                     NOT FOR PUBLICATION WITHOUT THE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-1635-15T3

STATE OF NEW JERSEY,

           Plaintiff-Respondent,

     v.

GERMANIA TERRERO, a/k/a XIOMARA,

           Defendant-Appellant.

___________________________________________________

           Submitted May 9, 2017 – Decided June 8, 2017

           Before Judges Ostrer and Moynihan.

           On appeal from the Superior Court of New
           Jersey,   Law   Division,  Hudson County,
           Indictment No. 09-07-1251.

           Joseph E. Krakora, Public Defender, attorney
           for appellant (John V. Molitor, Designated
           Counsel, on the brief).

           Esther Suarez, Hudson County Prosecutor,
           attorney for respondent (Frances Tapia Mateo,
           Assistant Prosecutor, on the brief).

PER CURIAM

     Defendant Germania Terrero, along with Kristian Molina and

Robert Santana, were indicted for murder and related charges in

connection with the death of Terrero's paramour, Aracelio Lopez.
Terrero was tried and convicted by a jury of the lesser included

offense of first-degree aggravated manslaughter, N.J.S.A. 2C:11-

4a(1); two counts of first-degree felony murder, in the course of

a robbery and in the course of a burglary, N.J.S.A. 2C:11-3a(3);

first-degree   robbery   and    conspiracy       to    commit   first-degree

robbery,   N.J.S.A.   2C:15-1   and       N.J.S.A.    2C:5-2;   second-degree

burglary and conspiracy to commit second-degree burglary, N.J.S.A.

2C:18-2 and N.J.S.A. 2C:5-2; and related theft and weapons charges.

She was sentenced to thirty years in prison.                We affirmed the

conviction. State v. Terrero, No. A-0399-11 (App. Div. June 4,

2013). Her timely filed post-conviction relief petition was denied

by the trial court without an evidentiary hearing.

     On appeal, defendant raises the following arguments:

           I. THIS COURT SHOULD REVERSE THE LAW
           DIVISION'S DECISION TO DENY DEFENDANT'S
           PETITION FOR POST-CONVICTION RELIEF BECAUSE
           DEFENDANT'S TRIAL ATTORNEY WAS INEFFECTIVE FOR
           FAILING TO ADVISE DEFENDANT TO TESTIFY.

           II. THIS COURT SHOULD REVERSE THE LAW
           DIVISION'S DECISION TO DENY DEFENDANT'S
           PETITION FOR POST-CONVICTION RELIEF BECAUSE
           DEFENDANT'S TRIAL ATTORNEY WAS INEFFECTIVE FOR
           FAILING TO CONDUCT AN APPROPRIATE PRE-TRIAL
           INVESTIGATION.

           III. THIS COURT SHOULD REVERSE THE LAW
           DIVISION'S DECISION TO DENY DEFENDANT'S
           PETITION FOR POST-CONVICTION RELIEF BECAUSE
           DEFENDANT'S TRIAL ATTORNEY WAS INEFFECTIVE DUE
           TO A LACK OF COMMUNICATION.


                                      2                               A-1635-15T3
We disagree and affirm the denial of defendant's petition.

      We summarize the facts pertinent to our present review.1

Lopez hired defendant as a waitress at his restaurant.                         They

started a romantic relationship about a year later.                       As the

relationship deepened, defendant and her children moved in with

Lopez.     She assumed a more prominent role in the management of the

restaurant.        Lopez even provided for defendant in his will.              About

seven      years    after   it   started,      defendant    strayed     from    the

relationship with Lopez and became sexually active with Molina.

A   rift    between    defendant   and   Lopez     developed,     but   defendant

continued in her position at the restaurant.

      Molina met Santana around the same time he met defendant.

The two men became fast friends.             Molina confided in Santana that,

in February 2008, defendant gave him the key to Lopez's apartment,

and that he used the key to burgle the residence.                  He also told

Santana that he was upset because Lopez was mistreating defendant.

      Molina tried to recruit men, including Santana, to assault

Lopez or rob his restaurant, or both.               On March 1, 2008, Molina

told Santana about a plan he and defendant formulated to rob Lopez

at his restaurant.          On   March   3,    Santana     met   Molina   at    his

apartment where Molina related that he had spoken to defendant and


1
  We detailed the facts of this case in our decision affirming
defendant's conviction. State v. Terrero, supra, slip op. at 2-3.

                                         3                                A-1635-15T3
laid out the criminal plan to Santana.            Defendant's role was to

ensure the restaurant door was unlocked and that the restaurant

would be empty.     She also arranged for Lopez to be in the kitchen

so that he did not see Molina and Santana enter the restaurant.

    Molina and Santana drove to the restaurant and, after several

calls from defendant, entered through the front door unseen by

Lopez, who, as planned by defendant, was in the kitchen.             Molina

attacked   Lopez    as   he    exited   the   kitchen.   Molina's   assault

continued unabated, despite efforts by Santana and defendant to

intervene.

    Santana left the restaurant.              Thirty seconds later, after

taking Lopez's watch and jewelry, Molina followed.           Santana saw a

knife in Molina's possession.            Molina told Santana that he had

stabbed Lopez.

    Defendant dialed 911, but waited fifteen minutes after the

attack to call.     She gave scant information to the dispatcher and

did not request an ambulance.           Defendant talked to the police when

they arrived.      She did not reveal that she knew the perpetrators

and falsely described them to the police.            She also gave police

fabricated information about the robbers' point of entry into the

restaurant.

    Molina and Santana fled New Jersey.             Molina eventually took

refuge in Venezuela.          Lopez succumbed to complications from the

                                         4                          A-1635-15T3
stab wound inflicted by Molina and died in the hospital two weeks

after the attack.   After dogged police work, Santana was arrested.

He pleaded guilty to first-degree robbery and testified for the

State at trial.

                                 I.

     Since the trial court did not conduct an evidentiary hearing

relating to the issues raised in defendant's PCR petition, our

review of the factual inferences drawn by the court from the record

is de novo.   State v. Blake, 444 N.J. Super. 285, 294 (App. Div.

2016) (citations omitted).   Likewise, we review de novo the trial

court's legal conclusions.   Ibid.

     In order to establish a case of ineffective assistance of

counsel, defendant must demonstrate a reasonable likelihood of

success under the two-pronged test established by Strickland v.

Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 2068, 80 L. Ed.

2d 674, 698 (1984), and adopted by our Supreme Court in State v.

Fritz, 105 N.J. 42, 58 (1987). A defendant must first show that

counsel was deficient or made egregious errors, so serious that

counsel was not functioning effectively as guaranteed by the Sixth

Amendment of the United States Constitution.    Strickland, supra,

466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. A

defendant must also demonstrate that there exists "a reasonable

probability that, but for counsel's unprofessional errors, the

                                 5                          A-1635-15T3
result of the proceeding would have been different." Id. at 694,

104 S. Ct. at 2068, 80 L. Ed. 2d at 698. There is a strong

presumption that counsel rendered adequate assistance and made all

significant decisions in the exercise of reasonable professional

judgment.   Id. at 690, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695.

Further, because prejudice is not presumed, Fritz, supra, 105 N.J.

at 60-61, defendant must establish "how specific errors of counsel

undermined the reliability of the finding of guilt." United States

v. Cronic, 466 U.S. 648, 659 n.26, 104 S. Ct. 2039, 2047 n.26, 80

L. Ed. 2d 657, 668 n.26 (1984).

                                II.

     Defendant claims counsel was ineffective because he did not

advise her to testify at trial.       At the conclusion of all other

testimony, the trial judge made clear to defendant that the

decision to testify was hers alone. He also advised her, verbatim,

of the instruction that he would give to the jury if she chose not

to testify, and she chose to have the instruction included in the

final charge.   As the court was going to recess, the judge offered

defendant the opportunity to consult with counsel over the weekend

about her choices.   Defense counsel indicated that defendant did

not need the time to confer because they had extensive prior

discussions about defendant's option to testify.      Defendant told

the court she would accept her attorney's advice and would not

                                  6                          A-1635-15T3
testify.      After       the   judge,    again,     reminded      her     it    was    her

preference,       not    counsel's,      defendant    said,     "I   know        it's    my

decision."

       Defendant made the tactical decision not to take the stand

with full knowledge of the consequences of that choice.                           The PCR

court     found     that    defendant      "did      not    show     any        signs    of

dissatisfaction with [counsel's] advice or unwillingness to follow

it."     When a defendant knowingly, voluntarily and intelligently,

with the advice of counsel, exercises her right not to testify,

she must bear the consequences of that tactical decision.                           State

v. Bogus, 223 N.J. Super. 409, 423 (App. Div. 1988).

       Defendant argues that the case should be remanded for an

evidentiary hearing so trial counsel can explain why he failed to

advise her to testify in her own defense.                  An evidentiary hearing

should be held only if a defendant presents "a prima facie claim

in support of post-conviction relief."                     R. 3:22-10; State v.

Preciose, 129 N.J. 451, 462 (1992).               In order to establish a prima

facie case, defendant must demonstrate "the reasonable likelihood

of     succeeding       under   the   test     set   forth    in     Strickland          v.

Washington."        Id. at 463.          Merely raising a claim for post-

conviction relief does not entitle the defendant to an evidentiary

hearing.    State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.),

certif. denied, 162 N.J. 199 (1999).                  A "defendant must allege

                                           7                                      A-1635-15T3
specific facts and evidence supporting his allegations," State v.

Porter, 216 N.J. 343, 355 (2013), and "do more than make bald

assertions that he was denied the effective assistance of counsel."

Cummings,    supra,   321   N.J.   Super.   at    170.    Petitions    must    be

"accompanied by an affidavit or certification by defendant, or by

others, setting forth with particularity the facts that he wished

to present."    State v. Jones, 219 N.J. 298, 312 (2014).

     Defendant did not proffer what she would have said if she

testified.    As such, she did not establish a prima facie case that

her attorney's advice about testifying was a serious error that

undermined her Sixth Amendment right to counsel.                 Absent such

proof, an evidentiary hearing is not warranted.

     Even if counsel's advice was deficient, defendant failed to

show that she was prejudiced by counsel's recommendation.                If she

took the stand to refute the evidence of her complicity with Molina

and Santana, her aim would have to have been to prove that she had

no knowledge of the plan to rob or kill Lopez, or both.

     Trial    counsel   presented    a   panoply     of    arguments     during

summation contraindicating defendant's involvement in the planned

crimes.   No witness testified that defendant knew what Molina was

going to do.     Santana did not know what plans Molina made with

defendant.     The persons solicited by Molina and Santana to harm

the victim did not know defendant.               Counsel refuted Santana's

                                     8                                  A-1635-15T3
testimony that the murder was planned in advance by Santana's

admission that he did not know about the plan until 1:45 a.m. on

the morning of the crime.   There was no evidence that defendant

was going to receive any proceeds from the robbery because Santana

and Molina were going to share the spoils equally.       Defendant

cooperated with the police by giving a statement immediately after

the incident.   Santana and Molina fled; defendant stayed in New

Jersey and went to the victim's hospital bedside after the crime.

     The jury rejected those assertions.2 Defendant failed to show

that there was a reasonable probability that the result would have

been different if she testified. Strickland, supra, 466 U.S. at

693-95, 104 S. Ct. at 2067-68, 80 L. Ed. 2d at 697-98.

                              III.

     Defendant also argues her trial counsel failed to conduct "an

appropriate pre-trial investigation."   Her claim of ineffective

assistance is based on counsel's failure to hire an investigator

to find Molina.    Molina, by all accounts, fled to Venezuela.

Although defendant contends Molina would have "absolved" her at

trial, she did not submit an affidavit, certification or other

proof to support that bald-faced assertion.     Jones, supra, 219


2
  The ample evidence that supported the jury's finding that
defendant knew of or planned the attack on Lopez, or both, was set
forth in our decision on direct appeal. Terrero, supra, slip op.
at 5-7.

                                9                          A-1635-15T3
N.J. at 312; Cummings, supra, 321 N.J. Super. at 170.     She made

no proffer as to what Molina would have said to an investigator.

She presented no proof Molina would have returned to New Jersey

to testify.3   Again, she failed to establish a prima facie case of

ineffective assistance.

       Assuming, arguendo, that counsel was ineffective because he

failed to hire an investigator, defendant failed to demonstrate a

reasonable probability the result would have been different if he

did.    Strickland, supra, 466 U.S. at 693-95, 104 S. Ct. at 2067-

68, 80 L. Ed. 2d at 697-98; Fritz, supra, 105 N.J. at 60-61.     The

trial judge found there was no likelihood an investigator would

have been able to find Molina, a fugitive in a foreign land that

does not have an extradition treaty with the United States.        We

agree. It is improbable that Molina, who is said to have inflicted

a twelve to fifteen inch deep stab wound that exposed the murdered

victim's intestines, would have left the safe haven of Venezuela

and returned to exonerate defendant, knowing he would face a murder

charge.

       Again, defendant demands an evidentiary hearing so trial

counsel can testify why he did not try to contact Molina.     Post-



3
 Defendant has not indicated how Molina's hearsay statement to an
investigator would have been admissible if Molina did not appear
in court.

                                10                          A-1635-15T3
conviction relief applications are not fishing expeditions. State

v. Marshall, 148 N.J. 89, 269-70, cert. denied, 522 U.S. 850, 118

S. Ct. 140, 139 L. Ed. 2d 88 (1997) ("[W]e note that PCR 'is not

a device for investigating possible claims, but a means for

vindicating      actual     claims.'")    Defendant,   whose       unsupported

allegations do not present a prima facie case, may not use an

evidentiary hearing to explore this issue.

                                          IV.

     Lastly, defendant claims ineffective assistance of counsel

because of "a lack of communication."            She claims that, despite

counsel's efforts to converse with her through an interpreter,

defendant     had      difficulty   understanding      the       interpreters,

"presumably      due   to   differences     in   education   and     dialect."

Defendant claims she was not adequately informed of the State's

evidence against her because of the lack of proper interpretation.

     As the trial judge noted, defendant did not specify "any

particular incident or factual support that demonstrate[d] her

inability   to    communicate    with    trial   counsel   via    the   Spanish

translators"; nor did she identify the communications that she did

not understand.        Moreover, the trial judge found that defendant

had no problem understanding the court interpreters utilized over

the course of the long trial, both in the courtroom and during



                                     11                                 A-1635-15T3
breaks when trial counsel spoke with his client utilizing the

court interpreters.

       Further, defendant did not indicate how she was prejudiced

by the lack of communication with counsel.          She did not show a

reasonable probability that the results of the trial would have

been different if proper translation was accomplished. These are

more   unsupported   allegations   that   meet   neither   prong   of   the

Fritz/Strickland standard.     Strickland, supra, 466 U.S. at 694,

104 S. Ct. at 2068, 80 L. Ed. 2d at 698; Fritz, supra, 105 N.J.

at 58.

       Affirmed.




                                   12                              A-1635-15T3
