STATE OF NEW JERSEY VS. LUIS A. CRUZ, JR. (96-10-0535, GLOUCESTER COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-0983-18T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

LUIS A. CRUZ, JR.,

Defendant-Appellant.
_________________________

Submitted September 15, 2020 – Decided November 4, 2020

Before Judges Gilson and Moynihan.

On appeal from the Superior Court of New Jersey, Law
Division, Gloucester County, Indictment No. 96-10-
0535.

Joseph E. Krakora, Public Defender, attorney for
appellant (Andrew R. Burroughs, Designated Counsel,
on the brief).

Gurbir S. Grewal, Attorney General, attorney for
respondent (Jennifer E. Kmieciak, Deputy Attorney
General, of counsel and on the briefs).

Appellant filed a pro se supplemental brief.
PER CURIAM

Found guilty after twenty-one days of trial 1 on all indicted charges 2 in

connection with the planned robbery and homicide of the proprietor of a check-

cashing business,3 defendant Luis A. Cruz, Jr. appeals from the order denying

his petition for post-conviction relief (PCR) following an evidentiary hearing.

In his merits brief he argues:

POINT I

AS [DEFENDANT] HAS ESTABLISHED HE WAS
DENIED EFFECTIVE ASSISTANCE OF
APPELLATE COUNSEL, THE PCR COURT ERRED
WHEN IT DENIED PETITION FOR [PCR].

1
A mistrial was declared after defendant's first trial, a capital murder case.
After our Supreme Court rejected defendant's argument that he could not be
retried for capital murder, State v. Cruz, 171 N.J. 419, 432-34 (2002), the second
trial was held, but the State elected not to seek the death penalty.
2
Indictment 96-10-0535 charged: first-degree murder, N.J.S.A. 2C:11-3(a)(1)
and N.J.S.A. 2C:11-3(a)(2); first-degree felony murder, N.J.S.A. 2C:11-3(a)(3);
first-degree armed robbery, N.J.S.A. 2C:15-1; second-degree conspiracy to
commit armed robbery, N.J.S.A. 2C:5-2; 2C:15-1; third-degree possession of a
weapon for an unlawful purpose, N.J.S.A. 2C: 39-4(d); and fourth-degree
unlawful possession of a weapon, N.J.S.A. 2C: 39-5(d).
3
We affirmed defendant's convictions on direct appeal, but we vacated his
sentence and remanded for resentencing. State v. Cruz, No. A-4078-02 (App.
Div. Sept. 5, 2008); defendant did not appeal after resentencing. Our opinion
on direct appeal sets forth the procedural history and facts of this case, and we
will not repeat them except as they are germane to the arguments now
considered.
A-0983-18T4
2
 (1) The Trial Court Erred By Admitting Prejudicial
Evidence About [Defendant's] Prior Conviction
For Passing Bad Checks In Kentucky.

(2) The Trial Court Erred In Admitting Improper
Habit Evidence.

(3) The Trial Court Erred When It Admitted
Evidence That Co[d]efendant Pinto-Rivera Had
Purchased Boots Prior To The Homicide.

(4) The Trial Court Erred When It Admitted A Letter
Written By [Defendant] To Co[d]efendant Pinto-
Rivera.

(5) The Trial Court Erred In Admitting Hearsay
Testimony Regarding Investigation Of Another
Suspect.

(6) Appellate Counsel Was Ineffective By Relying
On [Defendant] To Decide Whether To Raise The
Points Identified By Trial Counsel.

(7) Appellate Counsel Was Ineffective By Failing To
Argue Cumulative Trial Court Error.

(8) Appellate Counsel's Cumulative Errors Require
That [Defendant] Be Provided A New Counsel
To Present An Amended Direct Appeal.

In his pro se supplementary brief, defendant adds:

POINT I

THE PCR COURT FAILED TO CONSIDER, AND
ADJUDICATE ALL CLAIMS FILED BY
[DEFENDANT], A REMAND ON THOSE CLAIMS

A-0983-18T4
3
IS REQUIRED, BECAUSE THIS VIOLATED
APPELLANT'S RIGHTS TO DUE PROCESS AND
EQUAL PROTECTION OF THE LAW AS
GUARANTEED BY THE UNITED STATES
CONSTITUTION, AND THE FIFTH, SIXTH AND
. . . FOURTEENTH, AMENDMENTS THERETO

POINT II

DEFENSE COUNSELS WERE INEFFECTIVE FOR
NOT PURSUING AN EXCULPATORY STATE
WITNESS TO TESTIFY, AND THE TRIAL COURT'S
RULING, WHICH PRECLUDED AN
EXCULPATORY STATE WITNESS FROM
TESTIFYING, DENIED THE DEFENDANT HIS
STATE AND FEDERAL CONSTITUTIONAL
RIGHTS TO COMPULSORY PROCESS, TO
PRESENT EXCULPATORY EVIDENCE, TO DUE
PROCESS OF LAW AND TO A FAIR TRIAL AND
DENIED THE DEFENDANT THE EFFECTIVE
ASSISTANCE OF COUNSEL.

POINT III

THE TRIAL COURT'S FAILURE TO GIVE A
LIMITING INSTRUCTION CONCERNING THE
CO[]DEFENDANT'S GUILTY PLEA, ACTIONS,
AND REFERENCES MADE OF HIM DURING THE
TRIAL, DEPRIVED [DEFENDANT] OF THE RIGHT
TO DUE PROCESS OF LAW, AND A FAIR TRIAL.

POINT IV

THE TRIAL [COURT'S] FAILURE TO PROVIDE A
PROPER CORROBORATION CHARGE VIOLATED
. . . DEFENDANT'S RIGHT TO DUE PROCESS AND
A FAIR TRIAL.

A-0983-18T4
4
POINT V

THE TRIAL COURT ERRED IN DENYING
DEFENDANT'S MOTION FOR A NEW TRIAL ON
THE GROUNDS THAT THE VERDICT WAS
AGAINST THE WEIGHT OF THE EVIDENCE.

POINT VI

[THE DETECTIVE] FAILED TO PROPERLY
INVESTIGATE INSTRUCT MONITOR AND
SUPERVISE [CODEFENDANT].

POINT VII

DEFENDANT RECEIVED INEFFECTIVENESS
ASSISTANCE OF COUNSEL ON DIRECT APPEAL.

POINT VIII

DEFENDANT'S CONVICTION WAS SECURED IN
VIOLATION OF HIS STATE, AND FEDERAL
CONSTITUTIONAL RIGHTS, BECAUSE UNDER
THE NEW JERSEY SUPREME COURT'S HOLDING
IN STATE V. A.G.D., 178 N.J. 56 (2003),
DEFENDANT['S] WAIVER OF HIS STATE-LAW
RIGHT AGAINST SELF-INCRIMINATION ON
FEBRUARY 27, 1996, WAS NOT KNOWING,
INTELLIGENT AND VOLUNTARY PER SE,
BECAUSE THE POLICE FAILED TO INFORM HIM
THAT AN ARREST WARRANT HAD BEEN FILED
OR ISSUED AGAINST HIM, AND HE DID NOT
OTHERWISE KNOW THAT FACT. AS A RESULT,
DEFENDANT['S] INCRIMINATING STATEMENTS
FROM FEBRUARY 27, 1996 SHOULD BE
SUPPRESSED, AND HIS CONVICTION
REVERSED.

A-0983-18T4
5
 A. DEFENDANT'S CLAIM IS NOT
PROCEDURALLY BARRED UNDER R.
3:22-2.

B. DEFENDANT'S CLAIMS ARE NOT
PROCEDURALLY BARRED UNDER
N.J.Ct.R. 3:22-5.

C. THE PROSECUTOR'S OFFICE
CALCULATED STRATEGIC DECISION
TO CONCEAL ITS OBTAINING A
COMPLAINT UPON A SHOWING OF
PROBABLE CAUSE FROM
DEFENDANT, DEPRIVED THE
DEFENDANT OF KNOWLEDGE HE
NEEDED TO KNOWINGLY,
INTELLIGENTLY AND
VOLUNTARILY DECIDE TO WAIVE
HIS CONSTITUTIONAL RIGHTS TO
SILENCE AND TO THE GUIDING
HAND OF COUNSEL.

D. THE AUTHORITIES KNEW THAT
[CODEFENDANT] WAS COMMITTING
EXTORTION OF DEFENDANT,
RENDERING HIS CONDUCT
CRIMINAL, REQUIRING
SUPPRESSION, AND THEIR
CONTINUED DENIALS OF SUCH
KNOWLEDGE UNDERMINE THE
CREDIBILITY OF THE STATE'S
WITNESSES, PROHIBITING A
BEYOND A REASONABLE DOUBT
FINDING IN FAVOR OF THE STATE.

We accord substantial deference to the PCR court's findings after an

evidentiary hearing, particularly when they "are substantially influenced by [the

A-0983-18T4
6
court's] opportunity to hear and see the witnesses and to have the 'feel' of the

case, which a reviewing court cannot enjoy," State v. Johnson, 42 N.J. 146, 161

(1964); see also State v. Elders, 192 N.J. 224, 244 (2007), as long as those

findings "are supported by sufficient credible evidence in the record," but we

review the PCR court's legal conclusions de novo, State v. Nash, 212 N.J. 518,

540-41 (2013). Through that lens, although we are unpersuaded by the

arguments set forth in defendant's merits brief and affirm the PCR court's

decision relative to those issues, we are constrained to remand the issues raised

in defendant's pro se brief because the PCR court did not address them.

Inasmuch as defendant is arguing his appellate counsel failed to advance

evidentiary errors purportedly made by the trial court, he must satisfy the two-

pronged test formulated in Strickland v. Washington, 466 U.S. 668, 687 (1984),

and adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987), first

by "showing that counsel made errors so serious that counsel was not

functioning as the 'counsel' guaranteed . . . by the Sixth Amendment," then by

proving he suffered prejudice due to counsel's deficient performance,

Strickland, 466 U.S. at 687, 691-92; see also Fritz, 105 N.J. at 52. Defendant

must show by a "reasonable probability" that the deficient performance affected

the outcome. Fritz, 105 N.J. at 58.

A-0983-18T4
7
 Based on appellate counsel's testimony at the PCR hearing that he felt the

most effective appellate practice was to raise only issues that were sufficiently

compelling to warrant reversal, the PCR court found "counsel's decision to not

raise every issue amount[ed] to case strategy." The PCR court noted both

appellate counsel and his superior, to whom defendant's trial counsel

complained because appellate counsel would not include the appeal arguments

he suggested, reviewed the appellate brief and concurred the arguments there

included were optimal. The PCR court concluded: "Thus, the appellate case

was reviewed by two experienced appellate attorneys who[] have years of

experience arguing cases before the Appellate Division and found that the

arguments raised were appropriate."

Defendant is entitled "to the effective assistance of appellate counsel on

direct appeal." State v. O'Neil, 219 N.J. 598, 610-11 (2014). To that end,

appellate counsel has a duty to "bring to the court's attention controlling law that

will vindicate her [or his] client's cause." Id. at 612-13. But appellate counsel

is not obligated to raise issues they know to be without merit. State v. Worlock,

117 N.J. 596, 625 (1990); State v. Gaither, 396 N.J. Super. 508, 515-16 (App.

Div. 2007). The United States Supreme Court held appellate advocates must

exercise professional judgment in winnowing potential issues on appeal,

A-0983-18T4
8
selecting only "the most promising for review," and cautioned against judges

"second-guess[ing] reasonable professional judgments" of appellate counsel.

Jones v. Barnes, 463 U.S. 745, 752, 754 (1983).

The PCR court recognized that we follow the Court's guidance in holding

an appellate counsel, unlike a PCR counsel, is not mandated to advance every

argument a defendant desires to include in a direct appeal. Gaither, 396 N.J.

Super. at 515. Our Supreme Court also instructed that "[a]n attorney is entitled

to 'a strong presumption' that he or she provided reasonably effective assistance,

and a 'defendant must overcome the presumption that' the attorney's decisions

followed a sound strategic approach to the case." State v. Pierre, 223 N.J. 560,

578-79 (2015) (quoting Strickland, 466 U.S. at 689). Under those precepts, we

agree with the PCR court that appellate counsel was not ineffective when he

refrained from raising the grounds defendant now asserts.

I.

Defendant claims appellate counsel should have appealed the trial court's

erroneous admission of evidence. If appealed, we would not have substituted

our judgment on an evidentiary ruling unless "the trial court's ruling 'was so

wide of the mark that a manifest denial of justice resulted.'" State v. Marrero,

148 N.J. 469, 484 (1997) (quoting State v. Kelly, 97 N.J. 178, 216 (1984)).

A-0983-18T4
9
Instead, we would have deferred to the trial court's decision "'absent a showing

of an abuse of discretion, i.e., there has been a clear error of judgment.'" State

v. Brown, 170 N.J. 138, 147 (2001) (quoting Marrero, 148 N.J. at 484).

A.

Defendant avers "the trial court allowed the State to introduce evidence of

his prior conviction for passing [bad] checks in Kentucky." That evidence,

however, was presented to the jury in the form of a stipulation by defendant and

the State, and also included evidence elicited by defense counsel4—that

defendant had passed other bad checks at a market in December 1995 and

another bad check written on his mother's account. Contrary to defendant's

contention in his merits brief, no objection was made at the second trial.

Nevertheless, the admission of evidence that defendant had been

convicted in Kentucky for passing bad checks would not have been ruled an

abuse of discretion. We note the trial court at the first trial (first trial court)

4
Defense counsel introduced that evidence in a seeming effort to meet evidence
presented by the State that defendant's father told him, after helping his son with
the Kentucky charges, he would not offer further assistance if he subsequently
passed bad checks. Defendant's father testified that, despite saying he would
not help his son if he reoffended, he did make good on two of the checks written
to the market.

A-0983-18T4
10
conducted a Rule 104 hearing in considering whether that other-crime evidence

was admissible under N.J.R.E. 404(b). That ruling went unchallenged at the

second trial, ostensibly settled by the stipulation; neither party points to a second

hearing and we see none in the record. The reasons set forth by the first trial

court in making its N.J.R.E. 404(b) ruling, analyzing the Cofield factors,5 were

reiterated by the State in the second trial, and illustrate why that evidence was

admissible.

As evinced by the assistant prosecutor's summation, echoing the first trial

court's findings supporting its oral decision to admit the other-crimes evidence,

the State entered evidence that one of the conditions of probation imposed on

5
Under State v. Cofield, 127 N.J. 328, 338 (1992), the party proffering evidence
of a prior crime must prove:

1. The evidence of the other crime must be admissible
as relevant to a material issue;

2. It must be similar in kind and reasonably close in
time to the offense charged;

3. The evidence of the other crime must be clear and
convincing; and

4. The probative value of the evidence must not be
outweighed by its apparent prejudice.

A-0983-18T4
11
defendant by the Kentucky court was that he refrain from any further uttering of

bad checks. Defendant was still on probation when he tendered two checks to

the victim. The State also contended defendant knew that his father, who spent

around $5000 to assist his son in the resolution of the Kentucky charges, told

him, in the father's words during trial testimony, "not to do it again" and that he

was not going to help him again. The State further cited to defendant's

knowledge that his father was leaving for Puerto Rico on the day after the

homicide6 and, as the assistant prosecutor stated in summation, was not "going

to be around to get him out of the jam this time . . . [l]et alone the fact that the

jam involves a lady" that had known defendant since he was about nine-years-

old,7 and who defendant's father had held in high regard for a long period of

time.

Under these facts, the State argued that defendant hatched a plan to

retrieve two bad checks he gave the victim. While telling his codefendant he was

offered money to retrieve a deed from the victim's store, defendant really sought

to retrieve the checks which unbeknownst to him, had already been deposited

by the victim and dishonored by the bank.

6
The date of the crimes was December 11, 1995.
7
The judgment of conviction lists defendant's birthdate in February 1975.
A-0983-18T4
12
 "The admissibility of other-crime evidence is left to the [sound] discretion

of the trial court[.]" State v. Covell, 157 N.J. 554, 564 (1999); see also Marrero,

148 N.J. at 483. "The trial court, because of its intimate knowledge of the case,

is in the best position to engage in this balancing process. Its decisions are

entitled to deference and are to be reviewed under an abuse of discretion

standard." State v. Ramseur, 106 N.J. 123, 266 (1987).

As the first trial court found, motive was "a hotly contested issue for which

there [was] no common agreement" between the parties, especially considering

it appeared no money was taken from the proprietor's cash register. The court

perceived a jury could accept or reject defendant's statement to police —the

admissibility and reliability of which was forcefully challenged by defendant —

in which he asserted he was paid to retrieve a deed from the victim's place of

business. But the first trial court also discerned that the jury could also accept

the State's theory—proved in part by the father's testimony, deemed credible by

the trial court—that defendant knew: his father had told him he would not help

if he repeated his crime; he was subject to imprisonment in Kentucky for

violating the condition of probation proscribing passing bad checks ; and that,

by tendering the bad checks to the victim, he would be "impairing his father's

good work and relationship with someone [with whom both defendant and his

A-0983-18T4
13
father had] a wonderfully long and close relationship, a mother figure." The

first trial court recognized that investigating officers at the crime scene found

the desk and the filing cabinet appear[ed] to be open or
the stuff [was] distributed. Also open was the lid of the
box used by [the victim] to hold the checks she cashed
and the money needed for cashing the checks and they
note[d] the store's cash register was found to contain a
large amount of cash and so the State conclude[d], and
logically so, that the issue of the deed, putting that
aside, and that the issue isn't that the jury is going to
wonder, it's not the deed and robbers don't usually go
in, in the typical traditional sense, to steal, and what do
they steal, either goods or money or both and they left
the cash register unattended by not taking the money in
it, then what? That's a very logical issue that's going to
remain in the psyche of the jury.

Observing case law established that a wider range of evidence is

admissible to establish motive, 8 the first trial court concluded the State's

evidence, which the judge found had clearly and convincingly been established,

"logically . . . tend[s] to show a motive," an issue deemed "pivotal" by the court.

The court also found defendant passed the bad checks to the victim close in time

to the homicide. It also weighed the prejudicial impact of the evidence, finding

that "passing bad checks . . . doesn't have an inherently inflammatory potential

8
The court cited to State v. Carter, 91 N.J. 86, 102 (1982); State v. Rogers, 19
N.J. 218 (1955); and State v. Crumb, 277 N.J. Super. 311, 317 (App. Div. 1994).

A-0983-18T4
14
as to have a probable capacity to divert the minds of the jurors from a reasonable

and fair evaluation of the basic issues of the case." In accord with our Supreme

Court's holdings,9 the court did recognize the evidence was prejudicial to

defendant, albeit "not unduly," but that if the jury accepted the State's proffered

evidence, it was relevant and highly probative of motive.

In our judgment, the first trial court's comprehensive analysis of the

Cofield factors and decision to admit the other-crimes evidence was

unassailable. And the second trial court's twice-repeated instruction to the jury

on the evidence's limited application allowed the jury to accept or reject the

varied evidence in determining whether motive was established and, if so, what

that motive was. We see no error in the admission of that evidence.

B.

We also see no abuse of discretion in the trial court's ruling that allowed,

as habit evidence under N.J.R.E. 406, the codefendant's girlfriend to testify that

9
See, e.g., State v. Loftin, 146 N.J. 295, 394 (1995) (concluding it was unlikely
"that a juror would have been so affected by the sight of defendant engaging in
the act of credit card fraud that she or he would have been moved to convict
defendant of the violent crime of murder"); State v. DiFrisco, 137 N.J. 434, 497
(1994) (holding, where "defendant confessed to [an] execution-style killing,
. . . the fact that defendant stole a car, committed a few traffic violations and
yelled at his mother had very little tendency to divert the jurors' attention from
their duties").

A-0983-18T4
15
every time she was in the car with the codefendant, which she numbered at three

or four, he "would just sit and take the [passenger] seat all the way back so you

can never really tell if he was there [in the car] or not" as if he were "on the

recliner."

Contrary to defendant's present claim, the trial court did conduct an

evidentiary hearing outside the jury's presence at which codefendant's girlfriend

testified on direct, cross and redirect examination. We reject both defendant's

contention that the girlfriend's observations of codefendant were made while he

was in "his chillin' mood," and thus were not applicable to instances where he

was "planning a robbery or seeking to evade detection," and his argument that

three to four observations were insufficient to establish habit.

Although she observed codefendant on only three or four occasions, her

testimony established that his behavior was "semi-automatic" each time she was

with him in a vehicle. See Sharpe v. Bestop, Inc., 158 N.J. 329, 331-32 (1999)

("[B]efore a court may admit evidence of habit, the offering party must establish

the degree of specificity and frequency of uniform response that ensures more

than a mere 'tendency' to act in a given manner, but rather, conduct that is 'semi-

automatic' in nature." (quoting Thompson v. Boggs, 33 F.3d 867, 854 (7th Cir.

A-0983-18T4
16
1994))); see also Verni ex rel. Burstein v. Harry M. Stevens, Inc., 387 N.J.

Super. 160, 190-91 (App. Div. 2006).

Codefendant's reclination was a "regular response to a repeated situation."

State v. Radziwill, 235 N.J. Super. 557, 564 (App. Div. 1989); see also Sharpe,

158 N.J. at 330. The repeated situation was riding in a car, not riding in a car

while "chillin'." Whether the jury accepted that codefendant acted in conformity

with his usual pattern when he was involved in criminal behavior was a factual

determination; it did not render the admission of that evidence an abuse of

discretion.

Nor was the trial court's acceptance of the limited number of the

girlfriend's observations as sufficient an abuse of discretion. The behavior in

question was innocuous; it did not involve criminal or otherwise nefarious acts.

In balance, we see no reason to disturb the trial court's ruling. Defendant's best

evidence argument is without sufficient merit to warrant discussion. R. 2:11-

3(e)(2).

C.

Defendant's challenge to the admission of the detective's testimony that

codefendant purchased boots prior to the homicide was, likewise, an argument

that would not have resulted in a reversal on appeal.

A-0983-18T4
17
 Boots were linked to the case because the blunt force trauma found on the

victim's face included imprints that had characteristics of "ridged shoes." The

detective quoted a portion of defendant's statement to police on redirect

examination in which defendant claimed he heard that codefendant "threw away

a pair of boots" after the homicide. After the detective responded affirmatively

when the assistant prosecutor then asked if he investigated "boots" with

codefendant, defense counsel requested a sidebar at which the assistant

prosecutor explained he was trying to show the police searched for clothi ng,

including footwear during the follow-up investigation. Because the boots were

never found, the State wanted to show a receipt from a catalog order codefendant

placed nineteen days prior to the homicide.

The trial court allowed limited testimony that: the detective and another

person searched for the boots but did not find them; further inquiry uncovered a

sales receipt that showed codefendant bought a pair of boots "a couple of weeks"

before the date of the homicide; and that there was no forensic lin k between the

boots and the homicide.

Although the testimony was of dubious relevance because there was no

link between the imprint found on the victim and the boots ordered by

codefendant, that same fact neutered the prejudicial impact of that evidence to

A-0983-18T4
18
defendant. Moreover, the medical examiner testified each one of the thirteen

stab wounds the victim suffered—which defendant admitted he inflicted—could

have been fatal, blunting the impact of the boot evidence.

D.

We see no merit to defendant's argument that the trial court improperly

admitted a letter defendant sent to codefendant to establish the two were friends.

The letter reads:

What is going on crazy man? Look I told you the
attorney, and the judge, and the prosecutor said, "No."
They want you here until Tuesday. They are mad
because you didn't say anything. So take it easy, okay?
Do not get in any more trouble like last time. These
people want to give me the death penalty. But let G[-
]d's will be done. G[-]d bless you, Louis.

Defendant argues there was no valid reason to admit the letter because it was

undisputed the sender and receiver were friends.

The State need not have limited its proofs. And, the State charged that

"[t]here has been an inference if not direct assertions or questions o n cross[-

examination] that [defendant and codefendant] really don't have a,

quote/unquote, relationship or are not, quote/unquote, friends or don't hang out

together." Defendant does not contest that cross-examination raised such issues.

A-0983-18T4
19
 The trial court found compelling the familiar term by which defendant

addressed codefendant in the letter: "crazy man," a "thread [that was evident]

throughout the conversations between" the two during consensually intercepted

conversations in which the two referred to each other as "Loco" and "Crazy

Man." The court thus found the letter relevant for the limited purpose of

showing the relationship between the two. The court properly exercised its

discretion.

In his merits brief, defendant echoes the arguments made by PCR counsel

that the letter was prejudicial because it allowed the jury to infer: the State was

angry because codefendant did not cooperate against defendant; the two were

colluding about their testimony; and the State had considered the death

penalty. We determine those arguments are without sufficient merit to warrant

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

E.

We look askance at defendant's next argument that repeats that made in

defendant's brief to the PCR court:

[T]he defense presented the testimony of Dennis
Nelson who testified that while he was in the
Gloucester County Jail[,] a person by the name of
Alcides Morales admitted that he committed this
murder and that someone else was charged. If true, this

A-0983-18T4
20
 would show [defendant's] confession to have been
false.

Without citing to any portion of the transcript,10 defendant's merits brief simply

refers to that page of the brief submitted to the PCR court in arguing the trial

court erred by allowing the State to rebut defendant's third-party guilt evidence

by calling a detective who "testified that he investigated Morales and found he

had an alibi as he had been staying about [one hundred and fifty] miles [from

the homicide scene] at the time of the incident. Defense counsel objected that

[the detective] was stating a conclusion about the alibi and not fact" and that

"there was no hearsay exception" to allow that testimony. Then, citing generally

to over sixty pages of transcript, defendant asserts "[t]he trial court disagreed

and allowed [the detective] to testify that he had interviewed several witnesses

who supported Morales'[s] alibi."

The record, however, reveals the trial court ruled, after a Rule 104

evidentiary hearing, the State could "ask questions regarding [the detect ive's]

investigation, but certainly not the status of it." A review of the detective's

rebuttal testimony reveals he did not interject any hearsay testimony, and

10
Rule 2:6-2(a)(6) requires that every point appellant raises on appeal must
include a citation to "the place in the record where the opinion or ruling in
question is located."

A-0983-18T4
21
defense counsel did not object to any question ultimately asked by the assistant

prosecutor or the answers the detective gave. 11 The detective testified on direct

examination: he interviewed Morales; investigated his whereabouts in

December 1995; obtained documents from Morales containing information

regarding a government agency in Connecticut; contacted a caseworker at that

government agency and a Morales family member about Morales's whereabouts;

signed a complaint-warrant against Morales, who was ultimately convicted of

"falsely incriminating another"; and, prior to March 1, 1996, Morales was not

charged with homicide. All other testimony from the detective was elicited by

defense counsel. We see no hearsay that was elicited by the State; and we will

not go mudlarking through the record to find that which, contrary to the Rules,

is not brought to our attention by defendant

II.

We thus conclude none of the issues defendant claims should have been

argued on direct appeal had any merit, and appellate counsel was not ineffective

when he exercised his professional judgment and selected only those arguments

11
At one point, defense counsel interrupted a partial question asked by the
assistant prosecutor and suggested a different form of question that was
ultimately asked after a second sidebar conference clarified the wording that was
acceptable to the defense.
A-0983-18T4
22
he, and his superior, deemed auspicious. And, for the same reasons, we reject

defendant's contention that appellate counsel was ineffective by failing to assert

cumulative error. Those informed "strategic choices" made by counsel are not

subject to challenge. Strickland, 466 U.S. at 690; see also O'Neil, 219 N.J. at

616. In short, defendant did not meet the first prong of the Strickland-Fritz

standard. Strickland, 466 U.S. at 687, 691-92; see also Fritz, 105 N.J. at 52.

III.

We also determine defendant failed to satisfy the second Strickland-Fritz

prong by showing that the failure to include the issues on appeal would have

probably affected the outcome. Strickland, 466 U.S. at 687, 691-92; see also

Fritz, 105 N.J. at 52. Not only did defendant admit to police in a Mirandized

statement—which we upheld on direct appeal—he inflicted multiple stab

wounds to the victim, he also admitted the murder to codefendant, and tried to

buy codefendant's silence during consensual intercepts.

Even if appellate counsel was ineffective by failing to include defendant's

now-proffered arguments—which, as explained, we do not determine—those

issues would not have overcome the overwhelming evidence that defendant

murdered the victim.

A-0983-18T4
23
 IV.

We determine defendant's remaining merits brief arguments to be without

sufficient merit to warrant discussion. R. 2:11-3(e)(2). Though appellate

counsel consulted with defendant as he was obligated, Gaither, 396 N.J. Super.

at 514, counsel clearly decided the issues that would be made on direct appeal.

V.

As the State concedes in its supplemental letter brief submitted in response

to defendant's pro se supplementary brief, the PCR court did not consider the

arguments advanced by defendant in his pro se brief to the PCR court.

The PCR court was required to address all arguments, Rule 3:22-11,

including those made directly by a defendant. We, therefore, remand this matter

to the PCR court to consider defendant's pro se arguments, and submit an

opinion or memorandum in compliance with Rule 1:7-4(a).

Affirmed in part and remanded in part for proceedings consistent with this

opinion. We do not retain jurisdiction.

A-0983-18T4
24