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NOT FOR PUBLICATION WITHOUT THE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-0628-22
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JALIYL AMAKER, a/k/a
JAMALL BROWN, JALIL
BROWN, JAYLIL AMAKER,
JALIYL S. AMAKER, JALIVI S.
AMAKER, JAVLIL AMAKER,
JAYLIL TAYLOR, and JOLLI,
Defendant-Appellant.
____________________________
Submitted April 23, 2024 – Decided May 2, 2024
Before Judges Gooden Brown and Haas.
On appeal from the Superior Court of New Jersey, Law
Division, Hudson County, Indictment No. 17-04-0256.
Jennifer Nicole Sellitti, Public Defender, attorney for
appellant (Steven M. Gilson, Designated Counsel, on
the brief).
Esther Suarez, Hudson County Prosecutor, attorney for
respondent (Patrick F. Galdieri, II, Assistant
Prosecutor, of counsel and on the brief).
PER CURIAM
Defendant Jaliyl Amaker appeals from the Law Division's August 31,
2022 order denying his petition for post-conviction relief (PCR) without an
evidentiary hearing. We affirm.
We incorporate herein the procedural history and facts set forth in our
decision affirming defendant's convictions and sentence on direct appeal in State
v. Amaker, No. 5068-20 (App. Div. Dec. 14, 2020), certif. denied, 247 N.J. 410
(2021). The parties are fully familiar with these matters and, therefore, we will
not reiterate them here.
In his direct appeal, defendant asserted that "the trial court erred when it
held that defendant's severance motion was untimely and refused to consider the
merits of that motion." Amaker, slip op. at 8. We concluded that defendant's
contention on that point was "substantively meritless." Id. at 12.
In explaining our ruling, we noted that the trial court granted the co -
defendant's motion for a judgment of acquittal prior to the jury's deliberations,
which "effectively severed" the co-defendant and the statement he made to
defendant to "throw the gun" from the case. Ibid. "Second, the court provided
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two strongly worded limiting instructions that directed the jury to give no
consideration to [the co-defendant's] statement." Id. at 12-13. Finally, we found
that defendant suffered no prejudice from the court's denial of his severance
motion because "the evidence of [his] guilt was overwhelming." Id. at 13.
In his PCR petition, defendant claimed that his trial attorney's "failure to
file [the] severance motion in [a] timely fashion" constituted ineffective
assistance and required a new trial. According to defendant, the trial court likely
would have granted a timely motion and, had that occurred, the result of his trial
would have been different.
After oral argument, the trial court 1 rendered a thorough written decision
concluding that defendant's contention was procedurally barred by Rule 3:22-
5.2 The trial court explained:
In reviewing [defendant's] claims of ineffective
assistance of counsel, this [c]ourt notes that,
substantively, trial counsel . . . did move to sever the
1
The judge who presided over defendant's trial also decided defendant's PCR
petition.
2
Rule 3:22-5 states that "[a] prior adjudication upon the merits of any ground
for relief is conclusive whether made in the proceedings resulting in the
conviction or in any post-conviction proceeding brought pursuant to this rule . .
. or in any appeal from such proceedings." Thus, Rule 3:22-5 bars consideration
of a contention presented in a PCR petition "if the issue raised is identical or
substantially equivalent to that adjudicated previously on direct appeal." State
v. Marshall, 148 N.J. 89, 150 (1997).
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3
joint trial and successfully argued against admission of
the co-defendant's statement once the co-defendant's
motion for a judg[]ment of acquittal had been granted.
The co-defendant's statement was, in fact, struck from
the record, and this [c]ourt twice gave curative
instructions to the jury. On direct appeal, appellate
counsel raised both the severance motion and the
prejudicial impact of the co-defendant's statements.
Plainly, the representation provided by both trial
counsel and appellate counsel did not fall below an
objective standard of reasonableness.
Because defendant failed to establish a prima facie case of ineffective
assistance of trial counsel, the trial court denied his petition for PCR without an
evidentiary hearing. This appeal followed.
On appeal, defendant raises the same argument he unsuccessfully
presented to the trial court. Defendant contends:
THIS MATTER MUST BE REMANDED FOR AN
EVIDENTIARY HEARING BECAUSE
DEFENDANT ESTABLISHED A PRIMA FACIE
CASE OF TRIAL COUNSEL'S INEFFECTIVENESS
FOR FAILING TO TIMELY MOVE TO SEVER THE
JOINT TRIAL WITH HIS CO-DEFENDANT WHOSE
INCULPATORY STATEMENT IRREPARABLY
PREJUDICED DEFENDANT.
When petitioning for PCR, the defendant must establish, by a
preponderance of the credible evidence, that he or she is entitled to the requested
relief. State v. Nash, 212 N.J. 518, 541 (2013); State v. Preciose, 129 N.J. 451,
459 (1992). To sustain that burden, the defendant must allege and articulate
A-0628-22
4
specific facts that "provide the court with an adequate basis on which to rest its
decision." State v. Mitchell, 126 N.J. 565, 579 (1992).
The mere raising of a claim for PCR does not entitle the defendant to an
evidentiary hearing and the defendant "must do more than make bald assertions
that he was denied the effective assistance of counsel." State v. Cummings, 321
N.J. Super. 154, 170 (App. Div. 1999). Rather, trial courts should grant
evidentiary hearings and make a determination on the merits only if the
defendant has presented a prima facie claim of ineffective assistance, material
issues of disputed facts lie outside the record, and resolution of the issues
necessitates a hearing. R. 3:22-10(b); State v. Porter, 216 N.J. 343, 355 (2013).
We review a judge's decision to deny a PCR petition without an evidentiary
hearing for abuse of discretion. Preciose, 129 N.J. at 462.
To establish a prima facie claim of ineffective assistance of counsel, the
defendant is obliged to show not only the particular manner in which counsel's
performance was deficient, but also that the deficiency prejudiced his right to a
fair trial. Strickland v. Washington, 466 U.S. 668, 687 (1984); State v. Fritz,
105 N.J. 42, 58 (1987). There is a strong presumption that counsel "rendered
adequate assistance and made all significant decisions in the exercise of
reasonable professional judgment." Strickland, 466 U.S. at 690. Further,
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because prejudice is not presumed, Fritz, 105 N.J. at 52, the defendant must
demonstrate "how specific errors of counsel undermined the reliability" of the
proceeding. United States v. Cronic, 466 U.S. 648, 659 n.26 (1984).
Where, as here, a defendant asserts his attorney was ineffective by failing
to file a motion, he must establish that the motion would have been successful.
"It is not ineffective assistance of counsel for defense counsel not to file a
meritless motion . . . ." State v. O'Neal, 190 N.J. 601, 619 (2007).
Having considered defendant's contentions in light of the record and the
applicable law, we affirm the denial of defendant's PCR petition substantially
for the reasons detailed at length in the trial court's written opinion. We discern
no abuse of discretion in the court's consideration of the issues, or in its decision
to deny the petition without an evidentiary hearing.
Because defendant unsuccessfully raised virtually the same argument in
his direct appeal as he did in his PCR petition, his petition was barred by Rule
3:22-5. We are also satisfied that the trial attorney's performance was not
deficient and defendant suffered no prejudice from the pre-trial denial of his
severance motion. 3 Therefore, defendant did not meet either prong of the
3
As we noted in our opinion on defendant's direct appeal, the result of the trial
would not have been different given the overwhelming evidence of defendant's
A-0628-22
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Strickland test, which requires a showing that trial counsel's performance was
deficient and that, but for that deficient performance, the result would have been
different. Strickland, 466 U.S. at 687.
Affirmed.
guilt and the fact that the co-defendant was effectively severed from the case
before it went to the jury. Amaker, slip op. at 12-13.
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