STATE OF NEW JERSEY v. MARIO S. LYN

NOT FOR PUBLICATION WITHOUT THE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-0249-19

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

MARIO S. LYN, a/k/a
MARIL LYN, MARIO S.
LYN, JR.,

     Defendant-Appellant.
_______________________

                   Submitted February 22, 2021 – Decided March 11, 2021

                   Before Judges Fasciale and Rothstadt.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Essex County, Indictment No. 14-10-2609.

                   Joseph E. Krakora, Public Defender, attorney for
                   appellant (Karen A. Lodeserto, Designated Counsel, on
                   the brief).

                   Theodore N. Stephens II, Acting Essex County
                   Prosecutor, attorney for respondent (Matthew E.
                   Hanley, Special Deputy Attorney General/Acting
                   Assistant Prosecutor, of counsel and on the brief).
PER CURIAM

      Defendant appeals from a May 3, 2019 order denying his petition for post-

conviction relief (PCR) without an evidentiary hearing.1 Defendant maintains he

was entitled to an evidentiary hearing as to whether his trial counsel's failure to

object to jury charges, purportedly lacking case-specific information, amounted to

ineffective assistance. Judge James W. Donohue entered the order under review and

rendered a written opinion.

      On appeal, defendant raises the following argument for this court's

consideration:

            POINT I

            THE PCR [JUDGE] ERRED IN DENYING
            DEFENDANT AN EVIDENTIARY HEARING AS
            TESTIMONY IS NEEDED REGARDING TRIAL
            COUNSEL'S FAILURE TO OBJECT TO AN
            ERRONEOUS JURY CHARGE THAT FAILED TO
            INCLUDE CASE[-]SPECIFIC INFORMATION FOR
            LIGHTING AND PRIOR DESCRIPTION.

We affirm substantially for the reasons set forth in Judge Donohue's written

opinion. We add the following remarks.



1
 A jury found defendant guilty of second-degree conspiracy to commit robbery,
 N.J.S.A. 2C:5-2,  N.J.S.A. 2C:15-1(a)(2); and one count of first-degree robbery,
 N.J.S.A. 2C:15-1. We affirmed defendant's convictions and sentence. State v.
Lyn, No. A-3226-16 (App. Div. July 6, 2018).
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                                        2
      When a PCR judge does not hold an evidentiary hearing, this court's standard

of review is de novo as to both the factual inferences drawn by the judge from the

record and the judge's legal conclusions. State v. Blake,  444 N.J. Super. 285, 294

(App. Div. 2016).

      To establish a prima facie claim of ineffective assistance of counsel, a

defendant must satisfy the two-pronged test enumerated in Strickland v.

Washington,  466 U.S. 668, 687 (1984), which our Supreme Court adopted in State

v. Fritz,  105 N.J. 42, 58 (1987). To satisfy the first Strickland/Fritz prong, a

defendant must establish that his counsel "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. The defendant must rebut the "strong presumption that

counsel's conduct [fell] within the wide range of reasonable professional

assistance[.]" Id. at 689.

      To satisfy the second Strickland/Fritz prong, a defendant must show "that

counsel's errors were so serious as to deprive the defendant of a fair trial, a trial

whose result is reliable." Id. at 687. A defendant must establish "a reasonable

probability that, but for the counsel's unprofessional errors, the result of the

proceeding would have been different. A reasonable probability is a probability

sufficient to undermine the outcome." Id. at 694.


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                                         3
      A defendant is only entitled to an evidentiary hearing when he "'has presented

a prima facie [claim] in support of [PCR],'" meaning that a defendant must

demonstrate "a reasonable likelihood that his . . . claim will ultimately succeed on

the merits." State v. Marshall,  148 N.J. 89, 158 (1997) (quoting State v. Preciose,

 129 N.J. 451, 463 (1992)). A defendant must "do more than make bald assertions

that he was denied the effective assistance of counsel" to establish a prima facie

claim entitling him to an evidentiary hearing. State v. Cummings,  321 N.J. Super.
 154, 170 (App. Div. 1999). A defendant bears the burden of establishing a prima

facie claim. State v. Gaitan,  209 N.J. 339, 350 (2012). This court "should view the

facts in the light most favorable to a defendant to determine whether a defendant has

established a prima facie claim." Preciose,  129 N.J. at 463-64.

      "A PCR petition is cognizable if it is based upon a '[s]ubstantial denial in the

conviction proceedings of defendant's rights under the Constitution of the United

States or laws of the State of New Jersey.'" State v. Gideon,  244 N.J. 538, 549 (2021)

(quoting R. 3:22-2(a)). With some exceptions, "a ground for relief that was not

raised in the conviction proceedings or any appeal from the conviction 'is barred

from assertion in a proceeding under [Rule 3:22-4(a)].'" State v. Reevey,  417 N.J.

Super. 134, 148 (App. Div. 2010) (quoting R. 3:22-4(a)). Those exceptions are that:

(1) the ground not previously asserted could not have been reasonably raised in any


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                                          4
prior proceeding; (2) enforcement of the bar, including one for ineffective assistance,

would result in a fundamental injustice; or (3) denial of relief would be contrary to

a new rule of constitutional law under the United States or State of New Jersey. R.

3:22-4(a)(1)-(3).

      On direct appeal, defendant raised the argument that "the jury charges . . .

were inadequate because they consisted of generic statements without any case-

specific information based upon the evidence presented at trial." Lyn, (slip op. at

1). We rejected that argument, concluding that "there was nothing clearly capable

of producing an unjust result from the judge's charge to the jury, which tracked the

[M]odel [J]ury [C]harges." Id. at 5. The PCR judge correctly observed that

defendant's "appeal dealt directly with issues related to the jury charge that

[defendant] is now raising again under the guise of a claim of ineffective assistance

of counsel in the context of a petition for [PCR]." The PCR judge also observed that

defendant "ha[d] not adequately established that the basis for relief could not

reasonably have been raised in any prior proceeding" or that any other exception

under Rule 3:22-4(a) is applicable to his claim. Defendant's claim is therefore

procedurally barred.

      Even assuming that defendant's claim could not have been raised on direct

appeal, the PCR judge again correctly observed that defendant failed to establish a


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                                          5
prima facie claim of ineffective assistance of counsel to warrant an evidentiary

hearing. Defendant put forth bald assertions rather than evidence that trial counsel's

decision not to object to the jury charge was unreasonable or that an objection would

have had led the jury to reach a different conclusion.

      Affirmed.




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