STATE OF NEW JERSEY v. FRED NEULANDER

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

FRED NEULANDER,

Defendant-Appellant.

_________________________________________

July 28, 2016

 

Submitted June 7, 2016 Decided

Before Judges Yannotti and Vernoia.

On appeal from Superior Court of New Jersey, Law Division, Camden County, Indictment No. 00-06-1993.

Joseph E. Krakora, Public Defender, attorney for appellant (Monique Moyse, Designated Counsel, on the brief).

Mary Eva Colalillo, Camden County Prosecutor, attorney for respondent (Jason Magid, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Fred Neulander appeals from an order entered by the Law Division on September 14, 2012, denying his petition for post-conviction relief (PCR). We affirm.

I.

Defendant, the former Senior Rabbi at Congregation M'Kor Shalom in Cherry Hill, was charged under Camden County Indictment No. 00-06-1993, with first-degree capital murder of his wife, Carol Neulander, N.J.S.A. 2C:11-3a(1); first-degree felony murder, N.J.S.A. 2C:11-3a(3); and second-degree conspiracy to commit murder, N.J.S.A. 2C:5-2. The first guilt-phase trial took place in October and November 2001, and ended in a mistrial, after the jury could not reach a verdict. Defendant was tried again in October and November 2002.

The evidence presented at the second guilt-phase trial is summarized in our opinion on defendant's direct appeal. State v. Neulander, No. A-3616-12 (App. Div. December 28, 2006) (Neulander I) (slip op. at 3-24). As indicated therein, Carol, defendant's wife of twenty-nine years, and the mother of his three children, was found bludgeoned to death in her home on Tuesday, November 1, 1994.

According to the testimony, in December 1992, defendant began an affair with Elaine Soncini, a radio broadcaster in Philadelphia, after Soncini's husband died. By the end of 1993, defendant and Soncini were seeing each other every day, and frequently engaging in sexual relations. In March 1994, Soncini converted to Judaism and joined Congregation M'Kor Shalom. That summer, Soncini told defendant she wanted to end their relationship and move on to a new life. Defendant asked her to "trust him" and told her that he would be with her by her birthday in December 1994.

Leonard Jenoff first met defendant in June 1993. Jenoff sought counsel from defendant for low self-esteem, and he attended services at defendant's synagogue. Jenoff was a recovering alcoholic and in March 1994, he starting attending meetings of Alcoholics Anonymous at M'Kor Shalom. He explained that he would walk with defendant around the synagogue's parking lot, and they would discuss various topics, including Jenoff's desire to work for the Mossad, which is Israel's equivalent of the CIA.

In March or April 1994, defendant asked Jenoff if he would kill for Israel. Defendant later told Jenoff he wanted him to kill his wife Carol. In subsequent meetings with Jenoff, defendant discussed Carol's murder. According to Jenoff, in May 1994, defendant repeatedly asked him to kill Carol and Jenoff agreed to do so.

Jenoff testified that defendant said "he wanted to come home one night and find his wife dead on the floor." Jenoff stated that defendant agreed to pay him $30,000, and get him a job with the Mossad if he killed Carol. Later, defendant and Jenoff discussed the details of Carol's murder. Defendant decided that the murder would occur at the family home on a Tuesday night, while he was at the synagogue and his son was out of the home at work. Defendant suggested that Jenoff use a blunt instrument, so that the murder would look like a robbery that had "gone awry."

Jenoff suggested that they enlist another person to assist in the murder, and defendant told Jenoff he would have to pay that person out of the $30,000 defendant was going to pay him. Jenoff asked his roommate, Paul Daniels, to assist in the murder. Jenoff offered Daniels $7,500, and he agreed to kill Carol. In September or early October of 1994, defendant gave Jenoff $7,500 in cash, which he said was the "first down payment for killing [his] wife."

Defendant also provided Jenoff with a hand-drawn map of his house and said Jenoff should make the murder look like a robbery. Defendant informed Jenoff that Carol had a burgundy purse, in which she placed cash she brought home from the bakery that she managed. Defendant instructed Jenoff to take the purse, but not Carol's diamond ring. He told Jenoff to "make sure when I come home I find her dead."

On October 25, 1994, Jenoff saw defendant at the synagogue and told him "everything" was arranged for that night. At around 8:00 p.m., Jenoff and Daniels went to the Neulander home, dressed in dark clothing. They had a lead pipe to use as a weapon, and a plain envelope to use as a delivery decoy. When they arrived, Jenoff and Daniels saw Carol sitting in her car, talking on the phone.

Carol asked Jenoff what he wanted, and Jenoff replied that he had something to give to defendant. Carol invited Jenoff into the home. Jenoff looked around but he could not find Carol's purse and decided he could not kill Carol. He gave Carol an empty sealed envelope and told her to give it to defendant.

Carol asked Jenoff if he wanted to wait for defendant, but Jenoff declined and left the house. The following day, Jenoff met defendant in a parking lot. According to Jenoff, defendant was furious and demanded to know, "What the fuck happened?" Jenoff explained that he could not find Carol's purse and "chickened out."

The following Tuesday, Jenoff went to the synagogue and told defendant the murder would take place that evening. Shortly after 8:30 p.m., Jenoff and Daniels arrived at the Neulander home. Jenoff hid the lead pipe in a pocket in his pants. He and Daniels went to the front door of the house. Jenoff saw Carol through the glass door. She was talking on the phone. She invited Jenoff into the home.

After Carol finished her conversation, Jenoff followed her into the living room. He reached for the lead pipe, and struck Carol with it on the back of her head. Jenoff testified that Carol's knees buckled. She fell to the floor stating, "why, why?" Daniels entered the home, took the pipe from Jenoff, and repeatedly struck Carol in the head with the pipe. Jenoff found the burgundy purse, and went back to the living room to make sure Carol was dead.

Jenoff saw blood rushing from Carol's head, ears, and nose. She was making a hissing and gurgling sound. Jenoff and Daniels left the home. Jenoff put the lead pipe and the bloody clothes into a duffle bag. He disposed of these items in a dumpster near a store in a mall. Jenoff then drove to Philadelphia, where he discarded the burgundy purse in a dumpster.

In April 2000, Jenoff confessed to his involvement in the murder. The following month, using a body mike, Jenoff convinced Daniels to confess. Jenoff gave a recorded statement to the police, implicating defendant. Jenoff later pled guilty to first-degree aggravated manslaughter, and agreed to testify against defendant.

Daniels's testimony concerning the murder was consistent with Jenoff's testimony. Daniels said that Jenoff first approached him about killing the wife of a vending machine man, but he later learned that the victim would be defendant's wife. Daniels testified that he struck Carol twice with a pipe. He stated that Jenoff gave him $100 from the purse, and dropped him off at the parking lot. Daniels further testified that he met defendant at the funeral home after the murder. According to Daniels, defendant hugged him and asked if he was all right. Daniels pled guilty to first-degree aggravated manslaughter and robbery.

Defendant did not testify at trial. His defense focused largely on discrediting Jenoff and establishing that Jenoff and Daniels acted on their own. A barber who knew Jenoff testified that Jenoff claimed that defendant was innocent, and Jenoff never suggested that defendant was involved in Carol's murder. A reporter for the Philadelphia Inquirer testified that Jenoff told her he had enlisted Daniels and Daniels was the person who killed Carol.

James Keeny testified that he met Jenoff while they were in the county jail. According to Keeny, Jenoff said that defendant had "no clue as to what was being done" and Carol was killed during a "botched burglary."

The jury found defendant guilty on all charges. Thereafter, the jury was unable to reach a unanimous verdict on the death penalty. Defendant was sentenced to life imprisonment with thirty-years of parole ineligibility. The trial court entered a judgment of conviction dated January 16, 2003.

Defendant appealed from the judgment of conviction, and raised the following issue

POINT I

THE IMPROPER RESTRICTION OF CROSS-EXAMINATION OF LENOARD JENOFF AND OTHER EXPLORATION OF THE DETAILS OF A POLICE INVESTIGATION INTO HIS INVOLVEMENT IN ANOTHER MURDER, OFFERED TO IMPEACH HIS TESTIMONY AGAINST DEFENDANT, INFRINGED DEFENDANT'S RIGHT TO CONFRONT WITNESSES AND PRESENT A DEFENSE AND HIS RIGHT TO DUE PROCESS OF LAW AND A FAIR TRIAL. U.S. CONST. AMENDS. VI, XIV; N.J. CONST. (1947), ART. I, PARS. 1, 9, 10.

POINT II

THE TRIAL COURT'S DECISION TO ALLOW A CRITICAL DEFENSE WITNESS TO TESTIFY IN PRISON GARB DEPRIVED DEFENDANT OF THE RIGHT TO DUE PROCESS OF LAW AND A FAIR TRIAL. U.S. CONST. AMEND. XIV; N.J. CONST. (1947) ART. I, PARS. 1, 9, 10 (Not raised below.).

POINT III

THE ABSENCE OF A LIMITING INSTRUCTION CONCERNING THE GUILTY PLEAS ENTERED BY ALLEGED ACCOMPLICES AND THE REFUSAL OF A "FALSE IN ONE, FALSE IN ALL" INSTRUCTION ON CREDIBILITY DEPRIVED DEFENDANT OF THE RIGHT TO DUE PROCESS OF LAW AND A FAIR TRIAL. U.S. CONST. AMEND. XIV; N.J. CONST. (1947) ART. I, PARS. 1, 9, 10 (Raised in part below.).

POINT IV

THE INTRODUCTION OF OTHER CRIMES EVIDENCE (DEFENDANTS ALLEGED REQUEST TO HAVE A WITNESS KILLED) WITHOUT A LIMITING INSTRUCTION VIOLATED DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AND A FAIR TRIAL. U.S. CONST. AMEND. XIV; N.J. CONST. (1947) ART. I, PARS. 1, 9, 10 (Not raised below.).

POINT V

IMPROPER CROSS-EXAMINATION OF DEFENDANT CONCERNING WHETHER [THE] STATE'S WITNESSES HAD ANY REASON TO TESTIFY FALSELY DEPRIVED DEFENDANT OF THE RIGHT TO DUE PROCESS OF LAW AND A FAIR TRIAL. U.S. CONST. AMEND. XIV; N.J. CONST. (1947) ART. I, PARS. 1, 9, 10 (Not raised below.).

We rejected these arguments and affirmed defendant's conviction. The Supreme Court thereafter denied defendant's petition for certification. State v. Neulander, 190 N.J. 395 (2007).

II.

On July 27, 2007, defendant filed a pro se petition for PCR in the trial court, alleging that he had been denied the effective assistance of trial and appellate counsel, and his claims were not subject to any procedural bar. The trial court appointed counsel to represent defendant, and counsel filed a brief in which he raised the following arguments

POINT I

DEFENDANT WAS DENIED A FAIR TRIAL WHEN THE PROSECUTOR FAILED TO ADVISE THE DEFENDANT THAT [THE STATE'S] KEY WITNESS HAD BEEN OFFERED FAVORABLE TREATMENT FROM THE STATE FOR HIS TESTIMONY.

POINT II

DEFENDANT WAS DENIED A FAIR TRIAL BECAUSE HIS CONVICTION WAS PROCURED WITH FALSE TESTIMONY.

POINT III

BECAUSE THE TRIAL COURT HAD A SIGNIFICANT CONFLICT OF INTEREST WITH THE STATE'S KEY WITNESS AND BECAUSE SHE VIOLATED THE NEW JERSEY CANONS OF JUDICIAL CONDUCT DEFENDANT WAS DENIED A FAIR TRIAL.

POINT IV

BECAUSE DEFENDANT'S TRIAL COUNSEL AND APPELLATE COUNSEL FAILED TO PURSUE THE DOUBLE HEARSAY ISSUE RAISED BY REBECCA ROCKOFF'S TESTIMONY, DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF BOTH TRIAL COUNSEL AND APPELLATE COUNSEL.

POINT V

BECAUSE DEFENDANT'S APPELLATE COUNSEL FAILED TO APPEAL THE TRIAL COURT['S] ALLOWANCE OF EXPERT TESTIMONY AS TO THE PROPER PROTOCAL AT A SHIVA, SUGGESTING A LACK OF REMORSE ON THE PART OF DEFENDANT, DEFENDANT WAS DENIED A FAIR TRIAL AND IS ENTITLED TO POST CONVICTION RELIEF.

POINT VI

BECAUSE BOTH DEFENDANT'S TRIAL AND APPELLATE COUNSEL MISHANDLED THE ISSUE REGARDING THE APPEARANCE OF A DEFENSE WITNESS BEFORE THE JURY IN RESTRAINTS, DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL AT BOTH THE TRIAL AND APPELLATE LEVELS AND IS ENTITLED TO POST CONVICTION RELIEF.

POINT VII

THE CUMULATIVE TRIAL ERRORS DENIED PETITIONER HIS RIGHT TO A FAIR TRIAL AS REQUIRED BY THE UNITED STATES AND NEW JERSEY CONSTITUTIONS.

The PCR court considered defendant's petition on September 14, 2012, and placed an oral decision on the record. The judge found that the claim that defendant had been denied the effective assistance of trial and appellate counsel with regard to Keeny's alleged testimony in restraints was barred by Rule 3:22-5 because that issue had essentially been raised and adjudicated in defendant's direct appeal.

The judge rejected defendant's claim that the State had withheld exculpatory evidence, and the claim that the State had presented perjured testimony from Jenoff at trial. The judge found no merit in defendant's claim that he had been denied the effective assistance of trial and appellate counsel. The judge also determined that defendant was not entitled to a new trial on the basis of cumulative error, and an evidentiary hearing was not required on the PCR petition.

The judge entered an order dated September 14, 2012, denying PCR. This appeal followed. On appeal, defendant argues

POINT ONE

THE PCR COURT ERRED IN DENYING RELIEF ON RABBI NEULANDER'S CLAIMS THAT HE WAS DENIED HIS RIGHTS TO DUE PROCESS AND A FAIR TRIAL BECAUSE THE STATE WITHHELD EXCULPATORY EVIDENCE AND PROCURED PERJURED TESTIMONY AT HIS TRIAL, AND THE PCR COURT ABUSED ITS DISCRETION IN DENYING HIS MOTION TO COMPEL DISCOVERY IN SUPPORT OF THESE CLAIMS.

A. The [S]tate violated Brady v. Maryland, 373 U.S. 83, [ 83 S. Ct. 1194, 10 L. Ed. 2d 215] (1963).

B. The [S]tate violated Mooney v. Holohan, 294 U.S. 103, [ 55 S. Ct. 340, 89 L. Ed. 791] (1935) and Napue v. Illinois, 360 U.S. 264, 79 S. Ct. 1173, 3 L. Ed. 2d 1217 (1959).

POINT TWO

RABBI NEULANDER IS ENTITLED TO AN EVIDENTIARY HEARING ON HIS CLAIMS THAT COUNSEL RENDERED INEFFECTIVE ASSITANCE BY FAILING TO RAISE AND LITIGATE ERRORS RELATED TO ADMITTED HEARSAY EVIDENCE, CHALLENGE EXPERT TESTIMONY FROM A LAY WITNESS, AND RAISE THE ISSUE OF A DEFENSE WITNESS TESTIFYING IN PRISON GARB.

A. Appellate Counsel Rendered Ineffective Assistance by Failing to Raise that the Trial Court Erred in Admitting Hearsay into Evidence.

B. Trial Counsel and Appellate Counsel Rendered Ineffective Assistance Regarding a Witness's Improper Opinion Testimony that Tarnished Rabbi Neulander's Right to a Fair Trial.

C. Trial Counsel Rendered Ineffective Assistance by Failing to Object to a Defense Witness Testifying in Restraints.

POINT THREE

RABBI NEULANDER IS ENTITLED TO A HEARING BASED ON CUMULATIVE ERRORS.

III.

We turn first to defendant's contention that his right to due process under Brady v. Maryland was violated because the State purportedly failed to disclose that it had promised Jenoff a "sweetheart" deal in exchange for trial testimony implicating defendant in Carol's murder. Defendant claims the State had promised Jenoff would only serve five years in jail.

In Brady, supra, the Court held that "the suppression by the prosecution of evidence favorable to an accused upon request violates due process where [it] is material either to guilt or punishment, irrespective of the good faith or bad faith of the [State]." Brady, supra, 373 U.S. at 87, 83 S. Ct. at 1196-97, 10 L. Ed. 2d at 218; see also R. 3:13-3. To establish a Brady violation, a defendant must demonstrate that (1) the prosecutor failed to disclose evidence; (2) the evidence was of a favorable character to the defendant; and (3) the evidence was material. State v. Parsons, 341 N.J. Super. 448, 455 (App. Div. 2001).

In this case, the PCR court found that defendant had not established that the State withheld any evidence of a "sweetheart" deal with Jenoff. The court noted that when Jenoff entered his plea to first-degree aggravated manslaughter, there was no agreement by the State as to a term of years, let alone an understanding that defendant would be sentenced to five years of incarceration. Furthermore, when Jenoff was sentenced, no mention was made of any "sweetheart" deal.

Moreover, Jenoff filed a direct appeal, in which his attorney sought either a fifteen-year sentence with a five-year period of parole ineligibility, or a lengthier presumptive sentence with a shorter period of parole ineligibility than the ten-years of parole ineligibility imposed by the court. Jenoff's appellate counsel did not challenge the sentence on the ground that the State had promised him a "sweetheart" deal.

The first time that Jenoff mentioned the alleged "sweetheart" deal was in December 2007, when he filed a PCR petition. However, Jenoff withdrew his PCR petition, which suggested that there was no basis for the claim.

Indeed, Jenoff's trial counsel and the assistant prosecutor in the Jenoff matter had submitted certifications to the court in Jenoff's PCR proceeding, indicating that the State had never offered Jenoff a five-year prison term or a five-year period of parole ineligibility. Jenoff also had signed a plea form in which he indicated that no other promises had been made in connection with the plea, other than those set forth on the form.

Therefore, the record fully supports the finding of the PCR court that defendant failed to establish that the State had withheld evidence in violation of Brady. As the court determined, there was no evidence that the State had offered Jenoff a "sweetheart" deal or that the State had suppressed evidence of such a "deal."

Next, defendant contends the State violated Mooney and Napue by presenting perjured testimony from Jenoff at his trial. We note that in January 2009, Jenoff submitted an affidavit to the court in which he stated that defendant never asked him to kill his wife, and to the best of his knowledge, defendant "never had any idea of any attempt on his wife's life." Jenoff also stated that his trial testimony and the statements he gave implicating defendant in his wife's death "were completely false." Jenoff said that defendant was "an innocent man" and he "wanted to set the record straight."

However, Jenoff later recanted his recantation. In March 2010, Jenoff wrote to the court seeking permission to withdraw his affidavit. Jenoff also wrote letters to a reporter for the Philadelphia Inquirer, in which he indicated that he recanted his original story because he thought that it would give defendant a chance at a new trial. Jenoff told the reporter that he believed he could use his testimony in a new trial as leverage for a reduction in his sentence.

The PCR court found that defendant failed to establish that Jenoff's testimony was false or perjured. The court found that the State had merely asked Jenoff to testify truthfully, and defendant had not shown that the State had knowingly presented perjured testimony. The record clearly supports the court's findings.

Defendant also contends the PCR court erred by denying his motion for discovery. Defendant's PCR counsel sought to review the State's file in the Jenoff case. PCR counsel asserted that he was seeking memoranda or notations regarding the Jenoff plea negotiations that may show a violation of Brady, Mooney or Napue. PCR Counsel also sought in camera review of the State's file.

The court rules regarding PCR petitions do not authorize discovery in PCR proceedings, and the general discovery obligations in the rules do not extend to such proceedings. State v. Marshall, 148 N.J. 89, 268, cert. denied, 522 U.S. 850, 118 S. Ct. 840, 139 L. Ed. 2d 88 (1997). Nevertheless, the New Jersey courts have "the inherent power to order discovery when justice so requires." Id. at 269 (quoting State ex. rel. W.C., 85 N.J. 218, 221 (1981)).

However, discovery in a PCR proceeding should only be ordered in "the unusual case." Id. at 270. "The filing of a petition for PCR is not a license to obtain unlimited information from the State, but a means through which a defendant may demonstrate to a reviewing court that he was convicted or sentenced in violation of his rights." Ibid. (citing R. 3:22-2).

Therefore, to obtain discovery in a PCR proceeding, the defendant must show good cause, and any such discovery "should be appropriately narrow and limited." Ibid. (citation omitted). Furthermore, in the absence of exceptional circumstances, "a defendant seeking to inspect State files should identify the specific documents sought for production." Id. at 271. The decision on whether to permit discovery in a PCR matter is committed to the discretion of the PCR court. Id. at 270-71.

Here, the PCR court denied defendant's motion for discovery because defendant had not shown good cause for reviewing the State's file in the Jenoff matter. As the court noted, the sole basis for seeking discovery in this matter was to find some evidence that the State had promised Jenoff a lenient sentence as part of his plea agreement. However, as we have explained, there was no evidence indicating that the State had offered Jenoff such leniency.

We are therefore convinced that the record supports the PCR court's findings, and its decision to deny defendant's motion for discovery was not a mistaken exercise of discretion. As the court found, defendant failed to establish good cause for discovery.

IV.

Defendant argues that he was denied the effective assistance of trial and appellate counsel. He contends: (1) appellate counsel was ineffective because counsel failed to argue that the trial court improperly admitted hearsay evidence; (2) trial and appellate counsel were ineffective in their handling of the testimony of Beverly Weiss; and (3) trial counsel erred by failing to object to James Keeny testifying in prison garb.

To prevail on a claim of ineffective assistance, a defendant must satisfy the test established by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 692-93 (1984) and adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 50-52 (1987). The defendant first must show that counsel's performance was deficient. Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. This requires a showing "that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Ibid.

In addition, "the defendant must show that [counsel's] deficient performance prejudiced the defense." Id. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. The defendant must show "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698. Unless the defendant satisfies both prongs of the Strickland test, it cannot be said that the conviction "resulted from a breakdown in the adversary process that renders the result unreliable." Id. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693.

A. Admission of Defendant's Statement to Carol.

Defendant contends his appellate counsel erred by failing to argue on direct appeal that the trial court erroneously admitted certain hearsay evidence, specifically testimony by Rebecca Neulander Rockoff concerning a telephone conversation she had with her mother on November 1, 1994.

At trial, Rockoff testified that she was on the phone with Carol when Carol said "there's somebody here. He's here to drop off a letter for Daddy and Daddy had told me to expect it, so I shouldn't be surprised." Defendant argues that Carol's statement about what he allegedly told her was inadmissible hearsay, and appellate counsel should have raised that issue on appeal.

Defense counsel had filed a motion in limine to preclude Rockoff from providing this testimony. The trial judge denied the motion. In an oral decision placed on the record on December 20, 2000, the judge noted that the parties had agreed that Carol's statements that a man had been observing her, and that he had approached her car, were admissible under the hearsay exception for present sense impression in N.J.R.E. 803(c)(1).

The judge further found that Carol's statement as to what defendant told her also was admissible under the hearsay exception for statements of a party opponent in N.J.R.E. 803(b)(1). The judge also found that defendant's statement was probative as to Carol's state of mind, because it explained why she would let a stranger into the home.

Defendant contends the testimony should not have been admitted because Carol's state of mind as to why she allowed a stranger into the home was not relevant. He further argues that he was prejudiced by admission of his statement because it was allegedly the only piece of evidence tying him to Jenoff's "incredible tale." We cannot agree.

We note that evidence regarding a declarant's existing state of mind may be admissible under the hearsay exception in N.J.R.E. 803(c)(3), if the evidence is relevant and "bears a logical connection to the issues at trial." State v. Scharf, N.J. , (2016) (slip op. at 26). For example, a victim's statement that she feared the accused can be admitted to rebut a claim that the victim's death was accidental. Id. at 29-30.

However, Carol's statement about what defendant told her was not a statement as to her then existing state of mind. Defendant's statement was admissible because it was the statement of a party opponent, and it explained why Carol let a person she did not know into the home. Defendant's statement provided corroboration for Jenoff's and Daniels's testimony, which implicated defendant in Carol's murder.

Because defendant's objection to the introduction of his statement through Rebecca's testimony was meritless, appellate counsel cannot be faulted for failing to raise the issue on appeal. Moreover, defendant has not shown that the appeal would have been decided differently if this issue had been raised.

B. Testimony of Beverly Weiss.

Defendant contends his trial attorney should have objected to testimony by Beverly Weiss regarding his conduct at Soncini's mikveh, the ceremony performed when Soncini converted to the Jewish religion. Defendant also contends his appellate attorney should have raised this issue on appeal.

At trial, Weiss testified that she had been a member of the M'Kor Shalom congregation for twenty-four years, that she had known defendant for just as long. Weiss had attended Soncini's mikveh. Weiss explained that she and Carol had been friends, and she attended Carol's funeral and shiva. With regard to the Soncini's conversion ceremony, Weiss testified as follows

[ASS'T PROSECUTOR]: After [the ceremony] was concluded what happened?

[ASS'T PROSECUTOR]: We were preparing to go back to the synagogue for the third part of this conversion celebration and generally we all go back to the synagogue and the person who is to be converted comes by herself, or with a dear friend, or a husband or wife who is waiting to ride back to the synagogue with them.

[ASS'T PROSECUTOR]: What happened this time?

MRS. WEISS: This time we were all preparing to wait and [defendant] said that he would stay and accompany [Soncini] back to the synagogue.

[ASS'T PROSECUTOR]: What did the rest of you do at this point?

MRS. WEISS: Well, we didn't think that was appropriate but we, after some small discussion among ourselves, we left for the synagogue without her.

Weiss further testified that at Carol's shiva, defendant sat comfortably in a black leather chair. She said Jewish custom dictates that a person in mourning is supposed to sit on a hard chair to purposely feel uncomfortable. The trial judge overruled defense counsel's objection to this testimony. Defendant argues that the appellate counsel should have raised this issue on appeal.

Defendant argues that Weiss gave inadmissible personal opinion testimony regarding the rituals of the Jewish faith and defendant's conduct. He contends opinions regarding the "inner workings" of a religion may only be provided by an expert. He also argues that Weiss's testimony about Jewish rituals and conduct that is expected at such rituals was not proper lay opinion testimony. We disagree.

N.J.R.E. 701 states: "If 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 perception of the witness and (b) will assist in understanding the witness' testimony or in determining a fact in issue." Lay opinion testimony may be admitted if the court determines that the witness's opinion is "rationally based" on the witness's personal perception, and that the opinion will be helpful to an understanding of the witness' testimony or the case generally. State v. Labrutto, 114 N.J. 187, 197-98 (1989).

Here, Weiss did not testify at trial as an expert, and the State was not required to present expert testimony concerning the traditional ceremonies of the Jewish faith, or the conduct that is expected of persons attending such ceremonies. Weiss's testimony was proper lay opinion testimony because she is Jewish, has been a member of defendant's synagogue for twenty-four years, and has personal knowledge or experience concerning the ceremonies about which she testified.

Moreover, Weiss's testimony about Soncini's conversion ceremony and Carol's shiva was based upon her personal knowledge of the Jewish faith and her experiences with such rituals. Weiss's testimony about defendant's conduct after Soncini's conversion ceremony and at Carol's shiva was based on her personal observations. This was proper lay opinion testimony because it was rationally based on Weiss's perceptions, and it aided the members of the jury to understand the testimony and perform their role as fact-finders.

We conclude that the PCR court correctly found that defendant had not been denied the effective assistance of trial or appellate counsel with regard to Weiss's testimony.

C. Keeny's Testimony.

Defendant argues that he was denied the effective assistance of trial counsel because counsel did not object when James Kenny purportedly testified in restraints.

Keeny was called as a defense witness to attack Jenoff's credibility, and establish that Jenoff and Daniels acted on their own when Carol was murdered. On direct examination, Keeny testified that he was then serving a State prison sentence, and defense counsel established that he had a long involvement with the criminal justice system, which included a burglary conviction in 2000, for which he was then incarcerated.

Keeny stated that he met Jenoff on June 7, 2000, at a meeting of Alcoholics Anonymous in the county jail. According to Kenny, Jenoff told him that defendant did not have any idea as to what was being done, and Carol was killed in a "botched burglary." At another meeting, Jenoff purportedly told Kenny that he gave the "kid" he was with the pipe and told him to keep an eye on the victim, while he went looking for the money. Kenny said Jenoff told him that when he returned, he discovered "the kid snapped" and beat the victim to death.

It should be noted that on direct appeal, defendant argued that the trial court had committed reversible error by allowing Kenny to testify in prison garb. Neulander I, supra at 44-48. In support of this argument, defendant had relied upon State v. Artwell, 177 N.J. 526, 536 (2003), where the Court held that "in future cases" a defendant or his witnesses should not testify at trial in prison garb. Id. at 44.

We noted that Artwell did not apply to defendant's trial, which took place more than a year and one-half before Artwell was decided. Neulander, supra, No. A-3616-12, slip op. at 46. We also pointed out that it was unclear from the video of the trial whether Keeny had testified in prison garb. Id. at 44-45, n. 5. We held that defendant had not been denied a fair trial, even if Kenny had testified in prison clothing. Id. at 46.

We stated that even if the trial judge erred by allowing Kenny to testify in prison garb, it did not rise to the level of plain error because the error was not "clearly capable of producing an unjust result." Id. at 47-48 (quoting Rule 2:10-2). Keeny testified that he was then serving a State prison sentence, and the jury would have expected that he would be wearing prison clothes. Id. at 47.

We observed that if Keeny had testified in prison garb, "[i]t did not have the capacity to undermine Keeny's credibility any further than the information obtained on direct examination concerning Keeny's status and criminal record, nor was there any chance that Keeny's appearance in prison attire suggested defendant's guilt by association. Ibid.

In his PCR petition, defendant claimed that he had been denied the effective assistance of trial counsel because counsel had not objected to Keeny testifying in restraints. Defendant also claimed that appellate counsel was remiss in failing to raise this issue on direct appeal. The PCR court found that this claim was barred by Rule 3:22-5, because it had essentially been adjudicated on direct appeal.

The PCR court nevertheless addressed the issue. The court concluded that appellate counsel did not err by failing to argue for retroactivity of Artwell, noting that in our decision on defendant's direct appeal, we had concluded that Artwell did not apply to defendant's trial. The PCR court also noted that there was no evidence that Keeny had testified in restraints and, even if he did, defendant was not prejudiced by Keeny's appearance.

We are convinced that the PCR court correctly found that defendant's claim of ineffective assistance of counsel regarding Keeny's alleged testimony in restraints was barred by Rule 3:22-5. The issue regarding Keeny testifying in restraints was essentially the same as the issue regarding Keeny testifying in "prison garb," which had been raised and decided in defendant's direct appeal.

In any event, the PCR court addressed the issue on the merits and correctly found that defendant had not been denied the effective assistance of trial or appellate counsel. As noted, there was no evidence that Keeny had testified in restraints. Even if Keeny did testify in this manner, defendant failed to show that trial or appellate counsel erred in addressing this issue. Moreover, defendant failed to show that even if counsel were remiss, he was prejudiced by the error.

We also conclude that defendant failed to present a prima facie case of ineffective assistance of counsel, and the present record was sufficient to resolve defendant's claims. Therefore, an evidentiary hearing was not required on the PCR petition. State v. Porter, 216 N.J. 343, 354 (2013) (citing R. 3:22-10(b)); State v. Preciose, 129 N.J. 451, 462 (1991).

V.

Defendant argues that the cumulative effect of the errors he complains of resulted in a manifest injustice, which justifies reversal of his conviction. The contention is without sufficient merit to warrant discussion. R. 2:11-3(e)(2). As noted, however, defendant has not identified any reversible error in his trial, nor has he shown that he was denied the effective assistance of trial or appellate counsel in any respect. Therefore, we reject defendant's claim of cumulative error.

Affirmed.