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                               APPROVAL OF THE APPELLATE DIVISION
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                                                        SUPERIOR COURT OF NEW JERSEY
                                                        APPELLATE DIVISION
                                                        DOCKET NO. A-4571-18T4






                   Submitted October 5, 2020 – Decided October 22, 2020

                   Before Judges Fasciale and Susswein.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Essex County, Indictment No. 12-01-0018.

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

                   Theodore N. Stephens, II, Acting Essex County
                   Prosecutor, attorney for respondent (Matthew E.
                   Hanley, Special Deputy Attorney General/Acting
                   Assistant Prosecutor, of counsel and on the brief).

      Defendant appeals from an April 17, 2019 order denying his petition for

post-conviction relief (PCR). Defendant argues that his trial and appellate

counsel rendered ineffective assistance. Judge Arthur J. Batista entered the

order without conducting an evidentiary hearing and rendered a twenty-page

comprehensive written opinion.

      A jury found defendant guilty of second-degree unlawful possession of a

weapon, N.J.S.A. 2C:39-5(b); second-degree possession of a weapon for an

unlawful purpose, N.J.S.A. 2C:39-4(a); and first-degree attempted murder,

N.J.S.A. 2C:11-3(a)(1) and N.J.S.A. 2C:5-1. After granting the State's motion

for a discretionary prison term, defendant received an aggregate prison term of

thirty-three years subject to N.J.S.A. 2C:43-7.2. We upheld the convictions,

State v. Holman, No. A-0690-13 (App. Div. July 24, 2015), and the Supreme

Court denied certification, State v. Holman, 223 N.J. 356 (2015). Thereafter,

the PCR judge entered the order under review.

      On appeal, defendant argues:

            POINT I

            A. Trial and appellate counsel were both ineffective for
            failing to pursue and argue a self-defense theory of the

            B. Trial counsel was ineffective for failing to call [a
            certain] witness . . . to testify at trial.

            C. Appellate counsel was ineffective for failing to argue
            that a jury charge on defense of premises should have
            been given at trial.

            D. Trial and appellate counsel were ineffective for
            failing to argue against the trial court's admission of
            prior evidence of a bad act under N.J.R.E. 404(b).

We disagree and affirm, primarily for the reasons given by Judge Batista. We

add the following remarks.

      A defendant is entitled to an evidentiary hearing only when he "has

presented a prima facie [case] in support of [PCR]," meaning that a defendant

must demonstrate "a reasonable likelihood that his . . . claim will ultimately

succeed on the merits." State v. Marshall, 148 N.J. 89, 158 (1997) (first

alteration in original) (quoting State v. Preciose, 129 N.J. 451, 462-63 (1992)).

To obtain relief based on ineffective assistance grounds, a defendant must

demonstrate not only that 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, 58 (1987) (adopting the

Strickland two-part test in New Jersey, now known as the Strickland/Fritz test).

Defendant failed to meet this standard warranting an evidentiary hearing; he has

not established a prima facie case of ineffectiveness, but instead made

unsupported bald assertions.

      Defendant is unable to meet the Strickland/Fritz prongs as to his

contention that trial and appellate counsel rendered ineffective assistance by not

asserting and raising the defense of self-defense. The jury found defendant shot

the victim. There is no evidence that defendant had an objective and honest

belief that shooting at the victim was necessary to prevent his own death or

serious injury. Although there is no evidence that the victim shot at defendant,

defendant's trial counsel initially considered and filed notice that she would

argue self-defense.    However, she later defended the charges by arguing

defendant was not involved in the shooting. She concentrated, instead, on the

recantation of statements made to the police by the State's only eyewitness.

Rather than focusing on the number of shots heard, had the jury accepted the

attempts to impeach the credibility of the witness, it would have acquitted

defendant.   The jury, however, believed the witness and rejected defense

counsel's theory that defendant was not involved in the shooting. We will not

second guess trial counsel's strategic decisions, and without more, trial counsel's

performance is not rendered ineffective merely because her strategic choice was


      Defendant contends that his trial counsel was ineffective by not calling a

certain witness to testify at trial. He baldly asserts that the witness would have

testified that he saw defendant running without wearing a shirt at the time of the

shooting. He asserts that such testimony would have rebutted testimony from

two other individuals—including the eyewitness to the shooting—that the

shooter was instead wearing black t-shirt. In not calling the witness, defendant's

trial counsel concentrated on discrediting the State's eyewitness by focusing on

the recantation. Again, we will not second guess her trial strategy, especially

when defendant has not demonstrated a reasonable likelihood that his claim will

ultimately succeed on the merits.

      Trial "[c]ounsel's 'strategic choices made after a thorough investigation of

[relevant] law and facts . . . are virtually unchallengeable.'" State v. Petrozelli,

351 N.J. Super. 14, 22 (App. Div. 2002) (second and third alterations in original)

(quoting Strickland, 466 U.S. at 690-91).        "A court evaluating a claim of

ineffective assistance of counsel must avoid second-guessing defense counsel's

tactical decisions and viewing those decisions under the 'distorting effects of

hindsight.'" Marshall, 148 N.J. at 157 (quoting Strickland, 466 U.S. at 689). In

fact, there is a strong presumption that defense counsel's conduct falls into the

range of reasonable assistance as guaranteed by the Sixth Amendment. Ibid. A

reviewing court should accord deference to "strategically defensible" tactical

decisions.   State v. Hightower, 120 N.J. 378, 402 (1990).          Consequently,

counsel's decision as to which witnesses to call to the stand is "an art," to which

a reviewing court must be "highly deferential." State v. Arthur, 184 N.J. 307,

321 (2005) (quoting Strickland, 466 U.S. at 689, 693).

      We reject the argument that defendant's counsel rendered ineffective

assistance by not requesting a charge on defense of premises under N.J.S.A.

2C:3-6. The shooting here took place outside a building while the victim walked

away from the premises. There is no evidence suggesting that defendant was

preventing a criminal trespass during the shooting. And no evidence exists

demonstrating defendant requested the victim desist before the shooting, that it

would have been dangerous to himself or another to make such request, or that

the building was at risk of substantial harm to justify foregoing such request.

Instead, the evidence shows defendant followed the victim after defendant

exited the premises.

      Finally, defendant argues unconvincingly that his counsel was ineffective

by not objecting to testimony from a witness who stated that, before the shooting

occurred, she saw defendant with the same gun that was later found near the

scene. The trial judge introduced into evidence the statement from the witness—

the eyewitness to the shooting and someone who dated defendant—because it

was relevant to connecting the gun found at the scene to the gun defendant

previously possessed. And the jury received an appropriate limited instruction.


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