STATE OF NEW JERSEY VS. JOSEPH M. PALLIPURATH (09-03-0377, PASSAIC 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NOT FOR PUBLICATION WITHOUT THE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-3330-18

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JOSEPH M. PALLIPURATH,
a/k/a SANISH,

Defendant-Appellant.
_________________________

Argued June 1, 2021 – Decided September 7, 2021

Before Judges Messano and Hoffman.

On appeal from the Superior Court of New Jersey, Law
Division, Passaic County, Indictment No. 09-03-0377.

John Vincent Saykanic, Designated Counsel, argued
the cause for appellant (Joseph E. Krakora, Public
Defender, attorney; John Vincent Saykanic, on the
briefs).

Ali Y. Ozbek, Assistant Prosecutor, argued the cause
for respondent (Camelia M. Valdes, Passaic County
Prosecutor, attorney; Ali Y. Ozbek, of counsel and on
the briefs).
 Appellant filed pro se supplement briefs.

PER CURIAM

Defendant Joseph M. Pallipurath appeals the denial of his petition for

post-conviction relief (PCR) without an evidentiary hearing. We place the

issues presented on appeal in proper context by referencing our prior opinion.

State v. Pallipurath, No. A-5491-11 (App. Div. March 11, 2016). 1

A jury found defendant guilty of the first-degree murder of Reshma James;

the first-degree murder of Dennis John Malloosseril; the attempted murder of

Silvy Perincheril; and related weapons offenses. As to each murder count, the

grand jury had charged two aggravating factors, specifically that defendant

committed the murder while engaged in the commission of, or flight from, the

other murder or the attempted murder of Silvy. 2 See N.J.S.A. 2C:11-3(b)(4)(g).

The jury found that the State proved the aggravating factors as to each murder

beyond a reasonable doubt. Pallipurath, slip op. at 1–2. The judge sentenced

defendant to consecutive life terms without parole for the two murders, plus a

1
The Supreme Court denied defendant's petition for certification. State v.
Pallipurath, 228 N.J. 453 (2016).

2
As we did in our prior opinion, we use the first names of the victims because
that is how the witnesses at trial referred to them. We intend no disrespect by
this informality.
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consecutive twenty-year term with an eighty-five percent period of parole

ineligibility on the attempted murder. He imposed concurrent sentences on the

remaining counts and ordered restitution of more than $42,000. Id. at 2. We

affirmed defendant's convictions and the sentences imposed, except for the

restitution ordered by the judge. Id. at 5. We remanded the matter to the trial

court to conduct a hearing on the issue of restitution. Id. at 5–6.

The evidence at trial demonstrated that

[a]t approximately 11:45 a.m. on November 23,
2008, defendant entered Saint Thomas Syrian Orthodox
Church in Clifton and shot and killed Reshma, his wife, and
Dennis John. Silvy, Reshma's cousin, was also shot, but
she survived and is now partially paralyzed. At trial, these
facts were undisputed. The issue was whether defendant's
conduct was purposeful or knowing, as the State argued,
or, committed in the heat of passion or by accident, as
defendant contended.

[Id. at 6.]

The State's proofs were substantial and included Silvy's testimony and the

eyewitness testimony of others at the church. "Other evidence, some obtained

as a result of communications data warrants, supported the State's contention

that defendant had travelled cross-country from his home in California, stalked

his wife and carried out a pre-planned attack when she would not return to him."

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Id. at 7. Defendant provided two statements to law enforcement after fleeing to

Georgia. Ibid.

Defendant testified at trial and confirmed "that he had previously

physically assaulted his wife." Id. at 8. Defendant admitted that he

created an email address and pretended to be a mutual
friend. Reshma fell for the ruse and confided that she
did not want to be with defendant. Defendant admitted
he often responded to such statements "in a threatening
manner," claiming he was "dangerous," in an effort to
scare Reshma and have her return.

[Ibid.]

Defendant also "admitted bringing two guns with him from California and

purchasing fifty rounds of ammunition in Wyoming. For approximately three

weeks prior to the shootings, defendant surveilled Reshma, observing her

attending church on at least two occasions." Ibid. Defendant's description at

trial of the events at the church on the day of the shooting "significantly differed

from the account defendant provided to authorities in Georgia." Id. at 8–9.

In June 2016, defendant filed a pro se PCR petition that raised several

allegations of ineffective assistance of his trial counsel, including that counsel:

failed to pursue an insanity or diminished capacity defense; failed to investigate

and prepare adequately for trial; failed to consult adequately with defendant;

failed to investigate defendant's "mental and emotional status" before the crimes,

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during their commission, and thereafter, including "during the trial"; failed to

provide defendant's psychiatrist with complete mental health records and present

him as an expert witness at trial; advised defendant to lie about his mental

illness; and called defendant as a witness "against his will," despite knowing of

defendant's "poor mental health."

PCR counsel, who now also represents defendant on appeal, conducted an

extensive investigation of these allegations and assembled a significant amount

of material that was submitted to the PCR judge, who was not the trial judge.

I.

The record before the PCR judge demonstrated the following. Shortly

after defendant's 2008 arrest, he attempted suicide and was institutionalized

briefly at the Ann Klein Forensic Center. The clinical psychiatrist who treated

defendant there diagnosed him with "major depressive disorder recurrent severe

with psychotic features." After his retention in 2009, and over the course of the

first eighteen months of his representation, trial counsel investigated and

pursued potential mental illness-related defenses on defendant's behalf. Among

other things, he obtained mental health records from Dr. David M. Cordosi, a

clinical psychologist who treated defendant for what appears to have been three

sessions in California in September 2008. Dr. Cordosi reported that defendant

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acknowledged being separated from his wife after having abused her and denied

any history of depression, mania, anxiety, or psychosis and did not "endorse any

suicidal or homicidal ideation."

On May 14, 2009, trial counsel wrote to the Office of the Public Defender

(OPD), requesting that it pay for "the expert services of a psychiatrist and a

psychologist." OPD requested that trial counsel provide discovery, defendant's

version of events, an estimate of costs for the services requested, and an

explanation as to why both a psychiatrist and psychologist were needed. Trial

counsel provided the discovery, withdrew the request for a psychologist, and

again requested that OPD provide a list of previously approved psychiatrists.

OPD denied the request, stating that without further information from defendant,

the discovery "reveal[ed] a rational, coherent, culturally-driven . . . attempt by

[defendant] to compel his wife to return to him by deadly force, the use of that

force in a fit of rage when his plan was frustrated, disposal of the weapon, and a

sophisticated flight out-of-state designed to mislead authorities."

On July 20, 2009, trial counsel apprised the court of his efforts to obtain

an expert through OPD, noting he intended "to continue to move forward and

have an expert evaluate [defendant]." Counsel added, "perhaps the most viable

option for the defense is an insanity defense," but that "psychiatric issues . . .

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have to be evaluated and assessed." Before the judge in August 2009, trial

counsel said he was "considering putting forth an insanity defense" and was in

the process of seeking an evaluation from an expert approved by OPD.

In November 2009, trial counsel again wrote to OPD, now detailing

defendant's version of events, which counsel described as a "psychotic break"

triggered by defendant's "delusion that his wife had been kidnapped and was

being held against her will." Counsel requested that OPD pay for the services of

a psychiatrist, Dr. Robert T. Latimer. OPD approved the evaluation, but advised

counsel that if there were need for testimony from Dr. Latimer, trial counsel

needed to secure additional written authorization from OPD.

Dr. Latimer examined defendant shortly thereafter, but, on February 22,

2010, trial counsel apprised the court that there needed to be a second evaluation.

Counsel needed additional psychiatric and hospitalization records from India,

where defendant had been treated and hospitalized in the 1990s. A jail record

from March 2010 reflects defendant's complaint that he was not receiving his

medications — which, at the time included Benadryl, Effexor, Zyprexa, and

Trazadone — on the days he was going to court. Defendant also reported to the

jail clinician "ruminating thoughts" on multiple occasions.

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 At the next status conference, in April 2010, trial counsel represented that

he had just received "a wealth of documents" and had "culled through most of

them," but still needed to "contact some people in India," and "send out some

releases." Counsel represented he would send the records to Dr. Latimer and

anticipated having his report within a short time, as "[h]e's already evaluated

[defendant] so he's in the very final stages of making a diagnosis."

On April 22, 2010, Dr. Latimer wrote trial counsel stating that he was not

able to submit a report until he received information concerning defendant's

"conduct disorder" diagnosis related to defendant's prior medical treatment,

including hospitalizations in India in 1994 and again in 1998. Dr. Latimer also

requested that trial counsel provide him with records from Dr. Cordosi. Noting

"[i]t is clear that the acts described which took place on [November 23, 2008] are

extremely bizarre and unusual," Dr. Latimer said he was "looking for a scientific

explanation which would convince a jury of [defendant's] mental illness as it

respects to knowledge, purpose, or wrongfulness." Noting his attempts to talk to

trial counsel without success, Dr. Latimer wrote that "the ball [was] on the other

side of the court."

In a May 24, 2010 letter, Dr. Latimer again wrote to trial counsel,

explaining that he needed more records, specifically juvenile records from

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defendant's 1995 arrest for a domestic violence incident involving his mother,

treatment records from an Indian psychiatric hospital to which defendant was

committed in 1999, and records from the psychiatric treatment defendant

received from Dr. Cordosi in 2008. Dr. Latimer noted that defendant "was

psychotic" in late 2008, which created "a strong inference that on [November 23,

2008] he was mentally ill, which could explain his alleged dissociative state, as

he related it to me." He added, "[t]his case could have a viable defense if we

document his life's context," but that he "cannot just take [defendant's] word for

his subjective symptoms of psychosis." The case "hinges on the documents that

I need," and "if there were preexisting records" supporting defendant's claims of

psychosis, "the puzzle might make sense to a [j]ury."

Also, on May 24, 2010, trial counsel appeared before the judge, explained

that he had "talk[ed] about the case at length" with Dr. Latimer and had provided

him with extra documents needed for his review. The judge gave counsel until

June 28, 2010, for Dr. Latimer to submit an expert report and subsequently

extended the deadline to July 16, 2010.

On July 26, 2010, Dr. Latimer wrote trial counsel that defendant was

"coherent," "lucid," and "very intelligent." He diagnosed defendant with "Major

Depressive Disorder, severe, with psychosis . . . in partial remission." Dr.

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Latimer added, "[t]he diagnostic classification of this patient is done by th e

patient's description of his clinical symptoms," and that "for forensic purposes,

the opinions of this [e]xaminer need further documentation, as indicated in

previous communications." "If the complaints and symptoms of this patient are

true," then defendant's "actions of [November 23, 2008] were the result of a

mental disorder," but "[i]ssues of insanity at the time of the offenses remain

pending future investigative clinical information and data, for an opinion." Dr.

Latimer added that he "reserve[d] the right to modify [his] opinion, concerning

criminal insanity . . . pending valid documentation." Nonetheless, on September

13, 2010, at a status conference in defendant's presence, trial counsel informed

the court that the defense would not be pursuing an insanity or diminished

capacity defense, and "there appears to be no further need to explore that

avenue."

In July 2016, PCR counsel notified the court he was seeking medical

records from OPD that defendant's father had previously provided to trial

counsel. In January 2018, attached to his supplemental PCR petition were

affidavits from defendant's mother Thresia Pallipurath (Thresia), and father,

Mathai Pallipurath (Mathai), attesting in a joint statement that defendant "had a

very tumultuous up bringing" and had been diagnosed with post-traumatic stress

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disorder and depressive disorder as an eight-year-old. They said defendant was

subsequently diagnosed with severe depressive disorder with psychotic

symptoms, along with attention deficit hyperactivity disorder, conduct disorder,

and adjustment disorder. In 2008 or 2009, they gave all mental health records

pertaining to defendant in their possession to trial counsel. They also stated that

they wanted to testify at defendant's trial regarding his mental illness, but trial

counsel's secretary advised them not to, telling them "it was not safe" to come to

New Jersey and "not important" for them to testify.

In a separate affidavit in her native Malayam language, which was claimed

to be accurately translated to English, Thresia discussed cruel episodes of

physical abuse that she, defendant, and his siblings suffered at the hands of

Mathai, a severe alcoholic with psychological disorders. Thresia began to

observe changes in defendant's behavior at the age of six and sought to have him

treated by a psychologist. The psychologist diagnosed defendant with post -

traumatic stress disorder and major depression with symptoms that included

auditory hallucination. Later, another specialist diagnosed defendant with

attention deficit/hyperactivity disorder, prescribed medication, and referred him

for counseling. Thresia said defendant went to a boarding school where he

struggled academically and endured both bullying by other students and sexual

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abuse by the school warden. Following a suicide attempt, defendant's family had

him committed to a psychiatric institution for several months for "conduct

disorder."

Mathai's alcoholism and physical abuse of defendant continued into 1995,

when defendant was about thirteen-years old, and the family was living in

America. After one beating, Thresia said authorities arrested Mathai and p laced

defendant in a foster home. When returned to Thresia's custody, defendant's

behavior had changed, and he seemed "mentally unstable," leading her to call the

police. Defendant stayed in a group home for the next year. Upon his return at

age sixteen, Mathai had defendant arrested for assault following an altercation.

With the consent of the court, Thresia removed defendant to India to receive

psychiatric treatment.

According to Thresia, defendant's condition worsened in India and, one

evening, he threatened to commit suicide. He was hospitalized for two months

following that incident. Defendant soon returned to America with his family,

where he was the victim of multiple violent assaults in California carried out by

the family of the woman he was dating at the time. Thresia attested that once

defendant's marriage to Reshma ended, his "mental health . . . severely

deteriorated," culminating in his abrupt announcement that he was moving to

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Georgia. Thresia did not see defendant again until after the shootings. Thresia

asked trial counsel if she could testify on defendant's behalf at his trial, but he

purportedly told her to stay away from New Jersey or "lots of problems could

occur."

Mathai also supplied a separate affidavit, in which he said that after

retaining trial counsel to represent defendant, counsel failed to communicate with

him. He wrote a total of eight letters to trial counsel from October 2009 to

January 2011. These generally portray an alleged failure to communicate with

Mathai about the defense. In one, Mathai said he wanted to discuss defendant's

"past treatments of his psychiatric disorders and several hospitalizations in India

to treat his mental illness." In a letter dated December 19, 2010, Mathai

complained about trial counsel's representation and stated that the family was

uncomfortable with his lack of cooperation. He said he knew trial counsel would

succeed with an insanity plea. By that time, however, trial counsel had already

represented to the court and prosecutor that defendant was no longer pursuing

the insanity and diminished capacity defenses. In a letter dated January 6, 2011,

Mathai complained again about the lack of communication from trial counsel and

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asked for a call to discuss what he had to share with counsel about defendant's

"psychiatric history." 3

Defendant filed a fee arbitration request in 2014. PCR counsel provided

the court with trial counsel's response, in which trial counsel wrote that due to

the strength of the State's case, he "decided to explore an insanity defense" and

retained Dr. Latimer, with whom he had worked on previous murder trials.

According to trial counsel, Dr. Latimer "concluded that [defendant] was not, in

fact, legally insane at the time he committed the murders" and "opined" defendant

"knew exactly what he was doing when he entered the [c]hurch on that Sunday

morning with a gun in his hand." Counsel added that he had "spent a great deal

of time acquiring and reviewing medical records dealing with [defendant's]

psychiatric pathology stemming back to his childhood in India as well as to

events in California just prior to his crimes here in New Jersey." Counsel's trial

notes were attached to his response. The District Fee Arbitration Committee

awarded a refund of $500 and ordered trial counsel to issue a check. On a check

made out to defendant's father, trial counsel handwrote, in the "for" memo line,

"A Disgusting Killer + Liar."

3
Defendant supplied an affidavit stating he had a total of six "brief visits" with
counsel before trial, each between five and fifteen minutes in length, for a total
of about ninety minutes.
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 Defendant's PCR submission also included a May 8, 2016, email from trial

counsel to OPD and the court, stating he was "not in possession of any file for

[defendant]," as his trial folders had been destroyed in the winter of 2014. Trial

counsel further stated that he had not received original copies of defendant's

health records and had "already given [defendant two] sets of his file a very long

time ago."

PCR counsel obtained medical records concerning psychiatric treatment

defendant received in India in 1994 and 1998, and received "medical certificates"

from Dr. N.D. Mohan, Senior Consultant Psychiatrist and Head of the Psychiatry

Department at the Indian hospital at which defendant received treatment. PCR

counsel also contacted Dr. Cordosi, who wrote back explaining that any records

had "been destroyed."

PCR counsel provided the records he could obtain, including certain

records from India, to Dr. Latimer who, on January 13, 2018, for the first time,

submitted a completed psychiatric report concerning defendant. He did so

without conducting any further examination of defendant, instead relying on

notes from his 2010 examination along with the other records provided.

Dr. Latimer said he had been unable in 2010 to offer an opinion on

defendant's psychological state "due to lack of relevant information." But in his

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2018 report, he diagnosed defendant with Borderline Personality Disorder "as

manifested by frequent auditory hallucinations, unstable interpersonal relations,

parental emotional abandonment, instability, impulsivity, self-mutilation,

suicidal events, chronic feelings of emptiness and depression, and dissociative

symptoms with hallucinations since an early age." Dr. Latimer opined that on

the day of the shootings, defendant "was suffering from severe depression,

anxiety, and voice hallucinations." "[H]e was experiencing extreme anxiety with

alteration of his cognitive faculties, further complicating his chronic mental

disease." Dr. Latimer believed based on "abundant information that [defendant]

was psychotic, delusional, and hallucinating. Therefore, he could not understand

that he was doing something wrong. His purpose was not homicide but rather a

disturbed idea about taking his wife back to him." Defendant did not, in Dr.

Latimer's view, "understand the nature and quality of his acts and did not

understand that he was doing something wrong," but was "psychotic," "insane,"

and was "suffering from a diminished capacity."

Dr. Latimer also concluded that defendant lacked "the capacity to assist in

his own defense" due to his "well-documented mental illnesses." He was unable

to make an intelligent and voluntary waiver of defenses in the time leading up to

trial and, prior to that, at his recorded custodial interrogation. Dr. Latimer opined

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that defendant "could not understand his Miranda rights and was not competent"

to waive them.

Dr. Latimer supplemented the report with a letter to PCR counsel

referencing "the information provided by the family, especially as to the father's

horrible behavior." Dr. Latimer concluded that defendant "could not have

understood the nature or circumstances of his actions," and "should not have gone

to trial without the help of an expert because he was clearly mentally ill and could

not have acted while understanding intelligently and knowingly the consequence

of any decision." Dr. Latimer wrote that a psychiatrist should have been able to

present those findings to a jury; he concluded the correspondence to PCR counsel

with, "I don't understand why I wasn't called. Do you?"

Defendant contended these materials demonstrated trial counsel failed to

thoroughly investigate a viable insanity or diminished capacity defense, and his

representation of defendant was presumptively ineffective. See, e.g., United

States v. Cronic, 466 U.S. 648, 662 (1984) ("[W]hen surrounding circumstances

justify a presumption of ineffectiveness . . . a Sixth Amendment claim [can] be

sufficient without inquiry into counsel's actual performance at trial."). At a June

2018 oral argument on the petition, PCR counsel contended an evidentiary

hearing was not necessary.

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 The prosecutor, however, said that the State "did not oppose" conducting

an evidentiary hearing. She told the judge, "there's no problem with a hearing

to explore issues and also to — make a thorough record . . . . So, we don't

oppose an evidentiary hearing." The judge reserved any decision,

acknowledging PCR counsel's remark that the judge would either decide to grant

a new trial or order an evidentiary hearing.

At an August 7, 2018, status conference, the assistant prosecutor

repeatedly stated that an evidentiary hearing was necessary "on all these issues"

and also wanted defendant to submit to an examination by the State's own

psychiatric expert. PCR counsel repeated that an evidentiary hearing was

unnecessary, noting, that his "first argument is Cronic/Fritz,4 we don't need an

evidentiary hearing. That is my primary argument." But, the prosecutor argued:

"[A]s far as the evidentiary hearing, Judge, respectfully I think that we need one

to be able to examine again. Because the question is not whether . . . the insanity

defense was used . . . the question is why did the attorney not use it." The judge

again reserved decision on the issue, noting that both sides needed the

opportunity to respond to additional trial transcripts that had been order ed.

4
State v. Fritz, 105 N.J. 42 (1987)
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 During an August 23, 2018 status conference, the prosecutor countered

defendant's Cronic contentions again. Noting the judge was going to decide at

the next conference whether an evidentiary hearing was necessary, and although

not acceding to defendant's alternative request for one, the prosecutor told the

judge, "I think it's relevant that we . . . bring in [trial counsel] to testify as to

. . . why he did — what he did in this case."

When the parties reconvened approximately one month later, the judge

rendered a decision on defendant's PCR petition. Essentially, the judge

concluded that trial counsel asserted a viable passion-provocation defense,

which was a strategic decision on counsel's part after thoroughly investigating

other options. The judge then seemingly concluded that had counsel asserted an

insanity or diminished capacity defense, it would have ultimately been

unsuccessful.

[T]he fact of the matter remains that if . . . defendant
was truly deranged at that time . . . we would not have
seen such a calculated plan prior to the homicides and
post homicide. A lot of planning went into . . .
[defendant's] actions here. And, they do not display or
demonstrate a deranged . . . an insane mind or that
[defendant] was . . . suffering from insanity or
diminished capacity, and more likely based on his own
statements a passion provocation type of defense.

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The judge entered an order denying defendant's petition without an evidentiary

hearing. Defendant moved for reconsideration, which the judge denied. This

appeal followed.

Before us, defendant argues that trial counsel's performance was

presumptively ineffective, or, alternatively, the judge should have ordered an

evidentiary hearing because defendant asserted a prima facie case of ineffective

assistance of trial counsel (IAC). Specifically, defendant argues that trial

counsel failed to investigate and assert insanity or diminished capacity defenses

before trial, by challenging defendant's competency to stand trial; pre-trial, by

failing to move to suppress defendant's custodial statements on these grounds;

and during trial, including securing defendant's consent to release to the news

media a video recording of his custodial statement to Georgia authorities.

In a pro se supplemental brief, defendant reiterates some of these IAC

claims and also argues that trial counsel failed to advise him of his right not to

testify and allowed him to testify without assessing his competency. Defendant

additionally contends that counsel abandoned the diminished capacity defense

without obtaining defendant's waiver, and trial counsel failed to obtain and

provide defendant with all pretrial discovery. Defendant further argues that the

court failed to decide his discovery motion that sought to have the internet

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service provider turn over all emails from Reshma's Yahoo account, which

defendant claims were exculpatory. Lastly, defendant correctly notes that the

Law Division has never addressed our remand on the issue of restitution. See

Pallipurath, slip op. at 28–29.

We have considered these arguments in light of the record and applicable

legal standards. We reverse in part and remand for an evidentiary hearing

consistent with this opinion.

II.

Usually, to prevail on an IAC claim, a defendant must satisfy the two-

prong test set forth in Strickland v. Washington, 466 U.S. 668, 694 (1984), as

adopted by our Supreme Court in Fritz, 105 N.J. at 58. A defendant must first

show "that counsel made errors so serious that counsel was not functioning as

the 'counsel' guaranteed . . . by the Sixth Amendment." Fritz, 105 N.J. at 52

(quoting Strickland, 466 U.S. at 687). As to this prong, "there is 'a strong

presumption that counsel's conduct falls within the wide range of reasonable

professional assistance[,]' [and t]o rebut that strong presumption, a defendant

must establish that trial counsel's actions did not equate to 'sound trial strategy.'"

State v. Castagna, 187 N.J. 293, 314 (2006) (quoting Strickland, 466 U.S. at

689). "If counsel thoroughly investigates law and facts, considering all possible

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options, his or her trial strategy is 'virtually unchalleng[e]able.'" State v. Savage,

120 N.J. 594, 617 (1990) (quoting Strickland, 466 U.S. at 690–91).

"In some cases, whether counsel's conduct is reasonable 'may be

determined or substantially influenced by the defendant's own statements or

actions.'" State v. Martini, 160 N.J. 248, 266 (1999) (quoting Strickland, 466

U.S. at 691). "[W]hen a defendant has given counsel reason to believe that

pursuing certain investigations would be fruitless or even harmful, counsel's

failure to pursue those investigations may not later be challenged as

unreasonable." Strickland, 466 U.S. at 691.

Additionally, a defendant must prove he suffered prejudice due to

counsel's deficient performance. Id. at 687. A defendant must show by a

"reasonable probability" that the deficient performance affected the outcome.

Fritz, 105 N.J. at 58. "A reasonable probability is a probability sufficient to

undermine confidence in the outcome." State v. Pierre, 223 N.J. 560, 583 (2015)

(quoting Strickland, 466 U.S. at 694; Fritz, 105 N.J. at 52).

"[W]hen the level of counsel's participation makes the idea of a fair trial

a nullity, no prejudice need be shown. It is presumed." State v. Davis, 116 N.J.

341, 352 (1989) (citing Cronic, 466 U.S. 648). "An example of the Cronic

presumption would be a failure by counsel for the defendant to cross -examine a

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key prosecution witness." Ibid. (citing Cronic, 466 U.S. at 659). In general,

"only an extraordinary deprivation of the assistance of counsel triggers a

presumption of prejudice . . . ." State v. Miller, 216 N.J. 40, 70 (2013) (citing

Bell v. Cone, 535 U.S 685, 695–96 (2002)).

Our rules anticipate the need to hold an evidentiary hearing on PCR

petitions "only upon the establishment of a prima facie case in support of post -

conviction relief[.]" R. 3:22-10(b). "As in a summary judgment motion, the

[PCR] judge should view the facts in the light most favorable to a defendant to

determine whether a defendant has established a prima facie claim." State v.

Cummings, 321 N.J. Super. 154, 170 (App. Div. 1999) (citing State v. Preciose,

129 N.J 451, 462–63 (1992)). Although we review a PCR court's denial of an

evidentiary hearing under an abuse of discretion standard, State v. Brewster, 429

N.J. Super. 387, 401 (App. Div. 2013) (citing State v. Marshall, 148 N.J. 89,

157–58 (1997)), we review "factual inferences the court has drawn from the

documentary record" on a de novo basis. State v. Blake, 444 N.J. Super. 285,

294 (App. Div. 2016) (citing State v. Harris, 181 N.J. 391, 420–21 (2004)).

III.

Initially, we reject defendant's argument that the existing record was

sufficient to warrant a presumption of prejudice under Cronic. Trial counsel

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explored the option of asserting other defenses through expert psychiatric

testimony, and during trial, he moved to suppress defendant's two statements to

law enforcement. During the charge conference, trial counsel explained his

strategy of focusing on defendant's mental state, noting that he had consulted

with defendant regarding his decision not to cross-examine some of the State's

witnesses, and claimed to have spent time with defendant's family discussing

strategy. Simply put, the current record does not support defendant's contention

that trial counsel "failed to function in any meaningful sense as the

[g]overnment's adversary." Cronic, 466 U.S. at 666.

As noted, counsel's decision to adopt a certain strategy at trial is usually

unassailable unless "it was not preceded by a 'thorough investigation of law and

facts' and a consideration of all 'plausible options.'" Savage, 120 N.J. at 618

(quoting Strickland, 466 U.S. at 690–91). In State v. O'Donnell, we reversed

the denial of PCR without an evidentiary hearing noting that the defendant had

"presented a plausible claim . . . that her attorney . . . urged her to plead guilty

without adequate explanation despite months of preparation for trial" in a case

where a potential diminished capacity defense was supported by both an expert

opinion and by the defendant's mental health history. 435 N.J. Super. 351, 376–

77 (App. Div. 2014). Irrespective of whether "a jury may have been persuaded

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to reject [the expert's] opinion, or that of another defense expert . . . it [wa ]s not

self-evident that pleading guilty was a reasonable strategy." Id. at 376. Granting

the defendant the benefit of all favorable inferences, we held that the PCR judge

erred by denying petition without testing it at an evidentiary hearing, since the

defendant had established a prima facie claim. Id. at 376–77.

Here, the critical issue is whether trial counsel conducted an adequate

investigation of a potential defense, or whether, as Dr. Latimer seemingly

asserted, counsel failed to supply the expert with the necessary background

information by which he could render a definitive report. That issue cannot be

decided on the record that exists, and as noted, even the prosecutor seemed to

sense that an evidentiary hearing was necessary to resolve "why" Dr. Latimer

was not called as a witness. As the Court has noted, sometimes, "[t]here is no

substitute for placing a witness on the stand and having the testimony scrutinized

by an impartial factfinder." State v. Porter, 216 N.J. 343, 356 (2013). This was

such a case.

We hasten to add that we do not find definitively that defendant has met

the first prong of the Strickland/Fritz standard, i.e., that trial counsel's

performance was deficient. We only conclude that providing defendant with all

favorable evidence and inferences, the reasonableness and thoroughness of

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counsel's investigation was an issue of disputed fact. See Porter, 216 N.J. at 354

("The judge deciding a PCR claim should conduct an evidentiary hearing when

there are disputed issues of material facts related to the defendant's entitlement

to PCR, particularly when the dispute regards events and conversations that

occur off the record or outside the presence of the judge.").

"The prejudice prong of Strickland remains an 'exacting standard.'" State

v. Gideon, 244 N.J. 538, 561 (2021) (quoting State v. Allegro, 193 N.J. 352, 367

(2008)). "Important to the prejudice analysis is the strength of the evidence that

was before the fact-finder at trial." Pierre, 223 N.J. at 583. Here, as already

noted, the State's case was substantial.

However, that assessment is made without the benefit of Dr. Latimer's

opinions, which encompassed not only defendant's mental state at the time of

the crimes, but also his competency to waive his rights and speak to the Georgia

authorities and to stand trial. In other words, unlike other situations, the absence

of this particular witness's testimony may have had a profound effect on all that

followed. It is even more difficult to consider the prejudice prong because had

defendant asserted these defenses, the State would have had the opportunity to

retain its own expert and rebut Dr. Latimer's opinions.

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 Clearly, if the PCR court concludes that trial counsel did not render

deficient assistance and his decision not to produce Dr. Latimer or some other

expert represented reasonable professional judgment reached after adequate

investigation, the prejudice issue is irrelevant. But, if the PCR court concludes

otherwise, then it must assess the worth of Dr. Latimer's opinions in light of all

competing evidence, including psychiatric evidence the State may marshal, and

decide whether defendant has met the burden of demonstrating counsel's

deficient performance undermined confidence in the results of the trial.

We therefore remand the matter for the PCR court to conduct an

evidentiary hearing on defendant's IAC claim as it relates to trial counsel's

decision not to assert issues of defendant's competency and his mental state at

the time of the killings, immediately thereafter, and at the time of trial. In the

context of this claim, the judge may consider the assertions that trial counsel

failed to adequately confer with defendant and his family. We leave the conduct

of the evidentiary hearing, and whether the State is entitled to have defendant

evaluated by its own expert, to the court's sound discretion. We also direct the

court to reconsider the issue of the previously ordered restitution, something we

directed in our prior judgment and which has not yet occurred.

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 We address some of the other issues raised to clarify that the PCR court

need not address them. We considered the release of the video of defendant's

statement to the news media and whether it prejudiced defendant on direct

appeal, concluding, "[t]he record does not reflect that the release of defendant's

recorded statement infringed upon the fairness of the trial in any way."

Pallipurath, slip op. at 16. The PCR judge need not address it further.

We also reject defendant's pro se argument that trial counsel never advised

him that he could waive his right to testify and remain silent. The trial record

belies the claim, and the PCR judge need not address it further. Finally, the

other issues raised in defendant's pro se brief regarding trial counsel's failure to

provide him with discovery and the denial of his request for the judge to order

the internet provider to produce all of Reshma's emails lack sufficient merit to

warrant discussion in a written opinion. R. 2:11-3(e)(2).

Affirmed in part, reversed in part, and remanded for further proceedings

consistent with this opinion. We do not retain jurisdiction.

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