The opinion
NOT FOR PUBLICATION WITHOUT THE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-2494-22
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
ALI BASS,
a/k/a ALIF BASS, LADON BAY,
and MURAD BORNS,
Defendant-Appellant.
_____________________________
Submitted January 16, 2025 – Decided January 23, 2025
Before Judges Mawla and Walcott-Henderson.
On appeal from the Superior Court of New Jersey, Law
Division, Essex County, Indictment No. 11-11-2085.
Jennifer Nicole Sellitti, Public Defender, attorney for
appellant (Louis H. Miron, Designated Counsel, on the
brief).
Theodore N. Stephens, II, Essex County Prosecutor,
attorney for respondent (Hannah Faye Kurt, Assistant
Prosecutor, of counsel and on the brief).
PER CURIAM
Defendant Ali Bass appeals from a January 27, 2023 order denying his
petition for post-conviction relief (PCR) following an evidentiary hearing. We
affirm.
In a prior appeal, affirming defendant's convictions and sentence, we
summarized the salient facts as follows:
On December 11, 2009, Newark Police Detective
Anna Colon was on patrol and observed defendant
driving a [Ford Taurus] on Irvine Turner Boulevard.
Detective Colon activated her lights and siren to pull
over defendant because he was not wearing a seatbelt.
Defendant made a quick u-turn and a chase ensued,
joined by another vehicle operated by Sergeant Thomas
Rowe with Detective Jose V. Torres as its passenger.
Defendant's vehicle crossed the double line into
oncoming traffic and collided head-on with another
vehicle, causing the other vehicle to become air borne
and land on its side. As Detective Colon approached
defendant's vehicle, the front passenger, Arsenio
Payton, fled from the vehicle. Payton was apprehended
by another officer. Detective Colon discovered
defendant attempting to push himself into the back seat
of the vehicle. Defendant's left leg was broken and
wrapped around the driver's seat. He was arrested.
Payton subsequently pled to separate charges. As
a part of his plea, he testified he was the passenger of
the automobile involved in the chase.
[State v. Bass, No. A-2423-15 (App. Div. Oct. 12,
2017) (slip op. at 1-3).]
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Prior to trial, the State filed an in limine motion to redact hearsay from
defendant's medical records, namely, statements defendant made to medical
personnel that he was in the back seat of the Taurus and asleep at the time of the
accident. The trial judge granted the motion, ruling those statements were not
subject to the medical records hearsay exception because they had "absolutely
no rational[] relation to diagnosis or treatment of any of his injuries. . . . Where
[defendant] was sitting is absolutely of no relevance to treating his broken leg
and/or to . . . diagnosing and/or detecting this injury." The judge also found the
statement did not qualify under the present sense impression or excited utterance
hearsay exceptions because they were not made immediately after the accident
or within a very brief time between the accident and the statement.
Defendant called Payton as a witness at his trial. Payton contradicted his
testimony from his own plea hearing, and now claimed he was the driver of the
Taurus and defendant was laying down in the back seat of the car during the
incident. He also testified he met with defendant's trial counsel on three separate
occasions.
During summation, defense counsel argued Payton was credible and had
not been intimidated by defendant or anyone on his behalf. Counsel explained
A-2494-22
3
he visited Payton three times because of a letter Payton sent to him claiming that
Payton was driving the vehicle. Defense counsel remarked:
So in any event as result of this letter I go to visit him,
which any lawyer would do. And I went to visit him
and I saw him approximately three times. Everyone in
his right mind would go to see a potential witness and
prepare him for what is going to be the testimony in the
case. There's nothing wrong with that. I'd do it again
tomorrow.
At the beginning of the State's summation, the prosecutor began to remark
about defense counsel's visits with Payton. Defense counsel objected, and
during the subsequent sidebar the trial judge pointed out to the defense that it
had informed the jury about counsel's three visits to Payton and the prosecutor
"had a right to comment on that." The prosecutor then told the jury defense
counsel had "visited . . . Payton, [with] no investigator, just [defense counsel]
. . . not once, not twice, but three times . . . [defense counsel] went there to
discuss the case. But you don't need to prep someone three times to tell the
truth."
The prosecutor also commented on defendant's injuries as follows:
[Y]ou hit a pickup truck, and the pickup truck goes up
in the air, which means your car doesn't jump up in the
air. It hits a complete stop, but it's an inertia, ladies and
gentlemen. Do you know what happens? [Defendant]
goes forward, and the left that's flexed, not the right leg
A-2494-22
4
that's out for the pedal, hits the steering wheel, ladies
and gentleman. That's why he broke his femur.
The trial judge overruled defense counsel's objection to this part of the
summation.
The prosecutor continued:
We have medical records for you to take with you
into the jury room, but you'll see, multiple fractures in
one spot of the femur, right in the middle. You'll see
the picture[s], you'll see an X-ray where the mark is.
And he messed up his hip also. And I suspect, ladies
and gentlemen, when you hit and you start turning your
whole body goes up in the air, who knows where your
hip is going to go.
The other injuries . . . identified in the medical
records . . . [are not] questionable. This is what doctors
did, they examined him[,] and this is what they found.
They found fluid around his abs, but no injury to any
organs. You know why? He got hit with an air bag,
otherwise he was going through the windshield . . . .
The jury subsequently convicted defendant on second-degree aggravated
assault, N.J.S.A. 2C:12-1(b)(6); fourth-degree unlawful possession of a weapon,
N.J.S.A. 2C:39-5(d); second-degree eluding, N.J.S.A. 2C:29-2(b); and fourth-
degree resisting arrest, N.J.S.A. 2C:29-2(a). It acquitted him of third-degree
possession of a weapon, a motor vehicle, with an unlawful purpose, N.J.S.A.
2C:39-4(d).
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5
Among the arguments defendant raised on appeal following his conviction
was that the trial judge committed reversible error when he permitted the State
to make the "baseless inference" during summation that defense counsel
influenced Payton to falsely testify. We rejected this argument, finding the
prosecutor was permitted to comment on defense counsel's three visits to Payton
because defense counsel had raised the issue during Payton's testimony and
summation to bolster Payton's credibility, as defense counsel had argued
Payton's testimony during his plea proceeding was perjury. Bass, slip op. at 11-
12. We expressly rejected defendant's claim the prosecutor had suggested to the
jury that
defense counsel personally influenced Payton to change
his testimony. Payton's credibility was a key issue, and
whether he committed perjury or was influenced to
change his testimony was a decision for the jury to
make. The gravamen of the prosecutor's remark was to
explain to the jury the State's view of the facts in
evidence.
[Id. at 12-13.]
In December 2020, defendant filed a PCR petition alleging, in pertinent
part, ineffective assistance of his defense counsel both at trial and on appeal. He
claimed counsel prejudiced the outcome of the case because the multiple visits
he paid to Payton were used by the prosecutor "to create the impression that the
A-2494-22
6
defense exerted undue influence on [Payton] to testify falsely that he and not
defendant, was the driver of the eluding vehicle on the day of the incident. "
Defendant argued the prejudice was evident because Payton had testified to the
opposite during his plea proceeding. As a result, defense "counsel placed
himself in the position of having to defend his actions against the prosecutor's
clear implication of witness tampering before the jury and that defendant was
unduly prejudiced as a result." Defense counsel was also ineffective because he
failed to raise his own ineffectiveness as trial counsel on the appeal and instead
only argued prosecutorial misconduct.
Defendant's PCR petition also alleged ineffective assistance of counsel on
the appeal because counsel failed to challenge the in limine ruling permitting
the State to redact defendant's statements from his medical records. Counsel
was ineffective for not raising the fact the prosecutor improperly bolstered the
State's theory that defendant was the driver during summation by explaining
"how the crash occurred and how that impact injured defendant." Defendant
argued this was beyond the ken of the jury and required expert testimony, which
the prosecutor was unqualified to provide.
Judge Marysol Rosero conducted the PCR hearing after which she issued
a detailed written opinion on January 27, 2023. Defendant's former defense
A-2494-22
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counsel was the sole witness at the hearing. The judge found counsel credible
and noted "[h]is testimony was corroborated by the record and transcripts[] and
was not contradicted by any evidence presented to [the] court."
Defense counsel testified he visited Payton after he received Payton's
letter because it was his obligation to do so to render effective assistance of
counsel under the Sixth Amendment. Counsel was aware of Payton's lengthy
criminal record, including that his guilty plea regarding the incident with
defendant alleged different facts regarding who was driving the vehicle than
those asserted by defendant. Therefore, defense counsel visited Payton to
confirm the veracity of the version he claimed in the letter to counsel. Counsel
explained he visited Payton three times without an investigator because he was
unaware of any requirement that a third-party had to be present and defendant
could not afford the expense. Moreover, because counsel had a busy schedule,
he visited Payton when time permitted.
Regarding the appeal, counsel explained his "practice" was to focus "on
those issues that were actually going to assist in reversing a conviction" and not
raise meritless issues. Among the issues counsel determined were meritless was
the lack of expert testimony regarding defendant's injuries.
A-2494-22
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In addition to recounting the background facts of the case and the relevant
portions of the summations, the judge also discussed the "strong evidence
against [defendant] in both quantity and quality" adduced by the State. She
noted
the [S]tate established that (1) [defendant] was engaged
in a highspeed chase and identified in court by several
arresting police officers wherein one of them actually
saw him driving without a seatbelt; (2) three of those
officers testified and identified the [defendant] as being
in the area of [the] driver seat; (3) [defendant] was
found with his compound fractured leg wrapped around
the driver's seat; (4) [defendant's] injuries showed that
it would have been nearly impossible to move into or
away from the driver seat; (5) [defendant] was found to
have fluid around his abdominal[ muscles,] which is
consistent with being thrown forward in the driver's
seat.
The judge also stated there was evidence adduced through the testimony
of Detectives Colon and Torres regarding the moment of impact, the condition
of the vehicle, and defendant's injuries. The detectives' testimony was
corroborated by "multiple exhibits admitted into evidence depicting the state of
the Ford Taurus [and] . . . the nature and extent of [defendant's] injuries"
specifically two medical expert reports and defendant's hospital and medical
records. The judge noted the medical expert "opined on the nature and extent
A-2494-22
9
of [defendant's] injuries, and . . . the hospital records reflected the veracity of
those opinions."
The judge found defendant did not suffer ineffective assistance of counsel
either at trial or on appeal. The judge concluded: it was necessary to meet with
Payton and confirm his testimony because he had credibility issues. Any
speculation that counsel improperly influenced Payton was eliminated by the
fact Payton's trial testimony was consistent with the letter he sent defense
counsel prior to their meetings. The record lacked evidence counsel's conduct
had prejudiced defendant because the jury acquitted defendant on the third-
degree possession of a weapon offense "indicating to the court that the jury fully
considered [defense counsel's] arguments and found them persuasive and
credible as to at least [that charge]." The judge inferred from the acquittal that
defense counsel's credibility was not an issue "but rather that the jury carefully
considered the overwhelming evidence the State presented against [defendant]
and made a decision based on the same."
Defendant argued that defense counsel's multiple meetings with Payton
without a third person present evidenced the ineffective assistance of counsel.
His petition likened his case to State v. Dayton, 292 N.J. Super. 76 (App. Div.
1996). There, defense counsel met with the State's witnesses without a third-
A-2494-22
10
party present and obtained signed statements corroborating the defense's version
of the case. Id. at 81-82. Afterwards, defense counsel moved to withdraw from
the case because they learned the witnesses would testify defense counsel had
coerced them into making the statements, and it might become necessary for
defense counsel to testify at trial to rebut the State's witnesses. Id. at 82-83.
The trial judge in Dayton denied the withdrawal motion. Id. at 79. On
appeal, we reversed the defendant's conviction concluding defense counsel
should have been permitted to withdraw. Id. at 83. We questioned why defense
counsel would interview witnesses without an investigator or a third -party
present, who could then testify for the defense regarding the exculpatory
information provided by the State's witnesses rather than make defense counsel
a necessary witness. Id. at 86.
Judge Rosero found Dayton inapposite and distinguished it from
defendant's case. She noted Payton was the one who contacted defense counsel,
whereas in Dayton "defense counsel reached out to the State's witness." Unlike
Dayton, defense counsel here had no reason to withdraw as counsel. Further,
defense counsel in Dayton was concerned the witness would testify the
statement was coerced from them by counsel, whereas here "there was no similar
A-2494-22
11
concern at the time of trial, but a post hoc concern that a jury could infer
impropriety from the State's argument in summation."
The judge also noted defendant cited no law for the proposition "that it is
ineffective assistance of counsel for an attorney to interview a witness with no
third-party present." Defense counsel had posited three valid reasons for not
bringing along an investigator. The judge concluded his conduct did "not fall
below an objective standard of reasonableness as to render . . . counsel
ineffective" because "[a]ttorneys are given a wide latitude of deference when it
comes to their trial strategy." Defense counsel had over five decades of
experience, and the fact he won a partial acquittal disproved that he "was not
functioning as counsel as guaranteed by the Sixth Amendment."
Assuming arguendo, the judge found defense counsel's "decision to meet
with . . . Payton and the resulting inferences that flowed at trial" did not
demonstrate that the result would have been different. The State had presented
evidence of: defendant operating the vehicle; the nature of the crash; defendant's
location "in the area of the driver's seat[;]" the fact that defendant's "injuries
show[ed] that it would have been nearly impossible to move into or away from
the driver['s] seat[;]" and that his injuries were "consistent with being thrown
forward in the driver's seat." Defendant "was only able to present a case largely
A-2494-22
12
reliant upon Payton's recantation, which[] based on the totality of the evidence
presented could be view by the jury as suspect and untrustworthy."
The judge found that even if defendant had taken an investigator to the
meetings with Payton, the investigator's testimony would be inadmissible
hearsay because it would be consistent with the letter Payton sent defense
counsel. Even if the defense had overcome the hearsay issue, the investigator's
corroborative testimony would not overcome the weight of the evidence
presented by the State and change the outcome.
The judge reached a similar conclusion regarding defense counsel's failure
to argue the alleged impropriety of prosecutor's summation on appeal. She
found the omission of the argument was ultimately a strategic decision.
Regardless, defendant did not demonstrate the raising of this issue would have
led to a different result because "the trial record is replete with evidence from
which the prosecutor permissibly asked the jury to draw common sense
inferences." The testimony of Detectives Colon and Torres detailed the violent
nature of the accident. "[T]here were multiple exhibits brought out over the
course of the trial depicting the state of the . . . Taurus, including the deployed
airbag inside. . . . [And] there were multiple exhibits . . . that reflected the nature
and extent of [defendant's] injuries . . . ."
A-2494-22
13
Therefore, "it was permissible for the prosecutor to comment on this
evidence at summation. . . . The prosecutor's comments were reasonably related
to the scope of th[e] evidence presented." Given the weight of the evidence, the
prosecutor's summation was "permissible by law, [and] it cannot be said that the
. . . comments rose to the level of 'severe misconduct' that prejudiced
[defendant's] right to a fair trial."
Defendant raises the following arguments on appeal:
I. THE PCR COURT ERRED IN RULING THAT
DEFENDANT RECEIVED THE EFFECTIVE
ASSISTANCE OF COMPETENT TRIAL COUNSEL
WHERE COUNSEL INTERVIEWED THE
DEFENDANT'S PRIMARY WITNESS ON
MULTIPLE OCCASIONS WITHOUT AN
INVESTIGATOR OR OTHER WITNESS PRESENT
AND WITHOUT OBTAINING AN AFFIDAVIT,
THEREBY UNDERMINING THE CREDIBILITY OF
THE WITNESS' TESTIMONY . . . .
II. DEFENDANT'S TRIAL COUNSEL WAS
CONSTITUTIONALLY INEFFECTIVE BECAUSE
COUNSEL FAILED TO RETAIN A
RECONSTRUCTION EXPERT TO SUBSTANTIATE
DEFENDANT'S POSITION THAT HE WAS NOT
THE DRIVER OF THE VEHICLE. (Not Raised
Below) . . . .
III. APPELLANT COUNSEL WAS
CONSTITUTIONALLY INEFFECTIVE BECAUSE
COUNSEL FAILED TO RAISE ARGUMENTS
CONCERNING THE TRIAL COURT'S
PERMITTING THE PROSECUTOR TO ARGUE
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DURING SUMMATION FACTS NOT IN THE
RECORD CONCERNING THE CAUSE OF
DEFENDANT'S LEG INJURIES THAT ONLY
COULD HAVE BEEN PROPERLY THE SUBJECT
OF EXPERT TESTIMONY BUT FOR WHICH NO
EXPERT TESTIMONY WAS PROFFER[]ED . . . .
IV. APPELLATE COUNSEL WAS
CONSTITUTIONALLY INEFFECTIVE BECAUSE
COUNSEL FAILED TO RAISE ARGUMENTS
CONCERNING THE TRIAL COURT'S DENYING
DEFENDANT'S OBJECTION TO THE STATE'S
REDACTING EXCULPATORY STATEMENTS
MADE BY DEFENDANT THAT WERE INCLUDED
IN DEFENDANT'S MEDICAL RECORDS THAT
WERE ADMITTED IN EVIDENCE. (Not Raised
Below).
I.
Our review of a PCR claim after a court has held an evidentiary hearing
"is necessarily deferential to [the] PCR court's factual findings based on its
review of live witness testimony." State v. Nash, 212 N.J. 518, 540 (2013). We
should not disturb "the PCR court's findings that are supported by sufficient
credible evidence in the record." State v. Pierre, 223 N.J. 560, 576 (2015)
(citations omitted). However, we review any legal conclusions of the trial court
de novo. Nash, 212 N.J. at 540-41; State v. Harris, 181 N.J. 391, 419 (2004).
When a defendant claims ineffective assistance of counsel, they must
show counsel's performance was deficient, and but for those errors, they would
A-2494-22
15
not have been convicted. See Strickland v. Washington, 466 U.S. 668, 687
(1984); State v. Fritz, 105 N.J. 42, 52 (1987). This is because there is a strong
presumption counsel "rendered adequate assistance and made all significant
decisions in the exercise of reasonable professional judgment." Strickland, 466
U.S. at 690.
To establish a prima facie case under the first Strickland prong, a
defendant must show that "counsel's acts or omissions fell 'outside the wide
range of professionally competent assistance' considered in light of all the
circumstances of the case." State v. Castagna, 187 N.J. 293, 314 (2006) (quoting
Strickland, 466 U.S. at 690). Such acts or omissions of counsel must amount to
more than mere tactical strategy. State v. Davis, 116 N.J. 341, 357 (1989).
To satisfy the second Strickland prong, a defendant must establish "a
reasonable probability that but for . . . counsel's unprofessional errors, [the]
result of the proceeding would have been different." Strickland, 466 U.S. at
694. A reasonable probability is "a probability sufficient to undermine
confidence in the outcome." State v. Arthur, 184 N.J. 307, 319 (2005) (citing
Strickland, 466 U.S. at 694).
A defendant is also entitled to effective assistance of appellate counsel,
but "appellate counsel does not have a constitutional duty to raise every
A-2494-22
16
nonfrivolous issue requested by the defendant." State v. Morrison, 215 N.J.
Super. 540, 549 (App. Div. 1987). Appellate counsel will not be found
ineffective for failure to raise a meritless issue or errors an appellate court would
deem harmless. See State v. Echols, 199 N.J. 344, 361 (2009). Counsel is not
required to raise meritless arguments, and the failure to raise arguments lacking
in merit does not constitute ineffective assistance of counsel. State v. Webster,
187 N.J. 254, 257 (2006); see also State v. Worlock, 117 N.J. 596, 625 (1990).
"[C]ounsel has a duty to make reasonable investigations or to make a
reasonable decision that makes particular investigations unnecessary. In any
ineffectiveness case, a particular decision not to investigate must be directly
assessed for reasonableness in all the circumstances, applying a heavy measure
of deference to counsel's judgments." Strickland, 466 U.S. at 691. Counsel is
not ineffective "[m]erely because a trial strategy fails." State v. Bey, 161 N.J.
233, 251 (1999).
II.
Pursuant to these principles, and having reviewed the record, we reject the
arguments raised by defendant in points I and III and affirm substantially for the
reasons expressed in Judge Rosero's thorough and well-written opinion. We add
the following comments regarding the argument in point III.
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Following the summations, the trial judge instructed the jury in
accordance with the model charges as follows:
Regardless of what counsel may have said or I
may have said or say in recalling the evidence in this
case, it is your recollection of the evidence that must
guide you as judges of the facts. Arguments,
statements, remarks, openings and summations of
counsel, . . . are not evidence and must not be treated
by you as evidence.
Although the attorneys may point out to you what
they think is important in this case, you must rely solely
on your understanding and recollection of the evidence
that was admitted during the course of the trial.
Whether or not [defendant] has been proven guilty
beyond a reasonable doubt is for you to determine
based on all the evidence presented during the course
of this trial. Any comments by counsel are not
controlling.
"One of the foundations of our jury system is that the jury is presumed to
follow the trial court's instructions." State v. Burns, 192 N.J. 312, 335 (2007)
(citing State v. Nelson, 155 N.J. 487, 526 (1998)). Based on our review of the
record, we have no reason to doubt the jury heeded the trial judge's instructions.
For these reasons as well, we reject defendant's assertion that not raising the
arguments regarding the summation on appeal was ineffective assistance of
counsel.
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III.
"Generally, an appellate court will not consider issues, even constitutional
ones, which were not raised below." State v. Galicia, 210 N.J. 364, 383 (2012).
Our task on this appeal is to review the PCR court's ruling in view of the record
before us. For these reasons, we decline to reach the argument raised by
defendant in point II.
We could reach the same conclusion regarding the argument raised in
point IV of defendant's brief. However, as we outlined in our recitation of the
facts, the record relating to the evidentiary objections defense counsel raised
over the redaction of the medical records is developed enough to enable us to
consider whether counsel was ineffective for not raising this claim on appeal.
The evidentiary issue concerned defendant telling doctors in the hospital after
his arrest that he was sleeping in the backseat of the vehicle at the time of the
crash. He asserts this was exculpatory evidence and defense counsel violated
his due process rights when he failed to challenge the trial judge's ruling
excluding the evidence on appeal.
N.J.R.E. 803(c)(1), (2), and (4), exclude from hearsay the following:
(1) Present Sense Impression. A statement describing
or explaining an event or condition, made while or
immediately after the declarant perceived it and without
opportunity to deliberate or fabricate.
A-2494-22
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(2) Excited Utterance. A statement relating to a
startling event or condition made while the declarant
was under the stress of excitement caused by the event
or condition and without opportunity to deliberate or
fabricate.
....
(4) Statements for Purposes of Medical Diagnosis or
Treatment. A statement that:
(A) is made in good faith for purposes of,
and is reasonably pertinent to, medical
diagnosis or treatment; and
(B) describes medical history; past or
present symptoms or sensations; their
inception; or their general cause.
In deciding the in limine motion, the judge correctly found defendant's
statements regarding his location in the vehicle following the accident were
inadmissible hearsay. His statements were not admissible under N.J.R.E.
803(c)(4) because "only evidence relevant, strictly relevant, to the diagnosis and
treatment of the sustained injury [could] be introduced into evidence." The
judge noted "defendant suffered a broken leg as a result of the accident. Where
he was sitting is absolutely of no relevance to treating his broken leg and/or . . .
diagnosing and/or detecting this injury."
The trial judge also correctly found the statements were inadmissible
under N.J.R.E. 803(c)(1) and (2) "due to the passage of time." He noted "[t]he
A-2494-22
20
present sense impression exception requires that the defendant make a statement
as previously noted, . . . "immediately" . . . after the relevant event or condition."
Citing State ex. rel. J.A., 195 N.J. 324, 338 (2008), the judge found as follows:
[O]ur Supreme Court utilizing a common sense
approach . . . determined that, . . . "immediately after,["]
. . . refers to a very brief time between the observation
and the statement.
Although the record does not indicate the specific
moment when defendant first asserted that he had not
been behind the wheel and was asleep, the record does
reflect . . . that the incident occurred at approximately
1:45 p.m.; that defendant was arrested at approximately
2:15 p.m.; and that . . . defendant arrived at [the
h]ospital at approximately 2:38 p.m. Defendant's
statement . . . came after his admission to the hospital,
which means that the statement had to have occurred
approximately or the earliest, [forty-nine] minutes after
the accident. An elapsed time difference . . . of [forty-
nine] minutes clearly is not . . . "a very brief time."
....
Certainly, defendant could have had ample
opportunity to deliberate on his way to the hospital; that
. . . defendant appears to have responded to questions
asked of him by medical personnel additionally negate
his contention that his statement should fall under the
excited utterance exception to the hearsay rule.
Had this issue been presented to us on appeal, the "[t]raditional rules of
appellate review [would] require substantial deference to a trial court's
evidentiary rulings." State v. Morton, 155 N.J. 383, 453 (1998). Indeed, a trial
A-2494-22
21
judge's rulings will be upheld "absent a showing of an abuse of discretion, i.e.,
there has been a clear error of judgment." State v. Perry, 225 N.J. 222, 233
(2016) (quoting State v. Brown, 170 N.J. 138, 147 (2001)). "An appellate court
applying this standard should not substitute its own judgment for that of the trial
court, unless 'the trial court's ruling was so wide of the mark that a manifest
denial of justice resulted.'" Ibid. (quoting State v. Marrero, 148 N.J. 469, 484
(1997)); see also State v. Fortin, 189 N.J. 579, 597 (2007). Even if there is an
abuse of discretion, we "must then determine whether any error found is
harmless or requires reversal." State v. Prall, 231 N.J. 567, 581 (2018).
Pursuant to these principles, we conclude the trial judge's evidentiary
rulings regarding the statements in the medical reports were unassailable and
did not constitute an abuse of discretion. Therefore, even if this argument were
presented by defense counsel on appeal, it would not have prevailed. As a result,
we conclude counsel did not violate his obligations under the Sixth Amendment
for not raising this argument on the appeal.
Finally, to the extent we have not addressed any of defendant's remaining
arguments, it is because they lack sufficient merit to warrant discussion in a
written opinion. R. 2:11-3(e)(2).
Affirmed.
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