STATE OF NEW JERSEY VS. MAURICE TURNER(04-02-0122, MERCER COUNTY AND STATEWIDE)(CONSOLIDATED)

NOT FOR PUBLICATION WITHOUT THE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-1794-13T2
A-5857-13T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MAURICE TURNER,

Defendant-Appellant.
_________________________________________________

Submitted January 10, 2017 – Decided September 7, 2017

Before Judges Espinosa and Guadagno.

On appeal from Superior Court of New Jersey,
Law Division, Mercer County, Indictment No.
04-02-0122.

Joseph E. Krakora, Public Defender, attorney
for appellant in A-1794-13 (Andrew J. Shaw,
Designated Counsel, on the brief).

Maurice Turner, appellant pro se in A-5857-
13.

Angelo J. Onofri, Mercer County Prosecutor,
attorney for respondent (Scott J. Gershman,
Assistant Prosecutor, of counsel and on the
brief in A-1794-13; Laura Sunyak, Assistant
Prosecutor, of counsel and on the brief in
A-5857-13).
PER CURIAM

Tried to a jury, defendant Maurice Turner was convicted of

first-degree murder, N.J.S.A. 2C:11-3(a)(1) (count one); first-

degree felony murder, N.J.S.A. 2C:11-3(a)(3) (count two); and

first-degree robbery, N.J.S.A. 2C:15-1 (count four). The

sentencing judge merged count two with count one and imposed a

life sentence on count one, subject to the eighty-five percent

parole ineligibility term required by the No Early Release Act

(NERA), N.J.S.A. 2C:43-7.2, and a concurrent twenty-year

sentence on count four.

On appeal, defendant claimed a detective's testimony

included inadmissible hearsay; the prosecutor's summation

improperly relied on facts not in evidence and usurped the

function of the jury; the jury charge on theft incorporated

facts not in evidence; the written outline of the elements of

the offenses, which was distributed to the jury, arranged the

crimes in a sequence that emphasized the most serious charges,

thereby increasing the likelihood of conviction; trial counsel

provided ineffective assistance by failing to move for a new

trial; and the sentence imposed was excessive, especially when

compared to the sentence imposed on a co-defendant who was

convicted of felony murder and robbery. We rejected these

arguments and affirmed. State v. Turner, No. A-1227-07 (App.

2 A-1794-13T2
Div. Oct. 13, 2009) (slip op. at 2). Defendant's petition for

certification was denied. 201 N.J. 446 (2010).

In October 2010, defendant filed a pro se petition for

post-conviction relief (PCR) alleging a laundry list of claims

of ineffective assistance of trial and appellate counsel. PCR

counsel was assigned and sought production of documents relating

to a detective who testified at trial claiming the documents

could have been used at trial to impeach the detective. The

motion was denied after oral argument.

Before his first PCR petition was decided, defendant

submitted a pro se supplemental letter brief raising additional

claims of ineffective assistance of trial counsel including,

failure to move to suppress data retrieved from cell phones, and

failure to move to suppress a black shirt which contained

defendant's DNA.

On August 13, 2013, the PCR judge issued an order declining

to consider defendant's pro se supplemental brief and denying

relief without a hearing on the remaining claims. Defendant

filed a notice of appeal on December 12, 2013, which we accepted

as filed within time.

While his appeal was pending, defendant filed a second PCR

petition attempting to raise the claims he had advanced in his

rejected pro se supplemental brief. On July 9, 2014, a

3 A-1794-13T2
different PCR judge filed an order accompanied by a decision

denying defendant's second petition as procedurally barred.

Defendant now appeals from that order and the order of August

13, 2013.

As to the first appeal (A-1794-13), defendant raises the

following arguments:

POINT I

THE PCR COURT ERRED IN FAILING TO ISSUE
FINDINGS OF FACT AND CONCLUSIONS OF LAW AS TO
ALL OF THE DEFENDANT'S CLAIMS.

POINT II

THE PCR COURT ERRED IN DENYING AN EVIDENTIARY
HEARING BECAUSE THE DEFENDANT HAD ESTABLISHED
A REASONABLE LIKELIHOOD THAT HIS CLAIMS OF
INEFFECTIVE ASSISTANCE OF TRIAL AND APPELLANT
COUNSEL WOULD ULTIMATELY SUCCEED ON THE
MERITS.

A. TRIAL COUNSEL'S FAILURE TO
CORRECTLY ADVISE THE DEFENDANT AS TO
HIS SENTENCING EXPOSURE.

B. TRIAL COUNSEL'S FAILURE TO
REQUEST A CLAWANS[1] CHARGE AND TO
MOVE TO DISQUALIFY THE PROSECUTOR
FOR TESTIFYING AS A WITNESS.

C. TRIAL COUNSEL'S FAILURE TO ATTACK
THE CREDIBILITY OF DETECTIVE EDGAR
RIOS.

D. TRIAL COUNSEL'S FAILURE TO OBJECT
TO THE RACIAL COMPOSITION OF THE
JURY.

1
State v. Clawans, 38 N.J. 162 (1962).

4 A-1794-13T2
 E. TRIAL COUNSEL'S CUMULATIVE
ERRORS.

POINT III

THE PCR COURT ERRED IN DENYING THE DEFENDANT'S
MOTION TO COMPEL THE PRODUCTION OF RECORDS.

As to the second appeal (A-5857-13), defendant raises the

following points:

POINT I

THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW
AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO
THE UNITED STATES CONSTITUTION AND ART. I PART
1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED
BY THE PCR COURT'S REFUSAL TO HOLD A POST-
CONVICTION RELIEF EVIDENTIARY HEARING TO
ADJUDICATE THE DEFENDANT'S CLAIM THAT HE WAS
DENIED EFFECTIVE ASSISTANCE OF COUNSEL.

A. DEFENDANT WAS DENIED THE
EFFECTIVE ASSISTANCE OF TRIAL
COUNSEL WHEN HIS LAWYER FAILED TO
FILE A CLEARLY MERITORIOUS MOTION TO
SUPPRESS THE CELL PHONES WHICH WERE
ILLEGALLY SEIZED WITHOUT A SEARCH
WARRANT AND CALL DETAIL RECORDS AS
BEING THE FRUIT OF THE POISONOUS
TREE.

B. DEFENDANT WAS DENIED THE
EFFECTIVE ASSISTANCE OF TRIAL
COUNSEL WHEN HIS LAWYER FAILED TO
FILE A CLEARLY MERITORIOUS MOTION TO
SUPPRESS THE BLACK STATE PROPERTY
SHIRT WHICH WAS ILLEGALLY SEIZED
WITHOUT A SEARCH WARRANT AND DNA
MATCH AS BEING THE FRUIT OF THE
POISONOUS TREE.

5 A-1794-13T2
 C. TRIAL COUNSEL RENDERED
INEFFECTIVE ASSISTANCE OF COUNSEL
BY FAILING TO FILE A MOTION FOR
DOUBLE JEOPARDY TO BAR RE-TRIAL ON
COUNTS I, II, AND IV OF THE
INDICTMENT.

D. APPELLANT['S] COUNSEL RENDERED
INEFFECTIVE ASSISTANCE OF COUNSEL
BY FAILING TO ORDER MARCH 6, 2006
TRIAL TRANSCRIPTS AND RAISE ON
DIRECT APPEAL TRIAL COUNSEL FAILED
TO FILE A MOTION FOR DOUBLE JEOPARDY
TO BAR RE-TRIAL ON COUNTS I, II, AND
IV OF THE INDICTMENT.

POINT II

THE PROCEDURAL BAR TO RELIEF UNDER RULE 3:22-
4 SHOULD NOT APPLY TO APPELLANT'S CLAIMS UNDER
POINTS C AND D.

We assume familiarity with the facts as related in our 2009

opinion and do not repeat them here.

First PCR Petition

Defendant first argues that the PCR judge failed to issue

findings of fact and conclusions of law. The judge noted that

the twenty-five "miscellaneous arguments" raised in the initial

petition lacked merit or were already addressed in our 2009

opinion. The judge also observed that defendant "presents bare

allegations without providing specific details on how, when,

why, and where counsel made errors or omissions." The judge

declined to consider the new claims raised in defendant's pro se

6 A-1794-13T2
supplemental brief noting defendant had ample opportunity to

raise the claims in his PCR petition.

We agree that defendant's claims amounted to nothing more

than bald assertions of ineffective assistance and therefore

warranted neither an evidentiary hearing nor any substantive

relief.

Defendant's pro se supplemental submission did not raise

new claims as much as it repeated the claim that trial counsel

was ineffective for failure to file a motion to suppress

unspecified evidence seized without a warrant. The court

disposed of that claim, but did not reference defendant's pro se

brief.

Although defendant abandons most of the ineffective

assistance claims made before the PCR judge, he maintains on

appeal that trial counsel was ineffective for failure to (1)

adequately advise him as to his sentencing exposure, (2) request

an adverse inference charge as to an uncalled witness, (3) move

to disqualify the prosecutor for testifying as a witness, (4)

attack the credibility of a detective who testified at trial,

and (5) object to the racial composition of the jury.

A defendant claiming ineffective assistance of counsel must

show both that counsel's performance was deficient, and that

deficiency caused him or her prejudice. State v. Goodwin, 173

7 A-1794-13T2
N.J. 583, 596 (2002) (quoting Strickland v. Washington, 466 U.S.

668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984)).

The petitioner must demonstrate that counsel's performance fell

outside "the wide range of reasonable professional assistance,"

and that there was a "reasonable probability that, but for

counsel's unprofessional errors, the result of the proceeding

would have been different." Strickland, supra, 466 U.S. at 689,

694, 104 S. Ct. at 2065, 2068, 80 L. Ed. 2d at 694, 698.

Counsel's strategic choices are entitled to a presumption of

competence, so long as they are made after an adequate factual

and legal investigation. State v. Harris, 181 N.J. 391, 488

(2003) (quoting Strickland, supra, 466 U.S. at 690-91, 104 S.

Ct. at 2066, 80 L. Ed. 2d at 695)), cert. denied, 545 U.S. 1145,

125 S. Ct. 2973, 162 L. Ed. 2d 898 (2005).

To obtain a hearing on a PCR petition, a defendant must

demonstrate a "reasonable likelihood" of relief. State v.

Marshall, 148 N.J. 89, 158, cert. denied, 522 U.S. 850, 118 S.

Ct. 140, 139 L. Ed. 2d 88 (1997). Bald assertions of

ineffective assistance will not suffice. State v. Cummings, 321

N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199

(1999).

Defendant claims that his trial counsel failed to correctly

advise him as to his sentencing exposure, asserting that, had he

8 A-1794-13T2
known he risked a sentence of life imprisonment subject to NERA,

he would have accepted a favorable plea deal. Defendant claims

that counsel advised him that, if convicted, he could be

sentenced to a term of thirty years to life. While defendant

submitted certifications from trial counsel in support of his

petition, it does not corroborate his claim that he was

misinformed as to his exposure.

The PCR judge noted defendant acknowledged his trial

counsel had informed him of his exposure of thirty years to life

in prison and concluded that defendant had failed to establish a

prima facie case for ineffective assistance warranting either an

evidentiary hearing or any substantive relief. We agree.

Defendant's acknowledgment that he was advised his exposure

could extend to life in prison completely undermines his claim

that he was misinformed by trial counsel.

Defendant next challenges his trial counsel's failure to

request an adverse inference charge as to a police lieutenant

who was not called by the State as a witness and counsel's

failure to move to have the prosecutor removed for testifying as

a witness.

When a party seeks an adverse inference charge, the

following factors must be considered:

9 A-1794-13T2
 (1) whether the "uncalled witness" was
"peculiarly within" one party's control; (2)
whether the witness was available "both
practically and physically"; (3) whether the
uncalled witness's testimony "will elucidate
relevant and critical facts in issue"; and (4)
whether "such testimony appears to be superior
to that already utilized in respect to the
fact to be proven."

[Washington v. Perez, 430 N.J. Super. 121,
128-29 (App. Div. 2013) (quoting State v.
Hill, 199 N.J. 545, 569 (2009)).]

A decision to give or decline to give an adverse inference

charge is reviewable only for an abuse of discretion. Bradford

v. Kupper Assocs., 283 N.J. Super. 556, 580 (App. Div. 1995),

certif. denied, 144 N.J. 586 (1996).

Defendant's claim arises from an exchange during trial

counsel's cross-examination of Detective Timothy Thomas as to

whether a set of keys were removed from the crime scene prior to

the issuance of a search warrant:

Q: Do you know if it's noted anywhere
in Detective Osvai's handwritten logs as to
whether these keys were taken from the scene
prior to the search warrant being issued?

A: It's probably not noted.

Q: Is the Trenton Police Department and
officials from the Mercer County Prosecutor's
Office prone to take items from scenes prior
to getting search warrants?

[PROSECUTOR]: Objection to the form of
the question.

10 A-1794-13T2
 THE COURT: Well, are they prone --

[PROSECUTOR]: It's overbroad.

THE COURT: Well, did they in this
case?

[PROSECUTOR]: Yes.

THE COURT: It's what happened in
this case. Did that happen here?

THE WITNESS: It happened here, it was
ordered by my Lieutenant. Lieutenant Parrey
ordered Detective Osvai to get the keys to try
to identify the victim. It was a critical
part in the investigation. We had to find out
who the victim was to backtrack how he got
there, and that's why he did it.

Defendant claims that his "[t]rial counsel heard a

conversation between the prosecuting attorney and . . .

Thomas[,] in which . . . Thomas was advised to attribute

statements to his Lieutenant in order to avoid the Lieutenant

from being cross-examined." Trial counsel's certifications are

silent on the issue.

Defendant argued before the PCR judge and maintains now

that trial counsel should have requested a Clawans2 charge,

informing the jury that it may draw an adverse inference from

2
Clawans, supra, permits a negative inference to be drawn from
the non-production of a witness within the party's control when
the witness's testimony would have exposed facts in issue and
would have been superior to evidence used by the party. 38 N.J.
at 171.

11 A-1794-13T2
the State's failure to call the lieutenant as his testimony

would have been unfavorable to the State. Defendant also argues

that trial counsel should have moved to have the prosecutor

removed for testifying as a witness, presumably because the

prosecutor answered in the affirmative to a single clarifying

question from the judge during the course of Thomas's cross-

examination.

The PCR judge rejected both arguments, reasoning that

defendant's certification was the only support for his

contention that Thomas was ever advised to testify on the

lieutenant's behalf so he could avoid cross-examination. The

judge concluded that a Clawans charge was not warranted.

Defendant fails to explain why the lieutenant's testimony

would have been superior to the detective's testimony as to

render an adverse inference charge clearly appropriate.

Defendant suggests that the State feared subjecting the

lieutenant to cross-examination, but does not identify what

would have resulted from that cross-examination or how it would

have changed the outcome of the case. Defendant alleged his

trial counsel overheard the discussion between the prosecutor

and the lead detective, but tellingly, counsel's certification

does not support that claim and makes no mention of the

incident. The prosecutor's response to the judge's question

12 A-1794-13T2
during Thomas's cross-examination was plainly meant to clarify

his objection, not to offer substantive testimony, and, in any

event, Thomas testified with greater elaboration to the same

substance thereafter.

The court's conclusion that counsel was not ineffective for

failing to request the Clawans charge or to move for the

prosecutor's removal finds ample support in the record.

Defendant next argues his trial counsel was ineffective in

failing to impeach the credibility of Detective Edgar Rios with

evidence that he was transferred out of the homicide unit for

committing several administrative infractions. Defendant also

challenges the PCR judge's denial of his motion to compel

production of the police personnel records necessary to

substantiate those infractions.

A court's determination whether to require disclosure of

such records must depend on a balancing between the public

interest in maintaining their confidentiality and an accused's

constitutional right to confrontation of adverse witnesses at

trial. State v. Harris, 316 N.J. Super. 384, 397-98 (App. Div.

1998). A party seeking production for in camera inspection need

not definitively "establish that the personnel file actually

contains relevant information," but must show at least "'some

factual predicate which would make it reasonably likely that the

13 A-1794-13T2
file will bear such fruit and that the quest for its contents is

not merely a desperate grasping at a straw.'" State v.

Kaszubinski, 177 N.J. Super. 136, 141 (Law Div. 1980) (quoting

People v. Gissendanner, 399 N.E.2d 924, 928 (N.Y. 1979)).

Defendant relied on a newspaper article quoting an

unidentified source who stated that twenty-eight administrative

charges had been filed against Rios, including making a false

statement, and that he was being transferred out of the homicide

unit. The article also stated Rios was "long acknowledged as

one of the department's best homicide detectives" and indicated

other officers and detectives were being transferred out of the

homicide unit.

In his written decision, the PCR judge noted that Detective

Rios had very little involvement in this homicide investigation

and his investigative charges had no connection with his work on

this case. Rather, the violations were related to Detective

Rios' failure to notify the family of a homicide victim in an

unrelated case of the status of the investigation.

Defendant includes a copy of the newspaper article

reporting the charges against Rios in his appendix but does not

indicate when that article was published or in what publication

it appeared. Detective Rios testified on July 26, 2007. The

undated article in defendant's appendix was actually published

14 A-1794-13T2
on April 16, 2008, nine months after Rios testified. See Joe

D'Aquila, Half of Homicide Detectives Charged, Transferred in

Wake of Ramsey Case, The Trentonian (April 16, 2008),

http://www.trentonian.com/article/20080416/TMP01/304169956.

Defendant argues trial counsel was ineffective by failing

to attack Rios' credibility "by showing he was issued 28

administrative charges including making a false statement and

transferred out of the homicide unit." Defendant has failed to

show how his trial counsel could have confronted Rios with

administrative charges which were not filed until long after the

trial ended. While we require attorneys to provide effective

assistance to their criminal clients, we do not expect them to

be clairvoyant.

Defendant next claims that trial counsel was ineffective

for failure to object to the State's use of a peremptory

challenge to strike the only African-American from the jury.

A defendant challenging a prosecutor's use of peremptory

challenges must satisfy an initial burden of rebutting the

presumption in favor of the constitutionality of a peremptory

challenge by "'producing evidence sufficient to . . . draw an

inference that discrimination has occurred.'" State v. Osorio,

199 N.J. 486, 502 (2009) (quoting Johnson v. California, 545

U.S. 162, 170, 125 S. Ct. 2410, 2417, 162 L. Ed. 2d 129, 139

15 A-1794-13T2
(2005)). In State v. Watkins, the Court suggested that trial

courts consider the following factors:

(1) that the prosecutor struck most or all of
the members of the identified group from the
venire; (2) that the prosecutor used a
disproportionate number of his or her
peremptories against the group; (3) that the
prosecutor failed to ask or propose questions
to the challenged jurors; (4) that other than
their race, the challenged jurors are as
heterogeneous as the community as a whole; and
(5) that the challenged jurors, unlike the
victims, are the same race as defendant.

[114 N.J. 259, 266 (1989).]

However, where a single peremptory challenge used to

"excuse the only qualified member of a cognizable group in the

jury panel," and the defendant or victim belongs to the same

group, the defendant may establish a prima facie case so long as

the rest of the factors of the above standard are met. State v.

Pruitt, 430 N.J. Super. 261, 272 (App. Div. 2013). Once a

defendant establishes a prima facie case, "[t]he burden shifts

to the prosecutor to come forward with evidence that the

peremptory challenges under review are justifiable on the basis

of concerns about situation-specific bias." State v. Gilmore,

103 N.J. 508, 537 (1986). The prosecution must then "articulate

'clear and reasonably specific' explanations of its 'legitimate

reasons' for exercising each of the peremptory challenges."

Ibid. (quoting Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S.

16 A-1794-13T2
248, 258, 101 S. Ct. 1089, 1096, 67 L. Ed. 2d 207, 218 (1981)).

The PCR judge determined that defendant's trial counsel had

no basis to raise a Pruitt challenge to the State's use of a

peremptory challenge, as the State presented a "cognizable, non-

discriminatory reason" to challenge the juror, explaining:

The record of the jury selection
discloses that Juror 4 had two siblings who
had previously been incarcerated for
convictions on drug charges. . . . One of her
brothers was incarcerated in a federal prison
in Pennsylvania, while the other had served
time in Mercer County before being transferred
to Atlantic County. . . . At the time the
State exercised its peremptory challenge
excusing Juror 4, there was no indication that
she was the last remaining African-American
Juror on the panel. . . . Indeed, prior to
Juror 4's excusal, the trial court informed
both the State and defense counsel that a new
jury panel was on its way for voir dire. . .
. A new jury panel was, in fact, introduced
and voir dire commenced thereafter.

We are satisfied that trial counsel would have been unable

to make a threshold showing that the State exercised its

peremptory challenge in a constitutionally impermissible fashion

sufficient to draw an inference that discrimination had

occurred. Thus, trial counsel's failure to object to the

State's use of this peremptory challenge did not amount to

ineffective assistance.

The remaining arguments raised by defendant in this appeal

lack sufficient merit to warrant further discussion in our

17 A-1794-13T2
opinion. R. 2:11-3(e)(2).

Second PCR Petition

Defendant argues that his second PCR petition, which raised

various claims of ineffective assistance of trial and appellate

counsel should not have been procedurally barred. The PCR judge

found the claims barred by Rule 3:22-4(b). The Rule provides:

A second or subsequent petition for post-
conviction relief shall be dismissed unless:

(1) it is timely under R. 3:22-12(a)(2);
and

(2) it alleges on its face either:

(A) that the petition relies on a
new rule of constitutional law, made
retroactive to defendant's petition by
the United States Supreme Court or the
Supreme Court of New Jersey, that was
unavailable during the pendency of any
prior proceedings; or

(B) that the factual predicate for
the relief sought could not have been
discovered earlier through the exercise
of reasonable diligence, and the facts
underlying the ground for relief, if
proven and viewed in light of the
evidence as a whole, would raise a
reasonable probability that the relief
sought would be granted; or

(C) that the petition alleges a
prima facie case of ineffective
assistance of counsel that represented
the defendant on the first or subsequent
application for post-conviction relief.

[R. 3:22-4(b).]

18 A-1794-13T2
 The claims raised by defendant in his second PCR petition

alleging ineffective assistance of trial and appellate counsel

do not fall into any of the three narrow categories permitting

relief. Even if we were to consider his claims, they lack

merit.

Defendant presented two arguments: (1) trial counsel

should have moved to suppress the cell phones recovered at the

scene of the murder and a shirt bearing defendant's DNA

recovered from his residence; and (2) trial counsel should have

moved for dismissal on double jeopardy grounds after the

mistrial, and appellate counsel should have raised that issue on

appeal.

The record clearly establishes that search warrants were

obtained for both the murder scene and defendant's residence.

Defendant's claim that items were seized before the warrants

were actually obtained is not supported by the record.

Defendant next argues that trial counsel was ineffective

for failure to move for dismissal of his indictment on double

jeopardy grounds after the first mistrial, and that appellate

counsel was ineffective for failure to raise the same argument

or order the necessary supporting transcript on appeal.

The mistrial came about after a detective unexpectedly

19 A-1794-13T2
volunteered on cross-examination that co-defendant Karla Freeman

provided investigators with defendant's cell phone number, which

corresponded with the phone that was recovered at the scene of

the crime. Defendant's counsel promptly moved for a mistrial

pursuant to United States v. Bruton, 391 U.S. 123, 126, 88 S.

Ct. 1620, 1622, 20 L. Ed. 2d 476, 479 (1968), on the ground that

he could not cross-examine Freeman, the source of the

incriminating information. On further questioning, the

detective acknowledged that he had never interviewed Freeman and

had no personal knowledge of her incriminating statement. The

court ultimately granted the mistrial.3

Here, defendant's trial counsel moved for the mistrial and

has not alleged before the trial judge, the PCR judge, or us,

that the mistrial was brought about by bad faith on the State's

part. State v. Farmer, 48 N.J. 145, 174 (1966), cert. denied,

386 U.S. 991, 87 S. Ct. 1305, 18 L. Ed. 2d 335 (1967). A

retrial after a mistrial is permissible if there was "sufficient

legal reason and manifest necessity to terminate the trial,"

State v. Loyal, 164 N.J. 418, 435 (2000), or the defendant

3
Co-defendant, Karla Freeman raised an identical claim of
ineffective assistance based on her trial counsel's failure to
argue for dismissal based on double jeopardy. Both appeals were
calendared together before us and, in separate opinions filed
today, we reject both claims. See State v. Freeman, No. A-3386-
14 (App. Div. September 7, 2017).

20 A-1794-13T2
consents to the termination, United States v. Dinitz, 424 U.S.

600, 607, 611, 96 S. Ct. 1075, 1079-81, 47 L. Ed. 2d 267, 274,

276 (1976). Both circumstances were present here.

The remaining arguments raised by defendant in this appeal

lack sufficient merit to warrant further discussion in our

opinion. R. 2:11-3(e)(2).

Affirmed.

21 A-1794-13T2