STATE OF NEW JERSEY v. KHALIL PATRICK

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

A-4916-13T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

KHALIL PATRICK,

Defendant-Appellant.

__________________________________

September 2, 2016

Submitted June 7, 2016 Decided

Before Judges Reisner and Leone.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment Nos. 05-09-0975, 05-09-0976, and 05-02-0159.

Joseph E. Krakora, Public Defender, attorney for appellant (David A. Gies, Designated Counsel, on the briefs).

Grace H. Park, Acting Union County Prosecutor, attorney for respondent (Milton S. Leibowitz, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).

Appellant filed a pro se supplemental brief.

PER CURIAM

Defendant Khalil Patrick, who was tried for two different criminal episodes in front of two different juries, appeals the April 10, 2014 orders denying his post-conviction relief (PCR) petitions regarding both convictions. Defendant claims ineffective assistance of his trial attorney, who represented defendant in both jury trials. We consolidate these back-to-back appeals for the purposes of this opinion. We affirm.

I.

First, we summarize the relevant facts under Indictment No. 05-02-0159, as set forth in our decision on direct appeal. State v. Patrick, Docket No. A-2448-07 (App Div. May 4, 2010). On October 4, 2004, police officers were patrolling an Elizabeth housing complex where they knew drug dealers typically conducted business in the stairwells of the buildings. The officers observed several people looking out a fourth-story window, and believed they might be looking for customers to whom they could sell drugs. When the officers found no drug activity on the fourth floor, they climbed to the fifth floor where they found defendant standing in a hallway with a female. The officers observed what looked like a bundle of glassine envelopes of heroin on a window ledge in front of defendant.

When defendant saw the officers, he grabbed the bags with his left hand, put them in his mouth and swallowed them; he also grabbed something else from the ledge with his right hand and swallowed it. The officers found chunks of crack cocaine on the window ledge and on a baseboard heater below the window. The officers also found a "white powdery residue" on defendant's lips and on the fingers of his right hand. The officers arrested defendant.

The jury acquitted defendant of tampering with evidence and hindering apprehension, but convicted him of third-degree possession of cocaine, N.J.S.A.2C:35-10(a)(1). The trial judge sentenced defendant to a term of four years in prison, to run consecutive to another four-year term imposed for another drug offense under Indictment No. 05-06-0653.

Next, we summarize the relevant facts under Indictment Nos. 05-09-0975 and 05-09-0976, as set forth in our decision on direct appeal. State v. Patrick, Docket No. A-0874-06 (App. Div. September 26, 2008), certif. denied, 200 N.J.503 (2009). On April 8, 2005, Elizabeth Police Officer David Turner was called to an apartment in the Oakwood Plaza housing complex. As Turner approached, he saw defendant and another man leaving the apartment building. In the apartment he found seventeen-year-old Corey Williams, bleeding from wounds to his face and the back of his head. An ambulance arrived five minutes after Turner was called to the scene, and transported Williams to the hospital, where Turner interviewed him.

Officer Turner testified that Williams gave the following written statement. He had initially gotten into a fight with defendant and two other people on Broad Street. When Williams returned to his apartment building, three men "jumped him," and beat and stabbed him. Williams identified the three men as defendant and co-defendants Lorenzo Keets and Yvon Pyrus (defendants). Williams specifically identified defendant as the person who had stabbed him in the face.1

Pyrus testified as follows as a witness for the State. After Pyrus was involved in the fight with Williams on Broad Street, defendant said that "if anybody was seen that was in the fight, he was going to cut them in the face." When defendants again encountered Williams, defendant punched Williams and cut him in the face. As defendants fled, Williams' uncle Antoine Adams chased them but they escaped.

Defendant got a gun and went looking for Adams. After Adams swung at defendant, defendant backed up and started firing toward Adams in front of an apartment building. After firing multiple shots, defendant handed the gun to Pyrus and told him to shoot Adams, but when Pyrus fired, he discovered that the gun was out of ammunition.

At the apartment building, police officers found two children who had suffered gunshot wounds. Two witnesses testified that they saw defendant with a handgun outside the apartment building. Kim Colbert, who had known defendant for about ten years, testified that after hearing gunshots she saw defendant "holding a black gun" and pointing it with his arm outstretched. Defendant then came into the apartment building holding a two-year-old child and repeatedly saying, "I'm sorry." Lakia Patterson testified that she saw defendant standing outside holding a gun which he pointed toward the doorway. She heard gunshots at the same time that she saw defendant pointing the gun and shooting in the direction of her son, who was wounded.

Based on defendant's attacks on Williams, Adams, and the two children, the jury convicted the defendant under Indictment No. 05-09-0975 of four counts of second-degree aggravated assault, N.J.S.A.2C:12-1(b)(1); two counts of third-degree aggravated assault with a deadly weapon, N.J.S.A.2C:12-1(b)(2); two counts of fourth-degree aggravated assault with a deadly weapon, N.J.S.A.2C:12-1(b)(3); fourth-degree aggravated assault with a firearm, N.J.S.A.2C:12-1(b)(4); second-degree possession of a firearm for an unlawful purpose, N.J.S.A.2C:39-4(a); third-degree unlawful possession of a handgun, N.J.S.A.2C:39-5(b); third-degree possession of a weapon for an unlawful purpose, N.J.S.A.2C:39-4(d); and fourth-degree unlawful weapons possession, N.J.S.A.2C:39-5(d). The jury then convicted defendant under Indictment No. 05-09-0976 of second-degree convicted persons not to have a firearm, N.J.S.A.2C:39-7(b), (a); and fourth-degree convicted person not to have a weapon, N.J.S.A.2C:39-7(a).

Under Indictment No. 05-09-0975, the trial judge sentenced defendant to an aggregate prison term of fifty-five years, with an 85% parole ineligibility period under the No Early Release Act (NERA), N.J.S.A.2C:43-7.2. Under Indictment No. 05-09-0976, the judge sentenced defendant to two concurrent ten-year terms. On direct appeal, we affirmed defendant's convictions but remanded for resentencing in light of State v. Pierce, 188 N.J.155 (2006).2

On January 30, 2010, defendant filed a pro se PCR petition regarding Indictment Nos. 05-09-0975 and 05-09-0976. On January 18, 2011, the PCR court dismissed defendant's petition without prejudice to permit investigation by counsel. On September 2, 2011, defendant filed a pro se PCR petition regarding Indictment No. 05-02-0159. On January 6, 2012, defendant refiled his PCR petition regarding Indictment Nos. 05-09-0975 and 05-09-0976. The petitions were transferred to Middlesex County where the PCR court denied both petitions in its April 10, 2014 orders and oral opinion.

In his counseled brief defendant argues

THE PCR COURT SHOULD HAVE CONDUCTED AN EVIDENTIARY HEARING TO DETERMINE WHETHER THE DIFFERENCE OF INTERESTS BETWEEN THE DEFENDANT AND HIS ATTORNEY MATERIALLY INTERFERED WITH THE ATTORNEY'S REPRESENTATION. (U.S. CONST. AMEND. VI, XIV; N.J. CONST. Art. I, para. 10 (1947)).

Defendant also submitted a pro se supplemental brief. He argues that "AFTER LESS THAN COMPLETE INVESTIGATION[,] TRIAL COUNSEL['S] DECISION NOT TO CALL ANTOINE ADAMS [WAS] UNREASONABLE." He also argues that "TRIAL COUNSEL WAS INEFFECTIVE IN HIS FAILURE TO INVESTIGATE PETITIONER['S] FACTUAL CONTE[N]TIONS" that "IIMID L. LOVE AKA HAMMID GUMBS, HAD TAKEN FULL RESPONSIBILITY FOR INDICTMENT NO. 05-06-00754 (POSS. OF WEAPONS CASE)," and that "TRIAL COUNSEL['S] FAILURE TO FILE MOTION TO HAVE INDICTMENT NO. 05-06-00754 DISMISSED DEPRIVE[D] THE PETITIONER THE BENEFIT OF A MORE FAVORABLE PLEA BARGAIN." Next, defendant argues that "TRIAL COUNSEL RENDER[E]D INEFFECTIVE ASSISTANCE OF COUNSEL IN HIS FAILURE TO REQUEST A CAUTIONARY INSTRUCTION BE GIVEN IN RE[FER]ENCE TO THE TESTIMONY OF LAKIA PATERSON AND YVON PYRUS OUT OF COURT STATEMENTS." Finally, defendant alleges "INEFFECTIVE ASSISTANCE OF PCR COUNSEL WHO FAILED TO MEET THE REQUIREMENT OF R. 3:22-6(D)."

II.

As the PCR court did not hold an evidentiary hearing on the claim defendant now raises on appeal, we "conduct a de novo review." State v. Harris, 181 N.J.391, 421, (2004), cert. denied, 545 U.S. 1145, 125 S. Ct. 2973, 162 L. Ed. 2d 898 (2005). We must hew to this standard of review.

To show ineffective assistance of counsel, a defendant must satisfy the two-pronged test of Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), adopted in State v. Fritz, 105 N.J.42 (1987). "The defendant must demonstrate first that counsel's performance was deficient, i.e., that 'counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment.'" State v. Parker, 212 N.J.269, 279 (2012) (quoting Strickland,supra, 466 U.S.at 687, 104 S. Ct.at 2064, 80 L. Ed.2d at 693). The defendant must overcome a "strong presumption that counsel rendered reasonable professional assistance." Ibid. Second, "a defendant must also establish that the ineffectiveness of his attorney prejudiced his defense. 'The 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.'" Id.at 279-80 (quoting Strickland,supra, 466 U.S.at 694, 104 S. Ct.at 2068, 80 L. Ed.2d at 698).

"A defendant shall be entitled to an evidentiary hearing only upon the establishment of a prima facie case in support of post-conviction relief[.]" R. 3:22-10(b). "To establish such a prima facie case, the defendant must demonstrate a reasonable likelihood that his or her claim will ultimately succeed on the merits." State v. Marshall, 148 N.J. 89, 158, cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997). The court must view the facts "'in the light most favorable to defendant.'" Ibid. (citation omitted).

III.

We first address defendant's ineffectiveness claims regarding his drug conviction under Indictment No. 05-09-0159. Defendant first argues that trial counsel was ineffective in failing to seek suppression of the crack cocaine. When it is alleged that counsel was ineffective for failing "'to file a suppression motion, the defendant not only must satisfy both parts of the Strickland test but also must prove that his [or her] Fourth Amendment claim is meritorious.'" State v. Goodwin, 173 N.J. 583, 597 (2002) (citation omitted). Here, defendant has neither proven his suppression claim is meritorious nor satisfied Strickland. Defendant has not shown that the officers lacked a right to be in the common stairwell, or that they lacked probable cause after observing the chunks of crack cocaine and defendant stuffing a bundle of glassine envelopes in his mouth. Indeed, trial counsel explained at trial that he did not file a suppression motion because it was not "winnable," and the trial court agreed. We agree for the reasons stated by the PCR court.

Second, defendant argues that trial counsel should have moved for a new trial based on the weight of the evidence.3 On direct appeal, we held that defendant could "not challenge the verdict as being against the weight of the evidence, because he did not file a motion for a new trial." Patrick, supra, Docket No. A-2448-07 (slip op. at 5). Immediately thereafter, we also held that, "even if we consider [this] argument[,] it is without merit. There was ample evidence on which the jury could have concluded that defendant was in constructive possession of the crack cocaine on the window ledge." Ibid. We reject defendant's assertion that this holding was merely dicta. Accordingly, this argument was previously adjudicated and is thus barred under Rule 3:22-5. Defendant's argument was also meritless, as the PCR court also found.

IV.

We next address defendant's ineffectiveness claims regarding his aggravated assault and weapons convictions under Indictment Nos. 05-09-0975 and 05-09-0976.

A.

Defendant first claims trial counsel was ineffective because he allegedly engaged in disagreements, verbal abuse, racial remarks, and physical confrontation with defendant, which caused defendant to file an ethics complaint against counsel. We agree with the PCR court that this claim was barred under Rule 3:22-5 as previously adjudicated.

Defendant raised all of those allegations in the trial court and on direct appeal, where he claimed "THE COURT VIOLATED HIS CONSTITUTIONAL RIGHTS TO EFFECTIVE ASSISTANCE OF COUNSEL." Patrick, supra, Docket No. A-0874-06 (slip op. at 21). In our opinion, we noted

Immediately before jury selection on June 19, 2006, defendant asked the judge to adjourn the trial so that he could obtain a new attorney. He indicated that he had several disagreements with his attorney . . . . Defendant also contended that his attorney had made racial remarks to him and that they had been close to a physical confrontation; his attorney denied both allegations on the record. The judge reviewed in camera several letters defendant had sent to the Public Defender's Office complaining about his counsel, and concluded that they did not provide a basis to grant an adjournment.

[Id.at 3-4.]

In our opinion, we stated that "[h]aving read the entire trial transcript, we conclude that . . . all of defendant's remaining contentions are without sufficient merit to warrant discussion in a written opinion." Id. at 23 (citing R. 2:11-3(e)(2)). We added "the following comments" about defendant's ineffective claim. Ibid. "We find no abuse of discretion or other error in the trial judge's refusal to adjourn the trial a fourth time in order to grant defendant's last-minute request to retain new counsel." Id. at 24. "Defendant's disagreements with his assigned counsel concerned defendant's desire to have counsel file clearly non-meritorious motions." Ibid. We noted that "later on in the trial, defendant expressed confidence in his assigned counsel and agreed to be guided by his advice." Ibid.

Defendant argues that our prior decision did not address the fact that defendant's disagreements involved his deteriorating relationship with trial counsel as evidenced by allegations of verbal abuse, racial remarks and physical confrontation. To the contrary, our opinion acknowledged those allegations, and then rejected defendant's claim that the trial court's decision left him with ineffective counsel. Our invocation of Rule 2:11-3(e)(2) made clear we were rejecting as meritless any aspect of defendant's claim which we did not expressly discuss. Id. at 23.

"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 appeal taken from such proceedings." R. 3:22-5. PCR petitions are not "a vehicle to relitigate the merits of cases resolved on their merits." State v. Jones, 219 N.J. 298, 310 (2014) (citingR. 3:22-5). Therefore, "when the issue of ineffective assistance of counsel has already been raised on direct appeal, it may be procedurally barred on PCR by Rule 3:22-5." State v. McQuaid, 147 N.J. 464, 484 (1997). Thus, defendant normally would be "barred from re-litigating these claims in a PCR petition." State v. Pagan, 378 N.J. Super. 549, 557 (App. Div. 2005). However, "Rule 3:22-5's bar to review of a prior claim litigated on the merits 'is not an inflexible command,'" and we would not be "powerless to correct a fundamental injustice." State v. Nash, 212 N.J. 518, 547 (2013) (quoting State v. Franklin, 184 N.J. 516, 528 (2005)).

The PCR court properly ruled that defendant's ineffectiveness claim had already been litigated. Moreover, that claim does not "fall[] into the very limited exception[] carved out of Rule 3:22-5." Franklin, supra, 184 N.J. at 528. Thus, we hold that the claim is barred under Rule 3:22-5.

Defendant now rephrases his ineffectiveness claims as being the result of a conflict of interest. However, Rule 3:22-5 bars consideration of an argument on PCR review "'if the issue raised is identical or substantially equivalent to that adjudicated previously on direct appeal'" or in the trial court. State v. Marshall, 173 N.J. 343, 351 (2002) (citation omitted). A claim of conflict of interest between defendant and counsel is a type of ineffective assistance of counsel claim. State v. Cottle, 194 N.J. 449, 466 (2008); State v. Bellucci, 81 N.J. 531, 535 (1980).

Moreover, defendant bases his PCR claim of conflict of interest on a fact that was a focus of his previously-adjudicated ineffectiveness claim. Before the trial court, defendant repeatedly argued that he had sent letters raising an ethics complaint against trial counsel, and that trial counsel had a "conflict of interest." The trial court reviewed defendant's letters and found "no grounds here for relieving" trial counsel. Thus, defendant's claim of conflict was already considered and rejected by the trial court.

In any event, defendant's conflict claim fails. When "analyzing whether a conflict of interest has deprived a defendant of his state constitutional right to the effective assistance of counsel," we "adhere[] to a two-tiered approach." Cottle, supra, 194 N.J. at 467. "In those cases in which we have found a per se conflict, prejudice is presumed in the absence of a valid waiver, and the reversal of a conviction is mandated." Id. at 467. However, courts "have limited the per se conflict on constitutional grounds to cases in which 'a private attorney, or any lawyer associated with that attorney, is involved in simultaneous dual representations of codefendants,'" or "both he and his client are simultaneously under indictment in the same county and being prosecuted by the same prosecutor's office." Id. at 452, 467 (citation omitted). "In all other cases, 'the potential or actual conflict of interest must be evaluated and, if significant, a great likelihood of prejudice must be shown in that particular case to establish constitutionally defective representation of counsel.'" Id. at 467-68 (citation omitted).

This case does not fall within the two limited circumstances of per se conflict. Moreover, this case is a far cry from Cottle, where the attorney was "contemporaneously under indictment in the same county as his client, and being prosecuted by the same prosecutor's office[.]" Id. at 473. "In such circumstances, it is not difficult to imagine that [the attorney] might not have had the zeal to engage in a bruising battle with the very prosecutor's office that would be weighing his fate." Id. at 464-65. Thus, the attorney had "a reason to curry some personal favor with the prosecutor's office at the expense of his client." Id. at 464. That created "a 'significant risk' that [the attorney's] representation of defendant was 'materially limited' by his 'personal interest.'" Id. at 466 (quoting R.P.C. 1.7(a)(2)).

By contrast, defendant's ethics charge gave trial counsel no incentive to curry favor with the prosecutor's office, which was not involved in the ethics complaint. See id. at 469 n.9. Defendant has not shown "a significant risk" that trial counsel's representation was "materially limited by" counsel's "personal interest." R.P.C. 1.7(a)(2). Nor has defendant shown the "'great likelihood of prejudice'" needed "'to establish constitutionally defective representation of counsel.'" Cottle, supra, 194 N.J. at 467-68 (citation omitted). Such a showing is particularly critical to prevent defendants from manufacturing conflicts by bringing ethics charges against their own lawyers. Defendant's conflict claim is thus meritless as well as barred.

B.

Next, defendant briefly asserts it was "questionable" why trial counsel did not interview co-defendant Keets as a potential defense witness. However, in Keets' 2006 guilty plea colloquy before defendant's trial, Keets testified that defendant had assaulted and stabbed Williams, and that defendant later possessed a handgun and fired in the direction of a number of people. Trial counsel was not ineffective for not eliciting that adverse testimony.

Defendant presented a 2012 affidavit from Keets asserting that, if asked, he would have testified that defendant never touched or fired a weapon, and that Pyrus was the shooter. Even if Keets would have so testified in 2006, he would have been "subject to effective impeachment by [the] prior inconsistent statements" he gave in his plea testimony, and the jury was not "likely to find the witness credible." State v. Arthur, 184 N.J. 307, 320-21 (2005). Moreover, after trial counsel presented three defense witnesses who testified that the shooter was Pyrus not defendant, we ruled that an additional witness making the same claim "would at best have been duplicative and cumulative." Patrick, supra, Docket No. A-0874-06 (slip op. at 24). For these reasons and those given by the PCR court, we reject defendant's claim regarding Keets.

C.

In his last counseled claim, defendant asserts that trial counsel was ineffective for failing to tell defendant about a plea offer. "[A]s a general rule, defense counsel has the duty to communicate formal offers from the prosecution to accept a plea on terms and conditions that may be favorable to the accused." Missouri v. Frye, 566 U.S. __, __, 132 S. Ct. 1399, 1408, 182 L. Ed. 2d 379, 390 (2012). If trial counsel fails to advise the defendant of the offer, "counsel did not render the effective assistance the Constitution requires." Ibid.; see State v. Powell, 294 N.J. Super. 557, 564 (App. Div. 1996).4

In a February 24, 2014 certification, defendant attested that "[d]uring the pre-trial phase of my trial the State via my counsel offered a plea deal for 14 years." Defendant certified that "[t]rial counsel never communicated the State's plea offer of 14 years to me," and that if counsel had done so defendant would have accepted. Defendant also certified that "[i]t was not discovered until post trial that the State had offered such a plea to me during the pre-trial phase and that counsel never communicated such plea to me." The PCR court referenced defendant's February 24 pro se brief, and later stated that it considered defendant's pro se arguments and found them without merit. Thus, the court implicitly rejected defendant's "plea-offer" ineffectiveness claim.

"[A] defendant is not entitled to an evidentiary hearing if the 'allegations are too vague, conclusory, or speculative to warrant an evidentiary hearing[.]'" State v. Porter, 216 N.J. 343, 355 (2013) (quoting Marshall, supra, 148 N.J. at 158). "In order to establish a prima facie claim, a petitioner must do more than make bald assertions that he was denied the effective assistance of counsel." Ibid. (quoting State v. Cummings, 321 N.J. Super. 154, 170, certif. denied, 162 N.J. 199 (1999)). "Rather, defendant must allege specific facts and evidence supporting his allegations." Ibid. "[A]ny factual assertion that provides 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." Ibid. (quoting Rule 3:22-10(c)). "A trial court judge, of course, after considering the papers submitted in support of and in opposition to the application, has the discretion to evaluate an issue as lacking adequate factual or legal merit." State v. Pyatt, 316 N.J. Super. 46, 51 (App. Div. 1998), certif. denied, 158 N.J. 72 (1999).

In Porter, the "defendant alleged in his certification that trial counsel 'never explained to me any plea offers to consider.' There were no allegations that defendant knew that such offers had been made by the State." Id. at 350. The Supreme Court found the defendant's averments inadequate

Even construing defendant's affidavit in the light most favorable to him, there is simply no assertion that a plea offer was in fact made that trial counsel did not convey to his client. Defendant failed to make a prima facie showing of such a claim. Thus, he was not entitled to an evidentiary hearing on this issue.

[Id. at 357.]

Here, defendant's certification asserted a plea offer was in fact made that trial counsel did not convey to him. However, he provided no basis or evidence to support his assertion, or any reason to believe it is based on personal knowledge.

In Pyatt, supra, the defendant certified that a newspaper article reported a plea offer had been made and rejected by her. 316 N.J. Super. at 48. The defendant certified that her trial counsel never told her that an actual offer had been made. Ibid. The defendant also provided a certification from appellate counsel that the trial prosecutor and defendant's trial counsel confirmed that a plea offer was extended to defendant's counsel. Ibid.5 Based on these certifications, we ruled that an evidentiary hearing was required. Id. at 51-52.

Here, unlike Pyatt, defendant provided no basis or support for his assertion that a plea offer of fourteen years was made. He also offered no certification from the parties who could have personal knowledge of such an offer, such as the trial prosecutor or trial counsel. Moreover, defendant failed to provide any documentation that such an offer was made, even though New Jersey required that "[a]ny plea offer to be made by the prosecutor shall be in writing and forwarded to the defendant's attorney." Rule 3:9-1(b).

The only documentation provided by defendant was an April 12, 2006 letter in which trial counsel informed him that "the state is still offering a plea bargain deal of 18 years at 85 percent," and that "I recommend you take that plea offer." Defendant's certification offered no reason why counsel would not similarly communicate and recommend a fourteen-year plea offer if one had been made.

The United States Supreme Court has recognized the need "to help ensure against late, frivolous, or fabricated claims" of uncommunicated plea offers. Frye, supra, 566 U.S. at __, 132 S. Ct. at 1408-09, 182 L. Ed. 2d at 391. The Court noted that "States may elect to follow rules that all offers must be in writing, again to ensure against later misunderstandings or fabricated charges," and cited New Jersey s requirement in Rule 3:9-1(b) that all plea offers must be in writing. Id. at __, 132 S. Ct. at 1409, 82 L. Ed. 2d at 391.

It would defeat the purpose of Rule 3:9-1(b) to ensure against late, frivolous, or fabricated claims if we found sufficient defendant's unsupported assertion, made more than seven years after his trial, that there was an uncommunicated plea offer. That assertion had no apparent basis in personal knowledge and was inconsistent with the only documentary evidence presented. Defendant failed to provide either the documentary evidence of such a plea offer which Rule 3:9-1(b) required, or present an affidavit or certification from an individual with personal knowledge as Rule 3:22-10(c) required. Thus, defendant failed to make a prima facie case.

V.

Finally, we address the claims in defendant's pro se brief. First, defendant claimed that trial counsel was ineffective for not interviewing and calling Adams as a witness. "[W]hen a petitioner claims his trial attorney inadequately investigated his case, he must assert the facts that an investigation would have revealed, supported by affidavits or certifications." Cummings, supra, 321 N.J. Super. at 170. Similarly, when a "defendant asserts that his attorney failed to call witnesses who would have exculpated him, he must assert the facts that would have been revealed, 'supported by affidavits or certifications.'" State v. Petrozelli, 351 N.J. Super. 14, 23 (App. Div. 2002) (quoting Cummings, supra, 321 N.J. Super. at 170).

Defendant failed to supply an affidavit or certification from Adams, but merely references Adams' statement to police. However, in his statement Adams said that when he encountered defendant, he heard defendant say "[t]here he go," shots were fired toward Adams, and then defendant tried to get Pyrus to shoot Adams with the empty gun. Adams said he did not see who had fired the shots, so there is no basis to believe his testimony would have helped defendant.

Further, at trial, trial counsel explained his strategic reasons for declining defendant's request to call Adams, a victim. Trial counsel added that he was unable to get a statement from the represented Adams, and that Adams had no interest in testifying.

Defendant argues that trial counsel was ineffective for not requesting a "false in one - false in all" instruction after Paterson and Pyrus gave testimony about whether Adams had a gun which were inconsistent with their prior statements. In fact, the trial court gave the jury Model Jury Charge (Criminal), "False In One, False In All" (1991). Moreover, the court thoroughly instructed the jury on prior inconsistent statements and credibility.

Defendant claims that PCR counsel failed to meet the requirements of Rule 3:22-6(d). That rule states that "[i]f defendant insists upon the assertion of any grounds for relief that counsel deems to be without merit, counsel shall list such claims in the petition or amended petition or incorporate them by reference." Ibid. Here, PCR counsel's brief referenced defendant's pro se petitions and stated that defendant's arguments "should be given consideration." Further, at the beginning of the PCR hearing, PCR counsel ensured that the PCR court had the "several pro se briefs that were filed," and stated that for "those issues that are contained therein, I'm going to rely on the pro se brief[s]." That was sufficient. See State v. Rue, 175 N.J. 1, 19 (2002).

Defendant's remaining claims are without sufficient merit to warrant discussion. R. 2:11-3(e)(2).

Affirmed.

1 When called at trial, Williams confirmed he had been assaulted but claimed to have no recollection of who assaulted him. He also claimed he did not remember making any statements to the police. He did, however, identify his written statement to police as his "voluntary statement." Williams' statement was admitted as a prior inconsistent statement.

2 The record before us does not include information on the result of the resentencing.

3 Trial counsel did challenge the sufficiency of the evidence at the end of the State's case and the close of all the evidence.

4 Moreover, the United States Supreme Court has held that "[d]efendants must also demonstrate a reasonable probability the plea would have been entered without the prosecution canceling it or the trial court refusing to accept it, if they had the authority to exercise that discretion," and "that the end result of the criminal process would have been more favorable by reason of a plea to a lesser charge or a sentence of less prison time." Frye, supra, 566 U.S. at __, 132 S. Ct. at 1409, 182 L. Ed. 2d at 392. We need not address whether defendant made such a showing.

5 In Pyatt, trial counsel certified, and told appellate counsel, that he had conveyed the offer to the defendant, who rejected it. Id. at 48-49. Here, the State did not produce any certification rebutting defendant's claim, but disputes them.