                                 NOT FOR PUBLICATION WITHOUT THE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-0394-17T1

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

ALBERT SERRANO, JR, a/k/a
ALBERT SERRANO, and
ALBERT ISERRANO,

          Defendant-Appellant.


                   Submitted October 22, 2018 – Decided October 30, 2018

                   Before Judges Fasciale and Rose.

                   On appeal from Superior Court of New Jersey, Law
                   Division, Camden County, Indictment Nos. 14-04-
                   1284, 14-05-1551, and 14-09-3041.

                   Joseph E. Krakora, Public Defender, attorney for
                   appellant (Richard Sparaco, Designated Counsel;
                   William P. Welaj, on the brief).

                   Mary Eva Colalillo, Camden County Prosecutor,
                   attorney for respondent (Linda A. Shashoua, Assistant
                   Prosecutor, of counsel and on the brief).
PER CURIAM

      Defendant Albert Serrano, Jr. appeals from a July 18, 2017 order denying

his petition for post-conviction relief (PCR), without an evidentiary hearing.

We affirm.

      Judge John T. Kelley entered the order and rendered a comprehensive oral

decision setting forth, in great detail, the facts, procedural history and legal

standards applicable to defendant's PCR. Briefly summarizing, on January 30,

2013, defendant was arrested immediately following a robbery of Oxycodone

at a Walgreens Pharmacy in Winslow Township. Ten to fifteen minutes after

the robbery, a Walgreens manager positively identified defendant whom police

officers detained in the parking lot of a McDonald's located approximately 300

feet from the Walgreens.     Defendant's wife consented to a search of the

Serrano's vehicle while it was parked in the lot. Three bottles of Oxycodone

were seized from a large-sized jacket located in the back seat of the car. The

Walgreens pharmacist positively identified defendant, and the Oxycodone as

the drugs defendant demanded from him during the robbery.

      Thereafter, defendant was charged in a Camden County indictment with

first-degree robbery, N.J.S.A. 2C:15-1(a)(2) (count one), and third-degree

possession of a controlled dangerous substance, N.J.S.A. 2C:35-10(a)(1) (count

                                                                         A-0394-17T1
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two). Following a jury trial before Judge Kelley, defendant was convicted of

the lesser-included offense of second-degree robbery on count one, and count

two. In January 2015, Judge Kelley sentenced defendant to an aggregate eight-

year prison term, subject to the No Early Release Act, N.J.S.A. 2C:43-7.2.1

      Defendant filed a direct appeal, but counsel subsequently filed a motion

to withdraw that appeal pursuant to Anders v. California, 386 U.S. 738 (1967),

which we granted.     Thereafter, defendant filed a pro se PCR petition and

amended petition. Appointed counsel then filed a letter brief on defendant's

behalf.

      Pertinent to this appeal, the judge rejected defendant's arguments that his

trial counsel erred in failing to: (1) file a motion to suppress the evidence seized

from his vehicle; (2) file a motion for an identification hearing; (3) explain the

strengths of the State's case to him; and (4) adequately advise him about his right

to testify. Defendant also claimed trial counsel should have argued for his

admission into drug court. This appeal followed.




1
  Defendant's sentence also resolved two other open indictments, i.e., defendant
pled guilty to third-degree possession of heroin and disorderly conduct, a petty
disorderly offense, regarding one indictment, and the other indictment was
dismissed as part of the plea agreement. Those other indictments are not the
subject of this appeal.
                                                                            A-0394-17T1
                                         3
     On appeal, defendant renews most of the arguments raised before the

PCR judge. In particular, defendant argues:

            POINT I

            THE POST-CONVICTION RELIEF COURT ERRED
            IN DENYING THE DEFENDANT'S PETITION FOR
            POST-CONVICTION      RELIEF    WITHOUT
            AFFORDING HIM AN EVIDENTIARY HEARING
            TO FULLY ADDRESS HIS CONTENTION THAT HE
            FAILED TO RECEIVE ADEQUATE LEGAL
            REPRESENTATION AT THE TRIAL LEVEL.

                  ....

            B.   THE DEFENDANT DID NOT RECEIVE
            ADEQUATE LEGAL REPRESENTATION FROM
            TRIAL COUNSEL AS A RESULT OF COUNSEL'S
            FAILURE TO PURSUE A MOTION TO SUPPRESS
            THE WARRANTLESS SEARCH AND SEIZURE
            CONDUCTED BY LAW ENFORCEMENT.

                  ....

            2. THE AUTOMOBILE EXCEPTION TO THE
            SEARCH WARRANT REQUIREMENT DID NOT
            APPLY UNDER THE CIRCUMSTANCES [OF] THE
            PRESENT CASE.

            3. THE THIRD-PARTY CONSENT TO SEARCH
            EXCEPTION TO THE WARRANT REQUIREMENT
            DID NOT APPLY UNDER THE CIRCUMSTANCES
            OF THE PRESENT CASE.

            C.   THE DEFENDANT DID NOT RECEIVE
            ADEQUATE LEGAL REPRESENTATION FROM
            TRIAL COUNSEL AS A RESULT OF COUNSEL'S

                                                                 A-0394-17T1
                                      4
            FAILURE TO PURSUE A WADE HEARING PRIOR
            TO TRIAL.

            D. TRIAL COUNSEL DID NOT ADEQUATELY
            REPRESENT THE DEFENDANT ARISING OUT OF
            HIS FAILURE TO THOROUGHLY DISCUSS WITH
            HIS CLIENT ALL RELEVANT RAMIFICATIONS
            ASSOCIATED WITH THE DECISION WHETHER
            OR NOT TO TESTIFY, AS A RESULT OF WHICH
            HE DID NOT TESTIFY IN HIS OWN DEFENSE.

            E.   THE DEFENDANT DID NOT RECEIVE
            ADEQUATE LEGAL REPRESENTATION FROM
            TRIAL COUNSEL SINCE, AS A RESULT OF HIS
            ATTORNEY'S FAILURE TO ACCURATELY
            INFORM HIM REGARDING THE STRENGTHS OF
            THE STATE'S CASE, HE REJECTED THE PLEA
            RECOMMENDATION        AND      INSTEAD
            PROCEEDED TO TRIAL, SUBSEQUENTLY
            RECEIVING A SENTENCE GREATER THAN THAT
            EMBODIED IN THE PLEA OFFER.

      "Post-conviction relief is New Jersey's analogue to the federal writ of

habeas corpus." State v. Preciose, 129 N.J. 451, 459 (1992). Pursuant to Rule

3:22-2(a), a criminal defendant is entitled to post-conviction relief if there was

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."

      "[A] defendant asserting ineffective assistance of counsel on PCR bears

the burden of proving his or her right to relief by a preponderance of the


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                                        5
evidence." State v. Gaitan, 209 N.J. 339, 350 (2012). A defendant must prove

counsel's performance was deficient; it must be demonstrated that counsel's

handling of the matter "fell below an objective standard of reasonableness" and

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

'counsel' guaranteed the defendant by the Sixth Amendment." Strickland v.

Washington, 466 U.S. 668, 687-88 (1984); State v. Fritz, 105 N.J. 42, 52 (1987)

(adopting the Strickland two-part test in New Jersey).

      A defendant must also prove counsel's "deficient performance prejudiced

the defense." Strickland, 466 U.S. at 687. Prejudice is established by showing

a "reasonable probability that, but for counsel's unprofessional errors, the result

of the proceeding would have been different." Id. at 694. Thus, petitioner must

establish that counsel's performance was deficient and petitioner suffered

prejudice in order to obtain a reversal of the challenged conviction. Id. at 687;

Fritz, 105 N.J. at 52.

      Further, the mere raising of a claim for PCR does not entitle the defendant

to an evidentiary hearing. State v. Cummings, 321 N.J. Super. 154, 170 (App.

Div. 1999). Rather, trial courts should grant evidentiary hearings and make a

determination on the merits only if the defendant has presented a prima facie

claim of ineffective assistance, material issues of disputed facts lie outside the


                                                                           A-0394-17T1
                                        6
record, and resolution of the issues necessitates a hearing. R. 3:22-10(b); State

v. Porter, 216 N.J. 343, 355 (2013). We review a judge's decision to deny a PCR

petition without an evidentiary hearing for abuse of discretion. See Preciose,

129 N.J. at 462. We review any legal conclusions of the trial court de novo.

State v. Nash, 212 N.J. 518, 540-41 (2013); State v. Harris, 181 N.J. 391, 419

(2004).

      We are satisfied from our review of the record that defendant failed to

demonstrate a prima facie showing of ineffectiveness of counsel under the

Strickland/Fritz test. We therefore discern no abuse of discretion in the denial

of defendant's PCR petition, and affirm for the reasons set forth in Judge Kelley's

thorough and well-reasoned opinion.

      In sum, we agree with the judge that a motion to suppress the evidence

seized from defendant's automobile, and a motion to suppress the victim's out-

of-court identification, would have been futile. Even if defendant had satisfied

prong one of the Strickland/Fritz test, which is not the case, there is no prejudice

here. Strickland, 466 U.S. at 687; Fritz, 105 N.J. at 52. In particular, the

automobile exception to the warrant requirement, see State v. Witt, 223 N.J. 409,

450 (2015), and the consent to search exception, see State v. Carty, 170 N.J.

632, 635, modified, 174 N.J. 351 (2002), formed two independent bases to


                                                                            A-0394-17T1
                                         7
search defendant's jacket. Secondly, the record is devoid of any evidence that

the show-up identification was suggestive especially where, as here, the

identification was made within minutes of the robbery. Cf. State v. Henderson,

208 N.J. 208, 290 (2011) (recognizing the suggestiveness of a show-up

identification can be influenced by several factors, including whether the show-

up was performed more than two hours after the event).

      Rather, as Judge Kelley aptly noted, "[t]he evidence against the defendant

was overwhelming[.]" Nonetheless, defense counsel "succeeded in convincing

the jury to acquit the defendant of the more serious first degree robbery charge

. . . ." Moreover, defendant's bald-faced assertions that counsel's ineffective

assistance deprived him of the opportunity to plead guilty and testify in his own

behalf were made without any supporting certifications. Accordingly, the judge

correctly determined an evidentiary hearing was not warranted. See Preciose,

129 N.J. at 462-63.

      We therefore conclude defendant's arguments are without sufficient merit

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

      Affirmed.




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