                                     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                                NOT FOR PUBLICATION WITHOUT THE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-5193-17T4

STATE OF NEW JERSEY,

         Plaintiff-Respondent,

v.

M.M.,

     Defendant-Appellant.
_________________________

                   Submitted September 11, 2019 - Decided September 24, 2019

                   Before Judges Koblitz and Gooden Brown.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Hudson County, Indictment No. 09-12-2137.

                   Joseph E. Krakora, Public Defender, attorney for
                   appellant (Anderson D. Harkov, Designated Counsel,
                   on the brief).

                   Esther Suarez, Hudson County Prosecutor, attorney for
                   respondent (Erin M. Campbell, Assistant Prosecutor,
                   on the brief).

PER CURIAM
       Defendant appeals from the May 30, 2018 order denying his post-

conviction relief (PCR) petition without a plenary hearing. He claims trial

counsel was ineffective by failing to: object to hearsay evidence, request certain

jury instructions, or interview an eyewitness.          He claims counsel had an

"apathetic attitude" during trial, which was conducted in defendant's absence.

Because his claims do not give rise to a substantial denial of his constitutional

rights, we affirm.

       In 2009, defendant was charged with fourth-degree sexual contact,

N.J.S.A. 2C:14-3(b), second-degree attempted sexual assault, N.J.S.A. 2C:5-l

and N.J.S.A. 2C:14-2(c)(l), fourth-degree child abuse, N.J.S.A. 9:6-1 and

N.J.S.A. 9:6-3, third-degree terroristic threats, N.J.S.A. 2C:12-3(b), and third-

degree luring a child into a motor vehicle, N.J.S.A. 2C:13-6.

       After defendant failed to appear for trial a third time in October 2009, the jury

trial proceeded in his absence. He was found guilty of all charges except terroristic

threats.

       The underlying facts developed at trial are recounted in detail in State v.

M.M., No. A-3432-15 (App. Div. Sep. 28, 2017) (slip op. at 2-5).                     We

incorporate those facts into this opinion, emphasizing only those necessary to

explain this decision. Defendant, then twenty-one years old, met S.D., who was


                                                                               A-5193-17T4
                                           2
a seventeen-year-old customer at his fried chicken store. Defendant mentioned

to S.D. that he had a job opening for her. On August 3, 2009, defendant s aw

S.D. outside a supermarket. They discussed the job opening, and then defendant

offered S.D. and her four-year-old brother a ride home.      Once in the car,

defendant said he had to stop at his home on the way. When they arrived,

defendant insisted that S.D. and her brother come inside. Defendant knocked

on the door and another man S.D. did not recognize opened the door and led

them to a basement apartment. They sat in a living room while defendant went

into a bedroom where he said he was looking for a job application.

      After a few moments, defendant asked S.D. to follow him into the

bedroom so he could talk to her. She entered the bedroom with her young

brother. She sat on the bed and defendant began touching her and saying he

wanted to make love to her. His friend entered and removed her brother from

the room despite S.D.'s protests. Defendant proceeded to try to undress S.D.

and convince her to have sex with him, but she resisted and started screaming.

Defendant punched her in the face so she would stop screaming, placed both

hands on her neck so she could not breathe, and threatened to kill her if she

called the police. His friend knocked on the door and told defendant a crowd

had gathered outside because they heard S.D. screaming.


                                                                      A-5193-17T4
                                      3
      S.D. fled the apartment and told three people who were standing there that

a man tried to rape her. They told her to call the police, but S.D. left and went

home with her brother. At home, S.D. spoke with her grandmother who brought

her to the police station to provide a statement. The police brought S.D. to

defendant's store, where she identified defendant.

      After missing three trial dates, the trial began without defendant. Counsel

indicated defendant understood the trial was proceeding in his absence and that

he had "chosen not to be [there] on his own free will." During trial, defense

counsel argued S.D.'s story had inconsistencies, she was not credible, and the

police did not fully investigate the case.

      Nearly five years after trial, defendant appeared in court. He told the court

he had just returned to the United States because his mother passed away. He

said that before his initial trial date, he learned that his mother was seriously ill

in West Africa and he missed his trial because he left the country to care for her.

      In November 2010, defendant was charged with one count of bail jumping,

N.J.S.A. 2C:29-7, in connection with his failure to appear for trial. In September

2015, defendant appeared in court with counsel and pled guilty to bail jumping in

exchange for the State's recommendation of a maximum of three years imprisonment

concurrent to the sentence to be imposed on the underlying indictment. In March


                                                                            A-5193-17T4
                                         4
2016, defendant was sentenced on both indictments to an aggregate term of five

years in state prison subject to an eighty-five percent parole disqualifier pursuant to

the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2(a).

      We affirmed defendant's convictions, noting defense counsel's failure to

object to jury instructions and hearsay. M.M., slip. op. at 2, 6-16. Despite finding

that hearsay evidence was erroneously admitted, we were not convinced the hearsay

testimony was "clearly capable of producing an unjust result" under Rule 2:10-2.

M.M., slip. op. at 15.

       Defendant raises the following issues on appeal:

             POINT I: THE FAILURE OF TRIAL COUNSEL TO
             OBJECT     TO    INADMISSIBLE    HEARSAY
             EVIDENCE AND TO MAKE ANY SIGNIFICANT
             REQUESTS      FOR   JURY    INSTRUCTIONS,
             COMBINED WITH CONVEYING AN APATHETIC
             ATTITUDE IN OPEN COURT REGARDING THE
             OUTCOME     OF    THE  TRIAL,   DEPRIVED
             DEFENDANT OF HIS CONSTITUTIONAL RIGHT
             TO THE EFFECTIVE ASSISTANCE OF COUNSEL.

             POINT II: THE POST CONVICTION RELIEF
             COURT ERRED WHEN IT FAILED TO CONCLUDE
             THAT    TRIAL  COUNSEL'S    FAILURE   TO
             INTERVIEW     THE    ONLY     COMPETENT
             EYEWITNESS TO THE ALLEGED CRIME, WHO
             WAS    DEFENDANT'S    FRIEND,   DEPRIVED
             DEFENDANT OF HIS CONSTITUTIONAL RIGHT
             TO THE EFFECTIVE ASSISTANCE OF COUNSEL.



                                                                              A-5193-17T4
                                          5
            POINT III: THE PCR COURT ERRED WHEN IT
            FAILED TO GRANT DEFENDANT'S REQUEST
            FOR AN EVIDENTIARY HEARING BECAUSE
            THERE WAS A FACTUAL DISPUTE REGARDING
            WHY TRIAL COUNSEL FAILED TO TAKE A
            STATEMENT FROM DEFENDANT'S FRIEND WHO
            WAS PRESENT DURING THE ALLEGED CRIME
            AND      WHETHER     DEFENSE   COUNSEL
            ERRONEOUSLY        GAVE      DEFENDANT
            PERMISSION TO LEAVE THE COUNTRY, [1]
            ATTEND TO HIS AILING MOTHER, AND THUS
            MISS HIS TRIAL DATE.

                      I. Ineffective Assistance of Counsel

      "Post-conviction relief is neither a substitute for direct appeal, R. 3:22-3,

nor an opportunity to relitigate cases already decided on the merits, R. 3:22-5."

State v. Preciose, 129 N.J. 451, 459 (1992). A defendant raises a cognizable

PCR claim if it is based upon 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." R. 3:22-2(a).

      We review a trial court's legal determinations de novo. State v. Nash, 212

N.J. 518, 540-41 (2013).     To establish ineffective assistance of counsel, a

defendant must show (1) counsel's performance was so deficient that he or she

was "not functioning as the 'counsel' guaranteed the defendant by the Sixth


1
  Defendant did not claim in his affidavit submitted to the PCR court that trial
counsel gave him permission to leave the country.
                                                                          A-5193-17T4
                                        6
Amendment," and (2) prejudice to the defense. Strickland v. Washington, 466

U.S. 668, 687 (1984); see also State v. Fritz, 105 N.J. 42, 52 (1987). There is a

"strong presumption that counsel's conduct falls within the wide range of

reasonable professional assistance." Fritz, 105 N.J. at 52 (quoting Strickland,

466 U.S. at 689).

      Regarding the first prong, a court must "fairly assess the reasonableness

of an attorney's performance by 'eliminat[ing] distorting effects of hindsight,

. . . reconstruct[ing] the circumstances of counsel's challenged conduct, and . . .

evaluat[ing] the conduct from counsel's perspective at the time.'"        State v.

Petrozelli, 351 N.J. Super. 14, 22 (App. Div. 2002) (alterations in original)

(quoting Strickland, 466 U.S. at 689). Regarding the second prong, a defendant

must prove "a reasonable probability that, but for counsel's unprofessional

errors, the result of the proceeding would have been different." Fritz, 105 N.J.

at 52 (quoting Strickland, 466 U.S. at 694). A "reasonable probability" is one

that is "sufficient to undermine confidence in the outcome." Ibid. (quoting

Strickland, 466 U.S. at 694).      To be entitled to an evidentiary hearing, a

petitioner "must do more than make bald assertions that he was denied the

effective assistance of counsel." State v. Cummings, 321 N.J. Super. 154, 170

(App. Div. 1999). A conviction "will not be overturned merely because the


                                                                          A-5193-17T4
                                        7
defendant is dissatisfied with his or her counsel's exercise of judgment during

the trial." State v. Castagna, 187 N.J. 293, 314 (2006).

                               II. Purported Trial Errors

      Defendant argues trial counsel was ineffective based on his failure to

make an opening statement, object to hearsay, and request certain instructions.

Defendant also notes trial counsel's "apathetic attitude in open court."

                                 A. Opening Statement

      Defendant points to trial counsel's failure to provide an opening statement.

Rule 1:7-1(a) expressly makes opening statements on behalf of a defendant

discretionary. State v. Williams, 232 N.J. Super. 414, 418 (App. Div. 1989).

The decision to forego an opening statement does not constitute a per se

violation of defendant's constitutional right to an attorney.

                                       B. Hearsay

      Defendant points to trial counsel's failure to object to hearsay evidence

and argues trial counsel violated his constitutional right to confrontation .

Defendant argues the testimony of Officer Alexa Pizarro and S.D.'s grandmother

improperly bolstered S.D.'s credibility. In her testimony, Pizarro described her

involvement in the investigation and restated S.D.'s version of the incident.

S.D.'s grandmother also repeated what S.D. had told her. Neither witness related


                                                                           A-5193-17T4
                                        8
any statements S.D. did not testify to herself. Thus, their testimony did not lead

to an improper result.

      The next portion of testimony defendant argues was improper hearsay is

S.D.'s responses to the State's question on redirect regarding her grand jury

testimony:

             Q: And do you remember saying [to the grand jury] that
             he indicated that he could, like, pay you double in
             Newark?

             A: I remember he said that, but that (sic) not the day
             that we -- we was in the house.

             Q: Okay. So, paying you double didn't mean like I'll
             pay you double if -- to your understanding did you
             agree to work at his store and be paid double for sex?

             A: No.

             Q: You never in your mind thought this person is going
             to ask me --

             A: He told me he was going to give me double but not
             for sex.

             Q: Okay.

             A: He never told me about that.

Rule 803(a)(2) provides that a witness's prior statement will not be excluded as

hearsay if it is consistent with the witness's testimony at trial and is offered to

rebut a charge of recent fabrication, improper influence or motive. Before the

                                                                          A-5193-17T4
                                        9
State mentioned the grand jury testimony on redirect, defense counsel on cross-

examination asked S.D. about her statement to the police that defendant had

offered her double wages, asking:

            Q: [H]ave you ever told the police that he actually or
            while you asked him for the job in the bedroom and
            (sic) he said that he would offer you the job and pay
            you double the wages if you were to make love with --
            with him?

The State's line of questioning during redirect addressed defense counsel's

suggestion that S.D. was motivated to have sex with defendant for double pay.

Contrary to defendant's contention on appeal, the testimony is permissible under

Rule 803(a)(2).

      Finally, defendant argues statements made by police witnesses regarding

the content of 911 phone call records without objection were improperly

admitted into evidence. Statements within emergency phone calls made with

the primary purpose of enabling police assistance to meet an ongoing emergency

may be properly admitted without violating a defendant's constitutional right to

confrontation, because such statements are considered nontestimonial. Davis v.

Washington, 547 U.S. 813, 822 (2006).




                                                                        A-5193-17T4
                                      10
                   C. Identification Charge and Jury Instructions

      Defendant criticizes trial counsel's failure to request an identification

charge and his failure to request cautionary jury instructions regarding

defendant's alleged statements to the victim.

      While the court's final jury instruction did not include a specific charge

regarding S.D.'s identifications of defendant both in-court and out-of-court,2

identification was not an issue because defendant and S.D. were familiar with

each other from defendant's store. See State v. Davis, 363 N.J. Super. 556, 561

(App. Div. 2003) (noting "a model identification charge should be given in every

case in which identification is a legitimate issue").

      Next, defendant briefly claims the court erred by failing to instruct the

jury regarding the proper manner to evaluate oral statements allegedly made by

defendant. On direct appeal of defendant's conviction we stated:

            S.D. was cross-examined concerning her version of the
            events and defendant's statements. The court carefully
            and thoroughly instructed the jurors about their
            evaluation of the credibility of witness testimony.
            Moreover, defendant's statements concerning his desire
            to make love to S.D. were not of great significance
            when considered in the context of her detailed

2
 See Model Jury Charges (Criminal), "Identification; In-Court and Out-Of-
Court Identifications" (rev. 2012).



                                                                        A-5193-17T4
                                       11
              testimony about defendant's actions. Accordingly, the
              court's failure to give a Kociolek [3] instruction was not
              clearly capable of producing an unjust result.

              [M.M., slip op. at 13 (citation omitted).]

Defendant fails to demonstrate that trial counsel's failure to request an

identification charge or an instruction regarding S.D.'s testimony concerning

defendant's statements constituted ineffective assistance of counsel.

                                   D. Closing Argument

        Defendant also briefly mentions trial counsel's "lackadaisical" attitude

before the jury.      He asserts trial counsel "acted surprised and appeared

nonchalant when he was asked to present his closing argument and he responded

by stating he did not know it was 'my turn.'" During closing arguments, trial

counsel said:

              I go first? Ladies and gentlemen, members of the jury,
              the evidence clearly indicates that it is a case of he said,
              she said.

              I'm not saying [M.M.] is, you know, a saint or anything
              close to a Mother Theresa or something like that. He –
              he's a married man and he work[ed] in his chicken store.

              But he was wrong to flirt with a young girl. Okay? And
              apparently it was a young girl looking for a job and
              looking for an opportunity to make a buck.


3
    State v. Kociolek, 23 N.J. 400 (1957).
                                                                             A-5193-17T4
                                          12
Counsel's closing argument did not "utterly fail[] to 'subject the prosecution's

case to meaningful adversarial' scrutiny." State v. Harrington, 310 N.J. Super.

272, 284 (App. Div. 1998) (quoting U.S. v. Swanson, 943 F.2d 1070, 1074 (9th

Cir. 1991)) (reversing the defendant's conviction where defense counsel

"inform[ed] the jury that there is no reasonable doubt but that his client

committed the predicate crime to felony murder"). Defense counsel vigorously

urged the jury to disregard the victim's testimony regarding coercion.

                                 III. Eyewitness

      Defendant next argues trial counsel was ineffective because he failed to

interview defendant's friend who was present during the incident. With regard

to why defense counsel did not call defendant's friend as a witness at trial, the

PCR court stated:

            [P]etitioner fails to account for the fact that counsel
            may have considered the possibility that presenting his
            friend at trial could prove to be detrimental to his
            defense as his friend not only allegedly removed the
            victim's brother leaving petitioner and the victim alone
            in a bedroom, but allegedly acted as a watchman,
            warning petitioner that the victim's screaming [was]
            attracting attention from outside.

      Defendant failed to provide an affidavit from the eyewitness stating what

he would have said had he been called to testify at trial. Defendant relied instead

on his own assertion that he "requested that my trial attorney make sure my

                                                                          A-5193-17T4
                                       13
friend was at the trial as he would have confirmed" defendant's innocence. It is

not enough that defendant claim his friend would have supplied helpful

testimony. Defendant's "bald assertions," Cummings, 321 N.J. Super. at 170,

do not show that trial counsel was so deficient as to deny his constitutional right

to counsel, nor do they show a reasonable probability of prejudice. Strickland,

466 U.S. at 687. Moreover, in light of S.D.'s testimony that the eyewitness

removed S.D.'s young brother from the bedroom and alerted defendant that a

crowd had gathered due to S.D.'s screaming, we cannot conclude that the

decision not to call him at trial was patently unreasonable.

                                IV. Evidentiary Hearing

      Defendant finally argues the PCR court erred by failing to grant his

request for an evidentiary hearing due to a factual dispute regarding why trial

counsel did not interview the individual present at the apartment during the

incident and whether trial counsel fully explained to defendant the ramifications

of his nonappearance for trial. Defendant did not make a prima facie showing

of either prong of Strickland. We thus conclude that the PCR court exercised its

discretion properly in not conducting an evidentiary hearing. Cummings, 321

N.J. Super. at 170.

      Affirmed.


                                                                          A-5193-17T4
                                       14
