                                NOT FOR PUBLICATION WITHOUT THE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-3141-18T1

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

TARIK A. DUPREE,

          Defendant-Appellant.


                   Submitted June 2, 2020 – Decided July 10, 2020

                   Before Judges Yannotti and Currier.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Camden County, Indictment No. 11-01-0005.

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

                   Jill S. Mayer, Acting Camden County Prosecutor,
                   attorney for respondent (Maura Murphy Sullivan,
                   Special Deputy Attorney General/Acting Assistant
                   Prosecutor, of counsel and on the brief).

PER CURIAM
      Defendant Tarik Dupree appeals from a December 19, 2018 order denying

his petition for post-conviction relief (PCR). We affirm.

      Defendant was charged in an indictment with: first-degree armed robbery,

in violation of N.J.S.A. 2C:15-1(a)(2) (counts one to three); third-degree

terroristic threats, in violation of N.J.S.A. 2C:12-3(b) (counts four to six); third-

degree possession of a weapon for an unlawful purpose, in violation of N.J.S.A.

2C:39-4(d) (counts seven to nine); and fourth-degree unlawful possession of a

weapon, in violation of N.J.S.A. 2C:39-5(d) (counts ten to twelve).

      The counts related to three separate robberies that took place on June 22,

June 23 and July 3, 2010. The charges relating to the June 23, 2010 armed

robbery were later dismissed.

      The case was tried before a jury in March 2013. After the jury was

charged, and excused to begin its deliberations, defense counsel advised the

court about an incident involving defendant's grandmother, Cheryl, and a juror.

Counsel stated Cheryl had just told him that she "was having lunch . . . yesterday

downstairs in the courthouse with . . . [defendant's] father discussing the case.

When they got up from lunch they saw [Juror Seven] . . . sitting next to them."

Defense counsel stated it was unknown whether Juror Seven heard any of the

conversation.


                                                                             A-3141-18T1
                                         2
      The judge instructed the jury to stop its deliberations and brought Juror

Seven into the courtroom. The judge inquired of the juror whether she had eaten

lunch in the courthouse cafeteria the previous day. The juror responded she had

lunch in a restaurant outside the courthouse the day before.

      Defense counsel then advised the court that Cheryl said the incident might

have been two days earlier. Juror Seven stated she had only eaten lunch in the

courthouse one day. During that time, she did not overhear any conversations

about the case from anyone sitting near her. After the prosecutor and defense

counsel declined to ask any questions of the juror, she was excused to continue

deliberations with the remainder of the jury.

      Later that afternoon, the jury found defendant guilty of only the offenses

related to the July 3, 2010 armed robbery: first-degree armed robbery (count

three); third-degree terroristic threats (count six); third-degree possession of a

weapon for an unlawful purpose (count nine); and fourth-degree unlawful

possession of a weapon (count twelve). After merging counts nine and twelve

into count three, the court sentenced defendant to twenty years' imprisonment,

subject to the No Early Release Act, N.J.S.A. 2C:43-7.2, for first-degree armed

robbery; and five years' imprisonment, concurrent to the sentence imposed on

count three, for third-degree terroristic threats.


                                                                          A-3141-18T1
                                         3
      We affirmed defendant's convictions and sentence. State v. Dupree, No.

A-3474-14 (App. Div. Feb. 17, 2017) (slip op. at 1, 20).

      In May 2017, defendant filed a PCR petition. He argued trial counsel was

ineffective in: (1) failing to object to references in defendant's statement that he

was a suspect in other criminal offenses or bad acts; and (2) failing to request

the court to take testimony from defendant's family regarding the incident with

Juror Seven. Defendant contended appellate counsel was ineffective in not

raising the incident with Juror Seven on direct appeal and in failing to argue the

sentence was excessive.

      In support of his petition, defendant submitted a report dated February 26,

2018, documenting an investigator's interview with Cheryl taken that day. The

report provides the following description of the interview:

            [Cheryl] explained that she does not recall if this
            incident took place before or after the jury was charged,
            however; she believes testimony was done. [Cheryl]
            remembers [defendant] standing at counsel table or
            maybe he was testifying, she is not very clear on that
            part either, when she heard [defendant] say something
            like "I didn't do that when I robbed the lady." [Cheryl]
            stated she is not sure if [defendant] said "lady" or used
            another word but the inference was that he was
            referring to a female.

            Shortly thereafter, [Cheryl] said she and her son, . . .
            [defendant's] father, went to the cafeteria in the
            basement of the courthouse to . . . [eat lunch]. She said

                                                                            A-3141-18T1
                                         4
            she and her son[] . . . were sitting down talking and she
            asked her son if he had heard what [defendant] said.
            Her son asked her what she was talking about and she
            said, "that boy hung himself," and she repeated what
            [defendant] had said. [Cheryl] made a point to let this
            investigator know that she has a loud voice.

            [Cheryl] stated when she was getting ready to get up to
            leave, she saw a juror sitting at the table right behind
            her. [Cheryl] said she speaks loud[ly] and there is no
            way the juror didn't hear the conversation she was
            having with her son.

            According to [Cheryl], when she went back to the
            courtroom, she asked to speak to the judge. [Cheryl]
            was very concerned that she might have said something
            that would incriminate her grandson. She explained to
            the judge what had happened in the cafeteria. . . . The
            judge questioned the juror who denied hearing any
            conversation between [Cheryl] and . . . [defendant's
            father]. The juror was excused and sent back to join the
            other jurors.

      Following argument on the petition, the court issued a comprehensive

written decision on December 19, 2018, finding defendant had not presented a

prima facie claim of ineffective assistance of counsel and an evidentiary hearing

was not required. The petition was denied.

      In addressing defendant's assertion regarding the incident with Juror

Seven, the court stated:

                  The [trial judge] was satisfied there was no taint.
            Neither counsel asked any questions. The court


                                                                         A-3141-18T1
                                       5
      determined nothing more was required and counsel
      agreed.

             Here, no affidavits or certifications have been
      provided. The only attachment is an investigation
      report of Evelyn Gonzalez-Dones, dated February 26,
      2018. It is hearsay and not a proper source of evidence.
      [Cheryl] did not know the date of the alleged incident
      in the lunch area. However, it must have been at least
      three days previously. Why did the family wait till the
      jury was sent out to let the attorney know of the
      allegation? Did they want to wait to see if the juror was
      chosen? Their motives, as well as their memory, may
      be tainted.

             [Defendant] has failed to prove a prima facie case
      on this issue, so no evidentiary hearing will be granted.
      Additionally, this matter could have been raised on
      direct appeal. In as much as the court found no basis
      for an evidentiary hearing, appellate counsel was not
      ineffective for not raising the issue o[n] direct appeal.

On appeal, defendant raises the following issues:

      POINT I. DURING THE TRIAL, WHEN THE
      COURT    FAILED   TO   MAKE   A   FULL
      INVESTIGATION REGARDING THE CLAIM OF A
      POTENTIALLY    TAINTED   JUROR,  TRIAL
      COUNSEL WAS INEFFECTIVE FOR FAILING TO
      OBJECT.

      POINT II. BECAUSE THE PETITIONER MADE A
      PRIMA FACIE SHOWING OF INEFFECTIVE
      ASSISTANCE OF TRIAL COUNSEL, THE COURT
      MISAPPLIED ITS DISCRETION IN DENYING
      POST-CONVICTION      RELIEF     WITHOUT
      CONDUCTING A FULL EVIDENTIARY HEARING.


                                                                  A-3141-18T1
                                 6
             POINT III. PCR COUNSEL WAS INEFFECTIVE
             FOR     NOT    SUBMITTING   AFFIDAVITS
             SUBSTANTIATING THE PETITIONER'S CLAIMS.

      The standard for determining whether trial counsel's performance was

ineffective for purposes of the Sixth Amendment was formulated in Strickland

v. Washington, 466 U.S. 668, 687 (1984) and adopted by the New Jersey

Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987).

      In order to prevail on an ineffective assistance of counsel claim, defendant

must satisfy a two-pronged test establishing both that: (1) 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 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, 466 U.S. at 687, 694.

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

demonstrate trial counsel was ineffective under the Strickland-Fritz test, and we

affirm substantially for the reasons expressed by the PCR court.

      Defendant asserts that trial counsel was ineffective when he failed to ask

the court to take testimony from Cheryl. Defendant contends such testimony, if


                                                                             A-3141-18T1
                                         7
believed by the court, would have impeached Juror Seven's claim that nothing

was overheard and could have led to a mistrial.

      As stated, trial counsel alerted the court of the alleged incident involving

Cheryl following the jury's departure from the courtroom to begin its

deliberations. The court immediately instructed the jury to stop deliberating and

brought Juror Seven into the courtroom. The court then inquired of Juror Seven

whether she had eaten lunch in the courthouse cafeteria and whether she had

overheard any conversations regarding the case while she was in the cafeteria.

      Cheryl reported to defense counsel that the incident had occurred the

previous day. After Juror Seven stated she had not been in the cafeteria the prior

day, Cheryl stated it might have been another day. The juror responded she had

eaten in the cafeteria only one day and had not heard anyone discussing the case.

The juror was then permitted to return to the jury room to continue deliberations.

      We are satisfied defendant has failed to establish any deficiency in

counsel's performance. Defense counsel promptly brought the incident to the

court's attention directly after Cheryl informed him about it.         The court

immediately conducted an inquiry of the juror. Based on Juror Seven's answers

to the court's questions, there was nothing more for defense counsel to ask her

as Cheryl presented no further information to him.


                                                                          A-3141-18T1
                                        8
      In addition, even assuming trial counsel was ineffective for not requesting

the court investigate the matter further, defendant has not shown there is "a

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

the proceeding would have been different." Fritz, 105 N.J. at 52 (quoting

Strickland, 466 U.S. at 694). Because the juror denied hearing any conversation

about the case outside the courtroom, any questioning of Cheryl or defendant 's

father would have been fruitless. Moreover, since Cheryl only alleged Juror

Seven might have overheard her, there were no grounds to support questioning

of any of the other jurors.

      We also note defendant did not present any affidavits or certifications to

support his allegations of ineffective assistance of counsel. The investigation

report was hearsay and only purported to document a statement taken from

Cheryl five years after these events. The report did not provide any further

information other than what Cheryl had presented to the court.

      Defendant states, for the first time on appeal, that PCR counsel was

ineffective because he failed to have him and his family members prepare

certifications or affidavits in support of his PCR petition. We decline to consider

this argument as it was not raised to the PCR court. See Nieder v. Royal Indem.

Ins. Co., 62 N.J. 229, 234 (1973).


                                                                           A-3141-18T1
                                        9
      Because defendant has not demonstrated a prima facie case of ineffective

assistance of counsel, he was not entitled to an evidentiary hearing and the

petition was properly denied. See State v. Preciose, 129 N.J. 451, 462 (1992).

      Affirmed.




                                                                       A-3141-18T1
                                     10
