                                NOT FOR PUBLICATION WITHOUT THE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-2466-17T1

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

DYSHUN J. LEGETTE, a/k/a
DAY LEGETTE, DASHSEAN
LEGETTE, DAYSHAWN J.
LEGETTE, DYSHAWN J.
LEGETTE, and EDYSHUN
LEGETTE,

     Defendant-Appellant.
_____________________________

                    Submitted June 4, 2019 – Decided June 14, 2019

                    Before Judges Hoffman and Geiger.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Union County, Indictment Nos. 10-06-0628
                    and 10-06-0636.

                    Joseph E. Krakora, Public Defender, attorney for
                    appellant (David Anthony Gies, Designated Counsel,
                    on the brief).
            Jennifer Davenport, Acting Union County Prosecutor,
            attorney for respondent (Kelsey Alina Ball, Special
            Deputy Attorney General/Acting Assistant Prosecutor,
            of counsel and on the brief).

PER CURIAM

      Defendant Dyshun Legette appeals from the October 21, 2016 Law

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

      We outlined the relevant facts, and the appellate issues defendant raised,

in our prior opinion affirming defendant's convictions for second -degree

unlawful possession of a weapon, N.J.S.A. 2C:39-5(f); fourth-degree possession

of a large capacity ammunition magazine N.J.S.A. 2C:39-3(j); fourth-degree

possession of hollow nose bullets, N.J.S.A. 2C:39-3(f); and second-degree

certain persons not to have weapons, N.J.S.A. 2C:39-7. See State v. Legette,

No. A-4050-11T1 (App. Div. July 21, 2014) (slip op. at 1-2). The certain

persons charge arose from a second indictment. Id. at 1. The case followed the

execution of a search warrant that produced a "9mm luger handgun with a large

capacity magazine loaded with hollow nose bullets," and controlled dangerous

substances. Id. at 4-5. The trial court imposed a sentence of twenty years in

prison on the unlawful possession of a weapon charge, "concurrent eighteen-

month sentences on the remaining counts of the first indictment, and a

concurrent five-year custodial term on the second indictment." Id. at 2.

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                                       2
      On defendant's direct appeal, we rejected his argument that the court failed

to properly instruct the jury on cross-racial identification, and found his

remaining points without sufficient merit to warrant discussion in a written

opinion, Rule 2:11-3(e)(2). Id. at 4, 8.

      Defendant filed a petition for PCR, which the trial court denied on October

21, 2016. In denying defendant's petition, Judge Robert J. Mega filed a written

opinion with his order.

      Defendant then filed this appeal, raising the following arguments:

            POINT ONE

            THE FAILURE OF DEFENDANT'S TRIAL
            ATTORNEY TO CHALLENGE THE MANNER IN
            WHICH THE PROSECUTOR CHOSE TO PROCEED
            WITH THE PRESENTMENT OF THE CHARGES
            AMOUNTED TO THE INEFFECTIVENESS OF
            COUNSEL.

            POINT TWO

            THE PCR ATTORNEY'S FAILURE TO USE A COPY
            OF THE SEARCH WARRANT IN SUPPORT OF HIS
            ARGUMENT THAT THE TRIAL ATTORNEY'S
            INVESTIGATION OF THE FACTS OF THE CASE
            WAS CONSTITUTIONALLY INADEQUATE[,]
            WAS ERRONEOUS[,] AND WARRANTS A
            REMAND.

      Based on our review of the record and the applicable law, we conclude

these arguments lack sufficient merit to warrant extended discussion. R. 2:11-

                                                                           A-2466-17T1
                                           3
3(e)(2). We affirm substantially for the reasons stated by Judge Mega in his

cogent written opinion. We add the following comments.

      In order to establish a prima facie case of ineffective assistance of counsel,

a defendant must satisfy the two-prong test articulated in Strickland v.

Washington, 466 U.S. 668 (1984), and adopted by the New Jersey Supreme

Court in State v. Fritz, 105 N.J. 42, 58 (1987). "First, the defendant must show

. . . that counsel made errors so serious that counsel was not functioning as the

'counsel' guaranteed . . . by the Sixth Amendment." Fritz, 105 N.J. at 52 (quoting

Strickland, 466 U.S. at 687). The defendant must then show that counsel's

deficient performance prejudiced the defense. Ibid. To show prejudice, the

defendant must establish by "a reasonable probability" that the deficient

performance "materially contributed to defendant's conviction . . . ." Id. at 58.

      The mere raising of a claim for PCR does not entitle the defendant to an

evidentiary hearing, and the defendant "must do more than make bald assertions

that he [or she] was denied the effective assistance of counsel."            State v.

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

      Defendant reiterates the same arguments raised before the PCR court. He

asserts that his trial counsel was ineffective for failing to file a motion to dismiss

the second indictment, claiming the State acted improperly when it presented


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                                          4
each indictment before the same grand jury. In rejecting the argument, the PCR

judge found that defendant cited "no controlling or supportive case law eve n

acknowledging such a rule has been recognized by our courts." We observe the

same fatal flaw in defendant's brief on appeal.

      Defendant also raises two of the same arguments that he raised before the

PCR court judge: first, his trial counsel was ineffective for failing to conduct an

investigation of the scene of the executed search warrant; and second, his

counsel was ineffective for failing to review with defendant any of the discovery

materials in preparation for trial.    Before the PCR judge and on appeal,

defendant fails to present evidence of these allegations, articulate how the

conduct amounted to "errors so serious that counsel was not functioning as the

'counsel' guaranteed . . . by the Sixth Amendment," Fritz, 105 N.J. at 52, or set

forth "a reasonable probability" that the deficient performance "materially

contributed to defendant's conviction," id. at 58. The contentions that trial

counsel was ineffective for these reasons amount to nothing more than bald

assertions.

      Lastly, defendant contends for the first time that his PCR counsel was

ineffective for failing to use or obtain a copy of the search warrant that was

executed when defendant's contraband was seized. Again, defendant fails to


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                                        5
articulate how this conduct constitutes an error, and allege that he was

prejudiced as a result of the conduct. The argument clearly lacks merit.

      Affirmed.




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