NOT FOR PUBLICATION WITHOUT THE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-4710-17T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
ESTEBAN MORALES, a/k/a
CLAUDIO GONZALEZ,
STEVEN MORALES, B, BRANDON,
and KNOWLEDGE,
Defendant-Appellant.
________________________________
Submitted May 2, 2019 – Decided June 21, 2019
Before Judges Simonelli and Whipple.
On appeal from Superior Court of New Jersey, Law
Division, Ocean County, Indictment No. 12-02-0292.
Joseph E. Krakora, Public Defender, attorney for
appellant (Adam W. Toraya, Designated Counsel, on
the brief).
Bradley D. Billhimer, Ocean County Prosecutor,
attorney for respondent (Samuel Marzarella, Chief
Appellate Attorney, of counsel; Cheryl L. Hammel,
Assistant Prosecutor, on the brief).
PER CURIAM
Defendant Esteban Morales appeals from an April 10, 2018 order denying
his petition for post-conviction relief (PCR) without an evidentiary hearing.
Defendant raises the following arguments on appeal:
POINT I
THE TRIAL COURT ERRED IN DENYING THE
DEFENDANT'S PETITION FOR POST
CONVICTION RELIEF WITHOUT AFFORDING
HIM AN EVIDENTIARY HEARING TO FULLY
ADDRESS HIS CONTENTION THAT HIS
ATTORNEY WAS INEFFECTIVE IN FAILING TO
PRESENT MITIGATING FACTORS AT THE TIME
OF SENTENCE.
POINT II
THE COURT MISAPPLIED ITS DISCRETION IN
APPLYING [RULE] 3:22-4, AS A PROCEDURAL
BAR AGAINST DEFENDANT'S FILING FOR POST
CONVICTION RELIEF IN THIS CASE.
Having reviewed the record in its entirety and having considered all of
defendant's arguments, we affirm for the well-reasoned and thorough thirty-two
page written opinion of Judge Guy P. Ryan. In particular, we agree with the
court that Rule 3:22-4 bars defendant's claims. Defendant argues his counsel
was ineffective for failing to argue mitigating factor twelve at sentencing. See
N.J.S.A. 2C:44-1(b)(12). Specifically, defendant contends he was entitled to
A-4710-17T4
2
credit for cooperating with the police. Defendant could have raised these
arguments in his direct appeal, State v. Esteban Morales, No. A-0039-15 (App.
Div. Jan. 12, 2016), where we affirmed defendant's sentence as not manifestly
or unduly punitive.
Moreover, defendant did not establish a prima facie case of ineffective
assistance of counsel warranting an evidentiary hearing. The trial court has the
discretion to conduct an evidentiary hearing. R. 3:22-10; State v. Preciose, 129
N.J. 451, 462 (1992). In order to obtain an evidentiary hearing on a PCR
application based upon an ineffective assistance claim, a defendant must make
a prima facie showing of deficient performance and actual prejudice. Preciose,
129 N.J. at 462-63. "When determining the propriety of conducting an
evidentiary hearing, the PCR court should view the facts in the light most
favorable to the defendant." State v. Jones, 219 N.J. 298, 311 (2014); see also
Preciose, 129 N.J. at 462-63. However, "bald assertions" of deficient
performance are insufficient. State v. Porter, 216 N.J. 343, 355 (2013) (quoting
State v. Cummings, 321 N.J. Super. 154, 170 (App. Div. 1999)). Rather, a
defendant must demonstrate a reasonable likelihood of success on the merits. R.
3:22-10(b). Here, after our review of the record, we discern no error in the
court's exercise of discretion to deny an evidentiary hearing, because neither
A-4710-17T4
3
defendant's assertion he cooperated with police nor his lawyer's ineffective
performance in connection with that assertion find any support in the record.
Affirmed.
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