STATE OF NEW JERSEY v. AMALIA MIRASOLA,

RECORD IMPOUNDED

                                NOT FOR PUBLICATION WITHOUT THE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-1007-18T1

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

AMALIA MIRASOLA, a/k/a
AMALIA ACEVEDO, AMALI
MIRASOLA, and AMALIA
MIRASOLAACEVEDO,

     Defendant-Appellant.
_____________________________

                    Argued November 18, 2019 – Decided December 4, 2019

                    Before Judges Fasciale and Mitterhoff.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Morris County, Indictment No. 11-02-0201.

                    Ruth Elizabeth Hunter, Designated Counsel, argued the
                    cause for appellant (Joseph E. Krakora, Public
                    Defender; attorney; Ruth Elizabeth Hunter on the
                    brief).

                    John K. McNamara, Jr., Chief Assistant Prosecutor,
                    argued the cause for respondent (Fredric M. Knapp,
            Morris County Prosecutor,         attorney;   John   K.
            McNamara, Jr., on the brief).

PER CURIAM

      Defendant appeals from a July 12, 2018 order denying her petition for

post-conviction relief (PCR). 1   Defendant maintains that her trial counsel

rendered ineffective assistance. The PCR judge entered the order and rendered

a twenty-four page written opinion.

      On appeal, defendant raises the following arguments:

            POINT I

            THE PCR [JUDGE] SHOULD HAVE ALLOWED
            DEFENDANT TIME TO OBTAIN CRITICAL
            MEDICAL    RECORDS  AND    ADDITIONAL
            FUNDING FROM THE OFFICE OF THE PUBLIC
            DEFENDER FOR AN EXPERT BECAUSE EXPERT
            SERVICES WERE NECESSARY FOR HER
            DEFENSE.

            POINT II

            THE PCR [JUDGE] ERRED IN DENYING THE
            PETITION   WITHOUT    AN   EVIDENTIARY
            HEARING       BECAUSE       DEFENDANT
            "PRESENT[ED] A REASONABLE BASIS TO BE
            PERMITTED A HEARING TO EXPLORE FURTHER

 1 In January 2013, a jury found defendant guilty of first-degree murder,  N.J.S.A.
2C:11-3(a)(1) and (a)(2); and second-degree possession of a weapon for an
unlawful purpose,  N.J.S.A. 2C:39-4(a). We affirmed the convictions, State v.
Mirasola, No. A-3639-12 (App. Div. Nov. 25, 2015) (slip op. at 1), and the
Supreme Court denied certification, State v. Mirasola,  224 N.J. 526 (2016).
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            THE POSSIBILITY OF" MENTAL DEFENSES. SEE
            STATE v. HARRIS,  181 N.J. 391, 528 (2004).

We conclude that these arguments lack sufficient merit to warrant discus sion in

a written opinion. R. 2:11-3(e)(2). We affirm substantially for the reasons set

forth by the PCR judge in her well-reasoned written decision and add the

following brief remarks.

      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) (emphasis omitted) (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 a defendant to obtain relief based on ineffective

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

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

prejudiced his or her right to a fair trial. Strickland v. Washington,  466 U.S. 668,

687 (1984); State v. Fritz,  105 N.J. 42, 58 (1987) (adopting the Strickland two-

part test in New Jersey, now known as the Strickland/Fritz test). Defendant has

failed to present such a prima facie case of ineffectiveness.

      It is undisputed that defendant possessed the gun and shot and killed her

husband. The question for the jury was whether she did so purposefully and

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                                         3
knowingly or whether it was in self-defense. Mirasola, slip op. at 4. Although

defendant contends that she lacked the mental capacity to commit the murder

and therefore that her trial counsel failed to develop such a defense, trial counsel

employed strategy by utilizing the defense of self-defense. Indeed, trial counsel

investigated the possibility of a diminished capacity defense and consulted with

experts, but was unable to produce any experts, medical records, or evidence at

trial to demonstrate that defendant shot her husband because of her purported

mental incapacity.

      Defendant also maintains that her trial counsel failed to develop her

defenses of self-defense and defense of others. But the PCR judge—agreeing

with the State that defense counsel "followed the necessary protocol" as to the

defense—pointed out that the jury rejected defendant's theory. The PCR judge

also agreed with the State that not testing the blood on defendant's clothes would

not have supported a self-defense claim, particularly because defendant had no

wounds, bruising, or scarring the morning after the murder. And as to the

defense of others contention, the jury heard evidence that defendant allowed her

daughter and her husband to travel together—overnight—despite defendant's

purported concerns about her husband abusing their daughter. The jury also

heard evidence that defendant shot her husband hours after their daughter told


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                                         4
him to "[g]et off me," and after defendant and her husband watched television

together.

      Finally, in April 2016, defendant filed her petition for PCR. Her PCR

counsel withdrew the petition without prejudice and re-filed it in March 2018.

The PCR judge conducted oral argument and rendered her written decision in

July 2018. There was no request to adjourn the oral argument, and defendant's

contention that the judge should have given her more time to prepare for the

PCR argument is without merit.

      Affirmed.




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