                             RECORD IMPOUNDED

                        NOT FOR PUBLICATION WITHOUT THE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-4078-16T4

STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

HASSAN A. JONES, a/k/a NAEEM
JOHNSON,

     Defendant-Appellant.
________________________________

              Submitted May 30, 2018 – Decided July 20, 2018

              Before Judges Sumners and Moynihan.

              On appeal from Superior Court of New Jersey,
              Law Division, Burlington County, Indictment
              No. 11-11-1343.

              Joseph E. Krakora, Public Defender, attorney
              for appellant (Michele A. Adubato, Designated
              Counsel, on the brief).

              Scott   A.    Coffina,   Burlington  County
              Prosecutor, attorney for respondent (Nicole
              Handy, Assistant Prosecutor, of counsel and
              on the brief).

PER CURIAM

        A jury convicted defendant Hassan A. Jones of second-degree

sexual     assault,     third-degree     criminal    restraint,     third-degree
aggravated      assault,   and     third-degree        terroristic     threats.

Defendant withdrew the direct appeal that he filed.                   Two-and-a-

half years after his conviction, he filed a petition for post-

conviction relief (PCR).       After conducting an evidentiary hearing,

Judge Christopher J. Garrenger issued an order and written decision

denying the petition.      Defendant appeals contending:

              POINT I

              SINCE DEFENDANT WAS DENIED THE EFFECTIVE
              ASSISTANCE OF TRIAL COUNSEL, THE DENIAL OF HIS
              PETITION FOR POST-CONVICTION RELIEF WAS [AN]
              ERROR.

              A. TRIAL COUNSEL FAILED TO CONDUCT AN ADEQUATE
              INVESTIGATION.

              B. FAILURE TO OBJECT TO OBTAIN EVIDENCE.

              C. FAILURE TO CALL CERTAIN WITNESSESS.

We   affirm    substantially     for   the   reasons    set   forth    in     Judge

Garrenger's well-written decision.

      To prove ineffective assistance of plea counsel, a defendant

must show that counsel's performance was deficient and but for

counsel's errors, there is a reasonable probability that defendant

would not have pled guilty.            Strickland v. Washington, 466 U.S.

668, 687, 694 (1984); State v. DiFrisco, 137 N.J. 434, 457 (1994).

Where, as here, the PCR judge conducts an evidentiary hearing, we

must uphold his factual findings, "so long as those findings are

supported by sufficient credible evidence in the record."                     State

                                        2                                   A-4078-16T4
v. Rockford, 213 N.J. 424, 440 (2013) (quoting State v. Robinson,

200 N.J. 1, 15 (2009)).    Additionally, we defer to his findings

that are "substantially influenced by [the judge's] opportunity

to hear and see the witnesses and to have the 'feel' of the case,

which a reviewing court cannot enjoy."         Ibid. (alteration in

original) (quoting Robinson, 200 N.J. at 15).     We owe particular

deference to the judge's credibility determinations.      See State

v. Locurto, 157 N.J. 463, 474 (1999).     We, however, do "not defer

to a PCR [judge's] interpretation of the law; a legal conclusion

is reviewed de novo."   State v. Nash, 212 N.J. 518, 540-41 (2013).

     The record of defendant's trial revealed that three children

were born from defendant's and the victim's tumultuous ten-year

relationship; the victim filed eight domestic violence complaints

during the last five years of their relationship that were all

withdrawn, and obtained a restraining order against defendant.

According to the victim's testimony, one night, after defendant

returned home and she refused his demands to have sex, he verbally

threatened her, physically assaulted her and forced her to have

intercourse against her will.        The victim recorded the entire

incident on her cell phone, which she placed in her pants' back

pocket when he entered the house because she feared that a domestic

dispute would occur and she wanted to document it.       Three days

later, she filed a criminal complaint against defendant.

                                 3                           A-4078-16T4
      In his PCR petition, defendant asserted counsel's inadequate

investigation failed to reveal that the victim had a history of

making false accusations – eight altogether – against him that she

withdrew.      He argued that, with this knowledge, counsel could have

impeached her credibility by questioning her about the veracity

of those accusations.

      Judge Garrenger determined that the prior complaints would

not     have    been   admitted    as   false     accusations   because     the

admissibility of prior false accusations is governed by N.J.R.E.

608(b), which requires a hearing be held to determine if the

accusations were definitively false, and there was no evidence

presented that the victim's prior accusations were false.                  That

said, the judge pointed out that counsel did cross-examine the

victim regarding the withdrawn complaints.             Yet, the judge found

credible counsel's evidentiary hearing testimony that he refrained

from delving too deeply into those accusations out of concern it

would    open    the   door   to   allow    the   State,   through   re-direct

examination of the victim, to provide the jury details concerning

her numerous allegations of defendant's abusive acts.1

      We agree with Judge Garrenger's assessment that counsel's

trial strategy to not highlight the victim's withdrawn complaints


1
  The police reports regarding the incidents contained defendant's
admissions of verbal and physical assaults against the victim.

                                        4                              A-4078-16T4
was not proof of ineffective assistance of counsel.                         We further

add that defendant did not assert facts through affidavits or

certifications based upon personal knowledge, what a more adequate

investigation         would      have   revealed   and     how       that   inadequacy

prejudiced his defense.             See State v. Porter, 216 N.J. 343, 352

(2013); State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.

1999).       Thus, defendant's mere "bald assertions" do not support a

claim of ineffective assistance.                 Cummings, 321 N.J. Super. at

170.

       Next, defendant contended counsel failed to object to the

admissibility of the cell phone recording.                     He maintains counsel

erred in admitting to its admissibility because the State had to

prove the four factors set forth in State v. Driver, 38 N.J. 255,

287 (1962), that (1) "the device was capable of [taping] the

conversation or statement; (2) the operator was competent; (3) the

recording is authentic and correct; [and] (4) no changes, additions

or deletions have been made."

       Judge Garrenger found no merit to this argument because the

State    –    through      the    victim's   testimony     –    provided      a    proper

foundation to admit the recording under Driver.                       He underscored

the    flaw     of    defendant's       argument   by     pointing      out   that       it

contradicted         his   PCR    certification    "that       the    recording       only

contains       a   'heated       argument'   and   that    he     never     physically

                                             5                                    A-4078-16T4
assaulted" the victim.    We conclude the judge's determination is

on point, and agree with him that defendant has not shown the

recording would have been excluded if counsel sought to bar its

admission.   "The failure to raise unsuccessful legal arguments

does not constitute ineffective assistance of counsel."   State v.

Worlock, 117 N.J. 596, 625 (1990) (citing Strickland, 466 U.S. at

688; Fritz, 105 N.J. at 52).

     Lastly, defendant contended counsel was ineffective for not

calling two witnesses, defendant's sister and nephew, to testify

at trial to impeach the victim's credibility.       To prove this

contention, the witnesses testified at the evidentiary hearing

that the victim stated she was remorseful about making the charges

against defendant and considered dropping them.     Both witness,

however, stated the victim never said the incident did not occur.

Counsel testified he was aware of the sister's potential testimony

– and had constant contact with her during the trial – but decided

not to have her testify because the victim never told her that the

rape did not occur.      As for the nephew, counsel stated he was

never informed that the nephew also heard the victim say she

regretted making the charges.     The nephew's testimony confirmed

that he did not tell counsel – nor was he told to do so – about

the victim's alleged remorse.



                                 6                         A-4078-16T4
       Relying upon the pronouncement in Strickland, 466 U.S. at

693, 689, that a trial counsel's decision to call witnesses is

strategic and a PCR court's review of such decision is "highly

deferential," Judge Garrenger stated:

            Counsel performed a satisfactory pre-trial
            investigation and the strategic decision not
            to call [the witnesses] . . . is entitled to
            the same high deference offered to all such
            decisions. The [c]ourt finds that [c]ounsel's
            actions were not deficient and [defendant] has
            failed to satisfy the first prong of
            Strickland.

He    further   determined    that    without       the    testimony     of     these

witnesses, counsel sought to impeach the victim through his cross-

examination of her by "highlight[ing] [the] gap between the times

the   alleged   incident     occurred       and   her   actual    filing      of   the

complaint, along with emphasizing matters not contained on the

[cell phone] recording in an attempt to . . . raise doubt in the

jurors' minds."      In short, the judge saw nothing wrong with

counsel's   reasoning   that    the     sister     would    not   have     provided

beneficial trial testimony for the defense.                We add that, even if

counsel was aware of the nephew's potential testimony, the same

reasoning would have applied to the nephew' testimony.

       Giving deference to the judge's fact-finding because the

record supports it, we agree with his application of Strickland




                                        7                                     A-4078-16T4
to determine that counsel's exercise of trial strategy in not

calling the two witnesses was not ineffective assistance.

    Affirmed.




                               8                            A-4078-16T4
