prong of the

Strickland test.      The mere fact there existed another strategy,

namely, to keep the statement out of evidence altogether, is not

prima facie evidence of a serious error.              Additionally, the record

supports the decision to permit the testimony and use a limiting

instruction was not done without cause, but was a deliberate

strategic decision.        This claim does not demonstrate a material

dispute warranting an evidentiary hearing.

      Next,   defendant       claims     he   was     deprived    of     effective

assistance of counsel as a result of trial counsel's failure to

call him to testify on his own behalf.                Defendant certifies that

despite his "deep desire to testify at trial and profess his

innocence," he did not testify "because of trial counsel's utter

failure to properly prepare [defendant] to do so."                       Defendant

further contends the trial court's failure to address this issue

at an evidentiary hearing was also error.               We disagree.

      Generally,     "[i]t   is    the   responsibility     of    a    defendant's

counsel, not the trial court, to advise defendant on whether or

not   to   testify   and     to   explain     the   tactical     advantages     and

                                         17                                A-4645-15T1
disadvantages of doing so or [] not doing so."     State v. Bogus,

223 N.J. Super. 409, 423 (App. Div.), certif. denied, 111 N.J. 567

(1988).   Notwithstanding, the record demonstrates that during the

trial, the court took special care to remind defendant of his

right to testify.

           THE COURT: All right.      [D.D.Z.], do you
           understand that in this case you have a right
           to testify?

           [D.D.Z.]: Yes, sir, your Honor.

           THE COURT: And you understand that if you
           choose to testify, of course, the prosecutor
           will have an opportunity to question you about
           anything that is relevant to these proceedings
           and also question you about your prior
           criminal convictions. You understand that?

           [D.D.Z.]: Yes, sir.

           THE COURT: Of course, you also have a right
           not to testify, right?

           [D.D.Z.]: (Nods)

           THE COURT: And if you elect not to testify, I
           will instruct the jury that that cannot be
           held against you. And they have to consider
           the charges against you based on the evidence
           that they have heard, but they can't hold it
           against you that you have chosen not to
           testify. Do you understand that?

           [D.D.Z.]: Yes, sir.

           THE COURT: Now, you've had an opportunity, I'm
           sure, to consult with [counsel] about this
           decision regarding whether or not to testify?

           [D.D.Z.]: Yes, sir.

                                 18                         A-4645-15T1
            THE COURT: Is that a yes?

            [D.D.Z.]: Yes, your Honor.

            THE COURT: Do you understand that even though
            [counsel] has a duty to give you his best legal
            advice, the decision regarding your testimony
            has to be your personal decision, right?

            [D.D.Z.]: Yes, your Honor.

            THE COURT: And is it your personal decision
            that you've decided not to testify?

            [D.D.Z.]: That is correct your Honor.

     The trial court addressed the issue again the following day,

asking if defense counsel had the opportunity to speak with

defendant regarding whether he would testify.       Counsel stated he

had not, and the trial court directed he do so before the jury

returned.    Following the testimony of two defense witnesses, the

trial court held a sidebar and again inquired if defendant would

be called to testify.    Counsel indicated the defense would rest.

     Defendant was clearly advised of his right to testify and

declined to do so.   For these reasons, we reject defendant's claim

the "colloquy which took place between the trial court, trial

counsel and the defendant was inadequate and insufficient to reach

an informed conclusion that the defendant's decision not to testify

had been knowingly, voluntarily and intelligently made."        Given

the thoroughness of the trial judge's inquiry into defendant's


                                 19                           A-4645-15T1
right to testify, the PCR court's denial of an evidentiary hearing

was warranted.

     In his pro se supplemental brief, defendant claims he was

denied the ineffective assistance of counsel because his trial

counsel failed to adequately investigate the case or introduce

evidence.     Specifically, defendant contends trial counsel had a

report from the Division of Youth and Family Services 3 (Division)

as well as other transcripts, including a transcript from the

initial police interview, which counsel did not investigate or

introduce into evidence.            The Division's report found S.Z.'s

allegations were "unsubstantiated."              Defendant claims that his

attorney was deficient in failing to investigate and produce the

Division's    report   at     trial.        He   asserts   that    had   counsel

investigated the matter and presented the report, he would likely

have been acquitted.

     The     failure   by   trial      counsel    to   conduct     a   pre-trial

investigation may give rise to a claim of ineffective assistance

of counsel.       Preciose, supra, 129 N.J. at 464.               A defendant's

right   to    a   "vigorous    defense"      means     defense    counsel    must




3
  On June 29, 2012, the Governor signed into law A-3101, which
reorganizes the Department of Children and Families, which
includes the renaming of the Division as the Division of Child
Protection and Permanency. L. 2012, c. 16, eff. June 29, 2012.

                                       20                                A-4645-15T1
"investigate all substantial defenses available."                  State v. Russo,

333 N.J. Super. 119, 139 (App. Div. 2000).

     However, defendant is required to plead more than "bald

assertions"     when    alleging     ineffective     assistance       of    counsel

because of a failure to investigate.             Cummings, supra, 321 N.J.

Super.    at   170.      Defendant    "must    assert      the     facts   that     an

investigation would have revealed, supported by affidavits or

certifications based upon the personal knowledge of the affiant

or the person making the certification."                   Ibid.     If defendant

merely speculates the evidence would have been exculpatory, the

claim will fail.       Fritz, 105 N.J. at 63.

     We   reject      defendant's    claim    that   the    evidence       from   the

Division records and the interview of S.Z. was either exculpatory

or presented an adequate defense.             At trial, the State presented

the videotape of S.Z.'s statement.            However, defendant's reliance

on S.Z.'s statement from the videotaped interview: "I kind of

remember it pretty unclearly," relating to the abuse would be

useful only for the limited purpose of impeaching S.Z.'s testimony.

Also, the Division's determination the abuse was unsubstantiated

is not exculpatory evidence.           The Division's regulations at the

time defined unsubstantiated findings as circumstances where the

evidence is insufficient to make an evaluation.               N.J.A.C. 10:129A-

3.3(a)(2).

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      Thus, admission of the evidence from the Division would not

have negated the elements of the offense established by the weight

of the evidence presented by the State.                Defendant's pro se brief

concedes    this    evidence    only    had     the   potential       to   exculpate.

Therefore, the failure to adduce the Division's records into

evidence did not prejudice defendant, and the admission of S.Z.'s

statement   into     evidence    did    not     exculpate      him.        Defendant's

assertions are merely speculative.              See Fritz, supra, 105 N.J. at

63.    Because      the   existing     record    was    sufficient         to   resolve

defendant's claims, and he did not establish a prima facie case

for PCR, the PCR court was not required to hold an evidentiary

hearing.

      Lastly, defendant, in his pro se supplemental brief, argues

his first attorney filed a motion to suppress the videotaped

statement of S.Z., but his trial counsel withdrew the motion.

Defendant claims this proves ineffective assistance of counsel.

      There is no evidence in the record the decision to withdraw

the   motion   to    suppress    was    deficient.          Defendant        does    not

articulate how S.Z.'s statements would have been suppressed.                           As

previously stated, "a [petitioner] must establish . . . trial

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

Castagna, supra, 187 N.J. at 314; see Savage, supra, 120 N.J. at

618. As defendant has not established trial counsel was deficient,

                                        22                                      A-4645-15T1
the first prong of Strickland is not met and this claim fails.

Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed.

2d at 698.

    The remaining arguments in defendant's pro se brief are

without    sufficient   merit   to   warrant   discussion   in   a   written

opinion.    Rule 2:11-3(e)(1)(E).

    Affirmed.




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