STATE OF NEW JERSEY v. JERMAINE A. WILLIAMS
Annotate this CaseNOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1676-16T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JERMAINE A. WILLIAMS,
a/k/a BLACK,
Defendant-Appellant.
______________________________
Argued telephonically May 10, 2018 – Decided June 20, 2018
Before Judges Yannotti and Carroll.
On appeal from Superior Court of New Jersey,
Law Division, Passaic County, Indictment No.
00-03-0263.
Jermaine A. Williams, appellant, argued the
cause pro se.
Christopher W. Hsieh, Chief Assistant
Prosecutor, argued the cause for respondent
(Camelia M. Valdes, Passaic County Prosecutor,
attorney; Christopher W. Hsieh, on the brief).
PER CURIAM
Defendant Jermaine A. Williams appeals from an order entered
by the Law Division on November 30, 2016, which denied his second
petition for post-conviction relief (PCR) and his application for
the assignment of counsel. We affirm.
I.
A Passaic County grand jury charged defendant with first-
degree felony murder,
N.J.S.A. 2C:11-3(a)(3) (count one); first-
degree robbery,
N.J.S.A. 2C:15-1 and 2C:2-6 (count two); second-
degree conspiracy to commit robbery,
N.J.S.A. 2C:5-2, 2C:15-1
(count three); first-degree aggravated manslaughter,
N.J.S.A.
2C:11-4(a) (count four); second-degree possession of a weapon for
an unlawful purpose,
N.J.S.A. 2C:39-4(a), 2C:2-6 (count five); and
third-degree unlawful possession of a weapon,
N.J.S.A. 2C:39-5(b),
2C:2-6 (count six).
Defendant was tried before a jury. At the trial, the State
presented evidence that, on the afternoon of September 26, 1999,
defendant and two of his friends, Stuart Jones and Jahkeam Francis,
gathered in Newark. They decided to travel by taxi to the home of
Jahkeam's cousin, A.C., in Paterson.1 Defendant was in possession
of a silver handgun. Defendant said he needed money and would rob
someone if he had the opportunity to do so.
Late in the afternoon, defendant, Jones, and Francis took a
taxi to East Orange, and there they got into a livery cab that was
1
In this opinion, we use initials to identify certain
individuals.
2 A-1676-16T4
driven by another man. Defendant was seated in the rear with Jones.
Francis sat up front, alongside of the driver. The cab stopped at
A.C.'s mother's home and then proceeded to the intersection of
North Fourth Street and Haledon Avenue in Paterson.
There, at approximately 5:30 p.m., defendant observed Miguel
"Danny" Mercado on the sidewalk in front of his father's grocery
store. Mercado, who was sixteen-years old, was talking to a friend.
Mercado was wearing a thick, gold chain around his neck. The car
stopped and defendant got out. He grabbed Mercado from behind,
placed the gun to the right side of Mercado's neck and demanded
that Mercado give him the chain.
Mercado resisted and attempted to extricate himself from
defendant's grip. Mercado and defendant struggled. Defendant shot
Mercado in the abdomen, took the necklace, and got back into the
cab, which then drove off. Mercado died the following day as a
result of the internal hemorrhaging caused by the gunshot wound
in his abdomen.
After the robbery, the driver drove defendant, Jones and
Francis to A.C.'s home. The driver dropped them off and left. A.C.
was at home with her boyfriend, Rasheem White, and her daughter.
Later that evening, defendant, Jones, and Francis went with A.C.
and White to a club. They left at around 2:30 a.m. A.C. dropped
defendant and Jones off at a location in Orange. Defendant told
3 A-1676-16T4
Jones that he wanted to get rid of the gold chain. They sold the
chain in New York City two days later.
Officers from the Paterson Police Department investigated the
matter, and that investigation led them to A.C. and White, who
gave statements to the police. Detective Richard Reyes testified
that A.C. and Francis had identified defendant, Jones, and Francis
from photo lineups. In October 1999, Jones was arrested. He
initially denied involvement in the incident, but later said that
defendant robbed and shot Mercado and he had been in the car at
the time. Francis was arrested in March 2000. On June 16, 2000,
defendant was arrested in York, Pennsylvania.
On count four, the jury found defendant not guilty of
aggravated manslaughter, but guilty of the lesser-included offense
of first-degree reckless manslaughter,
N.J.S.A. 2C:11-4(a). The
jury found defendant guilty on the other counts. At sentencing,
the court merged counts two, three, and four with count one and
sentenced defendant on that count to life imprisonment, with a
thirty-year period of parole ineligibility. On count five,
defendant was sentenced to a concurrent term of ten years, with a
five-year period of parole ineligibility. On count six, the court
sentenced defendant to a consecutive term of five years of
incarceration, with two-and-one-half years of parole
ineligibility.
4 A-1676-16T4
Defendant appealed his conviction and sentence and raised the
following issues:
POINT I:
THE PROSECUTOR COMMITTED MISCONDUCT, AND THUS
DEPRIVED DEFENDANT OF A FAIR TRIAL, WHEN HE
TOLD THE JURORS DURING SUMMATION THAT THEIR
ROLE IN THE CASE WAS "ABOUT COURAGE" AND
"ABOUT ALLOCATING RESPONSIBILITY."
POINT II:
THE COURT'S FAILURE TO INSTRUCT THE JURY TO
APPLY SPECIAL SCRUTINY TO THE TESTIMONY OF
ACCOMPLICES REQUIRES REVERSAL.
POINT III:
THE AGGREGATE SENTENCE OF LIFE PLUS FIVE
YEARS, WITH A 32-1/2 YEAR PAROLE BAR, WAS
MANIFESTLY EXCESSIVE UNDER ALL OF THE
APPLICABLE CIRCUMSTANCES.
POINT IV:
THE CONVICTION FOR POSSESSION OF A WEAPON FOR
AN UNLAWFUL PURPOSE SHOULD HAVE BEEN MERGED
INTO THE FELONY-MURDER CONVICTION.
Defendant also filed a pro se brief and addendum in which he
raised the following issues:
POINT I:
PROSECUTOR IN SUMMATION CALLING DEFENSE
WITNESS A "BUM" PRODUCED PREJUDICIAL ERROR
REQUIRING REVERSAL.
POINT II:
COUNSEL WAS INEFFECTIVE FOR STATING DEFENDANT
WAS IN GETAWAY CAR OF ROBBERY DURING [HIS]
OPENING ARGUMENT.
POINT III:
THE COURT'S JURY CHARGE OF FLIGHT WAS
INAPPROPRIATE. TRIAL JUDGE INSTRUCTED JURY
THAT IT "COULD INFER THAT DEFENDANT HAD FLED
5 A-1676-16T4
SHORTLY AFTER ALLEGED COMMISSION OF CRIME";
SUCH INSTRUCTION TO JURY MAY HAVE SUGGESTED
THAT JUDGE BELIEVED DEFENDANT TO BE THE
PERPETRATOR OF CRIME. THEREFORE REQUIRING
REVERSAL.
POINT IV:
THE COURT'S CHARGE TO THE JURY ON
IDENTIFICATION WAS INADEQUATE AND INCOMPLETE
DEPRIVING DEFENDANT OF HIS RIGHT TO A FAIR
TRIAL UNDER BOTH THE NEW JERSEY AND FEDERAL
CONSTITUTION[S].
POINT V:
TRIAL COURT COMMITTED HARMFUL ERROR WHEN IT
OVERRULED DEFENDANT'S OBJECTION TO AN ALLEGED
OUT-OF-COURT IDENTIFICATION MADE BY SOMEONE
OTHER THAN THE POLICE OFFICER TESTIFYING IN
THE PROCEEDING. THUS, DEFENDANT WAS DENIED THE
RIGHT TO CONFRONTATION, AND IN EFFECT
[DEPRIVED] OF A FAIR TRIAL.
POINT VI:
THE HEARSAY RULE AND DEFENDANT'S
CONSTITUTIONAL RIGHT TO CONFRONTATION WERE
VIOLATED DURING THE COURSE OF THE TRIAL WHEN
[J.F.] TESTIFIED ABOUT HER BOYFRIEND'S
KNOWLEDGE OF THE ASSAILANTS AND THE CRIME.
CONSEQUENTLY, THE TRIAL COURT SHOULD HAVE
TRIED TO CORRECT OR INSTITUTE CURATIVE
MEASURES FOR THE HEARSAY TESTIMONY OF [J.F.]
IN REGARDS TO WHAT SHE SAID HER BOYFRIEND
ALLEGEDLY SAID.
We affirmed defendant's convictions. State v. Williams, No.
A-3568-01 (App. Div. Feb. 26, 2004) (slip. op. at 10). We also
rejected defendant's contention that his sentences were excessive,
but vacated the separate concurrent sentence that the court had
imposed on the conviction for possession of a weapon for an
unlawful purpose. Ibid. We remanded the matter for entry of an
6 A-1676-16T4
amended judgment of conviction merging the count charging that
offense with count one, charging felony murder. Ibid.
II.
In October 2004, defendant filed his first PCR petition, and
the trial court assigned counsel to represent defendant. On October
18, 2006, the court denied the petition without a hearing.
Defendant appealed and raised the following arguments:
POINT I:
THE [PCR] COURT SHOULD HAVE GRANTED THE
DEFENDANT AN EVIDENTIARY HEARING ON THE
DEFENDANT'S MOTION FOR POST-CONVICTION RELIEF
ON THE BASIS OF INEFFECTIVE ASSISTANCE OF
TRIAL COUNSEL.
A: TRIAL COUNSEL FAILED TO ADEQUATELY
INVESTIGATE AND PREPARE FOR TRIAL BY FAILING
TO INTERVIEW AND CALL AN ALIBI WITNESS.
B: TRIAL COUNSEL FAILED TO ADEQUATELY ADVISE
THE DEFENDANT ON HIS RIGHT TO TESTIFY.
POINT II:
THE DEFENDANT'S MOTION FOR POST-CONVICTION
RELIEF SHOULD HAVE BEEN GRANTED DUE TO
PROSECUTORIAL MISCONDUCT IN KNOWINGLY
PRESENTING PERJURED TESTIMONY.
POINT III:
APPELLATE COUNSEL WAS INEFFECTIVE DUE TO HIS
FAILURE TO RAISE THE ISSUE, ON DIRECT APPEAL
REGARDING PROSECUTORIAL MISCONDUCT IN THE
OPENING STATEMENTS.
POINT IV:
DEFENDANT'S MOTION FOR POST-CONVICTION RELIEF
SHOULD HAVE BEEN GRANTED BASED UPON A FLAWED
JURY SELECTION PROCESS; THE DEFENDANT WAS NOT
7 A-1676-16T4
PERMITTED BY HIS ATTORNEY TO PARTICIPATE IN
JURY SELECTION.
Defendant also filed a pro se brief in which he raised the
following points:
POINT I:
POST-CONVICTION RELIEF COUNSEL FAILED TO
ADVANCE ALL CLAIMS BY PETITIONER IN HIS PRO-
SE PETITION. FAILURE OF COUNSEL TO [BRIEF],
AND ARGUE INEFFECTIVE ASSISTANCE CLAIMS
VIOLATES [RULE] 3:22-6(d)[.] COUNSEL ALSO
FAILED TO ADVANCE GROUNDS INSISTED UPON BY
DEFENDANT.
POINT II:
THE COURT ERRED IN REFUSING TO SET ASIDE
DEFENDANT'S CONVICTIONS ON THE BASIS OF THE
INEFFECTIVE ASSISTANCE OF COUNSEL CLAIMS. THAT
CLEARLY VIOLATED THE [SIXTH] AMENDMENT.
We affirmed the denial of PCR. State v. Williams, No. A-1494-
06 (App. Div. Sept. 25, 2008) (slip op. at 16-17). Defendant then
petitioned the Supreme Court for certification. The Court denied
the petition. State v. Williams,
197 N.J. 259 (2008).
It appears that in April 2009, defendant filed a petition for
a writ of habeas corpus in the United States District Court for
the District of New Jersey. On September 4, 2009, defendant filed
his second PCR petition in the Law Division. On September 24,
2010, the Law Division dismissed the petition without prejudice.
The court indicated that defendant could re-file the petition
after his federal claims had been resolved.
8 A-1676-16T4
On January 22, 2015, the federal district court denied
defendant's habeas petition and refused to issue a certificate of
appealability. Williams v. Ricci, No. 09-1822, 2
015 U.S. Dist.
LEXIS 7618, at *36 (D.N.J. Jan. 22, 2015). It appears defendant's
Third Circuit appeal of that decision was unsuccessful.
Thereafter, the Supreme Court of the United States denied his
petition for a writ of certiorari. Williams v. Johnson,
136 S. Ct. 849 (2016).
III.
On February 9, 2016, defendant filed his PCR petition, in
which he alleged: (1) James F. Avigliano, who represented co-
defendant Jones, had a conflict of interest because he later became
County Prosecutor; (2) the assistant prosecutor committed
misconduct and violated R.P.C. 3.8(a) by prosecuting a case that
was not supported by probable cause; (3) the prosecutor violated
Brady v. Maryland,
373 U.S. 83 (1963), because he failed to turn
over certain exculpatory evidence to the defense; (4) his trial
attorney was ineffective because he did not file a motion to
dismiss the indictment; and (5) appellate counsel was ineffective
because he failed to raise Avigliano's alleged conflict of interest
on appeal.
The PCR court found that the petition was barred under Rule
3:22-12(a)(2) and Rule 3:22-4(b). The court nevertheless addressed
9 A-1676-16T4
the claims and found that they lacked merit. The court also found
that defendant had not established good cause under Rule 3:22-6(b)
for the assignment of counsel. This appeal followed.
On appeal, defendant raises the following arguments:
I. DEFENDANT['S] SECOND [PCR] IS TIMELY UNDER
[RULE] 3:22-12[] BECAUSE IT WAS FILED BEFORE
THE NEWLY AMENDED ONE-YEAR TIME REQUIREMENT,
THE SECOND [PCR] HERE WAS FILED WITHIN THE
[FIVE]-YEAR STIPULATION OF THE INITIAL [PCR]
AND DISMISSED WITHOUT PREJUDICE BY THE TRIAL
COURT BELOW, AND THEREFORE SHOULD BE
CONSIDERED TIMELY (Not Raised Below).
II. FORMER HEAD PASSAIC COUNTY PROSECUTOR
JAMES F. AVIGLIANO COMMITTED A CONFLICT OF
INTEREST DURING THE APPELLANT'S TRIAL AND
APPEAL PROCESS. FIRST BY FAILING TO ALERT THE
TRIAL COURT THAT HE WAS CAMPAIGNING[] AND
SEEKING EMPLOYMENT WITH THE PASSAIC COUNTY
PROSECUTOR'S OFFICE[] WHILE ASSISTING THE
APPELLANT'S CO-DEFENDANT IN TESTIFYING
AGAINST APPELLANT[] KNOWING WEEKS AFTER THE
APPELLANT'S TRIAL, HE WOULD BE THE BOSS OF THE
[INDIVIDUALS] THAT HE NEGOTIATED THE
UNCONSITUTIONAL DEALS WITH. SECONDLY, DURING
THE APPELLANT['S] FIRST [PCR] MR. AVIGLIANO
ALSO COMMITTED A CONFLICT OF INTEREST[]
BECAUSE HE NOW REPRESENTED THE PASSAIC COUNTY
PROSECUTOR'S OFFICE, AND IT WAS ONLY WHEN THE
APPELLANT WAS APPEALING HIS FIRST [PCR] THAT
THE ATTORNEY GENERAL REVEALED THE CONFLICT IN
VIOLATION OF THE APPELLANT'S [FIFTH, SIXTH,
AND FOURTEENTH] AMENDMENT RIGHTS UNDER THE
U.S. CONSTITUTION.
III. FORMER PROSECUTOR WILLIAM J. PURDY
COMMITTED MISCONDUCT BY PROSECUTING A CASE
THAT WAS NOT SUPPORTED BY PROBABLE CAUSE
UNDER [RPC] 3.8(a). THE APPELLANT'S CO-
DEFENDANT RASHEEM WHITE WAS THE FIRST OF THE
[SUSPECTS] INITIALLY ARRESTED, AND THE
10 A-1676-16T4
PROSECUTOR'S CASE HINGED OFF [SIC] HIS ILLEGAL
INVOLUNTARY, INADMISSIBLE STATEMENT[] BECAUSE
THE COMPLAINT (ARREST WARRANT) WAS SIGNED BY
A POLICE OFFICER[ ]WHO WAS NOT AUTHORIZED TO
ISSUE A WARRANT UNDER NEW JERSEY LAW[][.] IT
WAS NOT SIGNED UNDER OATH BY THE PROPER
JUDICIAL OFFICER. THE LAW ENFORCEMENT OFFICER
WHO TOOK THE COMPLAINT, IN FACT[,] ISSUED THE
WARRANT, AND THIS WAS IN VIOLATION OF THE
APPELLANT'S [FOURTH AND FOURTEENTH] AMENDMENT
CONSITUTIONAL DUE PROCESS RIGHTS. THE NEW
JERSEY CONSTITUTION, ART. 1, PARA 7, STATES:
THAT NO WARRANT SHALL ISSUE EXCEPT UPON
PROBABLE CAUSE, SUPPORTED BY OATH OR
AFFIRMATION.
IV. THE PROSECUTOR COMMITTED A DUE PROCESS
VIOLATION OF BRADY[] BY FAILING TO [TURN OVER]
EXCULPATORY EVIDENCE TO THE DEFENSE. THE
APPELLANT'S TRIAL COUNSEL HAD REQUESTED THE
9-1-1 TAPE DURING THE TRIAL, AND THE
PROSECUTOR FAILED TO [TURN OVER] THE TAPE TO
THE DEFENSE, AND CONTINUES TO WITHHOLD THE
EVIDENCE[] IN VIOLATION OF THE APPELLANT'S DUE
PROCESS RIGHTS UNDER THE U.S. CONSTITUTION,
AND THE [PROSECUTOR'S] DISCLOSURE DUTIES.
V. TRIAL COUNSEL THOMAS KAISER WAS
INEFFECTIVE[] FOR FAILING TO MOVE TO GET THE
INDICTMENT DISMISSED AGAINST THE APPELLANT,
DUE TO THE DEFECTIVE WARRANT THAT WAS IN
VIOLATION OF THE APPELLANT'S FEDERAL[] AND
STATE PROVISIONS [SIC]. THE PROSECUTOR WOULD
NOT HAVE BEEN ABLE TO MOVE THE CASE FORWARD
WITHOUT THE DEFECTIVE WARRANT, INVOLUNTARY[]
AND INADMISSIBLE STATEMENT OF RASHEEM WHITE[]
THAT TRIAL COUNSEL MR. KAISER FAILED TO HAVE
SUPPRESSED, IN VIOLATION OF THE APPELLANT'S
[SIXTH] AMENDMENT RIGHT TO EFFECTIVE
ASSISTANCE OF COUNSEL UNDER THE STATE AND U.S.
CONSTITUTION[S].
VI. APPELLANT'S INITIAL [PCR] APPEAL COUNSEL
. . . WAS INEFFECTIVE DURING THE APPELLANT'S
APPEAL PROCESS[] FOR FAILING TO ADDRESS THE
11 A-1676-16T4
NEWLY DISCOVERED APPELLATE GROUND OF CONFLICT
OF INTEREST THAT WAS REVEALED AGAINST THE NOW
FORMER PROSECUTOR JAMES F. AVIGLIANO, IN
VIOLATION OF THE APPELLANT'S [SIXTH] AMENDMENT
RIGHTS UNDER THE U.S. CONSTITUTION.
IV.
As stated previously, although the PCR court found the
petition was barred under Rules 3:22-12(a)(2) and 3:22-4(b), the
court addressed the merits of the claims and found they were
entirely without merit. We agree.
A. Conflict of Interest
Defendant argues that James F. Avigliano, who was co-
defendant Jones's trial attorney, had a conflict of interest.
Defendant asserts that Jones pled guilty, obtained a favorable
plea agreement, and agreed to testify against defendant. Defendant
notes that several months after the trial, Avigliano became County
Prosecutor.
Defendant alleges Avigliano "had his hat in the
prosecutor['s] arena" before his trial. He claims "everyone" in
the prosecutor's office "had to feel some sort of pressure" from
Avigliano knowing "he would soon be their boss." Defendant also
notes that the Attorney General assumed responsibility for his
direct appeal, which was pending after Avigliano became County
Prosecutor.
12 A-1676-16T4
The PCR court found that Avigliano's representation of co-
defendant Jones did not result in the denial of defendant's
constitutional right to a fair trial. The record supports the
court's finding. Indeed, there is no evidence in the record to
support defendant's claim that Avigliano and persons in the
prosecutor's office knew at the time of trial that he would be
appointed as County Prosecutor, or that Avigliano worked with the
prosecutor's office to obtain a favorable plea agreement for Jones
and prosecute defendant.
Moreover, the Attorney General stepped in and superseded the
Passaic County Prosecutor's Office (PCPO) in the handling of
defendant's direct appeal because Avigliano had become County
Prosecutor, and he had previously represented one of the defendants
charged in the indictment. The Attorney General's decision to
supersede the PCPO for the appeal does not support defendant's
claim that Avigliano had a conflict of interest during the trial
court proceedings.
B. Alleged Prosecutorial Misconduct
Defendant argues the assistant prosecutor committed
misconduct by purportedly prosecuting this case without probable
cause. According to defendant, co-defendant White was arrested on
the basis of a warrant that was not signed by a judicial officer
13 A-1676-16T4
and not supported by probable cause. He claims White's unlawful
arrest tainted his conviction.
Defendant argues that the statement White provided to the
police regarding the robbery and shooting of Mercado should have
been excluded at trial. The record shows, however, that White's
statement was not the product of an allegedly invalid warrant.
White was arrested at around 11:30 p.m. on September 29, 1999,
based on an outstanding warrant for an unrelated crime. The police
questioned White about the Mercado robbery and shooting. At around
2:45 a.m., White provided a statement. White then was arrested and
charged.
Defendant claims that White's arrest on the charges related
to the Mercado robbery and shooting was the product of an invalid
arrest warrant. However, even if there was some technical flaw in
the warrant, White's statement was not the product of that arrest.
As noted, White provided his statement before that warrant was
issued.
Moreover, as the PCR court noted, the State did not use
White's statement as evidence against defendant at trial. Instead,
the defense called White as a witness in an effort to exculpate
defendant. White testified that although he was not in the car at
the time of the shooting, he signed a typed statement placing him
14 A-1676-16T4
in the car because he was told to sign it and he did "whatever
they told [him] to do."
In any event, the PCR court correctly found that defendant's
claim that the assistant prosecutor pursued a matter without
probable cause was entirely without merit. Wholly aside from
White's statement, the State had sufficient evidence to support
defendant's indictment.
C. Brady Violation
Defendant asserts the State violated Brady by failing to
provide the defense with a copy of a 9-1-1 call to police
headquarters on September 26, 1999. The record shows that the
assistant prosecutor agreed to provide the defense with a copy of
the 9-1-1 recording. The assistant prosecutor told the court an
unknown person made the call and reported the shooting. It was,
the prosecutor stated, a "very brief call."
To establish a Brady violation, the defendant must show that
"(1) the prosecution suppressed evidence; (2) the evidence is
favorable to the defense; and (3) the evidence is material." State
v. Martini,
160 N.J. 248, 268 (1999) (citation omitted). Here,
there is no evidence that the State failed to provide the defense
with a copy of the recording of the 9-1-1 call.
Moreover, defendant has not shown that the recording was
exculpatory and material to the defense. According to the assistant
15 A-1676-16T4
prosecutor, the caller merely reported the shooting and did not
identify herself. The PCR court correctly determined that
defendant had not shown that the State violated its obligation
under Brady to provide the defense with material, favorable
evidence.
D. Ineffective Assistance of Trial and PCR Counsel
Defendant further argues he was denied the effective
assistance of counsel because his trial attorney did not seek
dismissal of his indictment on the ground that White's arrest
warrant was illegal. He also claims he was denied the effective
assistance of PCR counsel because his attorney did not raise a
claim regarding Avigliano's purported conflict of interest in the
first PCR proceeding.
To establish a claim of ineffective assistance of counsel,
the defendant must meet the two-part test established in Strickland
v. Washington,
466 U.S. 668, 686 (1984), and adopted by our Supreme
Court in State v. Fritz,
105 N.J. 42, 58 (1987)). The defendant
first must show that his attorney made errors "so serious that
counsel was not functioning as the 'counsel' guaranteed the
defendant by the Sixth Amendment." Strickland,
466 U.S. at 687.
Counsel's performance is deficient if it "[falls] below an
objective standard of reasonableness." Id. at 688.
16 A-1676-16T4
The defendant also must show that his counsel's "deficient
performance prejudiced the defense." Id. at 687. The defendant
must establish that "there is a reasonable probability that, but
for counsel's unprofessional errors, the result of the proceeding
would have been different." Id. at 694. A "reasonable probability"
is a "probability sufficient to undermine confidence in the
outcome" of the proceeding. Ibid.
Here, defendant failed to show that his trial attorney was
deficient in failing to seek the dismissal of his indictment based
on White's alleged illegal arrest warrant and his alleged coerced
statement. As we stated previously, wholly aside from White's
statements, there was probable cause for the indictment. Thus, if
defendant's attorney had made such a motion, it would have been
denied.
Defendant also failed to show that his PCR counsel erred by
failing to raise Avigliano's purported conflict of interest in the
first PCR petition. The claim was meritless and the result of that
proceeding would not have been different if counsel had raised the
issue.
In view of our decision, we need not address defendant's
contention that the PCR court erred by finding that his second PCR
petition was barred by Rules 3:22-12(a)(2) and 3:22-4(b).
Affirmed.
17 A-1676-16T4
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