STATE OF NEW JERSEY v. ROBINSON DIONICIO

NOT FOR PUBLICATION WITHOUT THE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-0423-16T4

STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

ROBINSON DIONICIO,

     Defendant-Appellant.
_______________________________

              Submitted March 13, 2018 – Decided March 22, 2018

              Before Judges Fasciale and Moynihan.

              On appeal from Superior Court of New Jersey,
              Law Division, Essex County, Indictment No. 09-
              08-2248.

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

              Gurbir S. Grewal, Attorney General, attorney
              for respondent (Jane C. Schuster, Deputy
              Attorney General, of counsel and on the
              brief).

PER CURIAM

        Defendant appeals from an August 5, 2016 order denying his

petition for post-conviction relief (PCR).                 Defendant argues he
received ineffective assistance from trial counsel.   Judge Alfonse

J. Cifelli entered the order and rendered a lengthy oral opinion.

We affirm.

     On appeal, defendant argues:

          POINT I
          DEFENDANT'S PETITION FOR [PCR] SHOULD NOT BE
          BARRED BECAUSE DEFENDANT'S CLAIMS WERE NOT
          EXPRESSLY   ADJUDICATED  BY   THE  APPELLATE
          DIVISION.

          POINT II
          DEFENDANT'S PETITION FOR [PCR] SHOULD NOT BE
          BARRED BECAUSE DEFENDANT COULD NOT HAVE
          BROUGHT HIS CLAIMS IN A PRIOR PROCEEDING AND
          THE INTERESTS OF JUSTICE REQUIRE HIS CLAIMS
          BE HEARD.

          POINT III
          DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF
          COUNSEL ENTIT[]LING HIM TO [PCR] AND AN
          EVIDENT[IARY] HEARING.

          A. Counsel was ineffective for failing to
          review discovery prior to trial.

          B. Trial counsel was ineffective for failing
          to object to the admission of a drug field
          test as hearsay evidence thereby depriving
          defendant his constitutional right to confront
          the actual witness against him.

     We conclude that defendant's arguments are without sufficient

merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

We affirm substantially for the reasons expressed by Judge Cifelli,

and add the following brief remarks.




                                2                           A-0423-16T1
     An evidentiary hearing was unwarranted.       A defendant is

entitled to an evidentiary hearing only when he or she "has

presented a prima facie [case] in support of [PCR]," State v.

Marshall, 
148 N.J. 89, 158 (1997) (first alteration in original)

(quoting State v. Preciose, 
129 N.J. 451, 462 (1992)), meaning

that "the defendant must demonstrate a reasonable likelihood that

his or her claim will ultimately succeed on the merits," ibid.

Defendant fails to demonstrate a reasonable likelihood of success

on the merits.

     As to the alleged confrontation violation, we rejected that

argument on direct appeal.   State v. Dionicio, No. A-5767-11 (App.

Div. Sept. 23, 2014) (slip op. at 9-10).        In rejecting this

contention, we stated that

           there was no out-of-court statement as the
           State   did   not   seek   to   admit   a  lab
           certification     into   evidence.    Instead,
           Sergeant D'Alessio testified about his own
           conclusions, reached based on his observations
           of a detective conducting the field test.
           Therefore, there was no Sixth Amendment
           violation    because    defendant    had   the
           opportunity to confront Sergeant D'Alessio.

           [Id. at 10.]

Even if there had been a violation, which is not the case,

defendant failed to show prejudice.   That is so because there was

independent evidence in the record to prove the matter tested was

cocaine.

                                 3                          A-0423-16T1
     For these reasons and substantially for the reasons set forth

by Judge Cifelli in his cogent decision, we conclude that defendant

failed to demonstrate a prima facie case of ineffectiveness under

the Strickland/Fritz1 test.

     Affirmed.




1
   Strickland v. Washington, 
466 U.S. 668 (1984); State v. Fritz,

105 N.J. 42 (1987).

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