NOT FOR PUBLICATION WITHOUT THE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-1591-16T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JAMIL KOLLIE, a/k/a JAMAL KOLLIE,
Defendant-Appellant.
___________________________________
Submitted November 6, 2017 – Decided November 21, 2017
Before Judges Ostrer and Whipple.
On appeal from Superior Court of New Jersey,
Law Division, Essex County, Indictment No. 11-
06-1147.
Joseph E. Krakora, Public Defender, attorney
for appellant (William Welaj, Designated
Counsel on the brief).
Robert D. Laurino, Acting Essex County
Prosecutor, attorney for respondent (Camila
Garces, Special Deputy Attorney General/
Acting Assistant Prosecutor, on the brief).
PER CURIAM
Defendant Jamil Kollie appeals from the denial of his petition
for post-conviction relief without an evidentiary hearing. He
collaterally challenges his conviction of first-degree robbery,
second-degree weapons offenses, and third-degree theft, for which
he received an aggregate sentence of fifteen years, subject to the
No Early Release Act, N.J.S.A. 2C:43-7.2. We affirmed the
conviction and sentence on direct appeal. State v. Kollie, No.
A-4620-12 (App. Div. April 2, 2015).
Defendant's sole point on appeal is:
THE TRIAL COURT ERRED IN DENYING THE
DEFENDANT'S PETITION FOR POST CONVICTION
RELEIF WITHOUT AFFORDING HIM AN EVIDENTIARY
HEARING TO FULLY ADDRESS HIS CONTENTION THAT
HE FAILED TO RECEIVE ADEQUATE LEGAL
REPRESENTATION FROM TRIAL COUNSEL.
More specifically, defendant argues that his attorney was
ineffective by failing to investigate alleged alibi witnesses. He
claims that he and other persons were at the house of a woman at
the time of the robbery. He asserts the woman and anyone else
there could confirm his presence.
As did the trial court, see State v. Harris, 181 N.J. 391,
421 (2004) (stating appellate court conducts de novo review where
PCR court does not hold an evidentiary hearing), cert. denied, 545
U.S. 1145, 125 S. Ct. 2973, 162 L. Ed. 2d 898 (2005), we apply the
two-pronged Strickland test and determine whether the record
reveals that defendant's trial counsel was ineffective, and that
defendant suffered resulting prejudice. See Strickland v.
2 A-1591-16T3
Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984);
State v. Fritz, 105 N.J. 42, 58 (1987).
Certainly, the failure to investigate an alibi defense may
constitute ineffectiveness. State v. Porter, 216 N.J. 343, 353
(2013). However, to present a prima facie case, the petitioner
must support his claim with an appropriate affidavit, consistent
with Rule 1:6-6. Ibid. (citing State v. Cummings, 321 N.J. Super.
154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999)). Here,
defendant presents only his own affidavit as to what he anticipates
his alleged witnesses would say. That is not enough here.
Defendant needed to present affidavits of the potential witnesses
to establish his prima facie case. Cf. Porter, supra, 216 N.J.
at 355-57 (holding that petitioner was entitled to evidentiary
hearing where he presented affidavits of the uncalled alibi
witnesses); see also Cummings, supra, 321 N.J. Super. at 170-71
(concluding that "bare assertion of an alibi" without a supporting
certification or affidavit of the alibi witness, failed to support
prima facie case). Having failed to do so, he has failed to show
that any failure to investigate alleged alibi witnesses caused him
prejudice.
Affirmed.
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