STATE OF NEW JERSEY v. JAMIL KOLLIE

NOT FOR PUBLICATION WITHOUT THE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-1591-16T3

STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

JAMIL KOLLIE, a/k/a JAMAL KOLLIE,

     Defendant-Appellant.
___________________________________

              Submitted November 6, 2017 – Decided November 21, 2017

              Before Judges Ostrer and Whipple.

              On appeal from Superior Court of New Jersey,
              Law Division, Essex County, Indictment No. 11-
              06-1147.

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

              Robert D. Laurino, Acting Essex County
              Prosecutor, attorney for respondent (Camila
              Garces, Special Deputy Attorney General/
              Acting Assistant Prosecutor, on the brief).

PER CURIAM

        Defendant Jamil Kollie appeals from the denial of his petition

for post-conviction relief without an evidentiary hearing.                         He

collaterally challenges his conviction of first-degree robbery,
second-degree weapons offenses, and third-degree theft, for which

he received an aggregate sentence of fifteen years, subject to the

No   Early   Release    Act,   
N.J.S.A.     2C:43-7.2.     We    affirmed     the

conviction and sentence on direct appeal.               State v. Kollie, No.

A-4620-12 (App. Div. April 2, 2015).

       Defendant's sole point on appeal is:

             THE TRIAL COURT ERRED IN DENYING THE
             DEFENDANT'S PETITION FOR POST CONVICTION
             RELEIF WITHOUT AFFORDING HIM AN EVIDENTIARY
             HEARING TO FULLY ADDRESS HIS CONTENTION THAT
             HE   FAILED   TO   RECEIVE   ADEQUATE  LEGAL
             REPRESENTATION FROM TRIAL COUNSEL.

More    specifically,    defendant      argues   that     his   attorney      was

ineffective by failing to investigate alleged alibi witnesses.                  He

claims that he and other persons were at the house of a woman at

the time of the robbery.          He asserts the woman and anyone else

there could confirm his presence.

       As did the trial court, see State v. Harris, 
181 N.J. 391,

421 (2004) (stating appellate court conducts de novo review where

PCR court does not hold an evidentiary hearing), cert. denied, 
545 U.S. 1145, 
125 S. Ct. 2973, 
162 L. Ed. 2d 898 (2005), we apply the

two-pronged    Strickland      test   and   determine    whether   the    record

reveals that defendant's trial counsel was ineffective, and that

defendant    suffered    resulting     prejudice.        See    Strickland      v.




                                       2                                 A-1591-16T3
Washington, 
466 U.S. 668, 
104 S. Ct. 2052, 
80 L. Ed. 2d 674 (1984);

State v. Fritz, 
105 N.J. 42, 58 (1987).

      Certainly, the failure to investigate an alibi defense may

constitute ineffectiveness.          State v. Porter, 
216 N.J. 343, 353

(2013).   However, to present a prima facie case, the petitioner

must support his claim with an appropriate affidavit, consistent

with Rule 1:6-6.       Ibid. (citing State v. Cummings, 
321 N.J. Super.
 154, 170 (App. Div.), certif. denied, 
162 N.J. 199 (1999)).                Here,

defendant presents only his own affidavit as to what he anticipates

his   alleged   witnesses    would    say.   That      is   not   enough   here.

Defendant needed to present affidavits of the potential witnesses

to establish his prima facie case.           Cf. Porter, supra, 
216 N.J.

at 355-57 (holding that petitioner was entitled to evidentiary

hearing   where   he    presented    affidavits   of    the   uncalled     alibi

witnesses); see also Cummings, supra, 
321 N.J. Super. at 170-71

(concluding that "bare assertion of an alibi" without a supporting

certification or affidavit of the alibi witness, failed to support

prima facie case).       Having failed to do so, he has failed to show

that any failure to investigate alleged alibi witnesses caused him

prejudice.

      Affirmed.




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