                        NOT FOR PUBLICATION WITHOUT THE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-2294-16T2

STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

LUCIUS SMITH,

     Defendant-Appellant.
___________________________________

              Submitted January 29, 2018 – Decided August 13, 2018

              Before Judges Ostrer and Whipple.

              On appeal from Superior Court of New Jersey,
              Law Division, Hudson County, Indictment No.
              10-05-0835.

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

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

PER CURIAM

        Defendant Lucius Smith appeals from the trial court's order

denying, after a testimonial hearing, his timely petition for

post-conviction relief.          We affirm.
     A jury found defendant guilty of first-degree felony-murder

and robbery; and second-degree aggravated assault, and conspiracy

to commit robbery.     Defendant and several cohorts attacked a man

as he walked down the street in Jersey City.      They chased him,

took his wallet, and beat him with a brick, fracturing his skull

and killing him.       Defendant received an aggregate forty-year

sentence, subject to the No Early Release Act, N.J.S.A. 2C:43-7.2.

We affirmed the conviction and sentence on direct appeal.     State

v. Smith, No. A-1176-12 (App. Div. July 10, 2015), certif. denied,

223 N.J. 556 (2015).

     In collaterally challenging his conviction, defendant alleged

his trial attorney provided ineffective assistance because he did

not adequately advise him about a plea offer; he recommended that

he not testify in his own defense; and he did not file a pre-trial

motion to dismiss the felony murder count. After hearing testimony

from defendant's trial counsel and defendant, Judge Mitzy Galis-

Menendez rejected defendant's contentions.    The judge applied the

well-established two-pronged Strickland standard for demonstrating

a prima facie case of ineffective assistance.        Strickland v.

Washington, 466 U.S. 668, 687 (1984) (stating that a petitioner

must show that counsel performed so deficiently as to deny the

constitutional right to counsel, and prejudice resulted).        The



                                  2                         A-2294-16T2
judge found that defendant failed to prove his attorney performed

deficiently.

     The       judge   credited   trial    counsel's       testimony   that     he

adequately informed defendant of his right to testify at trial.

Counsel acknowledged that he advised defendant not to testify,

because the State lacked physical evidence to tie defendant to the

crime; defendant was unidentifiable in a video; and cooperating

co-defendants' testimony was inconsistent and subject to challenge

as self-interested.        Counsel believed defendant could hurt his

chances of acquittal if he testified, because he would place

himself at the scene and might be rattled on cross-examination.

Citing State v. Davis, 116 N.J. 341 (1989), the court concluded

that counsel's advice was a reasonable strategic decision.

     The judge also credited trial counsel's testimony that he

secured    a    twenty-year   plea   offer    from   the    trial   prosecutor.

Counsel advised defendant to accept it, and defendant agreed only

after some cajoling, but the prosecutor's supervisor disapproved

the offer and required a twenty-five year sentence.                 Judge Galis-

Menendez found that defendant then rejected the twenty-five year

offer and decided to go to trial.            Thus, there was no failure to

keep defendant adequately informed of plea negotiations.

     The court also rejected defendant's argument that his trial

counsel was deficient by failing to file a motion to dismiss the

                                       3                                 A-2294-16T2
felony murder charge.      Trial counsel believed that the viability

of the charge needed to be tested at trial.       The court concluded

that was a reasonable assessment.

     On    appeal,    defendant   challenges   each     of   the   court's

conclusions, and argues, in a single point:

           DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE
           OF COUNSEL ENTITLING HIM TO POST CONVICTION
           RELIEF.

           (A) Counsel was ineffective for advising the
           defendant not to testify at trial.

           (B) Counsel was ineffective for failing to
           sufficiently notify defendant of a plea offer
           of twenty-five years which undermined his
           ability to make an intelligent decision of
           whether to accept the offer.

           (C) Counsel was ineffective for failing to
           file a motion to dismiss the charge of felony
           murder.

     We defer to a trial court's factual findings made after an

evidentiary hearing on a petition for PCR.            State v. Nash, 212

N.J. 518, 540 (2013).      Mindful of the trial judge's opportunity

to hear and see live witnesses, "we will uphold the PCR court's

findings that are supported by sufficient credible evidence in the

record."   Ibid.     We review de novo issues of law.    Ibid.     Applying

that standard of review, we affirm substantially for the reasons

set forth in Judge Galis-Menendez's cogent written opinion.

     We add the following brief comments.


                                    4                               A-2294-16T2
     With respect to the plea offer, defendant was obliged to show

that but for the ineffective advice of counsel, he would have

accepted the plea offer and received a lesser sentence than he

received after trial.          See Lafler v. Cooper, 566 U.S. 156, 163-64

(2012).     Defendant failed to show his trial counsel's advice was

ineffective. The court credited defendant's counsel. He testified

he told defendant he could still take the twenty-five-year plea

deal, but defendant decided to go to trial.

     As for the right to testify, the decision to waive that right

rested with the defendant.           State v. Savage, 120 N.J. 594, 631

(1990).   Defendant admitted that counsel apprised him of his right

to testify.        Trial counsel testified that he advised against it,

and explained to defendant his reasoning.            Counsel had subjected

defendant     to    a   mock    cross-examination,   to   demonstrate   the

difficulty he would have on the stand.          Defendant was convinced.

"[I]t is the responsibility of a defendant's counsel . . . to

advise defendant on whether or not to testify and to explain the

tactical advantages or disadvantages of doing so or not doing so."

Id. at 630 (quoting State v. Bogus, 223 N.J. Super. 409, 423 (App.

Div. 1988).    Trial counsel met that responsibility.

     However, defendant takes issue with his attorney's underlying

conclusion that it would have been unwise to testify.            He argues

the case for conviction was so strong after the State rested that

                                        5                          A-2294-16T2
defendant's only hope for acquittal depended on his taking the

stand in his own defense.       Hindsight is twenty-twenty, but a PCR

court     must   avoid   "the   distorting   effects   of   hindsight."

Strickland, 466 U.S. at 689.         Who to call as a witness is a

difficult strategic decision.      State v. Pierre, 223 N.J. 560, 579

(2015).     Defendant failed to show that his trial counsel was

deficient. Indeed, aside from contending that he would have denied

personally taking the victim's wallet, he provided no proffer of

what he would have said on the witness stand to turn the tide of

the trial.

     Defendant's contention that trial counsel was deficient by

failing to move to dismiss the felony-murder count lacks sufficient

merit to warrant discussion.      R. 2:11-3(e)(2).

     Affirmed.




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