                             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                        NOT FOR PUBLICATION WITHOUT THE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-0676-15T2

STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

V.M.B.,

     Defendant-Appellant.
_______________________________

              Submitted September 27, 2017 – Decided October 26, 2017

              Before Judges Nugent and Currier.

              On appeal from the Superior Court of New
              Jersey, Law Division, Union County, Indictment
              No. 08-08-0747.

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

              Thomas K. Isenhour, Acting Union County
              Prosecutor, attorney for respondent (Cynthia
              L.    Ritter,   Special    Deputy    Attorney
              General/Acting   Assistant   Prosecutor,   of
              counsel and on the brief).

PER CURIAM

        Defendant    V.M.B.    appeals     from   the   denial    of   his   post-

conviction relief (PCR) petition.              Defendant claims ineffective
assistance of trial and appellate counsel in their failure to

adequately    challenge      the      admissibility       of   his   videotaped

confessions and for "depriving defendant of his constitutional

right to testify on his own behalf."                  Because we find that

defendant    has    failed   to    present   a     prima   facie     showing    of

ineffective counsel, we affirm.

    Defendant was charged in an indictment with multiple counts

of aggravated sexual assault and endangering the welfare of a

child related to alleged sexual contact with his four minor step-

grandchildren.      He was tried before a jury, found guilty on twenty

counts and sentenced to an aggregate seventy-nine year period of

incarceration.      We affirmed the conviction.           State v. V.M.B., No.

A-0621-10 (App. Div. July 8, 2013), certif. denied, 217 N.J. 287

(2014).

    Prior to trial, defendant moved to dismiss his videotaped

confession.       After a hearing, the trial judge found defendant's

waiver of his Miranda1 rights was knowing and voluntary.                       The

Miranda form given to defendant was written in both English and

Spanish,    and    the   detectives    explained    the    Miranda    rights    to

defendant several times, in both languages.




1
  Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d
694 (1966).

                                        2                                A-0676-15T2
       The judge denied the motion to suppress, stating: "[t]here

is no doubt in the totality of everything that is here that he

knowingly, voluntarily entered into this agreement to talk.                 There

was no pressure, either direct or implied.              There was no physical

discomfort that would affect his ability to focus and understand.

His answers were clear."

       Defendant   filed   a   PCR     petition   pro   se,    and    thereafter,

assigned counsel filed a brief.          Defendant asserted that his trial

counsel    was   constitutionally       ineffective      at    the    suppression

hearing and in failing to call him as a witness, and that appellate

counsel was ineffective in failing to adequately challenge the

trial court's ruling on the suppression motion.

       At oral argument on the PCR motion, defense counsel argued

that   defendant   gave    a   false    confession      to    the   investigating

detectives because he was "under duress" during the interrogation.

Counsel stated that the detectives were screaming at defendant

during the video interview, causing him fear.                 Defendant asserts

he is particularly prone to fear of police because he was born in

Honduras, where the police torture people.               Defendant states his

trial counsel failed to make these arguments at the suppression

hearing.    Defendant also argued that trial counsel did not call

defendant to testify at either the suppression hearing or trial.



                                         3                                A-0676-15T2
       In a comprehensive oral decision on May 22, 2015, the PCR

judge2 found that, based on the DVD recording of the interview and

the trial court's colloquy with defendant, the arguments lacked

credibility.     The judge noted that the detectives went over

defendant's Miranda rights with him for more than nineteen minutes,

calmly answering all of defendant's questions.

       In addressing defendant's second argument, that he was denied

his right to testify, the judge referred to the colloquy that took

place between defendant and the trial judge. The PCR judge stated:

            [D]uring that colloquy with the trial court,
            [defendant] specifically told the [c]ourt that
            he understood he had the right to testify and
            he understood . . . that right was not his
            attorney's; [and] it was his right personally
            to decide whether or not he could testify in
            this case.

                 And more importantly, he then went on to
            talk about the fact that his attorney had
            spoken to him about testifying in the
            preceding days. Now for him to now claim that
            his attorney did not prepare him to testify
            is simply not credible in the face of that
            colloquy before the [c]ourt.

The judge concluded that defendant had failed to satisfy either

prong of Strickland,3 and denied the PCR petition.

       On appeal, defendant argues:


2
    A different judge presided over the PCR hearing.
3
  Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L.
Ed. 2d 674 (1984).

                                  4                          A-0676-15T2
          POINT I: DEFENDANT HAS SUBMITTED PRIMA FACIE
          EVIDENCE   REQUIRING    HE   BE   GRANTED   AN
          EVIDENTIARY HEARING ON POST CONVICTION RELIEF.

          POINT II:    DEFENDANT WAS DENIED EFFECTIVE
          ASSISTANCE OF COUNSEL ENTITLING HIM TO POST
          CONVICTION RELIEF.

                  A.    Counsel was ineffective for
                  failing to adequately challenge the
                  admissibility of his statement and
                  any evidence obtained as a result
                  thereof.

                  B.    Counsel was ineffective for
                  depriving    defendant   of    his
                  constitutional right to testify on
                  his own behalf.

          POINT III:   DEFENDANT WAS DENIED EFFECTIVE
          ASSISTANCE OF APPELLATE COUNSEL.

          POINT IV:   UNDER THE DOCTRINE OF CUMULATIVE
          ERROR A NEW TRIAL SHOULD BE ORDERED PURSUANT
          TO STATE v. ORECCHIO, 16 N.J. 125, 129 (1954).

     We are not persuaded by these arguments.           The standard for

determining whether counsel's performance was ineffective for

purposes of the Sixth Amendment was formulated in Strickland,

supra, 466 U.S. 668, l04 S. Ct. 2052, 80 L. Ed. 2d 674, and adopted

by our Supreme Court in State v. Fritz, 105 N.J. 42 (1987).              In

order to prevail on a claim of ineffective assistance of counsel,

defendant must meet the two-prong test establishing both that: (l)

counsel's performance was deficient and he or she made errors that

were so egregious that counsel was not functioning effectively as

guaranteed   by    the   Sixth   Amendment   to   the    United    States

                                   5                              A-0676-15T2
Constitution;        and   (2)    the    defect    in    performance    prejudiced

defendant's rights to a fair trial such that there exists a

"reasonable probability that, but for counsel's unprofessional

errors, the result of the proceeding would have been different."

Strickland, supra, 466 U.S. at 687, 694, l04 S. Ct. at 2064, 2068,

80 L. Ed. 2d at 693, 698.

      We are satisfied from our review of the record that defendant

failed to demonstrate the ineffectiveness of trial counsel within

the   Strickland-Fritz           test.     The    evidence    does     not   support

defendant's argument that he had a "rational fear of the police."

The   record    shows      that    defendant     was    advised   of   his   rights,

understood those rights, and willingly and knowingly waived his

rights during the taped interview with two calm, plain clothed

detectives.         As we stated in State v. Cummings, 321 N.J. Super.

154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999), a

defendant "must do more than make bald assertions that he was

denied the effective assistance of counsel." He must allege facts,

supported      by     affidavits     or    certifications,        "sufficient       to

demonstrate counsel's alleged substandard performance."                        Ibid.

Defendant has provided nothing more than an unsupported statement.

      We also find no merit in defendant's argument regarding the

second prong.        Defendant contends that he was prejudiced because

of counsel's failure to call him as a witness.                He fails, however,

                                           6                                 A-0676-15T2
to explain how the outcome of the case would have been any

different had he testified.

       As the PCR judge noted, even if defendant's confession was

suppressed or defendant had testified, the result would likely

have been the same.          In addition to defendant's taped confession,

the State produced a video of defendant molesting one of his

victims, the testimony of all four of his victims, and other

witnesses corroborating the State's version of events. Even taking

the facts in a light most favorable to defendant, it is highly

unlikely that his testimony could have overcome the abundance of

evidence produced by the State and changed the outcome of the

case.4    Defendant has not proven by a preponderance of the evidence

that     he   was   denied    effective   assistance   of   either   trial    or

appellate counsel.

       Affirmed.




4
  Defendant asserts that appellate counsel was ineffective for
failing to argue in the direct appeal that trial counsel did not
call him as a witness at the suppression hearing. For the reasons
already discussed, we find this argument to be without merit.

                                          7                            A-0676-15T2
