                        NOT FOR PUBLICATION WITHOUT THE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-4730-16T1

STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

ROBERT A. TERC,

     Defendant-Appellant.
________________________________

              Submitted May 31, 2018 – Decided July 9, 2018

              Before Judges Nugent and Currier.

              On appeal from Superior Court of New Jersey,
              Law Division, Morris County, Indictment No.
              11-05-0536.

              Joseph E. Krakora, Public Defender, attorney
              for appellant (Craig S. Leeds, Designated
              Counsel, on the brief).

              Fredric M. Knapp, Morris County Prosecutor,
              attorney for respondent (Erin Smith Wisloff,
              Supervising Assistant Prosecutor, on the
              brief).

PER CURIAM

        Defendant Robert A. Terc appeals from the denial of his

petition for post-conviction relief (PCR).                 After reviewing the
contentions in light of the record and applicable legal principles,

we affirm.

     Defendant was charged in an indictment with two counts of

first-degree attempted murder, N.J.S.A. 2C:5-1(a)(1) and N.J.S.A.

2C:11-3(a)(1); two counts of second-degree aggravated assault,

N.J.S.A. 2C:12-1(b)(1); two counts of third-degree aggravated

assault,   N.J.S.A.     2C:12-1(b)(2);       two    counts     of   third-degree

aggravated assault, N.J.S.A. 2C:12-1(b)(7); two counts of second-

degree    burglary,    N.J.S.A.     2C:18-2(a)(1)       and    N.J.S.A.     2C:18-

2(b)(1); one count of third-degree possession of a weapon for an

unlawful purpose, N.J.S.A. 2C:39-4(d); one count of fourth-degree

possession of a weapon for an inappropriate purpose, N.J.S.A.

2C:39-5(d);   and     one   count   of   fourth-degree        possession    of    an

imitation firearm for an unlawful purpose, N.J.S.A. 2C:39-4(e).

     The charges arose out of the stabbing of defendant's former

girlfriend and her male friend.          A jury found defendant guilty on

all counts of the indictment.            He was sentenced to an aggregate

twenty-five year term of imprisonment, subject to the No Early

Release    Act,   N.J.S.A.     2C:43-7.2.          We   affirmed    defendant's

convictions in the direct appeal.            State v. Terc, No. A-2674-11

(App. Div. Apr. 1, 2014) (slip op. at 31).

     Defendant filed a petition for PCR in 2016.                    He asserted

trial counsel provided ineffective representation by failing to:

                                         2                                 A-4730-16T1
prepare defendant to testify, object to the introduction of certain

evidence, challenge one of the jurors, subpoena a fact witness,

request a self-defense jury charge, and request a change of venue.

Defendant contended appellate counsel failed to argue on appeal

that   certain   evidence   was   overly   prejudicial   and,   therefore,

improperly admitted. After hearing defendant's arguments, Judge

Thomas J. Critchley, Jr. denied the PCR petition without an

evidentiary hearing.

       The following issues are raised on appeal:

           POINT I: DEFENDANT WAS DENIED THE EFFECTIVE
           ASSISTANCE OF TRIAL COUNSEL IN VIOLATION OF
           THE UNITED STATES AND NEW JERSEY CONSTITUTIONS
           AND THE LOWER COURT ERRED IN CONCLUDING
           OTHERWISE.

           POINT II: DEFENDANT WAS DENIED THE EFFECTIVE
           ASSISTANCE OF APPELLATE COUNSEL.

           POINT III: DEFENDANT WAS DENIED THE EFFECTIVE
           ASSISTANCE OF POST CONVICTION RELIEF COUNSEL
           (not raised below).

           POINT IV: THE CUMULATIVE EFFECT OF THE ERRORS
           COMPLAINED OF RENDERED THE TRIAL UNFAIR.

           POINT V: THE LOWER COURT ERRED IN DENYING
           DEFENDANT'S  PETITION  FOR   POST-CONVICTION
           RELIEF WITHOUT AFFORDING HIM AN EVIDENTIARY
           HEARING.

       The standard for determining whether counsel's performance

was ineffective for purposes of the Sixth Amendment was formulated

in Strickland v. Washington, 466 U.S. 668 (1984), and adopted by


                                     3                             A-4730-16T1
our Supreme Court in State v. Fritz, l05 N.J. 42, 58 (l987).                  In

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

defendant must meet the two-prong test of establishing both that:

(l) counsel's performance was deficient and he or she made errors

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.

     Judge Critchley considered all of defendant's arguments in a

comprehensive oral decision.         We are satisfied from our review of

the record that defendant failed to meet his burden of proof to

establish an ineffectiveness of trial and appellate counsel within

the Strickland-Fritz test and conclude that defendant's arguments

lack sufficient merit to warrant discussion in a written opinion.

R. 2:11-3(e)(2).        We, therefore, affirm substantially for the

reasons stated in Judge Critchley's well-reasoned opinion and add

only the following brief comments.

     There is no support for defendant's contention he was coerced

by counsel not to testify at trial.           To the contrary, the trial

judge asked counsel, on two occasions, whether he discussed with

                                       4                               A-4730-16T1
defendant the right to testify.           Counsel responded he discussed

the issue with his client, and added: "We spoke a great deal about

it."   The court inquired the following day again whether defendant

intended to testify. At no point during either of these colloquies

did defendant contradict his counsel or advise he wished to testify

or was uninformed of his rights.1

       Defendant's criticism of appellate counsel also lacks merit.

A trial judge's decision to admit photographs into evidence rests

within his discretion, and "will not be reversed in the absence

of palpable abuse."         State v. Rose, 112 N.J. 454, 535-36 (1988)

(quoting State v. Thompson, 59 N.J. 396, 420 (1971)).                  Defendant

has not demonstrated that appellate counsel was ineffective for

failing to raise an issue where the issue was not error.

       There   was   also     overwhelming     evidence      to    support    the

convictions.     The victims, who were asleep at the time of the

initial   stabbing,    testified     as   to   what    was    occurring      upon

awakening,     and   subsequently,    including       their       struggle   with

defendant.     The victims' blood was found on defendant when he was

apprehended in the woods a short distance from the scene of the



1
  Defendant asserts on appeal he was not prepared by trial counsel
to testify regarding his claim of self-defense.        However, we
determined in the direct appeal that self-defense was not available
to defendant in light of the presented evidence. Terc, slip op.
at 19-20.

                                      5                                  A-4730-16T1
attack.   As Judge Critchley noted, "it's hard to know what an

attorney could have done differently.   And . . . I find that

nothing . . . could have been done that would have altered these

fundamental facts."

    Affirmed.




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