                                NOT FOR PUBLICATION WITHOUT THE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-2005-16T2

STATE OF NEW JERSEY,

           Plaintiff-Respondent,

v.

KAREEM PRUNTY,

     Defendant-Appellant.
_________________________

                    Argued November 27, 2018 – Decided January 11, 2019

                    Before Judges Suter and Geiger.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Union County, Indictment No. 09-10-0958.

                    Robin Kay Lord argued the cause for appellant.

                    Milton S. Leibowitz, Special Deputy Attorney
                    General/Acting Assistant Prosecutor, argued the cause
                    for respondent (Michael A. Monahan, Acting Union
                    County Prosecutor, attorney; Izabella M. Wozniak,
                    Special Deputy Attorney General/Acting Assistant
                    Prosecutor, of counsel and on the brief).

PER CURIAM
      Defendant Kareem Prunty appeals the denial of his petition for post-

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

      In October 2009, defendant was indicted and charged with: first-degree

murder, N.J.S.A. 2C:11-3(a); third-degree possession of a weapon without a

permit, N.J.S.A. 2C:39-5(b); and second-degree possession of a handgun for

unlawful purposes, N.J.S.A. 2C:39-4(a). On March 16, 2011, at the conclusion

of a fourteen-day trial, which included three days of jury deliberations,

defendant was convicted as charged.

      Defendant was sentenced to a forty-eight-year prison term, subject to an

eighty-five percent period of parole ineligibility pursuant to the No Early

Release Act (NERA), N.J.S.A. 2C:43-7.2, on the murder conviction, and

concurrent five-year prison terms on the other convictions.

      We recounted the relevant facts and procedural history in our opinion on

direct appeal. State v. Prunty, No. A-1365-11 (App. Div. Jan. 28, 2014) (slip

op. at 1-2, 4-24). They need not be repeated at length. We briefly discuss the

facts necessary to address defendant's current claims.

      Defendant was convicted of murder and related weapons offenses for the

April 17, 2017 shooting death of Gregory Fils-Aime. On the night of the

shooting, Michael Whetstone and Fils-Aime entered Mike's Tavern, located on


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                                       2
Roselle Street in Linden, where they sat at the bar, talked, and drank. As the

night wore on, Fils-Aime became intoxicated. He was described by bartenders

at the tavern as "ill mannered" and "a very arrogant person" who was loud and

obnoxious. Whetstone and Fils-Aime were seen arguing outside the tavern.

They then walked down Roselle Street. Fils-Aime was shot and killed minutes

later.

         The State contended Fils-Aime first encountered defendant inside Mike's

Tavern. The State introduced video footage from surveillance cameras inside

the tavern, demonstrating that two African-American men, one of them

defendant, entered the tavern and sat across the bar from Fils-Aime and

Whetstone.      Shortly after defendant and his companion arrived, Fils-Aime

started "mouthing off." Defendant and his companion reacted to Fils-Aime's

remarks. Fils-Aime eventually approached the two men and had a conversation.

At one point Fils-Aime was told, "Get away from me. Go back over there with

your friend." According to a bartender, the voices grew gradually louder until

they were shouting.

         According to another customer at the bar, after defendant motioned to his

waistline, Fils-Aime said something like, "Oh, okay," or "Oh, it's like that."

Whetstone said, "I'm outta here," and got up and left. Whetstone was angry with


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                                         3
Fils-Aime and wanted to leave because Fils-Aime was "talking gangsta stuff"

and he was "not with that." Fils-Aime had a drink to finish, so Whetstone exited

the tavern and waited for Fils-Aime outside. Defendant and his companion also

exited the tavern. Whetstone apologized to them for Fils-Aime's behavior.

Defendant and his companion got in their vehicles and left, with defendant

driving a gold minivan. They both drove up Roselle Street toward a convenience

store.

         Whetstone wanted to leave and Fils-Aime wanted to stay, but they

eventually left the tavern premises together and walked on Roselle Street in the

same direction the minivans had taken. As Whetstone and Fils-Aime crossed

the intersection of Roselle Street and Cleveland Avenue, a minivan pulled up.

Fils-Aime approached the vehicle and was shot. Whetstone heard the gun shots

and ran off. The minivan also left quickly after the shots were fired. Police

were dispatched to a report of gunshots being fired in the vicinity of Roselle

Street and Cleveland Avenue and found Fils-Aime's dead body on the lawn of

an apartment building. An autopsy revealed Fils-Aime was struck by three

bullets. The medical examiner determined the cause of death was multiple

gunshot wounds and the manner of death was homicide.




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                                       4
      The police undertook a two-year investigation. Within twenty-four hours

of the crime, police obtained surveillance video from the tavern and were a ble

to identify defendant as being in the tavern on the night of the shooting. Prunty,

slip op. at 23. Within five days of the shooting, police confirmed a gold Ford

Windstar minivan matching the witness description was registered in

defendant's name but efforts to locate the minivan were unsuccessful. Id. at 24.

The investigation initially focused on Whetstone, but by May 2007 police no

longer viewed Whetstone as a suspect.       Id. at 23-24. When the unsolved

homicide came under greater scrutiny two years later, police obtained a court

order to have defendant produced in front of the surveillance cameras at Mike's

Tavern under the same conditions as the night of the shooting. Id. at 24.

      At trial, the State theorized Fils-Aime argued with defendant, causing

defendant and his companion to leave the tavern and wait in defendant's

minivan, from which defendant shot and killed Fils-Aime while stopped at the

intersection of Cleveland Avenue and Roselle Street.

      During the trial, the defense conceded defendant was present in the tavern

on the night Fils-Aime was shot but maintained defendant did not have a

significant argument or disagreement with Fils-Aime and did not shoot him.

Instead, the defense contended Whetstone, who did not call the police to report


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                                        5
the shooting, was the likely shooter since he argued with Fils-Aime after they

left the tavern, and was seen running from the area after the shooting.

      The defense theorized defendant was not seriously considered a suspect

in Fils-Aime's murder until he failed to cooperate as a material witness in a

separate homicide case.     In support of its theory, defense counsel noted

defendant was not interviewed for more than two years after the homicide even

though the police knew defendant was present in the tavern the night of the

shooting.

      On direct appeal, we affirmed defendant's conviction and rejected all of

his arguments, including those regarding the admission of Michael Whetstone's

videotaped statements; the admission of Detective Manochio's testimony that

the review of the video created pursuant to the investigative detention order by

unknown members of the Prosecutor's Office prompted the decision to charge

defendant; the admission of Kathleen McCann's opinion testimony; and the

admission of Elliot Brantley's statement to Detective Manochio following his

trial testimony. The Supreme Court denied defendant's petition for certification.

State v. Prunty, 219 N.J. 629 (2014).

      On October 7, 2014, defendant filed a pro se PCR petition claiming

ineffective assistance of trial counsel. Defendant raised the following grounds:


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                                        6
1) trial counsel failed to investigate, locate, and interview witnesses whose

testimony would have resulted in a different verdict; 2) the prosecutor engaged

in misconduct by failing to provide the 2007 grand jury transcript which would

have advanced the defense of third-party guilt; 3) trial counsel failed to obtain

the 2007 grand jury transcript prior to the commencement of trial; 4) counsel

failed to properly advise defendant of the advantages and disadvantages of

testifying at trial; 5) trial counsel failed to make timely objections during the

trial; 6) trial counsel opened the door to inadmissible evidence; 7) trial counsel

failed to object to the playing of Whetstone's videotaped interviews during her

cross-examination; 8) trial counsel failed to request a Wade1 hearing regarding

his identification by detectives though he was not identified by any patron of

Mike's Tavern; 9) trial counsel failed to object to the prosecutor's removal of

every juror with a Muslim name; 10) the prosecutor's misrepresentation of

physical evidence; 11) direct appeal counsel failed to advance meritorious

claims; and 12) the cumulative effect of the errors complained of rendered the

trial unfair.

       Through appointed counsel, defendant claimed ineffective assistance of

counsel, raising the following grounds before the PCR court: 1) trial counsel's


1
    United States v. Wade, 388 U.S. 218 (1967).
                                                                          A-2005-16T2
                                        7
concession defendant was in Mike's Tavern the night of the shooting; 2) failure

to object to Rashad Gilliam's testimony; 3) failure to effectively challenge

Kathleen McCann's testimony; 4) failure to move for a Wade hearing regarding

Ann Marie Dampach's identification; 5) failure to object to Detective Johnston's

testimony identifying defendant in the tavern's surveillance video; 6) failure to

object to Detective Manochio's hearsay testimony that several non-testifying

police officers had identified defendant in the investigative detention video;

7) failure to raise a constitutional challenge to the investigative detention video;

8) failure to object to the admission of Whetstone's videotaped statements;

9) failure to object to inadmissible testimony elicited in response to defendant's

retaliation defense; 10) failure to pursue Jerry Candia as third-party guilt

evidence; and 11) failure to object to prosecutorial misconduct. Defendant also

claimed ineffective assistance of appellate counsel for failure to raise

prosecutorial misconduct on appeal.

      Following oral argument, the PCR judge issued a comprehensive, forty-

six-page opinion and order denying the petition without an evidentiary hearing.

With regard to defendant's argument that trial counsel was ineffective by

conceding defendant's presence in the tavern and by not pursuing Jerry Candia

as third-party guilt evidence, the PCR court noted the trial strategy was to pursue


                                                                            A-2005-16T2
                                         8
a retaliation defense bolstered by a claim Whetstone was the shooter. As part

of that strategy, trial counsel highlighted the fact law enforcement knew

defendant was in the tavern the night of the shooting within days of the

homicide, but never approached to interview him for over two years. Trial

counsel claimed the State retaliated against defendant because of his non-

cooperation in an unrelated homicide investigation. In addition, pursuit of Jerry

Candia would have conflicted with the decision to pursue Whetstone as third -

party evidence. The evidence against Whetstone was much stronger. The PCR

court found defendant's allegations against Candia were mere bald assertions.

The PCR court also found that witnesses and videos provided overwhelming

evidence defendant was present in the tavern. For these reasons, the PCR court

found trial counsel's tactical decision well thought out and strategically

defensible.

      As to trial counsel's failure to object to the testimony of assistant

prosecutors Bruce Holmes and Ann Luvera, the PCR court noted Holmes

testified defendant did not testify in the other case because the State could not

locate him. The trial ended in a hung jury. The Appellate Division ruled the

case could not be retried. This supported the defense theory. Luvera testified

Fils-Aime's murder was given greater scrutiny after the homicide taskforce was


                                                                         A-2005-16T2
                                       9
created and was directly responsive to defendant's retaliation claim. The PCR

court found their testimony did not rise to the level of prosecutorial misconduct.

      With regard to trial counsel not objecting to the admissibility of

Whetstone's videotaped statements, the PCR court noted Whetstone gave four

statements, two to the police and two to defense investigators. The statements

were inconsistent with each other and with Whetstone's trial testimony. The

statements were admissible as prior inconsistent statements. The PCR court

found admission of the tapes supported the defense theory that Whetstone was

the shooter and continually lied to protect himself.

      As to trial counsel's failure to object to Manocchio's testimony that several

non-testifying officers identified defendant in the investigative detention video,

the PCR court noted this issue was raised on direct appeal with the appellate

panel finding defendant had not shown the testimony was "of such a nature as

to have been capable of producing an unjust result." The appellate panel found

the testimony cumulative. The PCR court also found the testimony "was of no

real effect" given defendant conceded he was in the tavern as part of his defense

strategy and the State knew of his presence there within days of the shooting .

      As to trial counsel's failure to review the surveillance video in preparation

to effectively cross-examine McCann, the PCR court found the video was of


                                                                           A-2005-16T2
                                       10
such poor quality "it shows nothing more than the defendant moving around in

his seat." In addition, the court noted trial counsel objected there times during

McCann's direct testimony. During cross-examination, trial counsel elicited

favorable testimony effectively undermining and impeaching her testimony on

direct, which trial counsel used during her summation.

      As to the failure to request a Wade hearing challenging Dampach's

eyewitness identification based on an impermissibly suggestive photo array, the

PCR court found suppression of the identification would not change the outcome

of the verdict since defendant conceded he was present in the tavern. In addition,

other trial witnesses placed defendant in the tavern on the night in question.

      As to trial counsel's failure to object to Johnston's testimony that

defendant was the person depicted in the surveillance video, the PCR court noted

the testimony established the police were aware defendant was in the tavern very

early in the case, a fact crucial to the defense strategy.

      This appeal followed. Defendant argues:

             POINT ONE

             DEFENDANT HAS, AT THE VERY LEAST,
             PRESENTED A PRIMA FACIE CASE OF
             INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL,
             ENTITLING HIM TO A REMAND FOR AN
             EVIDENTIARY HEARING ON HIS PETITION FOR
             POST-CONVICTION RELIEF.

                                                                          A-2005-16T2
                                        11
I. Trial Counsel Was Ineffective in Conceding
Defendant's Identity as One of the Men Present in the
Bar Immediately Prior to the Shooting.

II. Trial Counsel Was Ineffective in Failing to Object
to Rashan Gilliam's Testimony.

III. Trial Counsel Was Ineffective in Failing to View
the April 17, 2007 Surveillance Video in Order to
Effectively Challenge Kathleen McCann's Testimony
at Trial.

IV. Trial Counsel Was Ineffective in Failing to Request
a Wade Hearing to Challenge the Eyewitness
Identification Made by Ann Marie Dampach.

V. Trial Counsel was Ineffective in Failing to Object to
Detective Johnston's Testimony that Defendant was the
Man Depicted in the April 17, 2007, Surveillance
Video.

VI. Trial Counsel was Ineffective in Failing to Object
to Hearsay Testimony that Several Non-Testifying
Police Officers Had Identified Defendant in the May
15, 2009 Investigative Detention Video.

VII. Trial Counsel Was Ineffective in Failing to Raise
a Constitutional Challenge to the May 15, 2009 Video
that was Obtained Pursuant to an Investigative
Detention Order.

VIII. Trial Counsel Was Ineffective in Conceding to the
Admissibility of Whetstone's Videotaped Statements.

IX. Trial Counsel Was Ineffective in Failing to Object
to Inadmissible Testimony Introduced in Response to
Counsel's Retaliation Defense.

                                                           A-2005-16T2
                          12
            X. Trial Counsel Was Ineffective in Failing to Pursue
            Jerry Candia as Third Party Evidence.

            XI. Trial Counsel was Ineffective in Failing to Object
            to Numerous Instances of Prosecutorial Misconduct,
            and Appellate Counsel was Ineffective in Failing to
            Raise this Issue on Direct Appeal.

            POINT TWO

            THE PCR COURT ERRED IN REVIEWING VIDEO
            EVIDENCE BUT REFUSING TO GRANT A FULL
            EVIDENTIARY HEARING. (Not Raised Below).

      After a careful review of the arguments in light of the record and the

applicable principles of law, we are unpersuaded by these arguments and affirm

substantially for the reasons stated by the PCR judge in his thorough and well-

reasoned written opinion. We add the following comments.

      PCR petitioners are not automatically entitled to an evidentiary hearing.

State v. Cummings, 321 N.J. Super. 154, 170 (App. Div. 1999); R. 3:22-10(b).

A PCR court need not grant an evidentiary hearing unless "a defendant has

presented a prima facie case in support of PCR." State v. Jones, 219 N.J. 298,

311 (2014) (citing State v. Marshall, 148 N.J. 89, 158 (1997)). "To establish

such a prima facie case, the defendant must demonstrate a reasonable likelihood

that his or her claim will ultimately succeed on the merits." Marshall, 148 N.J.

at 158. The court must view the facts "in the light most favorable to defendant."

                                                                         A-2005-16T2
                                      13
Ibid. (quoting State v. Preciose, 129 N.J. 451, 462-63 (1992)); accord R. 3:22-

10(b).

         Under the Sixth Amendment of the United States Constitution, a criminal

defendant is guaranteed the effective assistance of legal counsel in his defense.

Strickland v. Washington, 466 U.S. 668, 687 (1984). To establish a deprivation

of that right, a convicted defendant must satisfy the two-part test enunciated in

Strickland by demonstrating that: (1) counsel's performance was deficient, and

(2) the deficient performance actually prejudiced the accused's defense. Id. at

687; accord State v. Fritz, 105 N.J. 42, 58 (1987) (adopting the Strickland two-

part test in New Jersey). When a defendant establishes a prima facie case of

ineffective assistance of counsel under the Strickland/Fritz test, he is ordinarily

entitled to an evidentiary hearing on his claims. Preciose, 129 N.J. at 462; R.

3:22-10(b).

         "[J]udicial scrutiny of counsel's performance must be highly deferential."

Marshall, 148 N.J. at 157 (quoting Strickland, 466 U.S. at 689). "[A]ny claimed

errors of counsel must amount to more than mere tactical strategy." State v.

Drisco, 355 N.J. Super. 283, 290 (App. Div. 2002) (citing Strickland, 466 U.S.

at 689).      "Adequate assistance of counsel is measured by a standard of

reasonable competence."       Ibid. (citing Strickland, 466 U.S. at 689).     "The


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                                         14
standard does not demand 'the best of attorneys,' but rather requires that

attorneys be not 'so ineffective as to make the idea of a fair trial meaningless.'"

Ibid. (quoting State v. Davis, 116 N.J. 341, 351 (1989)).

        "Courts are cautioned to avoid looking at events through the distorting

lens of hindsight and second-guessing reasonable decisions made by counsel."

State v. Nash, 212 N.J. 518, 543 (2013). In reviewing such claims, courts apply

a strong presumption that defense counsel "rendered adequate assistance and

made all significant decisions in the exercise of reasonable professional

judgment."     Strickland, 466 U.S. at 690.       "As a general rule, strategic

miscalculations or trial mistakes are insufficient to warrant reversal 'except in

those rare instances where they are of such magnitude as to thwart the

fundamental guarantee of [a] fair trial.'" State v. Castagna, 187 N.J. 293, 314-

15 (2006) (alteration in original) (quoting State v. Buonadonna, 122 N.J. 22, 42

(1991)).

        We find no reason to second-guess trial counsel's advice to defendant

here.    Trial counsel's decisions were "strategically defensible."       State v.

Hightower, 120 N.J. 378, 402 (1990). Defendant received a fair trial.

        With regard to trial counsel's failure to object to Rashad Gilliam's

testimony, we conclude his testimony did not prejudice the outcome of the case.


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                                       15
Although Gilliam placed defendant in the Tavern, defendant's presence there

was not disputed by the defense. Further, trial counsel used Gilliam's testimony

to defendant's advantage. Gilliam testified defendant was not involved in any

altercations that night and he did not see defendant commit any crimes. Trial

counsel also elicited from Gilliam that he had never been afforded an

opportunity to review or sign the defense investigator's report containing his

prior statements that were used as prior inconsistent statements to impeach him.

Defendant has not shown Gilliam's testimony prejudiced the outcome.

      Following oral argument, the PCR judge reviewed those portions of the

tavern's surveillance video designated by PCR counsel as well as footage from

three cameras for the time period defendant was in the tavern, for the limited

purpose of determining "what was shown to the jury and what was not shown to

the jury" in relation to defendant's claim trial counsel failed to e ffectively

challenge McCann's testimony.      The PCR judge stated:      "I have carefully

reviewed the video and concluded its further use would not have any impact on

the case. The quality of the video is poor and it shows nothing more than the

defendant moving around in his seat."

      For the first time on appeal, defendant argues it was error to review the

video without granting an evidential hearing. He contends that by requesting


                                                                        A-2005-16T2
                                      16
and reviewing the video footage, the PCR court "implicitly acknowledged the

need for an evidentiary hearing on these issues." We disagree.

      Defendant does not cite any authority in support of his position, nor are

we aware of any precedent obligating a PCR court to grant an evidentiary

hearing solely because it decides to view video footage that purportedly supports

defendant's claim. Contrary to defendant's assertion, the determination that the

video was not sufficiently clear to assist the court is not tantamount to being

"unable to render a decision in this matter." The PCR judge decided each issue

raised by defendant based on the record before him.

      Defendant claims trial counsel was ineffective for failing to raise a

constitutional challenge to the investigative detention video. The trial court

issued the order permitting the investigative detention video before defendant's

arrest and prior to trial counsel's involvement in the case. Trial counsel objected

to the use of the video or, in the alternative, sought to limit the use of the video.

The trial court concluded the video was not prejudicial and had significant

probative value. The court redacted the portion of the tape where defendant

asked for an attorney and defendant's presence in the tavern was not disputed.

Therefore, the video was not prejudicial.




                                                                             A-2005-16T2
                                        17
      To the extent they are unaddressed, defendant's remaining arguments lack

sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

      The PCR judge correctly found defendant is unable to satisfy either prong

of the Strickland-Fritz test. An evidentiary hearing was not required to resolve

defendant's claims. Accordingly, the PCR court properly denied defendant's

petition without conducting an evidentiary hearing.

      Affirmed.




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                                      18
