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NOT FOR PUBLICATION WITHOUT THE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-0966-17T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
G.L.D.,
Defendant-Appellant.
________________________
Argued telephonically January 27, 2020 –
Decided April 24, 2020
Before Judges Ostrer and Vernoia.
On appeal from the Superior Court of New Jersey, Law
Division, Burlington County, Indictment No. 07-05-
0744.
G.L.D., appellant, argued the cause pro se.
Jennifer Bentzel Paszkiewicz, Assistant Prosecutor,
argued the cause for respondent (Scott A. Coffina,
Burlington County Prosecutor, attorney for respondent;
Jennifer Bentzel Paszkiewicz, of counsel and on the
brief).
PER CURIAM
Defendant G.L.D. appeals from an order denying his second post-
conviction relief (PCR) petition without an evidentiary hearing. Defendant
primarily claims his trial counsel and counsel on his first PCR petition were
constitutionally ineffective by failing to challenge what he characterizes as the
State's unconstitutional constructive amendment of the indictment and
presenting testimony that he contends resulted in his conviction of offenses not
charged in the indictment. Having considered the record in light of the
applicable legal principles, we find no merit to defendant's arguments, and
affirm.
I.
Defendant was charged in a thirteen-count indictment with sexual assault,
sexual contact, and endangering-the-welfare-of-a-child offenses. The victim of
the alleged offenses is defendant's stepdaughter, D.E., who was between ages
ten and fifteen when the offenses occurred. The indictment alleged three of the
offenses were committed on September 9, 2006, and the remaining ten offenses
were committed on numerous occasions between other specified "diverse dates."
The indictment further alleged the offenses were committed in Pemberton
Township, and the evidence presented to the grand jury showed D.E. reported
A-0966-17T4
2
the crimes were committed during D.E.'s visits to the Pemberton home defendant
shared with D.E.'s mother.
Prior to trial, the State moved to amend the indictment to correct what
were described as clerical errors. The proposed amendments narrowed the
diverse dates during which it was alleged defendant committed some of the
alleged offenses, and more specifically alleged defendant was D.E.'s stepfather.
Defendant's trial counsel did not object to the requested amendments, and the
court granted the State's motion.
Prior to trial, the State also advised defendant's trial counsel it intended to
move to amend the indictment to allege some of the offenses were committed at
a location outside of defendant's Pemberton residence. More particularly, the
State advised D.E. had just reported one of the sexual assaults took place at a
Westampton Township motel, and the State intended to move "at trial to amend
the jurisdictions alleged in the indictment to include 'Pemberton Township (as
it currently reads) and/or Westampton Township.'"
The State never moved to amend the indictment to include Westampton
as a location of any of the alleged offenses. However, at trial, D.E. testified
without objection concerning defendant's commission of a sexual assault in
A-0966-17T4
3
Westampton. She also testified defendant committed the offenses charged in
the indictment at defendant's Pemberton residence.
Following presentation of the evidence, the judge charged the jury on the
elements of the charged offenses. For each of the offenses charged in the
indictment, the judge instructed the jury to determine whether defendant
committed the crimes in Pemberton. The judge did not request or require the
jury determine whether defendant committed any of the offenses in
Westampton.
The jury convicted defendant of two counts of second-degree sexual
assault, N.J.S.A. 2C:14-2(b); three counts of second-degree endangering the
welfare of a child, N.J.S.A. 2C:24-4(a); four counts of first-degree aggravated
sexual assault, N.J.S.A. 2C:14-2(a)(2)(a) and (c); and four counts of third-
degree aggravated criminal sexual contact, N.J.S.A. 2C:14-3(a). The jury found
beyond a reasonable doubt each offense was committed in Pemberton, as
charged in the indictment.
We summarized the evidence presented at trial and affirmed defendant's
convictions on his direct appeal, State v. G.L.D., No. A-4122-08 (App. Div. June
8, 2011) (slip op. at 3-10, 27). The Supreme Court denied his petition for
certification, State v. G.L.D., 209 N.J. 596 (2012).
A-0966-17T4
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Defendant filed a PCR petition as a self-represented litigant, and he was
assigned PCR counsel. In correspondence to his counsel, defendant questioned
"the constitutional sufficiency of the indictment, and [his] ability to defend
against the charges." He asserted the prosecutor "insert[ed] new allegations"
concerning the Westampton incident, thereby "amend[ing] the indictment
without re-presentment to a [g]rand [j]ury" to "circumvent" defendant's alleged
"alibi."
In correspondence to PCR counsel, defendant further questioned his trial
counsel's failure "to object to the amending of the indictment" and claimed the
purported constructive amendment of the indictment included an allegation not
presented to the grand jury—that defendant committed offenses in Westampton.
Defendant advised PCR counsel that, in his view, his trial counsel failed to
challenge an unconstitutional amendment of the indictment.
At a hearing on defendant's petition, his PCR counsel argued trial counsel
was ineffective by failing to subpoena defendant's work records that would have
established an alleged alibi, and by failing to obtain D.E.'s psychotherapy
records. PCR counsel did not assert trial counsel erred by failing to object to
the purported constructive amendment of the indictment to include alleged
Westampton offenses. The court ordered an evidentiary hearing to determine if
A-0966-17T4
5
trial counsel was ineffective by failing to subpoena the work records and obtain
D.E.'s psychotherapy records.
Defendant claims his PCR counsel's brief to the court did not include the
argument trial counsel was ineffective by failing to object to the purported
constructive amendment of the indictment. Defendant contends he sent a pro se
brief to his PCR counsel, asserting an ineffective assistance of counsel claim
based on trial counsel's failure to object to the purported amendment. 1
In response, PCR counsel advised defendant she made the "strategic
decision" not to argue trial counsel should have challenged the amendment of
the indictment. Instead, she believed it was better to focus on trial counsel's
alleged failure to adequately cross-examine D.E. concerning her inconsistent
reports about the alleged offenses; and she noted defendant's argument trial
counsel should have challenged the amendment of the indictment "is an out of
time argument that is barred because [it was not] raise[d] in the brief" she filed .
PCR counsel advised defendant that he could submit his pro se brief to the court,
but that she did "not argue claims that are not" hers. Defendant opted not to
submit his pro se brief to the PCR court.
1
The record on appeal does not include the pro se brief.
A-0966-17T4
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Following a three-day evidentiary hearing, the PCR court determined trial
counsel's failure to obtain defendant's work records and D.E.'s psychotherapy
records did not constitute ineffective assistance of counsel. The court found
defendant failed to demonstrate his work records, if obtained, would have
supported an alibi defense to D.E.'s claims she was sexually assaulted on
numerous occasions over a five-year period while spending weekends with her
mother at defendant's home. The court also found defendant failed to present
any evidence that if D.E.'s psychotherapy records had been obtained, they would
have "impacted [her] credibility or further exculpated" defendant. The court
entered an order denying defendant's PCR petition.
Defendant appealed the denial of his petition. In pertinent part, his
appellate counsel argued trial counsel was ineffective by failing to challenge the
indictment, and by allowing D.E. to change her testimony concerning the
location of the alleged sexual assaults. We affirmed the denial of defendant's
first PCR petition, State v. G.L.D., No. A-1740-13 (App. Div. Mar. 18, 2016)
(slip op. at 11), "substantially for the reasons set forth" in the PCR court's written
opinion, and we rejected defendant's arguments, noting they lacked sufficient
merit to warrant discussion in a written opinion, id. at 1, 11. The Supreme Court
denied defendant's petition for certification. State v. G.L.D., 229 N.J. 15 (2017).
A-0966-17T4
7
Defendant filed a pro se second PCR petition. He claimed his PCR
counsel was ineffective by failing to raise meritorious claims in support of the
first PCR petition. More particularly, defendant claimed his PCR counsel failed
to assert his trial counsel was ineffective by failing to: challenge the sufficiency
of the indictment; request a bill of particulars; and object to the State's motion
to amend the indictment. Defendant further alleged PCR counsel was
ineffective by failing to argue his trial counsel's purported errors, including trial
counsel's failure to challenge the purported constructive amendment of the
indictment, deprived him of a fair trial.
In an October 10, 2017 letter to defendant, the court noted the petition did
not rely on a new rule of constitutional law that was unavailable du ring the
pendency of the prior proceedings. See R. 3:22-4(b)(2)(A). The court further
found defendant's petition did not establish a prima facie case of ineffective
assistance of PCR counsel on his first petition. See R. 3:22-4(b)(2)(C). The
court "determined [the petition] is without 'merit' and, therefore, denied." This
appeal followed.
Defendant presents the following arguments for our consideration:
POINT I
THE STATE'S AMENDING OF THE INDICTMENT
IN THIS INSTANCE CONSTITUTED AN
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IMPERMISSIBLE "CONSTRUCTIVE
AMENDMENT," WHICH BROADENED THE
POSSIBLE BASES FOR CONVICTION FROM THAT
WHICH APPEARED IN THE INDICTMENT IN
VIOLATION OF DEFENDANT'S FIFTH
AMENDMENT RIGHT TO BE TRIED ONLY ON
OFFENSES FOUND BY THE GRAND JURY.
A. The State's Amending Of The Indictment
Constituted An Impermissible "Constructive
Amendment."
B. The State's Amending Of The Indictment Does Not
Constitute A Proper Variance.
POINT II
THE PCR COURT ERRED IN DENYING
DEFENDANT'S SECOND PETITION FOR POST-
CONVICTION RELIEF WITHOUT A HEARING
BECAUSE DEFENDANT ALLEGED A PRIMA
FACIE CASE OF INEFFECTIVE ASSISTANCE OF
FIRST PCR COUNSEL PURSUANT TO R. 3:22-6(d);
[STATE V. RUE], 175 N.J. 1 (2002); [STATE V.
WEBSTER], 187 N.J. 254 (2006); AND [STATE V.
HICKS], 411 N.J. SUPER. 370 ([App. Div.] 2010).
A. Legal Standard for Effective Assistance of PCR
Counsel.
B. Defendant Alleged a Prima Facie Claim of
Ineffective Assistance of First PCR Counsel.
C. Defendant Was Prejudiced by PCR Counsel's
Failure to Advance the Improper Amending of the
Indictment Issue.
A-0966-17T4
9
POINT III
DEFENDANT WAS DENIED THE EFFECTIVE
ASSISTANCE OF BOTH TRIAL AND DIRECT
APPEAL COUNSELS CONSTITUTIONALLY
GUARANTEED BY THE U.S. CONST., AMENDS.
VI, XIV; N.J. CONST. ART. I, PAR. 10.
A. Trial Counsel Was Ineffective.
B. Direct Appeal Counsel Was Ineffective.
POINT IV
TRIAL COUNSEL'S NUMEROUS DECEPTIVE
PRETRIAL ACTIONS VIOLATED DEFENDANT'S
SIXTH AMENDMENT GUARANTEED RIGHT TO
CHOOSE THE OBJECTIVE OF HIS DEFENSE
[McCOY V. LOUISIANA], 548 U.S. __, 138 S. Ct.
1500, 200 L.Ed. 2d 821 (2018).
POINT V
DEFENDANT'S ACTUAL INNOCENCE IS A
GATEWAY THROUGH WHICH HE MAY PASS,
ALLOWING HIM TO PRESENT HIS INEFFECTIVE
COUNSEL CLAIMS ON THE MERITS
NOTWITHSTANDING ANY PROCEDURAL BARS.
Based on our review of the record, we are not persuaded by defendant's
arguments, and we affirm.
II.
We review the legal conclusions of the PCR court de novo. State v. Harris,
181 N.J. 391, 419 (2004). This standard of review applies to mixed questions
A-0966-17T4
10
of law and fact. Id. at 420. Where, as here, the PCR court did not conduct an
evidentiary hearing, we may "conduct a de novo review of both the factual
findings and legal conclusions of the PCR court." Id. at 421. We apply these
standards to our review of the issues raised by defendant.
A.
We first note we will not consider or address the arguments raised in
Points I(B), IV, and V of defendant's brief because, as he acknowledges, they
were not raised before the PCR judge. "For sound jurisprudential reasons, with
few exceptions, '[we] will decline to consider questions or issues not properly
presented to the trial court when an opportunity for such a presentation is
available.'" State v. Witt, 223 N.J. 409, 419 (2015) (quoting State v. Robinson,
200 N.J. 1, 20 (2009)). We discern no basis to depart from that well-settled
principle here.
B.
In Point I, defendant argues the indictment alleged he committed all of the
charged offenses in Pemberton, but the State constructively amended the
indictment by introducing D.E.'s testimony he committed a sexual assault at a
Westampton motel. Defendant argues the purported constructive amendment
deprived him of his right to have a grand jury determine the charges and further
A-0966-17T4
11
deprived him of a fair trial because he was not adequately advised of the charges
against him.
Defendant recognizes the State never moved to amend the indictment to
allege he committed any offenses in Westampton. He claims, however, the State
constructively amended the indictment by introducing evidence—D.E.'s
testimony—that a sexual assault occurred at a Westampton motel. Relying on
federal precedent, defendant claims an unconstitutional constructive amendment
of an indictment occurs when "evidence, arguments, or the [] court's jury
instructions effectively 'amend[] the indictment by broadening the possible
bases for conviction from that which appeared in the indictment.'" United States
v. McKee, 506 F.3d 225, 229 (3d Cir. 2007) (quoting United States v. Lee, 359
F.3d 194, 208 (3d Cir. 2004)); see also Stirone v. United States, 361 U.S. 212,
218-19 (1960).
"An indictment is constructively amended when, in the absence of a
formal amendment, the evidence and jury instructions at trial modify essential
terms of the charged offense in such a way that there is a substantial likelihood
that the jury may have convicted the defendant for an offense differing from the
offense the indictment returned by the grand jury actually charged." United
States v. Daraio, 445 F.3d 253, 259-60 (3d Cir. 2006) (footnote omitted); see
A-0966-17T4
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also United States v. Thomas, 274 F.3d 655, 670 (2d Cir. 2001) (explaining an
unconstitutional constructive amendment of an indictment occurs where the
court's action creates "a substantial likelihood that the defendant may have been
convicted of an offense other than that charged in the indictment"). As the court
noted in McKee, where "the government can show with certainty that the jury
did not convict" based on the evidence the defendant claims resulted in the
constructive amendment, no reversal of the defendant's conviction is required.
506 F.3d at 231.
Here, there was no constructive amendment of the indictment to include
the commission of the sexual assault in Westampton. As noted, the jury was
instructed to determine whether defendant committed each of the offenses in
Pemberton, and the jury determined beyond a reasonable doubt defendant
committed each offense in Pemberton, as charged in the indictment. The record
therefore establishes with certainty the jury convicted defendant solely of
offenses committed in Pemberton, and D.E.'s testimony about the Westampton
sexual assault did not result in a conviction for an offense not charged in the
indictment. See ibid. For that reason alone, we reject defendant's claim he was
denied a fair trial by any purported unconstitutional constructive amendment of
the indictment.
A-0966-17T4
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We are further unpersuaded by defendant's reliance on our Supreme
Court's decision in State v. Dorn, 233 N.J. 81 (2018). In pertinent part, the Court
addressed the circumstances under which an indictment may properly be
amended pursuant to Rule 3:7-4. Id. at 94-96. The Court held an indictment
may not be amended where "an amendment goes to the core of the
offense[,] . . . where it would prejudice a defendant in presenting his or her
defense," id. at 95, or where the amendment charges "a more serious offense,"
id. at 96. The Court's holding is inapposite here because there was no actual
amendment of the indictment and no constructive amendment resulting in the
jury's determination of any charges other than those in the indictment. The
indictment charged defendant with committing the offenses in Pemberton, and
the jury found he committed the offenses for which he was convicted in
Pemberton.
We also reject defendant's claim because it is barred under Rule 3:22-5,
which provides "[a] prior adjudication upon the merits of any ground for relief
is conclusive whether made in the proceedings resulting in the conviction or in
any post-conviction proceeding, . . . or in any appeal taken from such
proceedings." "[A] prior adjudication on the merits ordinarily constitutes a
procedural bar to the reassertion of the same ground as a basis for post -
A-0966-17T4
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conviction review." State v. Preciose, 129 N.J. 451, 476 (1992) (citing R. 3:22-
5). "[A] defendant may not use a petition for post-conviction relief as an
opportunity to relitigate a claim already decided on the merits." State v.
McQuaid, 147 N.J. 464, 483 (1997) (citation omitted).
On his direct appeal from the denial of his first PCR petition, defendant
argued his trial counsel erred by failing to challenge the purported constructive
amendment of the indictment and D.E.'s testimony about the Westampton sexual
assault. He also argued the amendment and testimony resulted in a denial of his
right to due process and a fair trial. We rejected the argument, finding it lacked
sufficient merit to warrant discussion in a written opinion. G.L.D., No. A-1740-
13, slip op. at 11. The argument we rejected is substantially similar to, if not
identical to, the argument defendant currently makes in Point I of his brief on
appeal. See State v. Marshall, 173 N.J. 343, 351 (2002) (explaining Rule 3:22-
5 bars reconsideration on a second PCR petition of a claim that is "identical or
'substantially equivalent'" to a claim adjudicated in a first PCR petition). The
argument is therefore barred under Rule 3:22-5.
C.
In Point II, defendant argues the PCR court erred by rejecting his claim
counsel on his first PCR petition was ineffective and failed to comply with Rule
A-0966-17T4
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3:22-6(d) by failing to argue, as requested, that trial counsel was ineffective by
failing to challenge the purported constructive amendment to the indictment.
Defendant claims the court therefore erred by dismissing his second PCR
petition based on a finding he did not demonstrate a prima facie claim of
ineffective assistance of PCR counsel.
The right to the effective assistance of counsel extends to PCR counsel.
See State v. Rue, 175 N.J. 1, 18-19 (2002). To establish a prima facie claim of
ineffective assistance of counsel, a defendant must demonstrate a reasonable
likelihood of success under the two-prong standard established in Strickland v.
Washington, 466 U.S. 668, 686 (1984), and adopted by our Supreme Court in
State v. Fritz, 105 N.J. 42, 58 (1987). Under Strickland, a defendant first must
show that his attorney's handling of the matter "fell below an objective standard
of reasonableness." Strickland, 466 U.S. at 688. Second, a defendant must show
there exists a "reasonable probability that, but for counsel's unprofessiona l
errors, the result of the proceeding would have been different." Id. at 694.
Defendant argues his PCR counsel failed to comply with Rule 3:22-6(d),
which requires PCR counsel "advance all of the legitimate arguments requested
by the defendant that the record will support," R. 3:22-6(d), and "make the best
available arguments in support of them," Rue, 175 N.J. at 19. When counsel
A-0966-17T4
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deems a claim to be meritless, counsel must still "list such claims in the petition
or amended petition or incorporate them by reference." R. 3:22-6(d); accord
State v. Webster, 187 N.J. 254, 257-58 (2006). The Rule also permits the
submission of pro se briefs asserting a defendant's arguments. R. 3:22-6(d).
Defendant's request that his PCR counsel argue trial counsel was
ineffective by failing to challenge the purported constructive amendment of the
indictment went unheeded. PCR counsel did not believe the argument had merit,
explained that for strategic reasons she did not believe the argument should be
made, and informed defendant she would not make the argument on his behalf.
In the end, PCR counsel did not make the requested argument, list it for the
court, or incorporate it by reference as required by Rule 3:22-6(d). In other
words, PCR counsel did not comply with the Rule's requirements. 2
In Webster, the Court determined, under the circumstances presented,
PCR counsel's failure to comply with the requirements of Rule 3:22-6(d)
required a remand to the PCR court to address the omitted arguments in the first
instance. 187 N.J. at 257-58. In Rue, the Court determined a remand was
2
As noted, Rule 3:22-6(d) permits the filing of pro se briefs, and defendant
opted not to file his pro se brief following his communications with PCR
counsel. Based on the record presented, however, we do not find defendant's
apparent decision not to file a pro se brief relieved PCR counsel of her
obligations under the Rule.
A-0966-17T4
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required where, in PCR counsel's arguments to the court, counsel "counter[ed]
every one of" the claims asserted in the defendant's PCR petition, and
"characteriz[ed] the entire petition as meritless." 175 N.J. at 19. The Court
found, under those circumstances, it was appropriate to remand the PCR
petition, assign the defendant new PCR counsel, and provide the defendant with
a new hearing on the petition. Ibid.
Although defendant's PCR counsel failed to comply with Rule 3:22-6(d)'s
requirements, a remand is not required. There are no disputed factual issues
concerning defendant's constructive amendment argument; the indictment
alleged all of the charged crimes occurred in Pemberton, and it is undisputed
D.E. testified without objection about the Westampton sexual assault.
Whether the testimony resulted in an unconstitutional constructive
amendment of the indictment presents a purely legal issue that we may properly
decide de novo. See Harris, 181 N.J. at 419. Thus, although PCR counsel should
have made the argument as required under Rule 3:22-6, we may properly decide
the issue without a remand. Moreover, we have addressed the issue and
determined D.E.'s testimony did not result in an impermissible constructive
amendment of the indictment. As noted, the jury convicted defendant only of
crimes committed in Pemberton, as alleged in the indictment. His trial counsel
A-0966-17T4
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was not ineffective by failing to make the meritless argument there was an
unconstitutional constructive amendment of the indictment. See, e.g., State v.
O'Neal, 190 N.J. 601, 619 (2007) (holding "[i]t is not ineffective assistance of
counsel for defense counsel not to file a meritless motion . . . ."); State v.
Worlock, 117 N.J. 596, 625 (1990) ("The failure to raise unsuccessful legal
arguments does not constitute ineffective assistance of counsel."). Similarly,
his PCR counsel was not constitutionally ineffective by failing to make an
argument, even one suggested by defendant, that lacks support in the facts or
applicable law. We therefore reject defendant's claim he is entitled to either a
remand or reversal of his conviction based on his PCR counsel's failure to argue
his trial counsel was ineffective by failing to object to the purported constructive
amendment of the indictment.
D.
In Point III of his brief, defendant argues his trial counsel was ineffective
because he failed to challenge the purported constructive amendment of the
indictment, and his appellate counsel was ineffective by failing to argue, on the
appeal from the denial of his first PCR petition, that PCR counsel was ineffective
by failing to argue trial counsel was ineffective for not challenging the purported
constructive amendment. We find the arguments are without sufficient merit to
A-0966-17T4
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warrant discussion in a written opinion for the reasons we have already
explained. R. 2:11-3(e)(2).
We reiterate only defendant's claim his trial counsel erred by failing to
object to the alleged constructive amendment of the complaint was addressed
and rejected in our decision affirming the denial of his first PCR petition,
G.L.D., No. A-1740-13, slip op. at 2-3, and, as a result, the claim is barred under
Rule 3:22-5. Additionally, defendant's claims concerning trial counsel and
appellate counsel are founded on a false premise—that there was an
unconstitutional constructive amendment of the indictment. Neither counsel
was ineffective by failing to make a meritless argument. O'Neal, 190 N.J. at
619; Worlock, 117 N.J. at 625; see also State v. Gaither, 396 N.J. Super. 508,
515-16 (App. Div. 2007) (holding appellate counsel is not "required to advance
every claim insisted upon by a client on appeal"); State v. Morrison, 215 N.J.
Super. 540, 549 (App. Div. 1987) (noting "appellate counsel does not have a
constitutional duty to raise every nonfrivolous issue requested by the
defendant").
Any arguments made by defendant we have not expressly addressed are
A-0966-17T4
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without sufficient merit to warrant discussion in a written opinion. R. 2:11-
3(e)(2).
Affirmed.
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