                                NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
        This opinion shall not "constitute precedent or be binding upon any court." Althoug h 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-2486-18T1

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

STEPHEN F. SCHARF,

     Defendant-Appellant.
_____________________________

                    Submitted March 12, 2020 – Decided August 31, 2020

                    Before Judges Suter and DeAlmeida.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Bergen County, Indictment No. 09-08-1485.

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

                    Mark Musella, Bergen County Prosecutor, attorney for
                    respondent (Ian C. Kennedy, Assistant Prosecutor, of
                    counsel; Catherine A. Foddai, Legal Assistant, on the
                    brief).

PER CURIAM
       Defendant Stephen F. Scharf appeals from the December 5, 2018 order of

the Law Division denying his petition for post-conviction relief (PCR) without

an evidentiary hearing. We affirm.

                                        I.

       The following facts are derived from the record. Because we write only

for the parties, we provide an abbreviated rendition of the facts relevant to

defendant's PCR claims.

       On September 20, 1992, a man entered a police station to report that

someone, later identified as defendant, had flagged him down at a highway rest

stop seeking help because his wife had fallen off a cliff. The police did not

record the man's name or contact information.

       Officers who responded to the scene met with defendant who said he and

his wife, Jody Ann Scharf, stopped at the park on their way to a date and were

sitting on a ledge at the top of a cliff. Defendant told the officers that when he

got up to get a blanket and wine from his car, his wife stood up, asked him not

to go, and fell off the cliff.

       Rescue personnel rappelled down the cliff to look for Jody.1 The officers

found her purse and some of its contents scattered on an outcropping about eight


1
    Because defendant and Jody shared a surname, we use her first name.
                                                                          A-2486-18T1
                                        2
feet below the ledge. They did not photograph the evidence or document its

location. The officers placed the contents back into the handbag, which they

tossed up to another officer. As they progressed downward, the officers found

no indication someone had fallen down the face of the cliff, including a lack of

debris, clothing, blood, hair, tissue, or broken branches.

      The officers located Jody's body face-down between a tree and a rock

approximately 119 feet vertically and fifty-two and half feet horizontally from

the ledge. Jody showed no signs of life and had substantial physical injuries,

including severe trauma to her skull and chest. The officers identified an

apparent impact point on an overhanging tree, which was covered in blood and

tissue, eight feet above the body.

      The officers did not photograph Jody's body or otherwise document its

location. Nor did they collect blood or tissue samples from the apparent point

of contact in the tree. The officers moved the rock next to the body without first

photographing the rock or documenting its location.           The officers gave

conflicting accounts of whether there had been blood on the rock. Photographs

of the tree taken later do not show the rock. The officers put the body in a basket

and lowered it to a road at the cliff base. The clothing on Jody's body was

destroyed after being turned over to a funeral home director.


                                                                           A-2486-18T1
                                        3
      The medical examiner, who did not go to the scene, pronounced Jody dead

over the telephone. After an autopsy, she determined the cause of death as

"multiple fractures and injuries" but listed the manner of death as "pending

investigation." In 1993, the medical examiner changed the manner of death to

"could not be determined."

      On the night of the incident, defendant consented to a search of his car,

which revealed, along with a number of other items, a claw hammer. In an

interview at the police station, defendant said the hammer was in the car because

he had been using it to fix a drawer in the kitchen of the couple's home, placed

it in a bag intending to drop it off in the garage as he left for the park with Jody,

but forgot to do so. Police did not record defendant's interview.

      When police later searched defendant's home, they did not photograph or

seize the kitchen drawer.       An officer testified that during the search of

defendant's home, defendant spontaneously turned to the officer and asked:

"[Y]ou don't believe this was an accident[?]" or "[Y]ou don't believe me[?]" The

officer said he believed an accident had occurred, to which defendant "said,

[']no,['] and put his head down" and, shortly after, asked to speak with a priest.

The officer recounted the conversation with a detective, but did not write a

report detailing the exchange. Another officer recalled writing a report about


                                                                             A-2486-18T1
                                         4
the conversation but was unable to locate it. Defendant initially was not charged

in connection with Jody's death.

      In 2004, the prosecutor's office began a "comprehensive review" of the

matter. In 2006, the medical examiner visited the location at which Jody's body

was found. Having viewed the scene, and with greater experience examining

fall victims, she determined Jody's injuries were inconsistent with a passive fall

down the cliff face and were indicative of her having been propelled off the cliff.

In 2007, she amended the death certificate to state homicide as the manner of

death. She did not take measurements at the scene or samples of tree bark to

compare to Jody's injuries.

      The investigation also revealed the couple's marriage was unhappy, with

both defendant and his wife openly having affairs. Defendant told inconsistent

stories to the women he was dating. He told one woman that his wife had died

in an automobile accident in 1979, and his son was from a different relationship.

To another woman, defendant said he and Jody were in the process of divorcing.

Shortly before Jody's death, he told a woman he was dating that he was fighting

with his son's mother over custody but that most of the stress he was under would

be gone in September.




                                                                           A-2486-18T1
                                        5
      In addition, the investigation revealed defendant obtained an insurance

policy on Jody's life with an accidental disability benefit. He collected more

than $700,000 from the policy.

      Investigators documented numerous statements by Jody to her friends and

therapist expressing fear of defendant. She told one friend she was concerned

defendant would harm her if she served him with a divorce complaint and to

suspect defendant if she died under unusual circumstances.        Jody told her

defendant "really . . . wants me gone . . . . " She told her therapist that she

suffered mental and physical abuse from defendant, who she described as very

punitive. The therapist reported that about a month before her death Jody

recounted that defendant said that he had been to a park on the Palisades with a

beautiful view and that he wanted to take Jody there. Jody told defendant he

"was crazy" and would not go to a cliff.

      Two weeks before Jody died, her attorney served defendant with a divorce

complaint, alleging he was unfaithful and abusive. Jody told a friend defendant

was unhappy she was seeking a divorce, that she was afraid of him, and wanted

him out of the house. The day before her death, Jody told a friend that defendant

"threatened her life" and would rather "see her dead before . . . he would sign"




                                                                         A-2486-18T1
                                       6
the divorce papers. She told another friend she was "afraid [defendant] was

going to kill her because of the divorce."

      The couple's son told investigators Jody had expressed fear of defendant

and refused to be alone with him. He also stated Jody was extremely fearful of

heights and doubted she would sit on a ledge on a cliff. In addition, he told

police Jody had told him defendant was "hitting her, abusing her and seeing

other people . . . [a]nd she could[ not] take it anymore," which was the reason

she filed for divorce.

      On August 13, 2009, defendant was indicted by a grand jury for the

knowing and purposeful murder of Jody, N.J.S.A. 2C:11-3(a)(1) and (2). At

trial, two experts and the medical examiner offered their opinions that Jody

could not have fallen as she did without having been pushed off the cliff.

Defendant presented expert testimony that Jody fell accidentally, striking the

outcropping where her purse and its contents were found, which propelled her

further out horizontally and caused her to have four or five impacts before

striking the tree.

      A jury found defendant guilty of murder, contrary to N.J.S.A. 2C:11-

3(a)(1) and (2). The trial court sentenced defendant to life imprisonment with a

thirty-year period of parole ineligibility.


                                                                        A-2486-18T1
                                         7
      On direct appeal, we reversed defendant's conviction, holding the trial

court erred by admitting Jody's out-of-court statements to her friends and

therapist. State v. Scharf, No. A-1580-11 (App. Div. Aug. 11, 2014). The

Supreme Court reversed, reinstating defendant's conviction and remanding to us

to consider defendant's argument that the trial court erred by not charging the

jury on manslaughter. State v. Scharf, 225 N.J. 547 (2016).

      While the remand was pending, defendant filed a petition for PCR. The

trial court dismissed the petition without prejudice to be refiled within ninety

days of the outcome of the remand proceedings.

      On January 27, 2017, we rejected defendant's jury instruction argument

and affirmed his conviction. State v. Scharf, No. A-1580-11 (App. Div. Jan. 27,

2017). The Supreme Court denied certification. State v. Scharf, No. 078952

(Mar. 21, 2017).

      On May 26, 2017, defendant refiled his petition for PCR.     He alleged he

was deprived the opportunity to raise an effective defense and to cross-examine

witnesses because the State failed to collect and preserve evidence. He also

alleged ineffective assistance of trial counsel because his attorney: (1) did not

call him as a witness at a hearing on his motion to suppress his statements to

police; (2) advised him not to testify at trial to prevent cross-examination about


                                                                          A-2486-18T1
                                        8
his extramarital affairs, even though evidence of those affairs was admitted

through other witnesses; (3) failed adequately to argue defendant was harmed

by the State's spoliation of evidence; and (4) did not request an adverse inference

jury charge based on spoliation. Finally, defendant argued his appellate counsel

was ineffective for not raising arguments based on spoliation.2

      On December 5, 2018, Judge James X. Sattely issued a comprehensive

and well-reasoned written opinion denying defendant's PCR petition without an

evidentiary hearing. The judge found defendant's allegations regarding the

spoliation of evidence and the absence of an adverse inference jury instruction

to be barred by Rule 3:22-4 because those claims could have been, but were not,

raised in defendant's direct appeal. With respect to the cross-examination of

witnesses, the trial court found that defendant "does not cite to any of the State's

witnesses that he was not permitted to cross-examine or a denial of any

opportunity to confront his accusers."




2
  Defendant also alleged trial counsel was ineffective because he failed to object
to the admission of excessive autopsy photographs. Because he does not raise
the issue in his brief, we deem it to be waived. "[A]n issue not briefed is deemed
waived." Pressler & Verniero, Current N.J. Court Rules, cmt. 5 on R. 2:6-2
(2020); Telebright Corp. v. Dir., N.J. Div. of Taxation, 424 N.J. Super. 384, 393
(App. Div. 2012) (deeming a contention waived when the party failed to include
any arguments supporting the contention in its brief).
                                                                            A-2486-18T1
                                         9
      With regard to the deprivation of the defendant's right to testify at trial,

the court held that:

            [t]rial counsel stated on the record that counsel and the
            defendant spoke extensively about the defendant's right
            to testify. [The trial court] then followed up with the
            defendant to ensure the defendant understood it was his
            decision as to whether or not the defendant wanted to
            testify. The defendant affirmed he had decided not to
            testify and that the defendant wanted [the court] to read
            the [e]lection [n]ot [t]o [t]estify charge to the jury. The
            defendant was presented with two opportunities on the
            record to testify on his own behalf and both times chose
            not to. The defendant did not object or oppose . . . the
            statements made by his counsel stating they had
            discussed the option of testifying.

                ....

            Even if this was a strategic decision by counsel and not
            the defendant's personal choice, the defendant's
            argument does not reach a level in which trial counsel
            was acting below a standard of an objective reasonable
            representation. Defendant has not shown that trial
            counsel's performance was defective. Therefore, the
            defendant fails to prove the first prong of [his
            ineffective assistance of counsel claim.]

      Addressing defendant's argument with respect to not testifying at the

suppression hearing, Judge Sattely held that trial counsel raised numerous points

at the suppression hearing with respect to the voluntariness of defendant's

statements to police that defendant argues would have been addressed in his



                                                                          A-2486-18T1
                                       10
testimony. The judge found defendant did not make a prima facie showing trial

counsel's performance at the hearing was ineffective.

      The trial court also concluded defendant did not establish a prima facie

claim of ineffective assistance of appellate counsel. Judge Sattely explained:

            Appellate counsel is not required to raise every possible
            claim. The defendant's appellate counsel was initially
            very successful on direct appeal, leading to defendant's
            conviction being reversed until reaching the New
            Jersey Supreme Court. . . . Notwithstanding the
            procedural bars, the arguments fail . . . . Counsel's
            choice not to pursue those issues do not rise to defective
            representation, but a choice in their litigation strategy.
            The defendant was not prejudiced by counsel choosing
            not to raise those . . . issues. Further, appellate counsel
            was not ineffective in the defendant's representation on
            direct appeal.

      In light of its conclusion that defendant did not make a prima facie case

of ineffective assistance of counsel, the trial court determined an evidentiary

hearing was not required.

      This appeal followed. Defendant raises the following arguments .

            POINT I

            THE PCR COURT ERRED BY PROCEDURALLY
            BARRING     DEFENDANT'S     INEFFECTIVE
            ASSISTANCE    OF    COUNSEL      CLAIMS
            REGARDING THE STATE'S SPOLIATION OF
            EVIDENCE; THEREFORE, THIS MATTER MUST
            BE REMANDED FOR THE COURT TO ADDRESS
            THESE CLAIMS SUBSTANTIVELY.

                                                                          A-2486-18T1
                                       11
            POINT II

            THIS MATTER MUST BE REMANDED FOR AN
            EVIDENTIARY      HEARING       BECAUSE
            DEFENDANT ESTABLISHED A PRIMA FACIE
            CASE      OF     TRIAL      COUNSEL['S]
            INEFFECTIVENESS  FOR   ABRIDGING   HIS
            CONSTITUTIONAL RIGHT TO TESTIFY.

                                       II.

      The trial court relied on Rule 3:22-4 for its conclusion that several of

defendant's PCR claims were barred. The rule provides, in relevant part:

            (a) First Petition for Post-Conviction Relief. Any
            ground for relief not raised in the proceeding resulting
            in the conviction . . . or in any appeal taken in any such
            proceedings is barred from assertion in a proceeding
            under this rule unless the court on motion or at a hearing
            finds:

            (1) that the ground for relief not previously asserted
            could not reasonably have been raised in any prior
            proceeding; or

            (2) that enforcement of the bar to preclude claims,
            including one for ineffective assistance of counsel,
            would result in fundamental injustice . . . .

               ....

            A ground could not reasonably have been raised in a
            prior proceedings only if defendant shows that the
            factual predicate for that ground could not have been
            discovered earlier through the exercise of reasonable
            diligence.

                                                                         A-2486-18T1
                                       12
              [R. 3:22-4.]

        To the extent that defendant raised the spoliation of evidence and lack of

an adverse inference instruction as independent substantive claims in his PCR

petition, we agree with the trial court that those claims are barred by Rule 3:22-

4(a).    Each of those arguments could have been, but were not, raised by

defendant in his direct appeal.

        To the extent defendant characterizes those claims as ineffective

assistance of trial counsel, a different analysis obtains. "Post-conviction relief

is New Jersey's analogue to the federal writ of habeas corpus." State v. Preciose,

129 N.J. 451, 459 (1992). Under Rule 3:22-2(a), a defendant is entitled to post-

conviction relief if there was a "[s]ubstantial denial in the conviction

proceedings of defendant's rights under the Constitution of the United States or

the Constitution or laws of the State of New Jersey . . . ." "A petitioner must

establish the right to such relief by a preponderance of the credible evidence."

Preciose, 129 N.J. at 459. "To sustain that burden, specific facts" that "provide

the court with an adequate basis on which to rest its decision" must be

articulated. State v. Mitchell, 126 N.J. 565, 579 (1992).

        The Sixth Amendment to the United States Constitution and Article I,

Paragraph 10 of the New Jersey Constitution guarantee criminal defendants the

                                                                          A-2486-18T1
                                        13
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,

and adopted by our Supreme Court in Fritz. 466 U.S. at 687; 105 N.J. at 58.

      Under Strickland, a defendant first must show that his or her attorney

made errors "so serious that counsel was not functioning as the 'counsel'

guaranteed the defendant by the Sixth Amendment." 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. A 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 trial. Ibid. "[A] court need not determine whether counsel's performance

was deficient before examining the prejudice suffered by the defendant as a

result of the alleged deficiencies." Id. at 697; State v. Marshall, 148 N.J. 89,

261 (1997). "If it is easier to dispose of an ineffectiveness claim on the ground


                                                                           A-2486-18T1
                                       14
of lack of sufficient prejudice, which we expect will often be so, that course

should be followed." Strickland, 466 U.S. at 697.

      A hearing on a PCR petition is required only when: (1) a defendant

establishes a prima facie case in support of PCR; (2) the court determines that

there are disputed issues of material fact that cannot be resolved by review of

the existing record; and (3) the court determines that an evidentiary hearing is

required to resolve the claims asserted. State v. Porter, 216 N.J. 343, 354 (2013)

(citing R. 3:22-10(b)). "A prima facie case is established when a defendant

demonstrates 'a reasonable likelihood that his or her claim, viewing the facts

alleged in the light most favorable to the defendant, will ultimately succeed o n

the merits.'" Id. at 355 (quoting R. 3:22-10(b)).

      The record supports the trial court's conclusion that defendant did not

establish a prima facie case of ineffective assistance of trial counsel. Trial

counsel raised the issue of spoliation in his opening statement and summation.

The jury, therefore, was apprised of defendant's claims that the State failed to

collect and maintain evidence that may have proven helpful to defendant.

      In addition, trial counsel's failure to request an adverse inference charge

based on spoliation did not harm defendant. When determining whether the

spoliation of evidence resulted in denial of a criminal defendant's due process


                                                                          A-2486-18T1
                                       15
rights, the court must consider: (1) whether there was bad faith or connivance

on the part of the government; (2) whether the evidence was sufficiently material

to the defense; and (3) whether defendant was prejudiced by the loss or

destruction of evidence. State v. Hollander, 201 N.J. Super. 453, 479 (App. Div.

1985); see also United States v. Wise, 221 F.3d 140, 156 (5th Cir. 2000) (holding

that adverse inference charge requires finding of bad faith conduct by the

government).

      Evidence is material if it possessed an exculpatory value that was apparent

before it was destroyed. California v. Trombetta, 467 U.S. 479, 489 (1984).

The evidence must be expected to play a significant role in the defense and be

of such a nature that the defendant would be unable to obtain comparable

evidence by any other reasonably available means. Arizona v. Youngblood, 488

U.S. 51, 58 (1988); Trombetta, 467 U.S. at 489; State v. Marshall, 123 N.J. 1,

109 (1991).

      The record contains no evidence of bad faith on the part of police or the

prosecutor. Nor has defendant demonstrated that the evidence he alleges to have

been destroyed would have been exculpatory.          There was, therefore, no

justification for an adverse inference charge to the jury. See State v. Zenquis,

251 N.J. Super. 358, 370 (App. Div. 1991), aff'd, 131 N.J. 84 (1993).


                                                                         A-2486-18T1
                                      16
      Furthermore, failure to give a charge must be evaluated in light of the

totality of the circumstances, including all the instructions and the arguments of

counsel. State v. Camaco, 218 N.J. 533, 551 (2014); State v. Timmendequas,

161 N.J. 515, 633-34 (1999). Given defense counsel's statements to the jury

challenging the motive of the police and prosecutors, and attacking the quality

of their investigation, the jury likely considered defendant's claim of spoliation

during its deliberations.

      We reach the same conclusion with respect defendant's claim of

ineffective assistance of appellate counsel. Defendant must demonstrate that

appellate counsel's representation fell below an objective standard of

reasonableness and that, but for unprofessional errors, the result on appeal would

have been different. State v. Gaither, 396 N.J. Super. 508, 513-14 (App. Div.

2007). The court must take into account that matters of appellate strategy lie

within the discretion of appellate counsel, who is not required to raise every

colorable claim on appeal. Jones v. Barnes, 463 U.S. 745, 754 (1983); Gaither,

396 N.J. Super. at 515-16. Failing to raise an argument on appeal which would

not have been successful cannot constitute ineffective assistance of appellate

counsel. State v. Warlock, 117 N.J. 596, 625 (1990).




                                                                          A-2486-18T1
                                       17
      As noted by the trial court, defendant's appellate counsel made the

strategic decision to focus on arguments determined to have the greatest

potential to succeed. The fact that appellate counsel achieved a reversal of

defendant's convictions before this court is evidence of effectiveness, even if the

Supreme Court later reversed our decision. Defendant did not make a prima

facie showing that appellate counsel was ineffective for not advancing

arguments based on spoliation, which we noted above would have limited

application here, on appeal.

      The record also supports the trial court's conclusion that defendant did not

make a prima facie showing of ineffective assistance of trial counsel relating to

him not testifying at trial or the suppression hearing. The record contains ample

evidence establishing that defendant elected not to testify at trial. The trial court

engaged in an extensive discussion on the record with defendant and his counsel

with respect to defendant's election.

      In the middle of trial, the court explored with defendant the fact that the

decision of whether or not to testify belonged to him. The court urged defendant

to discuss the decision with his counsel, who the court characterized as "very

competent." At the close of defendant's case, the court again addressed the issue

with defendant, who stated unequivocally that he understood that he had an


                                                                             A-2486-18T1
                                        18
absolute right to testify and that, after consultation with counsel, he had elected

not to. The record demonstrates that defendant decided not to testify after being

advised by counsel of the hazards of cross-examination.            Trial counsel's

representation on this point was not deficient.

      Finally, we agree with Judge Sattely's conclusion that defendant did not

make a prima facie showing that his testimony at the suppression hearing would

have changed the outcome. Defendant argues that had he been properly advised

by counsel he would have testified that he did not feel free to leave when he

made statements to police. However, the motion judge made extensive findings

with respect to the objective circumstances surrounding defendant's voluntary

statements. See State v. O'Neal, 190 N.J. 601, 616 (2007). The motion judge

found all of defendant's statements were admissible because they were in

response to on-scene questioning, voluntarily made while defendant was not in

custody, or after defendant voluntarily offered to take a polygraph examination.

Testimony regarding defendant's subjective belief he was not free to leave would

not have changed the outcome of the suppression hearing. See State v. Bey, 161

N.J. 233, 271-72 (1999) (holding that to meet the two-prong Strickland test

defendant would have to show that had he testified, the result of the hearing

would have been different).


                                                                           A-2486-18T1
                                       19
      To the extent we have not specifically addressed any of defendant's

remaining contentions, we conclude they lack sufficient merit to warrant

discussion in a written opinion. R. 2:11-3(e)(2).

      Affirmed.




                                                                  A-2486-18T1
                                      20
