Full Opinion

RECORD IMPOUNDED NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-1180-24 STATE OF NEW JERSEY, Plaintiff-Respondent, v. R.J.Y.,1 Defendant-Appellant. _______________________ Submitted October 29, 2026 – Decided November 10, 2026 Before Judges Chase and Augostini. On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 15-01-0005. Jennifer N. Sellitti, Public Defender, attorney for appellant (Frank N. Gennaro, Designated Counsel, of counsel and on the brief). Bradley D. Billhimer, Ocean County Prosecutor, attorney for respondent (William Kyle Meighan, Supervising Assistant Prosecutor, of counsel, Julianna Iacona, Assistant Prosecutor, on the brief). 1 We use initials to protect the identity of the victims. R. 1:38-3(c)(9). PER CURIAM Defendant R.J.Y. appeals from the Law Division's November 18, 2024 order denying his petition for post-conviction relief (PCR) without an evidentiary hearing. We affirm. I. In spring 2012, defendant and his wife babysat B.H. and S.H. The families were close friends and neighbors. The children's mother dropped them off at defendant's house before school, and defendant or his wife picked them up and watched them after school. At the end of August 2012, B.H. was "dancing around the living room" and "giving herself a wedgie." Her mother told her to stop. B.H. replied that "[defendant] lets me." B.H. also told her mother that defendant, "touches me down there," while pointing to her vagina. S.H. then said defendant had done the same thing to her. Upset and crying, the children's mother went to defendant's house, made a final babysitting payment, and told defendant's wife they no longer needed babysitting. The following day, an intake worker with the Division of Child Protection and Permanency (DCPP) interviewed B.H. and S.H. separately in their home . He took notes, but the interviews were not recorded. A-1180-24 2 After those interviews, Detective Lindsay Woodfield, of the Special Victims Unit of the Ocean County Prosecutor's Office, interviewed B.H. and S.H. separately. Those interviews were recorded. Both girls told Detective Woodfield that defendant had touched them "with his fingers in their 'private area,'" meaning their vaginas. Following Detective Woodfield's interviews, B.H. and S.H. were taken to Community Medical Center for medical evaluations. Two nurses conducted pediatric sexual assault examinations. They noted a small, one-millimeter tear on B.H.'s right labia. Detective Woodfield and Detective Elijah Bryant then went to defendant's house and asked to speak with him. Defendant declined and the detectives left. After they returned to their vehicle, they learned that charges had been approved. They went back to the house and arrested defendant. At the Seaside Heights Police Department, Detective Bryant verbally informed defendant of the charges against him. Defendant signed a no-contact order, which listed the charges against him. A-1180-24 3 A few days later, Detective Woodfield conducted a recorded interview of defendant. She read him his Miranda2 rights from a form. Defendant stated he understood those rights, signed the waiver form, and agreed to speak with her. Detective Woodfield testified defendant did not appear under the influence of narcotics or alcohol at the time of the interview, she was able to understand what he was saying, and he appeared to understand what she was telling him. She said his answers responded to her questions and remained in context. She also stated repeatedly that, if defendant had said he no longer wished to speak or wanted an attorney, she would have stopped the interview and left. Before the interview began, Detective Woodfield did not ask defendant whether he had counsel. Defendant never said that he was represented, and he never said that he did not want to speak with her. She also did not ask whether he could read or write English, but she knew he had graduated from high school. During the interview, defendant never said he could not read or write English. He said only that he was "bad at spelling" when he declined Detective Woodfield's offer to let him write a letter to the alleged victims. The day before the interview, defendant had completed paperwork seeking appointed counsel. 2 Miranda v. Arizona, 384 U.S. 436 (1966). A-1180-24 4 Defendant was subsequently indicted by a grand jury for: first-degree aggravated sexual assault of S.H., N.J.S.A. 2C:14-2(a) (count one); first-degree aggravated sexual assault of B.H., N.J.S.A. 2C:14-2(a) (count two); second- degree endangering the welfare of a child, S.H., N.J.S.A. 2C:24-4(a) (count three); second-degree endangering the welfare of a child, B.H., N.J.S.A. 2C:24- 4(a) (count four); and third-degree resisting arrest, N.J.S.A. 2C:29-2(a)(3) (count five). In July 2013, defendant argued his statements to Detective Woodfield should be excluded from trial. He asserted the police had not properly administered Miranda warnings and, even if they had, he had not knowingly, intelligently, or voluntarily waived his rights. The State called three witnesses at the suppression hearing: Detective Michael Delanoy of the Ocean County Department of Corrections, Detective Woodfield, and Detective Bryant. A senior probation officer who had completed defendant's public-defender application testified for the defense. Detective Woodfield confirmed she had read defendant his Miranda rights and that he had signed the waiver form. She otherwise described the interview as summarized above. A-1180-24 5 After considering the totality of the circumstances, the court found defendant had made his statements knowingly, intelligently, and voluntarily. The court found that defendant was "coherent and responsive to questioning." Detective Woodfield read defendant his rights, asked whether he understood them, and defendant answered, "Yes." She then asked again whether he understood the waiver form after reading it aloud, and defendant again answered, "Yes." A four-day jury trial followed and ended in February 2015. At trial, defendant testified that he had graduated from school "only because [he] was in resource classrooms" and that his grades were "like C's and D's." On cross- examination, defendant confirmed he could use words like "atrocious" and was not limited to "elementary words." At no point did he say that he could not read or write English. The jury found defendant guilty on counts one, two, three, and four, but acquitted him on count five. The court sentenced him to two concurrent twenty- year prison terms on the aggravated sexual assault convictions and two concurrent seven-year terms on the endangering convictions. Defendant appealed his conviction and we affirmed. State v. R.Y., No. A-5126-14 (App. Div. Jan. 16, 2018) (slip op. at 1-15). The Supreme Court A-1180-24 6 granted certification and on May 6, 2020, affirmed in part and reversed in part. State v. R.Y., 242 N.J. 48 (2020). The Court vacated and remanded defendant's convictions for aggravated sexual assault and endangering the welfare of a child as to S.H., but it upheld the convictions relating to B.H. Id. at 74. While defendant's direct appeal was pending, he filed a self-represented PCR petition. The trial court dismissed that petition without prejudice. See R. 3:22-6A(2). In April 2021, defendant pled guilty to an amended count one, fourth degree criminal sexual contact, N.J.S.A. 2C:14-3, pertaining to S.H. In May 2021, the court resentenced him to time served on that count, concurrent with the twenty-year sentence he was already serving for the conviction involving B.H. Defendant then refiled a self-represented PCR petition, and PCR counsel was assigned. Counsel filed an amended petition alleging that trial counsel had been ineffective at the 2013 Miranda hearing because counsel failed to retain an expert to evaluate defendant's ability to understand the Miranda warnings given to him. In support of that claim, defendant submitted a report from Dr. Vonetta Kalieta, a licensed psychologist. Defendant argued that the report described him A-1180-24 7 as "an individual of borderline intelligence with very limited intellectual and verbal skills," which, in his view, cast doubt on his ability to understand and waive his Miranda rights. The State responded that Dr. Kalieta's report noted defendant "consistently made statements to this writer that he had problems with his understanding of words and with his memory. These statements could be an attempt to influence the outcome of his current post-conviction legal involvement via embellishment of the presence of any problems." The State also argued defendant never appeared confused at trial or during his confession. To the contrary, he corrected facts the detectives got wrong and "was perfectly articulate even under cross[-examination]." On November 18, 2024, in a written opinion and order, the court denied defendant's PCR petition without affording him an evidentiary hearing. The court found defendant had failed to establish a prima facie claim of ineffective assistance of counsel. It concluded defendant had not overcome the "strong presumption . . . that, under the circumstances, the challenged action might be considered sound trial strategy." (quoting State v. Arthur, 184 N.J. 307, 319 (2005)) (internal citations omitted). A-1180-24 8 The court reviewed Dr. Kalieta's report and noted she had reviewed only the transcript of defendant's confession, not the audio-video recording. As a result, the court found the report did not assess defendant's "real-time comprehension, demeanor, and body language." Nor did it analyze defendant's "ability to understand spoken words," which mattered because Detective Woodfield had read defendant his rights aloud rather than simply handing him a form to read. The court also found that Dr. Kalieta's opinion—that defendant's "intellectual functioning, and in particular, his borderline verbal comprehension functioning, [was] likely to have influenced his ability to fully comprehend and appreciate his Miranda [r]ights warnings"—was "likely net opinion." In the court's view, the report did not provide the required "why and wherefore" supporting that conclusion. The court, citing State v. Carpenter, 268 N.J. Super. 378, 385 (App. Div. 1993), recognized that defendant's low I.Q. was "relevant, but not dispositive[] in determining whether he understood Miranda rights[.]" It also noted that defendant had cited no authority holding that counsel renders ineffective assistance by failing to retain an expert whenever a defendant has a low I .Q. Finally, the court found the trial judge had already made sufficient findings A-1180-24 9 about defendant's language comprehension based on "credible evidence in the record[] and his own review of the interrogation video." On appeal, defendant raises the following for our consideration: DEFENDANT DEMONSTRATED PRIMA FACIE CLAIMS OF INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL, ENTITLING HIM TO AN EVIDENTIARY HEARING. A. THE PREVAILING LEGAL PRINCIPLES REGARDING CLAIMS OF INEFFECTIVE ASSISTANCE OF COUNSEL AND [PCR]. B. DEFENDANT RAISED A PRIMA FACIE CLAIM THAT HIS TRIAL COUNSEL PROVIDED INEFFECTIVE ASSISTANCE BY FAILING TO RETAIN AN EXPERT WITNESS AS TO HIS INTELLECTUAL CAPACITY TO UNDERSTAND AND WAIVE HIS FIFTH AMENDMENT RIGHTS. II. A PCR petition is neither "a substitute for direct appeal . . . nor an opportunity to relitigate cases already decided on the merits . . . ." State v. Preciose, 129 N.J. 451, 459 (1992) (citation omitted). In the absence of an evidentiary hearing, we review de novo the factual inferences drawn from the record by the PCR court. State v. Aburoumi, 464 N.J. Super. 326, 338 (App. Div. 2020). Further, we also "review a PCR court's legal conclusions de novo." A-1180-24 10 State v. Hernandez-Peralta, 261 N.J. 231, 246 (2025) (citing State v. Harris, 181 N.J. 391, 419 (2004)). A petitioner is not automatically entitled to an evidentiary hearing by simply raising a PCR claim. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div. 1999). When petitioning for PCR, the defendant must establish, "by a preponderance of the credible evidence," entitlement to the requested relief. State v. Nash, 212 N.J. 518, 541 (2013) (quoting Preciose, 129 N.J. at 459). An evidentiary hearing should only be conducted if "there are material issues of disputed fact" regarding entitlement to PCR "that cannot be resolved by reference to the existing record." State v. Porter, 216 N.J. 343, 354 (2013) (quoting R. 3:22-10(b)). "A prima facie case is established when a defendant demonstrates 'a reasonable likelihood that his or her claim, viewing the facts alleged in the light most favorable to the defendant, will ultimately succeed on the merits.'" Id. at 355 (quoting R. 3:22-10(b)). It is clear, to establish a prima facie claim warranting an evidentiary hearing, "a petitioner must do more than make bald assertions that he was denied the effective assistance of counsel," but must instead "allege facts sufficient to demonstrate counsel's alleged substandard performance." Ibid. (quoting Cummings, 321 N.J. Super. at 170). A-1180-24 11 To succeed on an ineffective assistance of counsel claim, a defendant must satisfy both prongs of the test set forth 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). "First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Strickland, 466 U.S. at 687. The PCR judge "must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance," and "the defendant must overcome the presumption that, under the circumstances, the challenged action [by counsel] 'might be considered sound trial strategy.'" Id. at 689 (quoting Michel v. Louisiana, 350 U.S. 91, 101 (1955)). Under the second prong of the Strickland test, the defendant must show "the deficient performance prejudiced the defense." Id. at 687. This means "counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Ibid. It is insufficient for the defendant to show the errors "had some conceivable effect on the outcome of the proceeding." Id. at 693. Moreover, courts must "make 'every effort . . . to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged A-1180-24 12 conduct, and to evaluate the conduct from counsel's perspective at the time.'" Hernandez-Peralta, 261 N.J. at 251 (quoting State v. Pierre, 223 N.J. 560, 579 (2015)). III. A. We first address the State's argument that Rule 3:22-5 bars defendant's petition. They contend he is merely trying to relitigate whether his mental capacity invalidated his Miranda waiver. Rule 3:22-5 provides that "[a] prior adjudication upon the merits of any ground for relief is conclusive." To decide whether that rule applies, a court must determine whether the current claim and the earlier adjudicated claim are identical or "substantially equivalent." State v. Marshall, 173 N.J. 343, 350-51 (2002). A defendant may not relitigate an issue already adjudicated, nor may he use PCR to raise a claim that he could have raised at trial or on direct appeal. State v. Hannah, 248 N.J. 148, 178 (2021) (quoting Nash, 212 N.J. at 546). Even so, the bar is not "an inflexible command." Ibid. Rule 3:22-5 does not "require[] [courts] to acquiesce to a miscarriage of justice." Ibid. (quoting Nash, 212 N.J. at 546). A-1180-24 13 Claims of ineffective assistance of counsel are generally cognizable in a PCR petition, rather than on direct appeal, because these claims often rely on evidence outside the trial record. See Preciose, 129 N.J. at 461; see State v. Dixon, 125 N.J. 223, 262 (1991); see also State v. Walker, 80 N.J. 187, 194 (1979). However, PCR cannot substitute for relitigating claims raised on direct appeal, and a defendant who relies on grounds that could have been raised earlier may be barred from PCR. See Preciose, 129 N.J. at 459. At trial, defendant challenged the validity of his Miranda waiver. He argued the police had not properly advised him of his rights and even if they had, he had not knowingly, intelligently, and voluntarily waived them. Although defendant did not pursue the denial of his Miranda motion on direct appeal, he could have. Defendant's PCR claim is not the same as the claim raised at the suppression hearing. In his PCR petition, he challenges counsel's preparation and presentation at that hearing. He contends that counsel should have retained an expert whose evaluation would have led the court to suppress his statements. That claim requires a different inquiry: what counsel knew, what investigation was reasonable, and whether the omitted evidence created a reasonable probability of a different outcome. Although both claims ultimately seek A-1180-24 14 suppression of the confession, they rest on different "grounds for relief." Rule 3:22-5 therefore does not bar this petition. B. We now turn to the merits. Defendant argues the PCR court should have held an evidentiary hearing because trial counsel inadequately investigated his intellectual limitations. More specifically, he contends counsel should have retained an expert for the Miranda hearing to testify he lacked the ability to understand and waive his rights. A finding of ineffective assistance of counsel may be based on counsel 's failure to call a witness, since the decision as to whether a witness should or should not be called is part of the proper investigation of a case which defense counsel is duty bound to conduct. Pierre, 223 N.J. at 579 (citing Arthur, 184 N.J. at 320). Counsel has a duty to make a reasonable investigation of the case, or to make a reasonable decision that makes a particular investigation unnecessary. State v. Cooper, 410 N.J. Super. 43, 57-58 (App. Div. 2009). If counsel makes a thoughtful investigation of the law and facts, and considers all possible options, his trial strategy is virtually unchallengeable. Strickland, 466 U.S. at 690-91. Strategic choices made after only a limited investigation are assessed for reasonableness, giving great deference to counsel's A-1180-24 15 professional judgment. Ibid.; State v. Petrozelli, 351 N.J. Super. 14, 22 (App. Div. 2002). One component of counsel's responsibility to investigate the case is the duty to retain and produce appropriate expert witnesses where necessary. See State v. DiFrisco, 174 N.J. 195, 223 (2002). In the event counsel has chosen not to retain and produce a witness, that decision must be the result of a reasonable conclusion that an investigation into such testimony is unnecessary, or would otherwise be unhelpful to the defense. See ibid. Although a defendant's "age, education and intelligence" are relevant factors in determining whether statements made are voluntary, State v. Galloway, 133 N.J. 631, 654 (1993) (citing Schneckloth v. Bustamonte, 412 U.S. 218, 226 (1973)), even a very low I.Q. alone is not enough to prove a statement was involuntarily given. Carpenter, 268 N.J. Super. at 385. In State v. Cabrera, the defendant, who was an eighteen-year-old with "an I.Q. of [sixty- five] and was mildly retarded, could not read or speak English, and was in the interrogation room for eight hours," introduced a psychologist's report detailing his emotional and mental capacities. 387 N.J. Super. 81, 98 (App. Div. 2006). His confession was admitted at trial over defendant's objections, and we affirmed the voluntariness of that statement. Id. at 102. The test in determining A-1180-24 16 whether a defendant understood and waived his Miranda rights "voluntarily, knowingly, and intelligently" is still one of the totality of the circumstances. Carpenter, 268 N.J. Super. at 385 (holding that defendant who was "illiterate, has an I.Q. of [seventy-one] and left school at age [eighteen] while attending special education classes" gave a voluntary waiver of his Miranda rights). Here, defendant has never claimed in court, by affidavit, or by certification that he cannot read or write. Still, he argues that the PCR court should have granted an evidentiary hearing because trial counsel failed to investigate his intellectual deficits, including his low I.Q. and his alleged inability to read or write despite graduating from high school. He contends that an expert at the Miranda hearing would have testified he could not comprehend either the rights themselves or the consequences of waiving them. To support that argument, he relies on Dr. Kalieta's report. But that report did not include a review of the audio-video recording of the interrogation. It also relied in part on letters defendant wrote concerning his self-represented PCR petition. Dr. Kalieta reported that, during her interview, defendant was "alert and oriented to person, place, and time" and "his speech was clear [and] coherent." A-1180-24 17 The report then discussed defendant's emotional and intellectual functioning at the time of her evaluation. Defendant acknowledges that an attorney's "strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable." Strickland, 466 U.S. at 690. Even "strategic choices made after [a] less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation. " Id. at 690-91. Additionally, the "reasonableness of counsel's action may be determined or substantially influenced by the defendant's own statements or actions." Id. at 691. During the interview, defendant told Detective Woodfield only that he was "bad at spelling." He never asked for clarification, never said he was confused about his Miranda rights, and never said he did not understand the waiver. He appeared to understand the questions and answered them appropriately and in context. Counsel knew about defendant's claimed intellectual limitations. At the suppression hearing, counsel argued that those limitations undermined the validity of the Miranda waiver. At trial, counsel also elicited testimony about defendant's low I.Q., special-education placement, and comprehension A-1180-24 18 difficulties. Neither the suppression court nor the jury found that evidence persuasive. Because low I.Q. or comprehension difficulties do not by themselves establish that a defendant failed to understand and waive Miranda rights, counsel did not act unreasonably by choosing not to retain an expert. Counsel did not ignore the issue. Counsel raised it at the Miranda hearing and developed related evidence again at trial. On this record, counsel's decision not to present expert testimony at the suppression hearing fell within the range of reasonable professional assistance. Defendant next argues that he can satisfy Strickland's prejudice prong because counsel's deficiency resulted in a more severe sentence. See Lafler v. Cooper, 566 U.S. 156, 174 (2012); see also Harris, 181 N.J. at 432. We are not persuaded. Defendant has not shown that, if counsel had produced an expert report at the Miranda hearing, the court likely would have suppressed his confession. Dr. Kalieta's report, the only evidence defendant offered to show prejudice, did not materially add to what the suppression court and the trial court already knew. She reported defendant had an I.Q. of eighty-two, which placed him in the "low average range of functioning." She also noted that he "attended appropriately A-1180-24 19 and responded consistently to the content of test item[s]." That description matches Detective Woodfield's testimony that defendant responded appropriately during the interview and answered questions in context. The report also raised concerns about malingering. Dr. Kalieta noted a high score for "the identification of potential feigning and suggested the necessity of further exploration of malingering." She also reported that defendant repeatedly claimed to have problems understanding words and remembering things, but that those statements "could be an attempt to influence the outcome of his current post-conviction legal involvement, via embellishment of the presence of any problems." The PCR court reasonably viewed the report as likely net opinion because Dr. Kalieta had not reviewed the audio-video recording of the interrogation. As a result, the report did not persuasively show that defendant failed to understand his rights. Because Detective Woodfield read those rights aloud, it is unlikely the report would have changed the suppression court's ruling. For these reasons, we discern no error in the PCR court's conclusion that defendant failed to establish a prima facie claim under Strickland/Fritz. He has also failed to show an evidentiary hearing would have aided the court's analysis regarding his claim for PCR. R. 3:22-10(e). A-1180-24 20 To the extent not addressed, defendant's remaining contentions lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). Affirmed. A-1180-24 21