STATE OF NEW JERSEY v. N.K. (13-02-0159, UNION COUNTY AND STATEWIDE) (RECORD IMPOUNDED)

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the

internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4332-19

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

N.K.,

Defendant-Appellant.

_______________________

Submitted February 9, 2022 – Decided February 24, 2022

Before Judges Sumners and Vernoia.

On appeal from the Superior Court of New Jersey, Law

Division, Union County, Indictment No. 13-02-0159.

Joseph E. Krakora, Public Defender, attorney for

appellant (Steven M. Gilson, Designated Counsel, on

the brief).

William A. Daniel, Union County Prosecutor, attorney

for respondent (Michele C. Buckley, Assistant

Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant N.K. appeals from an order denying his post-conviction relief

(PCR) petition. He contends the court erred by rejecting his claim that his

counsel was ineffective by failing to request a competency hearing at trial and

by failing to assert a diminished capacity defense. Unpersuaded by defendant's

arguments, we affirm.

I.

A grand jury charged defendant in an indictment with second-degree

sexual assault, N.J.S.A. 2C:14-2(b), third-degree endangering the welfare of a

child, N.J.S.A. 2C:24-4(a), and fourth-degree lewdness, N.J.S.A. 2C:14-4(b)(1).

The charges were founded on a claim defendant exposed and touched his penis

in the presence of a twelve-year-old boy, R.O.1 We detailed the evidence

presented at trial in our decision affirming defendant's convictions on his direct

appeal, State v. N.K., No. A-5163-14 (App. Div. Feb. 5, 2018) (slip op. 2-5),2

and need not repeat all the details here. We briefly summarize the evidence to

provide context for our discussion of defendant's PCR claims.

1

We use initials to identify defendant and the victim to protect the victim's

privacy and because the names of victims of sexual assault are excluded from

public access under Rule 1:38-3(d)(12).

2

The Supreme Court denied defendant's petition for certification. State v. N.K.,

235 N.J. 173 (2018).

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2

R.O. testified that while he took a shower in the bathroom at a community

pool, he saw defendant taking a shower at the showerhead next to him. Id. at 2.

R.O. observed defendant pull down his swim trunks, pull on his exposed penis,

and tell R.O. "not to be afraid" because "no one was watching." Ibid. R.O. and

defendant separately left the bathroom and returned to the pool. Ibid.

R.O. later returned to the shower, and defendant returned as well. Ibid.

Defendant again took out his penis but did not touch it. Id. at 2-3. R.O. saw

defendant's penis "start[] to get bigger" and "more stiff." Id. at 3. Defendant

asked R.O. if he could take out R.O.'s penis for him and suck on it. Ibid.

R.O. reported the encounters with defendant to his aunt, E.M., who

worked at the pool. Ibid. She approached defendant, slapped him, and said

"You know what you did." Ibid. Defendant responded, "I didn't touch him."

Ibid.

Defendant testified at trial and offered a detailed and different account of

what occurred in the shower. Ibid. He said that while he was taking a shower,

he observed R.O. masturbating, and he told R.O. that it was a public shower and

"not a place to be playing with yourself." Id. at 4. Defendant said he saw R.O.

expose his penis and then R.O. told him to "Suck my dick." Ibid. Defendant

testified he said "Okay" because he "had enough of the conversation." Ibid.

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Defendant also testified R.O. subsequently turned on the showerhead and

screeched because the water was too hot. Ibid. According to defendant, he told

R.O. to use another showerhead, and, then he introduced himself to the boy.

Ibid.

Defendant further testified E.M. later punched him in the face and said he

disrespected R.O. in the shower. Id. at 5. He denied touching or exposing

himself in the shower for his own sexual gratification or to demoralize R.O.

Ibid. Defendant theorized that R.O. fabricated the story out of fear defendant

would report what he had seen R.O. doing in the shower. Ibid.

Defendant was tried over the course of eight days.3 On the sixth day of

trial, defendant and a police officer testified, and the attorneys gave their closing

arguments. Defendant, however, did not appear on seventh day, September 12,

2014. His counsel first reported to the court defendant left him a voicemail

stating he was in the hospital, he believed he was going to be admitted, and his

cell phone would most likely be off. Defendant did not provide counsel the

name of the hospital or his condition. It was later determined the information

3

The dates of trial included September 3, 4, 5, 8, 9, 10, 11, 12, 15, and 16. The

first three days of trial were devoted to jury selection. Testimony and evidence

were presented on September 8, 9, 10, 11. The court gave final instructions to

the jury on September 12, the jury began its deliberations that day, and the jury

returned a verdict on September 16, after two days of deliberations.

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4

defendant left in the voicemail was false. In fact, defendant had arranged a flight

to the Dominican Republic, traveled to the airport, and went to the Dominican

Republic that day. When defendant failed to appear, the court gave its final

instructions to the jury, which deliberated for two days before returning its

verdict. Defendant was arrested in the Dominican Republic and returned to New

Jersey days after the jury's verdict.

The jury convicted defendant of the three charges in the indictment.

Defendant's counsel then moved for a new trial arguing defendant had not been

competent to stand trial because he abused drugs and alcohol during the trial,

used heroin each day he was on trial, and "ingested a large amount of heroin on

the morning" of the day he testified. Defendant claimed the heroin and alcohol

made him "sleepy" during the trial, and he offered an explanation for his failure

to appear for the last few days of trial, stating that after using a "large amount

of heroin and alcohol" he did not recall "much" of what happened other than he

learned he "had landed in the Dominican Republic."

In a detailed written opinion, the trial judge denied the motion, explaining

she observed defendant momentarily close his eyes during the early stages of

jury selection, she mentioned her observation to trial counsel, and thereafter she

paid very close attention to defendant during the remainder of the trial. She

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5

noted that she never saw defendant appear sleepy thereafter, and she observed

that defendant was alert and responsive during his trial testimony, including

during the State's vigorous cross-examination.

The court explained following its initial observation of defendant during

jury selection, it did not observe any signs of defendant sleeping or being

intoxicated during the trial and the court noted defense counsel never raised an

issue concerning defendant's competence. The court denied defendant's motion

for a new trial, and we affirmed the denial on defendant's direct appeal. Id. at

13.

Defendant subsequently filed a timely pro se PCR petition and, following

the assignment of counsel, submitted a certification asserting in pertinent part

that he has a mental health and substance abuse history. He claimed that during

the months leading to his trial he used heroin and consumed alcohol daily, and

that during trial his counsel told him he "smelled of alcohol" and he "appeared

high." Defendant further averred he "was extremely high during jury selection

when the court observed [him] asleep," and his decision to flee the country was

an example of his "inability to think clearly and fail[ure] to exercise good

judgment due to [his] excessive and protracted use of controlled substances and

alcohol." He claimed he spoke to trial counsel about undergoing a substance

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6

abuse evaluation, but he could not afford one and his counsel did not advise him

that he might qualify for "ancillary services" from the Office of the Public

Defender.

The court heard argument and rendered a comprehensive bench opinion

denying the PCR petition. 4 The court determined defendant failed to present

sufficient evidence establishing a prima facie ineffective assistance of counsel

claim and rejected defendant's claim he was entitled to an evidentiary hearing.

The court entered an order denying the petition, and this appeal followed. He

presents the following argument for our consideration:

POINT I

THIS MATTER MUST BE REMANDED FOR AN

EVIDENTIARY HEARING BECAUSE

DEFENDANT ESTABLISHED A PRIMA FACIE

CASE OF TRIAL COUNSEL'S INEFFECTIVENESS

FOR FAILURE TO PURSUE A COMPETENCY

HEARING AND/OR A D[I]MINISHED CAPACITY

DEFENSE.

II.

We review the legal conclusions of a PCR court de novo. State v. Harris,

181 N.J. 391, 419 (2004). The de novo standard of review also applies to mixed

4

The court also denied defendant's recusal motion. We do not address the

motion because defendant does not appeal from its denial.

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7

questions of fact and law. Id. at 420. Where, as here, an evidentiary hearing

has not been held, it is within our authority "to conduct a de novo review of both

the factual findings and legal conclusions of the PCR court." Id. at 421. We

apply these standards here.

The Sixth Amendment to the United States Constitution and Article I,

Paragraph 10 of the New Jersey Constitution guarantee that a defendant in a

criminal proceeding has the right to the assistance of counsel in his or her

defense. The right to counsel includes "the right to the effective assistance of

counsel." State v. Nash, 212 N.J. 518, 541 (2013) (quoting Strickland v.

Washington, 466 U.S. 668, 686 (1984)).

In Strickland, the Court established a two-part test, later adopted by our

Supreme Court in State v. Fritz as the standard under the New Jersey

Constitution, to determine whether a defendant has been deprived of the

effective assistance of counsel. Strickland, 466 U.S. at 687; Fritz, 105 N.J. 42,

58 (1987). Under the first prong of the standard, a petitioner must show that

counsel's performance was deficient. It must be demonstrated that counsel 's

handling of the matter "fell below an objective standard of reasonableness" and

that "counsel made errors so serious that counsel was not functioning as the

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8

'counsel' guaranteed the defendant by the Sixth Amendment." Strickland, 466

U.S. at 687-88.

Under the second prong of the Strickland standard, a defendant "must

show that the deficient performance prejudiced the defense." Id. at 687. There

must be a "reasonable probability that, but for counsel's unprofessional errors,

the result of the proceeding would have been different." Id. at 694. A petitioner

must demonstrate that "counsel's errors were so serious as to deprive the

defendant of a fair trial, a trial whose result is reliable." Id. at 687. "The error

committed must be so serious as to undermine the court's confidence in the jury's

verdict or result reached." State v. Chew, 179 N.J. 186, 204 (2004) (citing

Strickland, 466 U.S. at 694).

"With respect to both prongs of the Strickland test, a defendant asserting

ineffective assistance of counsel on PCR bears the burden of proving his or her

right to relief by a preponderance of the evidence." State v. Gaitan, 209 N.J.

339, 350 (2012) (citing State v. Echols, 199 N.J. 344, 357 (2009); State v.

Goodwin, 173 N.J. 583, 593 (2002)). The factual assertions providing the

"predicate for a claim of relief must be made by an affidavit or certification

pursuant to Rule 1:4-4 and based upon personal knowledge of the declarant

before the court may grant an evidentiary hearing." R. 3:22-10(c). "[A]

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9

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

effective assistance of counsel. He must allege facts sufficient to demonstrate

counsel's alleged substandard performance." State v. Cummings, 321 N.J.

Super. 154, 170 (App. Div. 1999). A failure to satisfy either prong of the

Strickland standard requires the denial of a petition for PCR. Strickland, 466

U.S. at 700; Nash, 212 N.J. at 542; Fritz, 105 N.J. at 52.

Defendant claims the court erred by denying his petition without an

evidentiary hearing because he presented sufficient evidence establishing a

prima facie ineffective assistance of counsel claim. More particularly, he asserts

that his supporting certification describing his substance abuse history and his

purported used of heroin and alcohol during trial, and Dr. Jeffrey Singer's

evaluation report, establish his counsel was ineffective by failing to investigate

a diminished capacity defense and by failing to challenge his competency at

trial. We consider and reject his arguments in turn.

A defendant may "present evidence of a mental disease or defect to 'negate

the presence of an essential mental element of the crime.'" State v. Baum, 224

N.J. 147, 160 (2016) (quoting State v. Rivera, 205 N.J. 472, 487 (2011)); see

also N.J.S.A. 2C:4-2 (providing in part "[e]vidence that the defendant suffered

from a mental disease or defect is admissible whenever it is relevant to prove

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10

the defendant did not have the state of mind which is an element of the offense").

A diminished capacity defense is "a factor bearing on the presence or absence

of an essential element of the crime as designated by the [Criminal] Code." Ibid.

(quoting State v. Breakiron, 108 N.J. 591, 608 (1987), rev'd on other grounds,

State v. Delibero, 149 N.J. 90, 101 (1997)). A diminished capacity defense may

be raised if a defendant presents "evidence of a mental disease or defect that

interferes with cognitive ability sufficient to prevent or interfere with the

formation of the requisite intent or mens rea[,]" for the crime charged, ibid.

(quoting State v. Galloway, 133 N.J. 631, 647 (1993)), and "the record contains

evidence that the claimed deficiency did affect the defendant's cognitive

capacity to form the mental state necessary for the commission of the crime,"

ibid. (quoting Galloway, 133 N.J. at 647).

Defendant's PCR petition does not provide any facts supporting a

diminished capacity defense under the Baum standard to the charges for which

he was convicted.5 Even accepting as true defendant's alleged history of

5

As noted, the jury convicted defendant of sexual assault, N.J.S.A. 2C:14-2(b),

endangering the welfare of a child, N.J.S.A. 2C:24-4(a), and lewdness, N.J.S.A.

2C:14-4(b)(1). The sexual assault and endangering statutes do not expressly

identify the mens rea required for the commission of those offenses, see N.J.S.A.

2C:14-2(b) and N.J.S.A. 2C:24-4(a), and, therefore, under N.J.S.A. 2C:2-

2(c)(3), the State was required to prove defendant engaged in "knowing conduct"

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substance abuse, his claim that his counsel's performance was deficient by

failing to consider or investigate the defense is unsupported by any evidence that

his substance abuse issues prevented or interfered with the formation of the

requisite mens rea to commit the sexual assault, endangering, and lewdness

crimes for which he was convicted. See ibid. Indeed, in his certification

supporting the PCR petition, defendant provides a detailed rendition of what he

contends occurred during the incidents in the bathroom with R.O., and then

generally asserts he has a long history of substance abuse. He fails to assert any

facts supporting a finding that his substance abuse history in any manner

affected his ability to form the requisite mens rea of the crimes for which he was

convicted.

to establish he committed those offenses, S.D. v. M.J.R., 415 N.J. Super. 417,

432 (App. Div. 2010). "A person acts knowingly with respect to the nature of

his conduct or the attendant circumstances if he is aware that his conduct is of

that nature, or that such circumstances exist, or he is aware of a high probability

of their existence." N.J.S.A. 2C:2-2(b)(2). The lewdness statute, N.J.S.A.

2C:14-4(b)(1) requires that the State prove the actor commit prohibited acts with

"purpose." "A person acts purposely with respect to the nature of his conduct

or a result thereof if it is his conscious object to engage in conduct of that nature

or to cause such a result." N.J.S.A. 2C:2-2(b)(1). Defendant does not address

the mens rea requirements applicable to the crimes for which he was convicted

or, as we explain, offer any evidence demonstrating his purported substance

abuse history affected his ability to form them when he committed the crimes

for which he was convicted.

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12

Dr. Singer's report also does not support defendant's claim. Dr. Singer

summarizes defendant's assertion he suffered from substance abuse issues over

a prolonged period of time, but Dr. Singer does not address or offer any opinion

that defendant's substance abuse issues affected defendant's ability in 2014 to

form the mens rea required to commit the crimes of sexual assault, endangering

the welfare of a child, and lewdness for which he was convicted. Stated

differently, Dr. Singer offers nothing supporting a diminished capacity defense

to the charges under the Baum standard.

Thus, even assuming his counsel erred by failing to consider a diminished

capacity defense, defendant failed to demonstrate he was prejudiced by the

alleged error. A defendant asserting an ineffective assistance of counsel claim

"must 'affirmatively prove prejudice.'" State v. Gideon, 244 N.J. 538, 551

(2021) (quoting Strickland, 466 U.S. at 693). Here, defendant failed to sustain

that burden because he did not present any evidence that had his counsel

considered a diminished capacity defense, there was evidence supporting the

defense under the Baum standard. His counsel was not ineffective by failing to

consider or assert a meritless defense. See State v. Worlock, 117 N.J. 596, 625

(1990) (stating "[t]he failure to raise unsuccessful legal arguments does not

constitute ineffective assistance of counsel"). Defendant therefore failed to

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13

demonstrate there is a reasonable probability that had the defense been

considered, the result of the proceeding would have been different. See

Strickland, 466 U.S. at 694. Defendant's failure to satisfy his burden under

Strickland's second prong alone requires the rejection of this PCR claim. Gaitan,

209 N.J. at 350.

We are also not persuaded by defendant's claim his counsel was

ineffective by failing to consider or challenge his competency to stand trial. A

defendant is entitled to a competency hearing where evidence "raises a bona fide

doubt" as to his or her competence. State v. Purnell, 394 N.J. Super. 28, 47

(App. Div. 2007). In Dusky v. United States, the United States Supreme Court

defined the minimum requirements for a defendant's competence to stand trial.

362 U.S. 402, 402 (1960). The test is "whether [the defendant] has sufficient

present ability to consult with his lawyer with a reasonable degree of rational

understanding and whether he has a rational as well as a factual understanding

of the proceedings against him." Purnell, 394 N.J. Super. at 47 (alteration in

original) (quoting Dusky, 362 U.S. at 402); see also State v. Spivey, 65 N.J. 21,

36 (1974) ("One unable to comprehend his position, to consult intelligently with

counsel and plan his defense cannot be put to trial" (quoting State v. Auld, 2

N.J. 426, 435 (1949))).

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14

N.J.S.A. 2C:4-4 sets forth the statutory standard for determining

competency. State v. M.J.K., 369 N.J. Super. 532, 547-48 (App. Div. 2004).

The statute provides:

a. No person who lacks capacity to understand the

proceedings against him or to assist in his own defense

shall be tried, convicted or sentenced for the

commission of an offense so long as such incapacity

endures.

b. A person shall be considered mentally competent to

stand trial on criminal charges if the proofs shall

establish:

(1) That the defendant has the mental capacity to

appreciate his presence in relation to time, place and

things; and

(2) That his elementary mental processes are such that

he comprehends:

(a) That he is in a court of justice charged with a

criminal offense;

(b) That there is a judge on the bench;

(c) That there is a prosecutor present who will try to

convict him of a criminal charge;

(d) That he has a lawyer who will undertake to defend

him against that charge;

(e) That he will be expected to tell to the best of his

mental ability the facts surrounding him at the time and

place where the alleged violation was committed if he

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chooses to testify and understands the right not to

testify;

(f) That there is or may be a jury present to pass upon

evidence adduced as to guilt or innocence of such

charge or, that if he should choose to enter into plea

negotiations or to plead guilty, that he comprehend the

consequences of a guilty plea and that he be able to

knowingly, intelligently, and voluntarily waive those

rights which are waived upon such entry of a guilty

plea; and

(g) That he has the ability to participate in an adequate

presentation of his defense.

[N.J.S.A. 2C:4-4.]

Defendant's claim his counsel was ineffective by failing to consider or

challenge his competency is founded solely on his purported use of drugs and

alcohol before and during the trial. Defendant bears the burden of establishing

both prongs of the Strickland standard, Gaitan, 209 N.J. at 350, but his claim is

otherwise untethered to any competent evidence his drug and alcohol use

rendered him incompetent under the standard set forth in N.J.S.A. 2C:4-4.

Defendant fails to point to any competent evidence his alleged drug and alcohol

use affected, for example, his ability to understand the proceedings against him,

appreciate his presence in relation to time, place, or things, or participate in an

adequate presentation of his defense. See N.J.S.A. 2C:4-4. His supporting

certification does not assert, address, or offer any evidence could not satisfy the

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requirement for competency under N.J.S.A. 2C:4-4 such that but for this

counsel's alleged error in failing to consider or raise the issue of his competency,

there is a reasonable probability he would have been found incompetent and the

result of his trial therefore would have been different. See Strickland, 466 U.S.

at 694. Defendant's claim to the contrary is a bald assertion that that does not

support a prima facie ineffective assistance of counsel claim. See Cummings,

321 N.J. Super. at 170.

Defendant's claim is also not supported by Dr. Singer's report because Dr.

Singer did not evaluate defendant's competency. As he explained in the report,

the purpose of his evaluation "was to assess what psychological factors may

have impacted" defendant's September 12, 2014 decision to forego any further

attendance at trial and travel to the Dominican Republic. Although Dr. Singer

repeats defendant's self-reports of drug and alcohol use, his findings are limited;

he opined only there was a "distinct and psychologically reasonable possibility

that on the morning of September 12, 2014,"—the day defendant failed to appear

for trial and traveled to the Dominican Republic—defendant "was laboring

under paranoid ideas and delusions of reference, induced by a combination of

heroin and Chantix."

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In addressing defendant's mental state on September 12, 2014, the report

offers nothing more than a "possibility" defendant suffered from paranoia and

delusions on that date, but that possibility is untethered to any finding defendant

suffered from any issue that would have rendered him incompetent under

N.J.S.A. 2C:4-4. Thus, the limited opinion included in Dr. Singer's report does

not establish that had defendant's counsel raised the issue during trial there is a

reasonable probability the result of the trial, through a finding defendant was

not competent, would have been different. See Strickland, 466 U.S. at 694.

Dr. Singer did not offer an opinion concerning defendant's actions or

mental state on any of the days defendant actually attended the trial. At best,

his report is therefore pertinent only to counsel's alleged ineffective assistance

on September 12, 2014, and during the remaining three days of trial .

Even if Dr. Singer's report may be broadly read to suggest a possibility of

paranoia and delusions that rendered defendant incompetent under N.J.S.A.

2C:4-4 on September 12, 2014, defendant's counsel was not ineffective by

failing, at that time, to raise the issue of defendant's competency. That is

because there is no evidence counsel knew, or had reason to know, of the issues

related to defendant's mental state based on the alleged facts supporting Dr.

Singer's opinion.

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On September 12, 2014, defendant provided false information to his

counsel about the reason he failed to appear at trial, and in support of his PCR

petition defendant did not present evidence his counsel had reason to question

his competency under the statutory standard on that date. Defendant's counsel

was not ineffective by failing, on September 12, 2014, to assert a competency

claim based on purported facts defendant did not disclose and about which

counsel did not have knowledge—the alleged mixture of heroin and Chantix Dr.

Singer two-years later said created the "possibility" defendant suffered from

paranoia and delusions. See Wiggins v. Smith, 539 U.S. 510, 523 (2003)

(explaining when assessing counsel's investigation, "[courts] must conduct an

objective review of their performance . . . which includes a context-dependent

consideration of the challenged conduct as seen 'from counsel's perspective at

the time'" (quoting Strickland, 466 U.S. at 688)); c.f. Harris, 181 N.J. at 402

(finding no ineffective assistance of counsel claim where a medical expert

"mentioned the possibility of a neurologic impairment or organic problem" but

counsel elected not to pursue this line of inquiry further).

Moreover, once defendant returned to the United States, his counsel

promptly made a motion for a new trial founded in part on the claim for which

defendant relies on Dr. Singer's report—that he was incompetent on September

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12, 2014, when he fled to the Dominican Republic. Defendant does not claim

his counsel was ineffective in making the motion for the new trial, and defendant

does not present any evidence that was the case. And, as noted, the court

rejected defendant's claim he was not competent during the trial, including on

September 12, 2014, and denied the motion, and we affirmed the court's order.

N.K., (slip op. at 13).

Defendant failed to establish his counsel's performance was deficient by

failing to challenge his competency on September 12, 2014; counsel raised that

precise issue in the new trial motion. Because his counsel challenged his

competency on September 12, 2014 in the new trial motion, and the court found

defendant was competent throughout the trial, defendant also failed to

demonstrate that but for his counsel's purported error in failing to raise the

singular issue of competency for which defendant relies on Dr. Singer's report—

defendant's mental state on September 12, 2014—there is a reasonable

probability the result of the trial would have been different. See Strickland, 466

U.S. at 694. In fact, we know the result of the trial would not have been different

due to counsel's alleged error because the court determined defendant was

competent at all times during trial, and we affirmed that determination on

defendant's direct appeal.

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In sum, we reject defendant's PCR claim his counsel was ineffective by

failing to raise the issue of defendant's competency at trial. Defendant failed to

present competent evidence satisfying his burden under both prongs of the

Strickland standard, see ibid., and for that reason he failed to establish a prima

facie ineffective-assistance-of-counsel claim, see Strickland, 466 U.S. at 687;

Nash, 212 N.J. at 542.

We also reject defendant's claim the court erred by denying his petition

without an evidentiary hearing. Defendant's failure to sustain his burden of

presenting a prima facie case under both prongs of the Strickland standard as to

each of his claims required the denial of his PCR petition. Strickland, 466 U.S.

at 700; Nash, 212 N.J. at 542. The PCR court correctly denied the petition

without an evidentiary hearing because defendant did not establish a prima facie

claim of ineffective assistance of counsel. State v. Preciose, 129 N.J. 451, 462

(1992); see also R. 3:22-10(b) (providing one of the requirements for a

defendant's entitlement to an evidentiary hearing on a PCR petition is the

"establishment of a prima facie case in support of post-conviction relief").

Any arguments asserted on defendant's behalf we have not addressed

directly are without sufficient merit to warrant discussion in this opinion. R.

2:11-3(e)(2).

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Affirmed.

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