State of New Jersey v. Marcus K. Pendleton

NOT FOR PUBLICATION WITHOUT THE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-2860-23

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MARCUS K. PENDLETON,

Defendant-Appellant.

__________________________

Submitted October 29, 2025 – Decided January 30, 2026

Before Judges Gummer and Paganelli.

On appeal from the Superior Court of New Jersey, Law

Division, Camden County, Indictment No. 17-04-0877.

Jennifer N. Sellitti, Public Defender, attorney for

appellant (Richard Sparaco, Designated Counsel, on the

brief).

Grace C. MacAulay, Camden County Prosecutor,

attorney for respondent (Maura M. Sullivan, Assistant

Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Marcus K. Pendleton appeals from a March 5, 2024 order

denying his petition for post-conviction relief (PCR) without an evidentiary

hearing. Based on our careful review of the record and the application of well-

established law, we conclude defendant failed to establish a prima facie case of

ineffective assistance of trial counsel and affirm.

We are familiar with this matter as we affirmed defendant's convictions

and sentence on direct appeal. See State v. Pendleton, No. A-1137-17 (App.

Div. Sept. 3, 2020), certif. denied, 246 N.J. 438 (2021). We recite the following

from our prior opinion to provide procedural and factual context:

Defendant and the victim started dating in 2013

and began living together in September 2014 in a

second-floor apartment that defendant leased. At the

time of the incident, according to the victim, defendant

did not drink alcohol as he was a recovering alcoholic

who attended Alcoholic Anonymous meetings and, for

that reason, alcohol was not kept in the apartment. In

fact, she never saw defendant drink alcohol at any time.

On December 31, 2014, there was nothing about

defendant that made the victim think defendant had

been drinking.

On that day, when the victim left for her 1:00

p.m. to 10:00 p.m. shift at work, she believed she had

her apartment keys with her. After her shift ended, the

victim went to a bar with coworkers to celebrate her

recent promotion. The victim earlier informed

defendant that she would be going out with her

coworkers after her shift ended. Her failure to return

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2

home after work upset defendant who was already

concerned that the victim was not being faithful to him.

When the victim arrived back at home at

approximately midnight, she realized she did not have

her keys, so she started to knock on the door, and called

defendant on her cell phone. Defendant never

responded so the victim decided to lean against the door

and sleep on the floor.

At approximately 5:00 a.m., the victim woke up

when defendant opened the door. Defendant

immediately started to yell at her and as she got up,

defendant pulled at her jacket, attempted to push her

over the staircase railing, pulled her into the apartment,

slammed the door shut, sat on the victim, and started

slapping her in the face with an open hand.

While defendant was slapping the victim, he

stated "that this [was] all [the victim's] fault, that he

[did not] want to do this, but [she] made him do this to

[her]." Anytime the victim attempted to get free,

defendant would sit on her chest harder, pin her arms

back, or bend her legs so she could not move. She could

not scream for help, as defendant also kept putting "his

hand over [her] mouth." Defendant started to choke the

victim, which caused her to pass out. After she woke

up, defendant attempted to console the victim before

resuming the beatings by punching her until he

eventually got up, locked the front door, dragged the

victim to their bedroom, and continued to beat her on

the bed. The victim believed that defendant was going

to kill her.

When the beatings suddenly ended, defendant

told the victim to go to the bathroom, where he had

opened the medicine cabinet so she could not see

herself in the mirror. Defendant gave her a washcloth

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3

to clean herself, and then he "cleaned up some of the

blood that was . . . splattered everywhere." Defendant

then grabbed the victim's personal belongings,

including her cell phone, computer, credit cards,

identification, and the bloody bed sheets on the bed. As

he left for work, he told the victim that "it wouldn't be

good for [her] to go to the police department or to the

police."

When he was gone, the victim was listening for

defendant's car to leave when he suddenly stormed back

into the apartment and accused her of taking his cell

phone. Defendant once again started slapping the

victim but stopped when he realized his cell phone was

in his pant pocket, which he was wearing at the time.

After defendant left for the second time, the

victim waited for defendant to leave before she went to

the police station that was across the street from the

apartment. At the station, Officer Daniel Kinkler

observed that the victim was bleeding onto the floor,

and that her "face was extremely swollen, black and

blue, [with] eyes swollen so much [he] could just see a

slit. [He] couldn't make out the color of the eyes or

anything like that," and because of how bad the injuries

were, at first, Kinkler could not even determine if the

victim was male or female. The officer radioed for

ambulance assistance. Prior to its arrival, the victim

informed the officer that defendant was the one that

"did this to" her, and Kinkler photographed the victim's

face.

After the ambulance left, Kinkler went to the

apartment and was joined by then Patrol Sergeant

Michael Scardino. There, the officers "noticed blood

on a door jamb[,] . . . a little bit of blood on the floor,"

and that the bed sheets were not on the bed. While at

the apartment, Kinkler also observed that there were no

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bottles of alcohol. Before leaving, Scardino took

photographs of the scene.

At the hospital, then Detective Sergeant Bruce

Koch and prosecutor's Detective Jose Rosado

interviewed the victim. The interview ended when the

victim, who was feeling pain everywhere, got sick to

her stomach and vomited up blood. The officers were

able to obtain information about defendant's location.

A doctor at the hospital treated the victim for

multiple contusions and bruises to the face. The victim

did not experience any fractured bones. It was

ultimately determined that she suffered from Post-

Concussive Syndrome, headaches, had undergone six

sessions of occupational therapy, and was being treated

by a neurologist for chronic headaches.

In the meantime, after defendant left the

apartment, and before going to work, he allegedly went

to a friend's residence at approximately 5:30 a.m. The

friend had known him for over twenty years and knew

what he was like when he got drunk. According to the

friend, defendant was drunk when she saw him as he

was slurring his words, stumbling, and she could smell

alcohol on him. She was concerned about defendant

driving to work and working while intoxicated.

Later that day, Koch and Scardino arrested

defendant at his place of employment. [*] Scardino read

defendant his Miranda rights[**] and obtained

permission from defendant to search defendant's

vehicle, which resulted in the discovery of the bed

sheets and the victim's personal items, but no bottles of

alcohol.

At the police station, Kinkler processed

defendant, and, based on his training, the officer

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5

concluded defendant was not under the influence of

alcohol at that time and that a blood alcohol test was

not necessary. Scardino provided defendant with his

Miranda rights and also concluded that he could not

detect alcohol in defendant's system, although he did

not know whether defendant was drinking the night

before. Rosado stated that there was nothing to make

him believe defendant had recently drank after the

incident.

Koch and Rosado then interviewed defendant.

The interview was recorded on video tape. According

to Koch, defendant's speech was clear, and at no time

did Koch think defendant was under the influence of

alcohol. In the video statement, defendant stated that

prior to December 31, 2014, he told the victim not to

come back to the apartment because they had trust

issues. According to defendant, the victim had been

inappropriately talking to another man. The trust issues

led the victim to install a tracking application on her

cell phone so she could regain his trust.

Defendant stated that on December 31, 2014, the

victim was supposed to come back to his apartment

after work but because she went out with her friends,

he told her not to come back. He stated that the

situation was too much for him, which caused him to

drink. Defendant stated, "that he had [drank] very

heavily during the night before he came across [the

victim] and that he had blacked out." According to

defendant, because he had not consumed any alcohol

for over a year and because he drank so much, he did

not recall many of the things that took place when the

victim returned home.

Nevertheless, defendant explained how the

victim tried to force her way back into the apartment,

he tried to get her back out, and he "panicked and . . .

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6

tried to cover her face," which caused the victim to start

hitting defendant. After looking at her phone and

seeing that she deleted text messages, he "started hitting

her in her face" with an open hand. He admitted to

hitting her more than once and to tracking her on the

cell phone application. Defendant stated that he hit the

victim approximately eight times and he recalled the

conversation they had while he was hitting her. He

even recalled opening the medicine cabinet to prevent

the victim from seeing her face start to swell and getting

her a bag of french fries from the freezer to help with

the swelling. Defendant further stated that he took the

bed sheets with him to work "[b]ecause [he] knew how

much it meant to her" since "she was really excited to

get [it] as a gift." He also admitted to taking the

victim's personal items but could not recall why he did

that.

Defendant denied telling the victim not to go to

the police but stated that he knew she was going to go

to the police. He said he felt "shame for . . . hitting

her," and "that it wasn't [his] intention to seriously hurt"

the victim.

In the meantime, after leaving the hospital, the

victim stayed with a friend until she returned to the

apartment on January 2, 2015. When she returned, she

did not notice any alcohol in the apartment.

A few days after her return, defendant, who had

been ordered not to contact the victim, called the victim

while he was in jail and told her not to talk to the police.

The call was video and audio taped by corrections

officers.

During the call, defendant asked the victim to

"hear [him] out," the victim stated "[y]ou're not

supposed to call me," defendant apologized for what he

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7

did, and stated that he was "going to kill [himself]," and

he could not live like this. Defendant started to state

that "[i]t hurt [him] so bad when [he] found out" what

the victim did to him and again reiterated that the victim

"hurt [him] so bad." He asked the victim that "[i]f [he

did not] talk to . . . anybody else again, just let

everybody know that . . . [he] love[s] them." After the

victim stated that she was going to press charges,

defendant stated "[p]lease don't do that." He further

stated "just please don't testify in court. Please just

don't." Defendant indicated that he and his family

could not "take this." Afterwards, the victim spoke to

Koch about the phone call she received from defendant.

Defendant was later charged with an additional offense

relating to the call.

Thereafter, a Grand Jury returned an indictment

charging defendant with second-degree aggravated

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

tampering with witness and informants, N.J.S.A.

2C:28-5(a) (Count 2); fourth-degree tampering with

evidence, N.J.S.A. 2C:28-6(a)(1) (Count 3); third-

degree tampering with witnesses and informants,

N.J.S.A. 2C:28-5(a)(1) (Count 4); and fourth-degree

criminal contempt, N.J.S.A. 2C:29-9(b) (Count 5).[***]

Defendant's first trial ended in a mistrial on

February 22, 2017. [****] The second trial began on May

2, 2017. . . . The jury convicted defendant of Counts 1

through 4. The State moved to dismiss Count 5, which

the court granted. On July 21, 2017, the trial court

granted the State's motion for sentencing in the

extended term, and then imposed an aggregate sentence

of twenty-four years, subject to a parole ineligibility

period under the No Early Release Act (NERA),

N.J.S.A. 2C:43-7.2.

__________

A-2860-23

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[*]

On the same day, a municipal court entered a

temporary restraining order under the Prevention of

Domestic Violence Act (PDVA), N.J.S.A. 2C:25-27 to

-35, barring defendant from having any contact with the

victim.

[**]

Miranda v. Arizona, 384 U.S. 436 (1986).

[***]

Counts 1 to 3 related to the events of December

31, 2014, while Counts 4 to 5 related to the phone call

defendant made to the victim on January 6, 2015.

[****]

As the trial court found at the time, the mistrial

was required after Koch mistakenly mentioned the

domestic violence restraining order in response to a

question on direct examination that did not call for its

disclosure.

[Pendleton, slip op. at 8-16 (all alterations in original

except reformatted footnotes).]

Defendant filed his petition for PCR. As relevant here, he argued trial

counsel was ineffective regarding his "diminished capacity" defense. In this

respect, he relied on the opinion of his expert witness, Dr. Peter Oropeza, a

forensic psychologist, asserting that "it was the combination of an untreated bi-

polar condition and severe alcohol intoxication that led to [Oropeza's] opinion

that there wasn't knowing or purposeful conduct, purposeful attempt to cause

severe bodily injury." He contended that, despite this "sole defense," trial

counsel had

A-2860-23

9

failed to investigate, consult with or use an expert such

as a toxicologist that could explain the very difficult

concept of intoxication to the jury, and who could have

challenged the testimony in this case by the police

officers that undermined the diminished capacity

defense.

....

Trial counsel failed to challenge or object in any way

to the harmful testimony by the police officers.

Counsel also failed to investigate additional evidence

of [defendant]'s intoxication, most notably [his]

mother, who as we know, was prohibited from

testifying at trial because of a violation of the . . .

sequestration order, which was also attributable to trial

counsel's failure to investigat[e] and was ineffective

assistance of counsel.

In addition, defendant contended trial counsel was ineffective for

"fail[ing] to file a motion to suppress the warrant[]less search of his apartment,

which also led to harmful testimony by the police officers that th[e] search of

the apartment revealed no evidence that . . . [defendant] had been drinking."

Further, defendant argued his PCR expert, Dr. Lawrence Guzzardi, a

toxicologist, opined that trial counsel "failed to provide sufficient information

to the jury about [defendant]'s inability to consciously understand his actions in

his moment of passion, without control and alcohol intoxication."

In an oral decision, the PCR court considered defendant's arguments that

he had been provided with ineffective assistance of trial counsel regarding: (1)

A-2860-23

10

counsel's "refus[al] to object to testimony that . . . [he] did not appear

intoxicated"; (2) "testimony concerning signs of intoxication"; and (3) "the

affirmative defense of diminished capacity."

As to trial counsel's refusal to object, the PCR court held that "officers

. . . would be able to testify as to their . . . perception . . . they saw [defendant]

within hours of the alleged assault [and] that he was not intoxicated," citing State

v. Bealor, 187 N.J. 574 (2006) and N.J.R.E. 701, which provides "[i]f a witness

is not testifying as an expert, the witness' testimony in the form of opinions or

inferences may be admitted if it: (a) is rationally based on the witness'

perception; and (b) will assist in understanding the witness' testimony or

determining a fact in issue." The PCR court found no "defense counsel error."

The court also stated introducing his intoxication to the jury would "not

[have been] a positive thing for [defendant]."

Regarding the "signs of intoxication," the court concluded the State was

not required to submit "expert opinion[s]" from the officers to show

"non[-]intoxication." The court found the "lack of objection" did not "fall[]

below the standard of" Strickland v. Washington, 466 U.S. 668 (1984). The

court noted "when we get into trial strategy, and . . . the heat of that particular

A-2860-23

11

moment," there was not "anything that the defense attorney had done

incorrectly."

As to the diminished capacity defense, the court found it was "weakly

supported" and a "highly unlikely and implausible defense." Applying the

Strickland standard, the court determined "defense counsel did the best he . . .

could with both [of] the experts[,] . . . the evidence against defendant, and

defendant's own statement." The court considered Guzzardi's report as "a little

bit of Monday morning quarter[]backing." The court concluded there was not

"enough to meet both prongs of Strickland." The court found there was a

"disagreement in strategy" and, referencing our opinion on direct appeal, the

"proof against . . . defendant was overwhelming." The PCR court exercised its

"discretion under [R]ule 3:22-10," and concluded that no evidentiary hearing

was required.

On appeal, defendant presents the following arguments for our

consideration:

POINT I - DEFENDANT WAS ENTITLED TO AN

EVIDENTIARY HEARING WHERE HE

ESTABLISHED A PRIMA FACIE CASE OF

INEFFECTIVE ASSISTANCE OF COUNSEL.

(A) Trial counsel failed to retain an expert

to challenge the police officers' testimony

concerning the effects of alcohol and

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12

whether defendant was intoxicated at the

time of the assault.

(B) Trial Counsel Was Ineffective For

Failing to Challenge Prosecutorial

Misconduct.

(C) Trial Counsel Was Ineffective Pursuant

to Lafler v. Cooper, 566 U.S. 156 (2012).

(D) Trial Counsel Was Ineffective for

Failing to Challenge the Warrantless

Search of Defendant's Apartment.

(E) Defense Counsel Failed to Specify That

the Intoxication Instruction Was Part of the

Diminished Capacity Charge.

(F) Defense Counsel Failed to Object to the

Composition of the Verdict Sheets and Its

Failure To Include Factors Relevant to

Sentencing.

(G) Defense Counsel Failed to Object to

the Court's Failure to Charge the Jury with

Causation.

(H) Defense Counsel Failed to Object to

the Court's Failure to Charge the Jury With

Use of Force in Self Protection And Use of

Force in Defense of Premises or Personal

Property.

[(Capitalization Modified).]

When the PCR court does not hold an evidentiary hearing, it "is within

our appellate authority" "to conduct a de novo review of both the factual findings

A-2860-23

13

and legal conclusions of the PCR court." State v. Harris, 181 N.J. 391, 421

(2004); see also State v. Aburoumi, 464 N.J. Super. 326, 338 (App. Div. 2020)

("We review [a PCR court's] legal and factual determinations de novo" when it

did not conduct an evidentiary hearing.). We add "there are no issues that turn

on credibility," Harris, 181 N.J. at 421, and our opinion on direct appeal

provided an extensive review of the trial record.

PCR "is New Jersey's analogue to the federal writ of habeas corpus." State

v. Pierre, 223 N.J. 560, 576 (2015) (quoting State v. Preciose, 129 N.J. 451, 459

(1992)). It "provide[s] a built-in 'safeguard that ensures that a defendant [i]s not

unjustly convicted.'" State v. Nash, 212 N.J. 518, 540 (2013) (quoting State v.

McQuaid, 147 N.J. 464, 482 (1997)).

"A petition for [PCR] is cognizable if based upon . . . [a s]ubstantial denial

in the conviction proceedings of defendant's rights under the Constitution of the

United States or the Constitution or laws of the State of New Jersey[.]" R. 3:22-

2(a). "Those accused in criminal proceedings are guaranteed the right to counsel

to assist in their defense." State v. Gideon, 244 N.J. 538, 549 (2021) (citing

U.S. Const. amend. VI; N.J. Const. art. I, ¶ 10). "[I]t is not enough '[t]hat a

person who happens to be a lawyer is present at trial alongside the accused,' . . .

rather, the right to counsel has been interpreted by the United States Supreme

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Court and [the New Jersey Supreme] Court as 'the right to the effective

assistance of counsel.'" Id. at 550 (second alteration in original) (quoting

Strickland, 466 U.S. at 685-86).

To establish a prima facie case of ineffective assistance of counsel, a

defendant must satisfy the two-prong test established in Strickland. See also

State v. Fritz, 105 N.J. 42, 58 (1987) (adopting the Strickland two-prong test in

New Jersey). "First, the defendant must show that counsel's performance was

deficient. This requires showing that counsel made errors so serious that counsel

was not functioning as the 'counsel' guaranteed the defendant by the Sixth

Amendment."1 Strickland, 466 U.S. at 687. "[A] court must indulge a strong

presumption that counsel's conduct falls within the wide range of reasonable

professional assistance; that is, the defendant must overcome the presumption

1

The Sixth Amendment to the Constitution of the United States provides:

In all criminal prosecutions, the accused shall enjoy the

right to a speedy and public trial, by an impartial jury

of the State and district wherein the crime shall have

been committed, which district shall have been

previously ascertained by law, and to be informed of

the nature and cause of the accusation; to be confronted

with the witnesses against him; to have compulsory

process for obtaining witnesses in his favor, and to have

the Assistance of Counsel for his defence.

A-2860-23

15

that, under the circumstances, the challenged action 'might be considered sound

trial strategy.'" Id. at 689 (quoting Michel v. Louisiana, 350 U.S. 91, 101

(1955)).

Under "the 'second and far more difficult prong,'" a defendant must show

that his or her defense was prejudiced. Gideon, 244 N.J. at 550 (quoting

Preciose, 129 N.J. at 463). The defendant must demonstrate "that counsel's

errors were so serious as to deprive the defendant of a fair trial, a trial whose

result is reliable." Strickland, 466 U.S. at 687. "Prejudice is not to be

presumed." Gideon, 244 N.J. at 551. "The defendant must 'affirmatively prove

prejudice.'" Ibid. (quoting Strickland, 466 U.S. at 693).

If defendant fails to "make[] both showings, it cannot be said that the

conviction . . . resulted from a breakdown in the adversary process that renders

the result unreliable." Strickland, 466 U.S. at 687.

A defendant "must establish the right to [PCR] by a preponderance of the

credible evidence." Preciose, 129 N.J. at 459 (citing State v. Mitchell, 126 N.J.

565, 579 (1992)). "R[ule] 3:22-1 does not require evidentiary hearings to be

held on [PCR] petitions [and] R[ule] 3:22-10 recognizes judicial discretion to

conduct such hearings." State v. Cummings, 321 N.J. Super. 154, 170 (App.

Div. 1999). Nevertheless, PCR "courts ordinarily should grant evidentiary

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hearings to resolve ineffective-assistance-of-counsel claims if a defendant has

presented a prima facie claim in support of" PCR. Preciose, 129 N.J. at 462.

"[C]ourts should view the facts in the light most favorable to a defendant to

determine whether a defendant has established a prima facie claim." Id. at 462-

63. "A prima facie case is established when a defendant demonstrates 'a

reasonable likelihood that his or her claim . . . will ultimately succeed on the

merits.'" State v. Porter, 216 N.J. 343, 355 (2013) (quoting R. 3:22-10(b)). A

defendant "must do more than make bald assertions that he was denied the

effective assistance of counsel." Cummings, 321 N.J. Super. at 170. Applying

this well-established law, we consider each of defendant's arguments.

1. Toxicology Expert

Defendant contends trial counsel's representation was deficient because

counsel failed to "retain a toxicology expert who could testify and challenge the

police officers' opinion about the effects of alcohol and about whether defendant

showed signs of drinking at the time shortly after the incident ." While

acknowledging that "trial counsel utilized . . . Oropeza at trial to testify that . . .

defendant was suffering from diminished capacity at the time of the offense,"

defendant argues trial counsel "failed to investigate an expert who was qualified

to challenge the police officers' harmful testimony about typical effects of

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17

drinking and the lack of intoxication on the part of defendant, which undermined

. . . Oropeza's testimony and opinions." Moreover, defendant contends "[t]rial

counsel should have consulted a toxicologist to support the defense at trial and

defendant's claims that he drank so much alcohol that he passed out that night."

Defendant retained Guzzardi to support his petition for PCR. Defendant

asserts Guzzardi opined he "'was under the influence of alcohol at the time of

the incident to the extent that he was unable to make conscious decisions to do

harm, and that alcohol adversely affected his ability to obtain a true

understanding of his actions and to provide insight into his lack of control.'"

Moreover, "Guzzardi opined that 'the lack of testimony regarding the effects of

significant alcohol intoxication on an individual such as [defendant] was

significant in'" the trial. Defendant contends "Guzzardi's expert opinion

demonstrates how failing to present such evidence at trial prejudiced" him.

In our opinion on defendant's direct appeal, we stated:

[W]e consider defendant's arguments in . . . his merits

brief about the limitations imposed by the trial court on

the scope of his expert's, . . . Oropeza, testimony at trial.

Prior to trial, the court conducted a Rule 104 hearing to

determine the extent of Oropeza's testimony. Oropeza,

a forensic psychologist, testified that he was asked to

conduct a psychological evaluation of defendant in

2016. Based on his evaluation, Oropeza concluded that

defendant suffered from a bipolar disorder.

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After reviewing defendant's personal history

dating back to the 1990s, Oropeza opined that

defendant had "a longstanding history of . . . untreated

mental illness[ and] very poor coping skills." He

testified defendant "was not able to knowingly and

purposefully act out" on December 31, 2014 "due to a

combination of his mental illness and his . . . substance

abuse, including alcohol." In reaching that conclusion,

Oropeza relied upon defendant telling him that "he

drank approximately half a gallon of vodka" on

December 31, 2014, up until the point that he passed

out, which prevented defendant from recalling what

happened.

On cross-examination, Oropeza, acknowledged

that he did not "review anything with regard to

[defendant's] blood alcohol content," but instead relied

upon what defendant had told him in the evaluation and

the statement defendant gave to the police. The doctor

could not determine whether defendant acted

recklessly, as he was not asked to make that

determination. While the doctor conceded that his

report never opined about whether defendant purposely

or knowingly removed all of the victim's items from the

apartment, removed the sheets, and cleaned off the

blood from the apartment, he testified that "[i]t sounds

like he[ knew] what he[ was] doing in reference to that."

The trial court found Oropeza to be credible, and

"by the thinnest of . . . testimony," the court

"permit[ted] the doctor to testify as to the diminished

capacity defense, that there [was] a mental disease or

defect that may negate the mental state that is an

element of the offense." The court would however, "not

permit[] testimony as to [defendant's] alcohol

consumption [on the night of the incident] absent an[y]

support." The court permitted Oropeza to testify that

"defendant could not knowing[ly], purposely or was not

A-2860-23

19

able to form . . . the requisite intent due to his mental

illness."

At trial, Oropeza again testified to the

information and opinions he discussed at the Rule 104

hearing, including his statements about defendant's

history of alcohol abuse. He also explained in

preparing his report that he spoke to defendant and

defendant's mother, he reviewed defendant's

psychiatrist's opinions, and that "[a]t the time of the

offenses," defendant had an "untreated" "bi[]polar

disorder" and "[a]n alcohol dependency problem." In

his professional opinion, defendant could "not

knowingly and purposely attempt to cause serious

bodily injury."

On cross-examination, Oropeza again stated that

defendant told him that he had "ingested an

approximate level of a half gallon of vodka" on

December 31, 2014. He also stated that while he was

asked to opine on whether defendant's "mental issues or

his alcohol intake effected his ability to act purposely

or knowingly," he was never asked to prepare a report

about whether defendant acted recklessly. Oropeza

explained that it was the "combination of an untreated

bi[]polar condition and . . . severe alcohol intoxication

[that led] to [his] opinion that there wasn't knowing or

purposeful attempts to cause severe bodily injury."

On appeal, defendant argues that the trial court

should not have prevented defendant's "expert from

testifying that intoxication was part of the foundation

for his medical opinion," "[e]ven with [the] court

finding that intoxication should not be charged." By

only allowing Oropeza to testify about defendant's

bipolar disorder, and not to testify about defendant's

"prior alcohol dependenc[y], his addiction to alcohol

and his intoxication [on] that night" of the incident, did

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not allow the jury to fully understand "the true nature

of [Oropeza's] expert opinion" and his diminished

capacity.

We conclude that the premise of defendant's

argument about Oropeza is simply incorrect. Here, the

trial court permitted Oropeza to testify about how

defendant's history of mental disorder and substance

abuse could have impacted defendant on the night of

the incident. Even though the witness had been

previously barred from testifying that defendant drank

on the night of the incident, the doctor told the jury

what defendant had told him about the amount of

alcohol he consumed that night. The trial court

specifically stated that unlike determining whether

defendant's "faculties were [so] prostrated" to warrant

the intoxication defense charge, the lack of proof of

intoxication was not a bar to Oropeza testifying about

the effects of defendant's alcoholism and mental

disorder. For that reason, Oropeza was permitted to

testify about defendant's allegation that he consumed

alcohol and how defendant's psychological and

substance abuse issues prevented defendant from

purposely or knowingly committing an aggravated

assault. Contrary to defendant's contention, the trial

court did not impede the doctor's testimony or

defendant's defense and later it appropriately charged

the jury with diminished capacity. . . .

[Pendleton, slip op. at 22-25 (all but first alteration in

original).]

Given our previous observations that the trial court permitted Oropeza to

testify as to "how defendant's history of mental disorder and substance abuse

could have impacted defendant on the night of the incident," "the lack of proof

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21

of intoxication [did] not . . . bar . . . Oropeza [from] testifying about the effects

of defendant's alcoholism and mental disorder," and "Oropeza was permitted to

testify about defendant's allegation that he consumed alcohol and how

defendant's psychological and substance abuse issues prevented defendant from

purposely or knowingly committing an aggravated assault," we conclude

defendant failed to establish, prima facie, that trial counsel's representation was

deficient for failing to retain a toxicologist. Id. at 25. Indeed, given the extent

of Oropeza's testimony, defendant does not meaningfully explain what a

toxicologist would have added to Oropeza's testimony. Further, considering

Oropeza's testimony, defendant fails to establish how his defense was

prejudiced. The PCR court did not abuse its discretion in denying an evidentiary

hearing on this basis.

2. Prosecutorial Misconduct

Defendant argues trial counsel's representation was deficient because trial

counsel failed to object to what he purports was prosecutorial misconduct during

the prosecutor's summation. Defendant contends the prosecutor permissibly

"argued in closing that . . . defendant was not intoxicated" but "far exceeded the

bounds" of permissibility in "characteriz[ing] the defense as preposterous,

purely fabricated, made up, and manipulative" and referring "to . . . Oropeza as

A-2860-23

22

a paid expert." Further, defendant argues trial counsel's deficiency in this

respect prejudiced him because the prosecutor's "closing argument . . . certainly

had the effect of denying him the right to a fair trial."

The State argues defendant's claim of prosecutorial misconduct is barred

under Rule 3:22-4(a), which provides:

Any ground for relief not raised in the proceedings

resulting in the conviction . . . or in any appeal taken in

any such proceedings is barred from assertion in a

proceeding under this rule unless the court on motion

or at the hearing finds:

(1) that the ground for relief not previously

asserted could not reasonably have been

raised in any prior proceeding; or

(2) that enforcement of the bar to preclude

claims, including one for ineffective

assistance of counsel, would result in

fundamental injustice; . . .

....

A ground could not reasonably have been raised in a

prior proceeding only if defendant shows that the

factual predicate for that ground could not have been

discovered earlier through the exercise of reasonable

diligence.

[R. 3:22-4(a).]

Although we discern no reason why defendant did not raise prosecutorial

misconduct on direct appeal, or why this argument, consequently, is not subject

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23

to Rule 3:22-4(a)'s bar, we consider the argument for the sake of completeness.

"When an appellate court reviews a claim of prosecutorial misconduct with

respect to remarks in summation, the issue presented is one of law. . . . [O]ur

review is plenary and de novo." State v. Smith, 212 N.J. 365, 387 (2012).

"It is axiomatic that '[t]he duty of the prosecutor is as much . . . to refrain

from improper methods calculated to produce a wrongful conviction as it is to

use every legitimate means to bring about a just one.'" State v. Supreme Life,

473 N.J. Super. 165, 171-72 (App. Div. 2022) (alteration in original) (quoting

State v. Williams, 244 N.J. 592, 607 (2021)) (internal quotation marks omitted).

Therefore, "[w]hile 'prosecutors in criminal cases are expected to make vigorous

and forceful closing arguments to juries' and are 'afforded considerable leeway,'

'their comments [should be] reasonably related to the scope of the evidence

presented.'" Id. at 172 (second alteration in original) (quoting Williams, 244

N.J. at 607) (internal quotation marks omitted). "It is . . . improper for a

prosecutor to use derogatory epithets to describe a defendant." Id. at 174. Use

of words like "'coward,' 'liar,' or 'jackal' [are] . . . derogatory . . . [and] are

especially egregious when . . . the prosecutor pursues a persistent pattern of

misconduct throughout the trial." Ibid. (quoting State v. Wakefield, 190 N.J.

397, 466-67 (2007)) (internal quotation marks omitted).

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24

However, "even when a prosecutor's remarks stray over the line of

permissible commentary, our inquiry does not end." Id. at 172 (quoting State v.

McNeil-Thomas, 238 N.J. 256, 275 (2019)). Instead, "we weigh the severity of

the misconduct and its prejudicial effect on the defendant's right to a fair trial [.]"

Ibid. (quoting McNeil-Thomas, 238 N.J. at 275) (internal quotation marks

omitted).

Our task is to "take into account the tenor of the trial and the degree of

responsiveness of both counsel and the court to improprieties when they

occurred." Ibid. (quoting Williams, 244 N.J. at 608) (internal quotation marks

omitted). "[T]here must have been 'some degree of possibility that [the

prosecutor's comments] led to an unjust result.'" Ibid. (second alteration in

original) (quoting McNeil-Thomas, 238 N.J. at 276) (internal quotation marks

omitted).

Applying this standard, we conclude the prosecutor's summation did not

rise to the level of prosecutorial misconduct. There was nothing egregious or

inflammatory in the comments, and the comments were tethered to the evidence.

Further, defendant failed to demonstrate he had not been provided with a fair

trial or the prosecutor's summation led to an unjust result.

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25

Because we conclude there was no prosecutorial misconduct, we similarly

conclude defense counsel's representation was not deficient in not lodging an

objection during the prosecutors' summation. "We [have] recognize[d] the

general reluctance of counsel to object during a summation." State v. Bauman,

298 N.J. Super. 176, 207 (App. Div. 1997). Additionally, the Court has noted

"[g]enerally, if no objection was made to the improper remarks, the remarks will

not be deemed prejudicial. The failure to object suggests that defense counsel

did not believe the remarks were prejudicial at the time they were made." State

v. R.B., 183 N.J. 308, 333 (2005) (quoting State v. Frost, 158 N.J. 76, 82-84

(1999)); see also Bauman, 298 N.J. Super. at 207 (quoting State v. Wilson, 57

N.J. 39, 51 (1970) ("A failure to make a timely objection to a prosecutor's

remarks, shows that 'in the atmosphere of the trial the defense did not believe

that the prosecutor's remarks were prejudicial.'")). These considerations suggest

trial strategy, see Strickland, 466 U.S. at 689, not deficient performance or

prejudice. There was no abuse of the PCR court's discretion in denying an

evidentiary hearing on this basis.

3. Lafler v. Cooper

Defendant argues trial counsel's representation was deficient because

counsel failed to investigate and review the State's purported plea offer of "five

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26

years with a three-year parole disqualifier." He contends the deficient

representation led him to a trial of this matter, when he would have accepted the

State's offer and served less time.

In Lafler, the United States Supreme Court held "[d]efendants have a Sixth

Amendment right to counsel, a right that extends to the plea-bargaining

process." 566 U.S. at 162. Therefore, "[d]uring plea negotiations defendants

are 'entitled to the effective assistance of competent counsel.'" Ibid. (quoting

McMann v. Richardson, 397 U.S. 759, 771 (1970)); see also State v. DiFrisco,

137 N.J. 434, 456 (1994) (applying "the Strickland test to challenges of guilty

pleas based on ineffective assistance of counsel").

The Court stated "the two[-]part Strickland . . . test applies to challenges

to guilty pleas based on ineffective assistance of counsel." Lafler, 566 U.S. at

162-63 (quoting Hill v. Lockhart, 474 U.S. 52, 58 (1985)). "The performance

prong of Strickland requires a defendant to show 'that counsel's representation

fell below an objective standard of reasonableness.'" Id. at 163 (quoting Hill,

474 U.S. at 57) (internal quotation marks omitted).

In New Jersey, "a defendant considering whether or not to plead guilty to

an offense [must] receive[] correct information concerning all of the relevant

material consequences that flow from such a plea." State v. Agathis, 424 N.J.

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27

Super. 16, 22 (App. Div. 2012) (citing State v. Nuñez-Valdéz, 200 N.J. 129, 138

(2009)).

In Lafler, the question was "how to apply Strickland's prejudice test where

ineffective assistance results in a rejection of the plea offer and the defendant is

convicted at the ensuing trial." 566 U.S. at 163. The Court held:

To establish Strickland prejudice a defendant must

"show that there is 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. In the context of pleas a defendant must

show the outcome of the plea process would have been

different with competent advice.

[Ibid. (citation reformatted).]

When a defendant alleges counsel's ineffective advice led to an offer's

rejection,"[h]aving to stand trial, not choosing to waive it, is the prejudice

alleged." Id. at 163-64. Under

these circumstances a defendant must show that but for

the ineffective advice of counsel there is a reasonable

probability that the plea offer would have been

presented to the court (i.e., that the defendant would

have accepted the plea and the prosecution would not

have withdrawn it in light of intervening

circumstances), that the court would have accepted its

terms, and that the conviction or sentence, or both,

under the offer's terms would have been less severe than

under the judgment and sentence that in fact were

imposed.

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28

[Id. at 164.]

In support of his PCR petition, defendant stated:

Prior to my first trial, my trial attorney told me about a

plea offer for five years with a three-year parole

disqualifier. He did not give me any advice in

connection with this offer and simply asked me, "what

are you going to do?" The only other thing he told me

in connection with the plea offer was that I had to make

the decision myself. I had asked my mom about the

offer, and I told her that I did not know what to do. My

trial attorney also never advised me about the

advantages or disadvantages of going to trial v[ers]us[]

taking the plea deal or any plea deal. In general, my

attorney did not communicate much with me. I would

have taken the plea offer if my attorney had advised me

to take the plea offer.

[(Emphasis omitted).]

During the PCR hearing, PCR counsel advised the court that the State had

denied the offer "happen[ed]." In addition, counsel stated the record did not

contain any pretrial conferences concerning the plea offer. Nevertheless, on

appeal, defendant argues trial counsel's representation was deficient because he

"failed to familiarize himself with the defendant's criminal history and had he

done that, he would have known that his client was exposed to the

extended-term sentence and advised him to accept the plea offer" and "based

upon the trial strategy of reduced culpability, that the best he could hope for

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29

would be the sentence made in the plea offer." Moreover, he also contends that

he "is serving a very lengthy sentence" because of the trial counsel's failures.

The State argues "defendant's claim must fail because he failed to provide

any evidence to support his claim, other than his self-serving statements." In

addition, the State contends "defendant failed to provide any details as to the

terms of the alleged plea offer, such as the charge that he would have pled guilty

to in exchange for a five-year term." Moreover, the State noted it "had submitted

defendant's pretrial memorandum to the PCR trial court, which indicated a plea

offer of fourteen years with an 85% period of parole ineligibility, consecutive

to a five-year flat term to the witness tampering charge."

We conclude defendant failed to establish a prima facie case of ineffective

assistance of trial counsel under Lafler. Defendant failed to produce any

evidence that the State offered a "plea offer for five years with a three-year

parole disqualifier." In fact, the only evidence in the record concerning a plea

offer was the State's pretrial memorandum that described a plea offer exposing

defendant to substantially more time. Because defendant did not establish,

prima facie, an offer as he described was ever made, he similarly cannot

establish defense counsel's representation in that respect was deficient or

A-2860-23

30

prejudicial. The PCR court did not abuse its discretion in denying an evidentiary

hearing on this basis.

4. Warrantless Search

On direct appeal, defendant argued "he was provided the ineffective

assistance of counsel . . . because his attorney never sufficiently challenged . . .

the illegal search of [his] apartment." Pendleton, slip op. at 57. We concluded

"that the claim[] defendant raise[d was] . . . better left to a petition for . . . PCR."

Ibid.

Defendant argues the PCR court's finding that "no alcohol-related items

were observed in the apartment" "misse[d] the point of the argument" because

"defendant was prejudiced not by what was discovered in the apartment but by

the observations of the police officers who illegally entered the apartment and

their testimony as to what they did or did not observe." Defendant contends the

victim "did not have authority to consent to a search of [his] apartment" and a

motion to suppress would have successfully "suppress[ed] the harmful

testimony that resulted from the search."

As to the harmful testimony, defendant notes "Kinkler testified that a

search of [his] apartment showed that there was no evidence of defendant

A-2860-23

31

drinking." Defendant argues the "testimony undermined [his] diminished

capacity defense."

In our opinion on defendant's direct appeal, we found:

[T]he victim testified that she had never seen defendant

drink alcohol and when he attacked her, she did not

sense an odor of alcohol, or observe any bottles or

anything else to indicate that defendant was under the

influence at that time. Moreover, the search of

defendant's apartment and car did not yield any

evidence of alcohol consumption. Other than defendant

and his friend, every witness "who observed him . . .

before [and after] the crime testified that he did not

appear to be intoxicated and defendant's [recorded

statement to police] showed a clear and detailed

recollection as to the events." State v. Zola, 112 N.J.

384, 425 (1988). In defendant's detailed statement, he

not only admitted to hitting the victim, but he also

described how he hit the victim, where he hit the victim,

what he did to clean the apartment, and what he did

when he left the apartment. The only evidence of

defendant's intoxication was his statement to police and

his friend's observations, neither of which

demonstrated a prostration of defendant's faculties.

[Pendleton, slip op. at 20-21 (all but first alteration in

original) (citation reformatted).]

Considering our earlier opinion, we conclude, even if counsel was

deficient in failing to file the motion to suppress, and the motion would have

successfully suppressed Kinkler's testimony that he did not observe any

evidence of defendant's use of alcohol in the apartment, defendant fails to

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32

establish he was prejudiced under the second Strickland prong. At worst,

Kinkler's testimony was cumulative to the victim's and other witnesses'

testimony and defendant's clear and detailed statement to the police. Under

these circumstances, there was no prejudice and no abuse of discretion in

denying an evidentiary hearing on counsel's failure to file a motion to suppress.

5. Intoxication Instruction Was Part of the Diminished Capacity Charge

Defendant argues trial counsel's representation was deficient because

"counsel failed to explain that the hybrid defense of diminished

capacity/intoxication was based on both the intoxication statute and the

diminished capacity statute," citing N.J.S.A. 2C:2-82 and N.J.S.A. 2C:4-2.3

2

N.J.S.A. 2C:2-8(d) provides:

Intoxication which . . . is pathological is an affirmative

defense if by reason of such intoxication the actor at the

time of his conduct did not know the nature and quality

of the act he was doing, or if he did know it, that he did

not know what he was doing was wrong. Intoxication

under this subsection must be proved by clear and

convincing evidence.

3

N.J.S.A. 2C:4-2 provides:

Evidence that the defendant suffered from a mental

disease or defect is admissible whenever it is relevant

to prove that the defendant did not have a state of mind

which is an element of the offense. In the absence of

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33

Further, defendant contends counsel's "failure to argue that the intoxication

instruction was an essential part of the hybrid diminished capacity charge clearly

prejudiced [him] at trial."

In our opinion on defendant's direct appeal, we held "the trial court

correctly denied defendant's request to charge the intoxication defense because

there was insufficient evidence to support the request." Pendleton, slip op. at

21. Indeed, we concluded "[t]he only evidence of defendant's intoxication was

his statement to police and his friend's observations, neither of which

demonstrated a prostration of defendant's faculties." Id. at 21-22.

Given our prior opinion on this issue, we conclude defendant did not

establish, prima facie, that counsel's performance was deficient in failing to

explain "the hybrid defense." Instead, the evidence was insufficient to warrant

an intoxication charge. Nevertheless, counsel argued for the charge, which was

denied. Further, because there was no deficiency, there was no prejudice. The

PCR court did not abuse its discretion in denying an evidentiary hearing on this

issue.

such evidence, it may be presumed that the defendant

had no mental disease or defect which would negate a

state of mind which is an element of the offense.

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34

6. Verdict Sheets and Sentencing Factors

Defendant contends trial counsel's representation was deficient because

counsel failed to raise issues regarding the verdict sheet. He argues:

The verdict sheet failed to include the "factual

predicate for an enhanced sentence or the existence of

a fact relevant to sentencing," pursuant to R[ule] 3:19-

l(b) (". . . The written verdict sheet shall include the

factual predicate for an enhanced sentence or the

existence of a fact relevant to sentencing unless that

factual predicate or fact is an element of the offense.")

Specifically, the defendant's prior record, the possible

sentencing exposure for each offense, the fact that the

defendant was eligible for an extended term of

imprisonment pursuant to N.J.S.A. 2C:44-3 and that the

State intended on pursuing the extended term of

imprisonment for the defendant are all factors relevant

to sentencing that should have been included on the

verdict sheets but were not.

Defendant argues he was prejudiced because the omitted information "left the

jurors unable to consider any factors relevant to sentencing during their

deliberations." Moreover, the jurors "very well may have chosen to find him

guilty of different/lesser offenses that they believed fit punishments with their

respective crimes."

In our opinion on defendant's direct appeal, we noted that defendant's

arguments challenging "numerous errors in the verdict sheet," Pendleton, slip

op. at 57, was "never raised before the trial court." Id. at 36. Therefore, we

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35

considered the argument under the "plain error" standard. Ibid. "Applying that

standard, we conclude[d] defendant's claims" were "without sufficient merit to

warrant discussion in a written opinion. R[ule] 2:11-3(e)(2)." Id. at 37.

As to whether defendant was provided with ineffective counsel regarding

the verdict sheet, "[w]e conclude[d] that defendant['s] . . . argument[s we]re

better left to a petition for" PCR. Id. at 57.

The United States Supreme Court has noted "[t]he Fifth and Sixth

Amendments placed the jury at the heart of our criminal justice system."4

Erlinger v. United States, 602 U.S. 821, 831 (2024). "Equally, the Fifth and

Sixth Amendments sought to ensure that a judge's power to punish would

'deriv[e] wholly' from, and remain always 'control[led]' by, the jury and its

verdict." Ibid. (alterations in original) (quoting Blakely v. Washington, 542 U.S.

296, 306 (2004)). Therefore, "[b]y requiring a unanimous jury to find every fact

essential to an offender's punishment, those amendments similarly seek to

constrain the Judicial Branch, ensuring that the punishments courts issue are not

4

In part, the Fifth Amendment to the Constitution of the United States provides:

"No person . . . shall be compelled in any criminal case to be a witness against

himself, nor be deprived of life, liberty, or property, without due process of law

. . . ." U.S. Const. amend. V.

A-2860-23

36

the result of a judicial 'inquisition,'" id. at 832 (quoting Blakely, 542 U.S. at

307), and instead, "are premised on laws adopted by the people's elected

representatives and facts found by members of the community." Ibid.

Therefore, "[o]nly a jury may find 'facts that increase the prescribed range of

penalties to which a criminal defendant is exposed.'" Id. at 833 (quoting

Apprendi v. New Jersey, 530 U.S. 466, 490 (2000)) (internal quotation marks

omitted).

In State v. Carlton, we held that under Erlinger, "a jury—not a sentencing

judge—must decide whether prior convictions used to establish the basis for

enhanced sentencing had been committed on separate occasions." 480 N.J.

Super. 311, 316 (App. Div. 2024). In addition, we recognized "Erlinger . . .

necessitate[d] a significant change to New Jersey practices and procedures for

imposing a persistent-offender extended term of imprisonment under N.J.S.A.

2C:44-3(a)." Id. at 317. Therefore, Erlinger abrogated State v. Pierce, 188 N.J.

155 (2006), where our "Court [had] held that a sentencing court 'does not engage

in impermissible fact-finding when it assesses a prior record of convictions and

determines that a defendant is statutorily eligible for a discretionary extended -

term as a persistent offender.'" Id. at 325 (quoting Pierce, 188 N.J. at 158).

A-2860-23

37

We required that Erlinger receive "retroactive application" to "pipeline

case[s]." Id. at 337. We stated "pipeline retroactive application [included] . . .

cases where a direct appeal ha[d] not yet been decided." Id. at 338 n.16.

We conclude, applying the Erlinger/Carlton framework, defendant's

argument regarding the verdict sheet has no merit. Defendant was sentenced on

July 21, 2017, his direct appeal was decided September 3, 2020, and his petition

for certification was denied by the New Jersey Supreme Court on June 4, 2021.

Defendant's matter was not a pipeline case, because Erlinger was decided June

21, 2024, and we decided Carlton on December 19, 2024.

Therefore, counsel's representation was not deficient because Pierce was

still controlling law at the time of trial and sentencing. Additionally, counsel

argued against the extended term during the sentencing hearing. The PCR court

did not abuse its discretion in denying an evidentiary hearing on this issue.

7. Other Jury Charges (Causation; Self-Protection; Defense of Premises

& Personal Property)

Defendant argues trial counsel's representation was deficient because

counsel did not object to the trial court's failure to charge the jury regarding

causation. He contends this failure "prevented the jury from understanding and

determining how a defendant's actions were required to be linked to the injuries

sustained by a victim for him to be found guilty."

A-2860-23

38

Defendant contends "[t]he victim's neurology report, which the victim was

questioned about during trial, indicated that the victim's migraines/headaches

were quite possibly rebound headaches attributed to her 'overuse of Aleve as an

abortive agent.'" Further, he contends "[a]ny competent defense counsel would

have used this information as a pretext to have a causation instruction charged

to the jury with the primary mission of relieving the defendant of criminal

responsibility due to the victim's actions." Defendant argues he "suffered

significant prejudice that may have changed the outcome of the trial."

In addition, defendant contends "[t]he alleged assault upon the victim took

place while [he] was defending himself from an assault initiated by the victim."

In addition, "the events that led to the alleged assault upon the victim all

transpired within an apartment/dwelling that was exclusively leased and

occupied by the defendant." Therefore, defendant argues "[t]here is clear and

apparent information that indicates that . . . defendant was engaging in self-

protection and/or defense of premises, yet defense counsel failed to advance

these charges be read to the jury to instruct them that these were possible

defenses to . . . defendant's actions." Defendant contends counsel's failures "may

have drastically affected the outcome of the trial."

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39

The State argues defendant's claims, regarding jury instructions, are

barred under Rule 3:22-5. The Rule provides: "A prior adjudication upon the

merits of any ground for relief is conclusive whe[n] made in . . . any appeal

taken from such proceedings."

In our opinion on defendant's direct appeal, we considered defendant's

contentions "that the trial court failed to 'sua sponte charge the jury with

causation with respect to' how the victim acquired her migraines and headaches

because the jury may have found that the victim caused her own injuries."

Pendleton, slip op. at 29. Moreover, we considered defendant's arguments that

"the trial court should have instructed the jury on self-protection, N.J.S.A. 2C:3-

4(a) and use of force in defense of premises and personal property, N.J.S.A.

2C:3-6(a)." Ibid.

"[W]e conclude[d] defendant's contentions [we]re without any merit."

Ibid. We found "no request was ever made for these charges and defendant did

not interpose an objection to the court's charge as delivered." Ibid. We

concluded:

"A claim of deficiency in a jury charge to which no

objection is interposed 'will not be considered unless it

qualifies as plain error . . . .'" R.B., 183 N.J. at 321

(quoting State v. Hock, 54 N.J. 526, 538 (1969)).

"[V]iew[ing] . . . the totality of the entire charge, not in

isolation," State v. Chapland, 187 N.J. 275, 289 (2006),

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40

we find no prejudicial error, State v. Coruzzi, 189 N.J.

Super. 273, 312 (App. Div. 1983), or anything in the

record to warrant that any of the cited charges be given

to the jury.

[Id. at 29-30. (alterations in original) (citations

reformatted).]

Therefore, without deciding whether counsel's representation was

deficient regarding the jury charges, we conclude defendant fails to satisfy the

"far more difficult" second Strickland prong. Gideon, 244 N.J. at 550. There is

no evidence defendant's defense was prejudiced, that he was "deprive[d] . . . of

a fair trial" or its result was not "reliable." Strickland, 466 U.S. at 687.

To the extent we have not addressed any of defendant's remaining

arguments, we conclude they are without sufficient merit to warrant discussion

in a written opinion. R. 2:11-3(e)(2).

Affirmed.

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