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RECORD IMPOUNDED NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-2685-24 STATE OF NEW JERSEY, Plaintiff-Respondent, v. JAMES P. KOZAK, Defendant-Appellant. _______________________ Submitted September 29, 2026 – Decided October 20, 2026 Before Judges Vanek and Bergman. On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Accusation No. 22-05-1038. Jennifer N. Sellitti, Public Defender, attorney for appellant (Monique Moyse, Designated Counsel, 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). PER CURIAM Defendant James P. Kozak appeals from the April 17, 2025, order denying his petition for post-conviction relief (PCR) without an evidentiary hearing. Defendant contends plea counsel rendered ineffective assistance prior to the entry of his guilty plea by failing to review discovery, investigate, meaningfully discuss the case with him, and pressuring him to plead guilty by telling him he would receive a life sentence if he did not accept the plea offer. Having conducted a de novo review of the record, we are unpersuaded by these contentions and affirm substantially for the reasons expressed by Judge Dina M. Vicari in her cogent written decision. I. We recite the facts and procedural history relevant to our decision. On September 14, 2021, police responded to a report of sexual assault involving a juvenile victim, S.X (Sandra).1 Sandra, then sixteen years old, reported defendant had sexually assaulted her over a period of years beginning when she was eleven years old. Sandra described repeated sexual abuse at multiple residences, including sexual intercourse, oral sex, and later anal penetration. 1 We use initials and pseudonyms because records relating to child victims of sexual assault or abuse are excluded from public access under Rule 1:38-3(c)(9). A-2685-24 2 After law enforcement took defendant into custody and advised him of his Miranda2 rights, defendant admitted to having Sandra touch him inappropriately when she was eleven years old. This alleged behavior led defendant to engage in sexual intercourse, oral sex, and anal sex with Sandra at various locations. Defendant was charged with one count of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(1). On May 31, 2022, defendant waived indictment by accusation and pled guilty to the above charge. As part of the plea agreement, the State agreed to limit defendant's sentence to a fifteen-year custodial term with fifteen years of parole ineligibility, together with other statutory consequences and monitoring. During the plea hearing, the court advised defendant the maximum term for the offense was life imprisonment. Defendant stated he understood. The court also questioned counsel and defendant regarding counsel's discussions with defendant about discovery, consultation, and voluntariness. Counsel represented he had "received and fully reviewed all discovery" with defendant. Defendant stated he had sufficient time to discuss the matter with his attorney, counsel had reviewed the plea and supplemental forms with him, counsel answered all of his questions, and he was satisfied with counsel 's 2 Miranda v. Arizona, 384 U.S. 436 (1966). A-2685-24 3 representation. Defendant further stated he was entering the plea voluntarily, no one had forced, threatened, or coerced him, no promises had been made beyond the plea agreement, and defendant was pleading guilty because he was guilty. While providing a factual basis to the court, defendant admitted between June 28, 2016 and June 26, 2018, while living with Sandra, he penetrated her vagina with his penis when she was under the age of thirteen. Defendant also stated he was pleading guilty to take accountability for what he did. The court accepted the plea. At the sentencing hearing in October 2022, defendant reaffirmed under oath he had engaged in sexual penetration with the victim when she was under thirteen years old. Counsel advised the court defendant did not challenge the factual findings in the Adult Diagnostic and Treatment Center (ADTC) report and noted defendant did not deny his actions. Pursuant to the statutory sentencing factors, the court found aggravating factor three, the risk defendant will commit another offense, N.J.S.A. 2C:44-1(a)(3), and nine, the need for deterring the defendant and others from violating the law, N.J.S.A. 2C:44- 1(a)(9), and mitigating favor seven, no history of prior delinquency or criminal activity or has led a law-abiding life for a substantial period of time before the A-2685-24 4 commission of the present offense, N.J.S.A. 2C:44-1(b)(7). The court gave moderate, heavy, and light weight to those factors, respectively. As such, the sentencing court found the aggravating factors outweighed the mitigating factors. The court acknowledged the ADTC report's factual findings, and sentenced defendant to a fifteen-year term of imprisonment according to the terms of the negotiated plea agreement and pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2, Nicole's Law, N.J.S.A. 2C:44-8, the Jessica Lundsford Act, N.J.S.A. 2C:14-2(d), Megan's Law, N.J.S.A. 2C:7-1 to -23, and the conditions of Parole Supervision for Life, N.J.S.A. 2C:43-6.4. The court also imposed several mandatory fines and penalties at sentencing. Defendant did not file a direct appeal. On or about April 4, 2024, defendant filed a self-represented PCR petition. After counsel was assigned, defendant filed an amended petition, certification, and supporting brief. In his certification, defendant asserted counsel met with him twice by video for less than ten minutes total. Defendant further asserted counsel failed to discuss trial strategy and the strengths and weaknesses of the State's case with him. Defendant also asserted his counsel told him if he did not accept the plea he would "get life." A-2685-24 5 The PCR court heard oral argument and denied relief in a written opinion and order dated April 17, 2025. Judge Vicari found defendant failed to establish a prima facie claim of ineffective assistance of counsel and was not entitled to an evidentiary hearing. II. On appeal, defendant raises the following point for our consideration: POINT I [DEFENDANT] IS ENTITLED TO AN EVIDENTIARY HEARING ON HIS CLAIM THAT HIS ATTORNEY RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL PRETRIAL BY FAILING TO INVESTIGATE, PROVIDE DISCOVERY, OR DISCUSS HIS CASE IN A MEANINGFUL MANNER, AND BY TELLING HIM THAT HE WOULD RECEIVE A LIFE SENTENCE IF HE DID NOT PLEAD GUILTY, ALL OF WHICH PRESSURED HIM INTO A GUILTY PLEA. III. PCR is New Jersey's analogue to the federal writ of habeas corpus. State v. Preciose, 129 N.J. 451, 459 (1992). Whereas here, the PCR court does not conduct an evidentiary hearing, we review the court's legal conclusions de novo. State v. Harris, 181 N.J. 391 (2004). Claims of ineffective assistance of counsel are governed by the familiar two-part test set forth in Strickland v. Washington, 466 U.S. 668, 687 (1984), A-2685-24 6 and adopted in State v. Fritz, 105 N.J. 42, 58 (1987). Defendant must show both counsel's performance was deficient, and counsel's deficient performance prejudiced the defense. Strickland, 466 U.S. at 687. When the conviction is based on a guilty plea, the prejudice prong requires a defendant to show "there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Hill v. Lockhart, 474 U.S. 52, 59 (1985); see also State v. DiFrisco, 137 N.J. 434, 457 (1994). In the PCR context, the defendant must also show that "'reject[ing] the plea bargain would have been rational under the circumstances.'" State v. O'Donnell, 435 N.J. Super. 351, 371 (App. Div. 2014) (quoting Padilla v. Kentucky, 559 U.S. 356, 372 (2010)). A defendant is not entitled to an evidentiary hearing merely by asserting ineffective assistance. Preciose, 129 N.J. at 462. To obtain a hearing, the defendant must establish a prima facie case, demonstrate there are material facts in dispute that cannot be resolved on the existing record, and show an evidentiary hearing is necessary to resolve the claim. R. 3:22-10(b); State v. Porter, 216 N.J. 343, 354 (2013). Bald assertions are insufficient. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div. 1999). Further, a defendant may not create a genuine factual dispute to warrant a hearing by contradicting A-2685-24 7 prior sworn statements without explanation. State v. Blake, 444 N.J. Super. 285, 299 (App. Div. 2016). Applying these principles, we conclude defendant failed to establish a prima facie claim of ineffective assistance of counsel, and the PCR court correctly denied the petition without an evidentiary hearing. Defendant argues counsel failed to review discovery with him and failed to discuss the case in a meaningful way. His own prior sworn statements refute this claim. At the plea hearing, counsel represented on the record he had "received and fully reviewed all discovery" with defendant. Defendant did not dispute this representation. The record clearly indicates defendant confirmed he had sufficient time to discuss the matter with counsel, counsel had reviewed the plea and supplemental forms with him, counsel had answered "any and all" questions, and he was satisfied with counsel's representation. Defendant further stated he fully understood everything discussed at the plea hearing. In addition, defendant's later certification does not identify what discovery was not reviewed, what portion of the State's proofs he did not understand, or what additional consultation would have altered his decision to plead guilty. As the PCR court correctly found, defendant did not "prove what discovery the Trial A-2685-24 8 Attorney did not review," nor did he demonstrate review of any additional discovery would have led him to reject the plea and proceed to trial. We determine the PCR court's conclusion is well supported by the record. Defendant had already admitted to the charged conduct after receiving Miranda warnings from law enforcement. He then admitted under oath at the plea hearing he penetrated the victim when she was under thirteen years old. Defendant reaffirmed this admission at sentencing. On this record, defendant's generalized assertion additional discovery review might have changed the outcome is precisely the sort of unsupported claim we rejected in Cummings, 321 N.J. Super. at 170. Defendant next claims counsel failed to investigate properly. We conclude the PCR court appropriately rejected this claim. Counsel has a duty to make reasonable investigations or to make a reasonable decision particular investigations are unnecessary. Strickland, 466 U.S. at 691; State v. Savage, 120 N.J. 594, 619-21 (1990). But when a defendant asserts inadequate investigation on PCR, they must identify the facts an investigation would have revealed and support that assertion with competent proofs. Cummings, 321 N.J. Super. at 170. A-2685-24 9 Defendant did not satisfy the above standards. His certification does not identify any witness counsel should have interviewed, any exculpatory evidence counsel would have uncovered, any viable defense further investigation would have supported, or any factual inconsistency that would have undermined t he State's case. Defendant simply states counsel did not suggest investigative avenues, which made him feel he had no choice but to plead guilty. This statement is insufficient to support a prima facie case of ineffective assistance of counsel. The record also supports the PCR judge's determination further investigation was unnecessary. Defendant had already given a detailed inculpatory statement admitting sexual intercourse, oral sex, and anal sex with the victim beginning when she was eleven. He later provided a sworn factual basis for the plea and reaffirmed the factual basis at sentencing. In light of those admissions, the PCR court reasonably concluded defendant failed to show either deficient performance or prejudice arising from any alleged lack of investigation. Unlike cases wherein a defendant supported an ineffectiveness claim with competent evidence of an alibi, mental-state defense, or an overlooked witness, defendant offered no such proofs here. See Porter, 216 N.J. at 353-56; see also Savage, 120 N.J. at 621. A-2685-24 10 Defendant also asserts counsel pressured him into pleading guilty by telling him he would receive a life sentence if he did not accept the plea. Again, the record does not support defendant asserted a prima facie claim concerning this allegation. At the plea hearing, the court expressly advised defendant the maximum sentence for the offense was life imprisonment. The court then explained the negotiated plea would limit the State's recommendation to fifteen years in state prison with fifteen years of parole ineligibility. Defendant clearly stated under oath he understood those sentencing consequences. Most importantly, defendant swore no one had forced, threatened, or coerced him into pleading guilty, no promises had been made beyond the plea agreement, and he was pleading guilty because he was guilty. He did not express confusion, hesitation, or reluctance. Defendant reaffirmed the plea at sentencing. Even accepting defendant's certification at face value, we conclude he did not satisfy the second prong of Strickland as he failed to show prejudice. He failed to delineate any viable defense he would have presented at trial. Further, defendant failed to explain why rejecting the plea would have been a rational choice given his inculpatory statement, sworn admissions, and the significantly greater sentencing exposure absent the negotiated plea agreement. A-2685-24 11 In addition, as stated above, the plea substantially limited defendant's sentencing exposure and resolved additional charges arising from years of repeated abuse of the victim. Defendant therefore failed to show a reasonable probability that, but for counsel's alleged statement, he would have rejected the plea and insisted on going to trial. Based on our de novo review, we concur with Judge Vicari who reached the same conclusion, finding defendant failed to show he was improperly pressured into pleading guilty or that, absent the alleged pressure, defendant would have insisted on going to trial. Because defendant did not present a prima facie claim, no evidentiary hearing was required. R. 3:22-10(b). The alleged factual disputes defendant identifies are not material within the meaning of the rule because, even viewing his certification indulgently, he failed to proffer genuine issues of fact related to the effectiveness of counsel or to demonstrate sufficient prejudice. See Preciose, 129 N.J. at 462-63. Nor are we persuaded by defendant's contention he is entitled to a hearing to "expand" upon his allegations. A hearing is not a vehicle to search for support for otherwise deficient claims. See R. 3:22-10(e). On this record, defendant's allegations were vague and conclusory. Rule 3:22-10(e)(3) forbids a court from holding an evidentiary hearing when, such as here, a "defendant has not A-2685-24 12 demonstrated a reasonable likelihood of success as required by R. 3:22-10(b)." Since the PCR court found defendant failed to demonstrate a prima facie claim for ineffective assistance of counsel under Rule 3:22-10(b), the PCR court correctly rejected this claim without an evidentiary hearing. To the extent we have not specifically addressed any of defendant 's remaining legal arguments we conclude they lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). Affirmed. A-2685-24 13