STATEOF NEW JERSEY v. DONALD RANDALL

NOT FOR PUBLICATION WITHOUT THE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-2529-16T4

STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

DONALD RANDALL,

     Defendant-Appellant.
__________________________________

              Submitted February 13, 2018 – Decided February 28, 2018

              Before Judges Fasciale and Moynihan.

              On appeal from Superior Court of New Jersey,
              Law Division, Camden County, Indictment No.
              12-09-2295.

              Joseph E. Krakora, Public Defender, attorney
              for appellant (Andrew R. Burroughs, Designated
              Counsel, on the brief).

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

PER CURIAM

        Defendant appeals from an October 28, 2016 order denying his

petition for post-conviction relief (PCR).                Judge John T. Kelley
entered the order and rendered an extensive oral decision on the

record.

     On appeal, defendant argues:

          POINT I
          AS DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE
          OF COUNSEL, HE IS ENTITLED TO [PCR].

          1. Trial counsel failed to adequately cross-
          examine William McNeil.

          2. Trial counsel failed to object to leading
          questions posed by the prosecutor.

          3. Trial counsel failed to fashion and request
          a jury charge on voice identifications.

          4. The cumulative errors committed by trial
          counsel require [PCR].

          POINT II
          DEFENDANT'S PCR CLAIMS ARE NOT PROCEDURALLY
          BARRED.

          POINT III
          APPELLATE COUNSEL WAS INEFFECTIVE BY FAILING
          TO RAISE CERTAIN ISSUES ON DIRECT APPEAL.

          POINT IV
          AS THERE ARE GENUINE ISSUES OF MATERIAL FACTS
          IN   DISPUTE,  AN   EVIDENTIARY  HEARING   IS
          REQUIRED.

          POINT V
          DEFENDANT IS ENTITLED TO A NEW PCR HEARING
          BECAUSE PCR COUNSEL FAILED TO RAISE SEVERAL
          CLAIMS OF INEFFECTIVE ASSISTANCE OF TRIAL
          COUNSEL.

     We conclude that defendant's arguments are without sufficient

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


                                2                          A-2529-16T4
We affirm substantially for the reasons expressed by Judge Kelley

in   his   oral    decision,    and   add     the    following    brief    remarks

concerning defendant's contentions that the PCR judge failed to

conduct    an    evidentiary    hearing      and    his   PCR   counsel   provided

ineffective assistance.

      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 a "defendant must demonstrate a reasonable likelihood

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

ibid.      For    defendant    to   obtain    relief      based   on   ineffective

assistance grounds, he is obliged to show not only the particular

manner in which counsel's performance was deficient, but also that

the deficiency prejudiced his right to a fair trial.                    Strickland

v. Washington, 
466 U.S. 668, 687 (1984); accord State v. Fritz,


105 N.J. 42, 58 (1987).        Judge Kelley correctly stated:

            [D]efendant has not presented any evidence to
            establish   that   his   trial   counsel   was
            ineffective in failing to object to leading
            questions, or inquire further as to Mr.
            McNeill’s   termination.   Defendant’s   trial
            counsel did not commit any unprofessional
            error during the direct and cross of Mr.
            McNeill. Rather, he made a strategic decision
            to undermine the perception and memory of Mr.
            McNeill and to object to questions he found
            prejudicial.

                                        3                                  A-2529-16T4
                   Despite these efforts, the jury believed
              beyond a reasonable doubt that the defendant
              was the individual in the security video, and
              the individual committed the crimes.

                   Finally, regarding defendant’s claim
              that trial counsel committed the ineffective
              assistance of counsel by failing to request
              the [c]ourt to draft a voice identification
              charge for the jury, the defendant has not
              submitted any evidence showing that a separate
              charge is required for voice recognition.

                      . . . .

                   Therefore, having failed to prove a
              deficient performance or prejudice, defendant
              has failed to establish a prima facie case of
              ineffective assistance of counsel.

       Defendant fails to demonstrate a reasonable likelihood of

success on the merits, and he was not entitled to an evidentiary

hearing.

       For the first time on appeal, defendant contends that he was

denied effective assistance by his PCR counsel.                   We "decline to

consider questions or issues not properly presented to the trial

court when an opportunity for such a presentation is available

'unless the questions so raised on appeal go to the jurisdiction

of     the    trial    court     or   concern     matters    of      great     public

interest.'"      Nieder v. Royal Indem. Ins. Co., 
62 N.J. 229, 234

(1973) (quoting Reynolds Offset Co., Inc. v. Summer, 
58 N.J. Super.
 542,    548   (App.     Div.    1959)).       Thus,   we   decline    to     consider


                                          4                                   A-2529-16T4
defendant's assertion that his PCR counsel provided ineffective

assistance.

    Affirmed.




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