                         NOT FOR PUBLICATION WITHOUT THE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-0975-16T2

STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

KENNETH BODDIE,

     Defendant-Appellant.
_____________________________

              Submitted March 1, 2018 – Decided August 15, 2018

              Before Judges Rothstadt and Gooden Brown.

              On appeal from Superior Court of New Jersey,
              Law Division, Passaic County, Indictment No.
              07-02-0168.

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

              Camelia M. Valdes, Passaic County Prosecutor,
              attorney for respondent (Marc A. Festa, Senior
              Assistant Prosecutor, of counsel and on the
              brief).

PER CURIAM

        Defendant Kenneth Boddie appeals from the July 6, 2016 Law

Division      order,    which    denied    his   first    petition     for   post-
conviction relief (PCR) without an evidentiary hearing. On appeal,

defendant raises the following contentions:

            POINT I:

            THE TRIAL 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.

                 A.[1] THE DEFENDANT DID NOT RECEIVE
                 ADEQUATE LEGAL REPRESENTATION FROM
                 TRIAL COUNSEL AS A RESULT OF
                 COUNSEL'S FAILURE TO PURSUE AN ALIBI
                 DEFENSE.

                 B. 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.

     We have considered defendant's contention that trial counsel

failed to thoroughly discuss with him all relevant ramifications

associated with the decision whether or not to testify in light

of the record and applicable legal principles and conclude it is

without    sufficient   merit   to    warrant   discussion   in   a   written

opinion.    R. 2:11-3(e)(2).         The extensive colloquy between the

trial court, trial counsel, and defendant belies defendant's claim


1
   We have consolidated parts A and B of defendant's argument for
clarity.

                                       2                              A-0975-16T2
that his decision not to testify was uninformed.          See State v.

Ball, 381 N.J. Super. 545, 556-57 (App. Div. 2005) (holding that

regardless of whether the defendant was advised by his counsel,

the trial judge's explanation of defendant's right to testify and

of the consequences of his choice defeats an ineffective assistance

of counsel claim and cures any alleged deficiency in counsel's

performance).   However, we reverse and remand for an evidentiary

hearing on defendant's contention that trial counsel failed to

present an alibi defense for the reasons that follow.

     We incorporate herein the facts set forth in State v. Boddie,

No. A-1731-10 (App. Div. July 15, 2013), wherein we affirmed

defendant's   2010   convictions   for   aggravated   manslaughter   and

related weapons offenses, as well as his aggregate seventeen-year

prison sentence, subject to the parole ineligibility requirements

of the No Early Release Act, N.J.S.A. 2C:43-7.2.2      The convictions

followed a jury trial and stemmed from defendant and a co-defendant

exchanging words with the victim during a street encounter that

resulted in the victim being fatally shot shortly before midnight




2
  Our Supreme Court denied defendant's petition for certification.
State v. Boddie, 217 N.J. 295 (2014).



                                   3                            A-0975-16T2
on September 16, 2006.         The State's theory was that the co-

defendant was the shooter and defendant was a co-conspirator.3

       The trial proofs showed that defendant and the co-defendant

approached the victim in a vehicle driven by the co-defendant

while the victim was engaged in a conversation with two women,

both of whom knew both defendants and later identified them as the

occupants of the car from which the gunshots were fired.           The car

had been rented to the co-defendant in exchange for drugs, and was

later found abandoned several blocks from the crime scene with

empty shell casings and a projectile in the rear.          Defendant and

the co-defendant were later apprehended out of state, and there

was evidence that defendant had called both women and told them

not to say anything.

       In support of the present PCR petition, defendant certified

that    "[f]rom   the   very   outset,"   he   "informed   [his]     trial

attorney . . . that [he] was home when this shooting took place

and that both [his] sister and father could substantiate that

alibi."   According to defendant, on the night of the shooting, he

arrived home "prior to 10:00 p.m.[,] . . . had dinner with [his]

sister, took a shower, and then watched television with [his]

father before going to sleep."     However, defendant asserted, trial


3
  In the joint trial, the co-defendant was found guilty of murder
and related weapons offenses.

                                    4                              A-0975-16T2
counsel failed to interview or present his sister or father to

substantiate his alibi.

      In a supporting certification, defendant's sister confirmed

that defendant "arrived home on September 16, 2006, . . . [at]

approximately 9:00 p.m.," after which they "ate dinner together[,]

and   then   he    watched     television         all   night."         According    to

defendant's sister, "[n]obody came to interview [her] on [her]

brother's behalf," but "had [she] been asked, [she] would have

gladly testified at trial as to [her] brother's whereabouts" on

the night in question.

      Similarly, defendant's father certified that at the time of

the   shooting,     defendant      was       at    home,       having    arrived     at

"approximately 8:30 p.m."         According to defendant's father, they

"watched television together for most of the night," and defendant

"did not leave the house at all that night."                    Defendant's father

asserted that "[n]obody came to interview [him] on [his] son's

behalf," but "had [he] been asked, [he] would have gladly testified

at trial as to [his] son's whereabouts."

      On July 6, 2016, following oral argument, the PCR court denied

defendant's petition in an oral decision without conducting an

evidentiary hearing.          The court found defendant's claim that he

had told his trial counsel about his alibi witnesses "extremely

improbable,"      and   the   court   inferred          from    trial    counsel    not

                                         5                                    A-0975-16T2
presenting an alibi defense that "it wasn't there to present."

The court pointed out that "[defendant] and his attorney were

present [in court] when the co-defendant . . . and his attorney

addressed [an] alibi defense" that the co-defendant "had timely

interposed"      but     later   withdrew.     The    court   speculated   that

defendant conferred with his co-defendant and jointly agreed not

"to call the alibi witness[es] . . . and let the State prove its

case."

     The court rejected defendant's "suggest[ion] that he was too

intimidated by his lawyer to have done anything and spoken up,"

noting that defendant was not "a newcomer to the system who had

never interacted with lawyers before," having "had one previous

felony conviction" and "at least two juvenile adjudications."               The

court    could     not    imagine   that,    given    defendant's   sentencing

exposure,     if    "he     actually   had    alibi    witnesses    available,

that . . . he wouldn't have made noise about that every step of

the way."

     The court also rejected the supporting certifications of

defendant's sister and father, noting "they offer[ed] no evidence

whatsoever to corroborate the self-serving [years-after-the-fact]

assertion that they were available as alibi witnesses."              The court

found that "[t]he very wording of the certifications" belied the

content because the court could not

                                        6                              A-0975-16T2
            imagine that a parent or a sibling of someone
            who they [knew] to be falsely accused because
            they were with them at the time, could have
            not knocked down every door, and [gotten]
            copies of letters and cable messages, and
            anything else that they would have done to
            make sure that it was known that they were
            witnesses   to   the   defendant's   absolute
            innocence.

       The court speculated that even assuming there was an alibi

defense,    it   did   not   "know   to       what    extent    there     may    have

been . . . a     tactical    rejection         of     the   notion   of    calling

[defendant's     father],    a    twice       convicted      felon, . . . as         a

witness . . . to such a claim."          Nonetheless, the court concluded

that based on the timing, defendant's claim was not credible where

neither defendant, "nor his father, [n]or his sister ever made

some   appropriate     noise"    about       the    existence   of   "this      alibi

defense . . . either at the time before trial, the eve of trial,

or even at the time that the appeal was filed."                      This appeal

followed.

       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 only if the defendant has presented a

prima facie claim of ineffective assistance of counsel, material

issues of disputed fact lie outside the record, and resolution of

the issues necessitate a hearing.            R. 3:22-10(b); State v. Porter,

                                         7                                   A-0975-16T2
216 N.J. 343, 355 (2013).        However, a defendant is not entitled

to an evidentiary hearing when his or her claims are "too vague,

conclusory, or speculative."        Porter, 216 N.J. at 355 (quoting

State v. Marshall, 148 N.J. 89, 158 (1997)).

       "Rule 3:22-10 recognizes judicial discretion to conduct such

hearings."     State v. Preciose, 129 N.J. 451, 462 (1992).              Thus,

we review a trial court's decision to grant or deny a defendant's

request for a hearing under an abuse of discretion standard. State

v. Russo, 333 N.J. Super. 119, 140 (App. Div. 2000).               A PCR court

deciding whether to grant an evidentiary hearing "should view the

facts in the light most favorable to a defendant to determine

whether    a   defendant   has   established    a    prima    facie   claim."

Preciose, 129 N.J. at 463.        To establish a prima facie claim of

ineffective assistance of counsel, the defendant is obliged to

show not only the particular manner in which counsel's performance

was deficient, but also that the deficiency prejudiced his right

to a fair trial.        Strickland v. Washington, 466 U.S. 668, 687

(1984); State v. Fritz, 105 N.J. 42, 60-61 (1987).

       An ineffective assistance of counsel claim may be established

when    counsel    fails    to    adequately        conduct    a    pre-trial

investigation.     Porter, 216 N.J. at 352.          Counsel has a duty to

"conduct   a   prompt   investigation    of   the    circumstances     of   the

case . . . relevant to [the defendant's] guilt and degree of guilt

                                     8                                 A-0975-16T2
or penalty."   Id. at 353 (quoting Russo, 333 N.J. Super. at 139).

Accordingly, "[f]ailure to investigate an alibi defense is a

serious deficiency that can result in the reversal of a conviction"

because of the great potential for creating reasonable doubt as

to a defendant's guilt in the minds of the jury.    Ibid.

     If a defendant claims his counsel inadequately investigated

an alibi defense, he or she "must assert the facts that an

investigation would have revealed, supported by affidavits or

certifications based upon the personal knowledge of the affiant."

Ibid. (quoting Cummings, 321 N.J. Super. at 170).     The testimony

of an alibi witness does not have to be free of credibility issues;

it must simply have the ability to bolster the defense or refute

the State's position if believed by the jury.      State v. Pierre,

223 N.J. 560, 586-88 (2015).   If there is a reasonable probability

that the testimony of a witness who was not presented at trial or

properly investigated by counsel could alter the outcome of the

trial, a court should find that "counsel's errors were sufficiently

serious so as to undermine confidence that defendant's trial was

fair, and that the jury properly convicted him."    Id. at 588.

     The testimony of an alibi witness, when supported by the

witness's affidavit or certification, should not be dismissed as

not credible without an evidentiary hearing.   See State v. Jones,

219 N.J. 298, 314 (2014) ("Although the timing and motivation of

                                 9                          A-0975-16T2
[the alibi witness'] statement and her reason for not voluntarily

appearing       to    testify     as    apparently          had   been    expected          raise

important       questions,        those   questions          cannot      be    assessed       and

resolved without determining credibility."); Porter, 216 N.J. at

356     ("The    court's        findings       regarding          defendant's         and     his

girlfriend's credibility, based only on their affidavits, was an

improper approach to deciding this PCR claim and effectively denied

defendant an opportunity to establish ineffective assistance of

trial counsel.").              Thus, "[e]ven a suspicious or questionable

affidavit supporting a PCR petition 'must be tested for credibility

and cannot be summarily rejected.'"                         Porter, 216 N.J. at 355

(quoting State v. Allen, 398 N.J. Super. 247, 258 (App. Div.

2008)).

      Here, the PCR court found defendant's claims that his trial

counsel     failed        to      investigate         his     alibi       defense       lacked

credibility,         in   part,      because     of   the     timing      of    the    claims.

However, "[a]ssessment of credibility is the kind of determination

'best    made        through    an     evidentiary      proceeding            with    all    its

explorative benefits, including the truth-revealing power which

the opportunity to cross-examine bestows.'"                         Id. at 347 (quoting

State v. Pyatt, 316 N.J. Super. 46, 51 (App. Div. 1998)).                              Because

the PCR court incorrectly made credibility determinations without

first conducting an evidentiary hearing, we are constrained to

                                            10                                         A-0975-16T2
reverse and remand for an evidentiary hearing on defendant's claim

that trial counsel rendered ineffective assistance by failing to

investigate   and   call   defendant's   father   and    sister   as   alibi

witnesses.    On remand, defendant must satisfy both prongs of the

Strickland test.

     Affirmed in part, reversed in part, and remanded for further

proceedings consistent with this opinion.               We do not retain

jurisdiction.




                                  11                               A-0975-16T2
