STATE OF NEW JERSEY v. ISAIAH GREENE

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                                NOT FOR PUBLICATION WITHOUT THE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-4621-18T4

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

ISAIAH GREENE,

     Defendant-Appellant.
_________________________

                   Submitted November 17, 2020 – Decided January 12, 2021

                   Before Judges Gilson and Moynihan.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Essex County, Indictment No. 12-05-1314.

                   Joseph E. Krakora, Public Defender, attorney for
                   appellant (Phuong V. Dao, Designated Counsel, on the
                   brief).

                   Theodore N. Stephens II, Acting Essex County
                   Prosecutor, attorney for respondent (Frank J. Ducoat,
                   Special Deputy Attorney General/Acting Assistant
                   Prosecutor, of counsel and on the brief).

PER CURIAM
      Defendant Isaiah Greene appeals from a May 3, 2019 order denying his

application for post-conviction relief (PCR). He contends that his trial counsel

was ineffective for failing to call his mother as an alibi witness.        Having

conducted a de novo review of the record, we affirm substantially for the reasons

explained by Judge Michael L. Ravin in his thorough written opinion denying

the PCR petition after hearing oral argument, but without an evidentiary hearing.

      A jury convicted defendant of first-degree carjacking,  N.J.S.A. 2C:15-2;

first-degree robbery,  N.J.S.A. 2C:15-1; third-degree criminal restraint,  N.J.S.A.

2C:13-2; and two counts of third-degree criminal sexual contact,  N.J.S.A.

2C:14-3(a). The evidence at trial established that defendant threatened a female

victim, forced her to drive with him in her car, sexually assaulted her, and sto le

her cellphone and cash. The victim got a good look at defendant and identified

him both during a photo array and at trial. Defendant was also found to be in

possession of the victim's cell phone. A more detailed description of the facts

and procedural history are set forth in our opinion affirming defendant's

convictions on his direct appeal. State v. Greene, No. A-3338-13 (App. Div.

Feb. 29, 2016). Our Supreme Court denied defendant's petition for certification.

State v. Greene,  226 N.J. 212 (2016).




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      Before Judge Ravin, defendant and his PCR counsel contended that

defendant's trial counsel had been ineffective in several ways. On this appeal,

defendant makes one argument:

            DEFENDANT           RECEIVED            INEFFECTIVE
            ASSISTANCE        OF COUNSEL           FROM TRIAL
            COUNSEL.

            (a) Trial counsel was ineffective for failing to call Ms.
            Greene as an alibi witness.

      The argument that defendant makes on this appeal was also presented to

Judge Ravin. Judge Ravin correctly analyzed that argument, applied the well-

established law, and found that the argument failed to satisfy the first prong

required to establish ineffective assistance of counsel.      See Strickland v.

Washington,  466 U.S. 668, 687 (1984) (requiring an initial showing that

"counsel made errors so serious that counsel was not functioning as the 'counsel'

guaranteed the defendant by the Sixth Amendment"); accord State v. Fritz,  105 N.J. 42, 57-58 (1987). Specifically, Judge Ravin correctly recognized that

defendant had presented nothing more than an unsupported contention.

Defendant's petition for PCR was not supported by an affidavit or certification

from his mother. See R. 3:22-10(c) (requiring facts to be established through

affidavits or certifications before a court grants an evidentiary hearing). Thus,

his bald assertion that his mother might have testified that he was with her when

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                                       3
the crimes occurred does not establish a prima facie showing of ineffective

assistance of counsel. "[A] defendant is not entitled to an evidentiary hearing if

the 'allegations are too vague, conclusory, or speculative[.]'" State v. Porter,

 216 N.J. 343, 355 (2013) (quoting State v. Marshall,  148 N.J. 89, 158 (1997)).

Defendant "must allege facts sufficient to demonstrate counsel's alleged

substandard performance." State v. Jones,  219 N.J. 298, 312 (2014) (quoting

Porter,  216 N.J. at 355). Bald assertions are simply not enough. Id. at 311-12.

      Affirmed.




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