State of New Jersey v. Earl L. Barley Etc.
CourtNew Jersey Superior Court Appellate Division
Date FiledNovember 12, 2026
DocketA-1708-24
StatusUnpublished
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Full Opinion
NOT FOR PUBLICATION WITHOUT THE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-1708-24
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
EARL L. BARLEY, a/k/a
EARLY BARLEY, and
EARL T. BARLEY,
Defendant-Appellant.
_________________________
Submitted October 14, 2026 β Decided November 12, 2026
Before Judges Gooden Brown and Firko.
On appeal from the Superior Court of New Jersey, Law
Division, Atlantic County, Indictment No. 19-06-1414.
Jennifer N. Sellitti, Public Defender, attorney for
appellant (Lee March Grayson, Designated Counsel, on
the brief).
William E. Reynolds, Atlantic County Prosecutor,
attorney for respondent (Marisa D. Pescatore, Assistant
Prosecutor, of counsel and on the brief).
PER CURIAM
Defendant Earl Barley appeals from the January 21, 2025 Law Division
order denying his petition for post-conviction relief (PCR) without an
evidentiary hearing. We affirm.
Defendant was indicted and charged with drugs and weapons possession
related offenses. The evidence underlying the indictment was seized without a
warrant following a motor vehicle stop. After his suppression motion was
denied, defendant was tried by a jury in bifurcated proceedings and convicted
of second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b)(1), and
second-degree certain persons not to have weapons, N.J.S.A. 2C:39-7(b). He
was sentenced to an aggregate term of ten years in prison, with a five-year period
of parole ineligibility.
In an unpublished opinion, we affirmed defendant's convictions and
sentence, rejecting defendant's challenge to the denial of his suppression motion
and his sentence.1 State v. Barley, No. A-2334-19 (App. Div. Apr. 19, 2021)
(slip op. at 1, 17). Our Supreme Court denied certification. State v. Barley, 248
N.J. 407 (2021).
For context, we recite the facts adduced at trial as recounted in our
unpublished opinion:
1
Defendant has completed his prison sentence.
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2
On May 28, 2018, Officer John Borelli of the Franklin
Township Police Department observed a black, four-
door Nissan sedan operated by defendant with a tinted
windshield and front side windows in violation of
N.J.S.A. 39:3-75 and tinted-out rear tag cover, in
violation of N.J.S.A. 39:3-33, crossing the intersection
near Lincoln Avenue. Officer Borelli drove his marked
police car to the front of a Dollar General store situated
in close proximity to Lincoln Avenue and continued to
observe defendant.
When defendant saw Officer Borelli's car, he lowered
the front tinted windows and quickly pulled into the
Dollar General parking lot. After parking his vehicle,
defendant "ran" into the store and returned to his car
shortly thereafter without any shopping bags.
Defendant again lowered the front tinted windows and
drove off. At 5:25 p.m., Officer Borelli followed the
Nissan and initiated a motor vehicle stop based on
motor vehicle equipment violations, which was
captured on a dash camera.
After approaching the Nissan on the passenger side and
identifying himself, Officer Borelli advised defendant,
the registered owner, he was stopped for equipment
violations and requested his credentials. Defendant
stated, "why the f--- are you pulling me over?" He
began to sweat after Officer Borelli asked if there was
anything illegal in the car. After that, defendant started
to breathe heavily and displayed other signs of anxiety
in the face of cool weather.
Upon receiving defendant's documents, Borelli ran his
credentials, checked for outstanding warrants, and
performed a search of defendant's criminal history in
light of his suspicious behavior. The criminal history
search revealed defendant had a history of narcotics
distribution offenses. Officer Borelli requested consent
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to search defendant's vehicle, which he declined.
Defendant called 9-1-1 to request a supervisor come to
the scene. At approximately 5:40 p.m., Officer Borelli
requested K-9 assistance and twelve minutes later,
Sergeant Adam Shaw of the Vineland Police
Department arrived with Pikke, his K-9 partner.
When the K-9 arrived at the scene, the officers escorted
defendant to the rear of one of the patrol cars so Pikke
could conduct an exterior scent sniff of the Nissan.
Pikke alerted to the presence of narcotics in the car,
leading to a search of the vehicle. The search yielded a
loaded .380 semi-automatic handgun in the glove box,
a blue sock next to the handgun containing ammunition
and one hollow-point bullet, two cell phones, and
approximately 55.23 grams, the equivalent of two-and-
one-half ounces of marijuana, in a vacuum-sealed bag
in the trunk.
Defendant was placed under arrest, and a search of his
person incident to arrest uncovered approximately 300
empty Ziploc "dime bags" in his jacket pocket.
[Id. at 1-3 (footnote omitted).]
Defendant filed a timely self-represented PCR petition asserting
ineffective assistance of counsel (IAC), among other claims. Assigned counsel
filed a supporting brief and affidavit prepared by defendant. In the affidavit,
defendant explained he entered the Dollar General "and bought a small item"
which he placed in his pocket. He said he never saw "Borelli before entering
the store" and, "[a]fter being stopped," he remained "calm," "provided valid
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credentials," and "was cooperative" despite not knowing why he was being
stopped.
He further averred:
My lawyer never moved to suppress evidence based on
the fact that the [motor vehicle recording (MVR)] . . .
was corrupted and she never sought an adverse
inference charge based on spoliation of the evidence.
She never played the [9-1-1] tape. She never
investigated whether I made a purchase at the Dollar
General. This was not a strategy we discussed. I
repeatedly asked her to do all of these things.
In the supporting brief, defendant argued his trial counsel was ineffective
for failing to challenge Borelli's testimony at the suppression hearing and trial
and failing to seek an adverse inference or spoliation jury instruction based on
the officer's corrupted MVR that resulted in the failure to capture the pre-stop
conduct the officer claimed to witness and defendant's alleged post-stop conduct
that gave rise to probable cause for a search. Defendant further alleged his trial
counsel was ineffective for failing to play the 9-1-1 tapes at the suppression
hearing or trial to discredit Borelli's testimony that defendant was excited,
breathing heavily, and sweating profusely. Defendant also argued his trial
counsel was ineffective for failing to investigate whether he made a purchase at
the Dollar General to undermine Borelli's testimony that he entered the store to
evade police.
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Following oral argument, the PCR judge entered an order on January 21,
2025, denying PCR without an evidentiary hearing. In an accompanying
memorandum of decision, the judge recounted the facts and procedural history
of the case and applied the governing legal principles. The judge concluded
defendant failed to establish a prima facie case of IAC.
Specifically, in rejecting defendant's argument regarding the corrupted
MVR, the judge explained:
Counsel for [defendant] argues that the unavailability
of the MVR at the suppression and to discredit the
officer was both material and prejudicial. Upon review
of the transcripts from trial, trial counsel for the
defendant did cross examine the officer regarding the
corruption of the MVR. Trial counsel for the defendant
addressed the fact that the vehicle had a camera and
there was video taken of this motor vehicle stop but the
audio of the stop was corrupted because it was
malfunctioning at the time. Absent any evidence that
the State intentionally corrupted the MVR, this cross
examination was likely sufficient for trial counsel and
certainly enough to create a record from which
appellate counsel could have raised the spoliation issue
on direct appeal.
[(Citations omitted).]
Thus, the judge concluded defendant's arguments regarding spoliation and an
adverse inference charge were procedurally barred under Rule 3:22-4(a).
A-1708-24
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Nonetheless, addressing the merits, the judge found even if trial counsel
had moved to exclude Borelli's testimony and requested a spoliation or adverse
inference charge, "it is unlikely the jury would have had a different outcome."
The judge reasoned defendant "has not set forth how the sound would have been
unfavorable to the prosecution and thus, result in a different verdict."
Turning to trial counsel's failure to play the 9-1-1 tapes, after listening to
the tapes, the judge found:
[Defendant], over a period of 13 minutes and nine
seconds, does appear to be upset and agitated. He
continues to repeat many times to the dispatcher that
the search and stop are "illegal" and how the officers
are "talking about my behavior" and how it is not
"lawful" and they "put their hands on [him.]"
[Defendant] continually tells dispatch that his license
and registration are in order, so he believes they cannot
search him or ask him to get out of the car. Each and
every time the dispatcher professionally and calmy tells
[defendant] to just follow the instructions of the
officers. [Defendant] can be heard arguing with the
officers about almost everything β including why he
was stopped, why he is being removed from the car,
why he is searched, why they are giving him his
Miranda[2] rights and why they are not standing closer
to the MVR. Each time, the officers can be heard
responding to his inquiries, although not all the
responses are clearly audible, no loud or excitable
voices are heard coming from the officers. They appear
to speak to . . . defendant each time he questions their
actions.
2
Miranda v. Arizona, 384 U.S. 436 (1966).
A-1708-24
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The [9-1-1] calls do reveal that . . . defendant was
attempting to disrupt and thwart the investigation. Not
surprisingly, as he knew he had illegal items in his car,
which is consistent with his behavior and correspond[s]
with what the officer testified to at the time of the
suppression hearing. The [9-1-1] tape clearly does not
dispute the officer's testimony but in fact bolsters same.
The playing of the [9-1-1] dispatch recordings at the
suppression hearing would not have benefited . . .
defendant and there is no reason to believe it would
have changed the [c]ourt's decision.
[(Second alteration in original).]
Finally, in rejecting defendant's argument his attorney should have
investigated his Dollar General purchase, the judge stated:
[T]he officer testified that he observed the motor
vehicle infractions and when he turned his vehicle
around to get in a position to stop [defendant], he
observed [defendant] pull into the shopping complex,
park, and go into the Dollar General store. Based upon
his experience, the officer believed [defendant] was
attempting to evade being stopped. [Defendant] was
observed then going into the store and exiting within a
few minutes without any bags. [Defendant] submitted
a certification with his PCR filings stating he purchased
an item, but he had placed it in his pocket. Clearly this
is not inconsistent with the officer's testimony. Further,
the officer was already determined to stop [defendant],
due to his motor vehicle infractions. The copy of a
receipt proving he purchased an item would have no
bearing on the officer's credibility. What the officers
knew at the time is what was important, and the officer
did not observe any shopping bags on [defendant].
This appeal followed.
A-1708-24
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On appeal, defendant reprises the arguments rejected by the PCR judge as
follows:
POINT I
THE PCR COURT ERRED IN DENYING THE
DEFENDANT'S REQUEST FOR AN EVIDENTIARY
HEARING TO EVALUATE HIS CLAIM THAT HIS
TRIAL ATTORNEY (1) RENDERED INEFFECTIVE
ASSISTANCE OF COUNSEL DURING THE
SUPPRESSION HEARING AND TRIAL; AND (2)
FAILED TO CONDUCT AN APPROPRIATE
INVESTIGATION.
POINT II
THE PCR COURT ERRED BY NOT CONDUCTING
AN EVIDENTIARY HEARING.
We begin by setting out the guideposts that inform our review. "We
review the legal conclusions of a PCR judge de novo," State v. Reevey, 417 N.J.
Super. 134, 146 (App. Div. 2010), but "review under the abuse of discretion
standard the PCR court's determination to proceed without an evidentiary
hearing," State v. Brewster, 429 N.J. Super. 387, 401 (App. Div. 2013).
"[W]here . . . no evidentiary hearing was conducted," as here, "we may review
the factual inferences the [trial] court has drawn from the documentary record
de novo." State v. Blake, 444 N.J. Super. 285, 294 (App. Div. 2016) (citing
State v. Harris, 181 N.J. 391, 420-21 (2004)).
A-1708-24
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An evidentiary hearing is only required when (1) a defendant establishes
"a prima facie case in support of [PCR]," (2) the court determines that there are
"material issues of disputed fact that cannot be resolved by reference to the
existing record," and (3) the court determines that "an evidentiary hearing is
necessary to resolve the claims" asserted. State v. Porter, 216 N.J. 343, 354
(2013) (alteration in original) (quoting R. 3:22-10(b)); see also R. 3:22-10(e)(2)
(providing "[a] court shall not grant an evidentiary hearing . . . if the defendant's
allegations are too vague, conclusory[,] or speculative").
Indeed, "[i]f the court perceives that holding an evidentiary hearing will
not aid the court's analysis of whether the defendant is entitled to [PCR], . . .
then an evidentiary hearing need not be granted." Brewster, 429 N.J. Super. at
401 (omission in original) (quoting State v. Marshall, 148 N.J. 89, 158 (1997));
see also State v. Cummings, 321 N.J. Super. 154, 170 (App. Div. 1999)
(explaining the mere raising of a claim for PCR does not entitle the defendant
to an evidentiary hearing and the defendant "must do more than make bald
assertions").
"To establish a prima facie case, [a] defendant must demonstrate 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." R. 3:22-
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10(b). Moreover, a defendant must make this showing "by a preponderance of
the credible evidence." State v. Goodwin, 173 N.J. 583, 593 (2002). "To meet
this burden, the [defendant] must allege and articulate specific facts, 'which, if
believed, would provide the court with an adequate basis on which to rest its
decision.'" State v. Barclay, 479 N.J. Super. 451, 459 (App. Div. 2024) (quoting
State v. Mitchell, 126 N.J. 565, 579 (1992)).
Rule 3:22-2 recognizes five cognizable grounds for PCR, including a
"[s]ubstantial denial in the conviction proceedings of [a] defendant's
[constitutional] rights," R. 3:22-2(a), which encompasses the Sixth Amendment
right to the effective assistance of counsel at issue in this appeal. State v. Nash,
212 N.J. 518, 541-42 (2013). To establish a prima facie claim of IAC as
contemplated under Rule 3:22-2(a), a defendant must demonstrate that the
performance of counsel fell below the objective standard of reasonableness set
forth in Strickland v. Washington, 466 U.S. 668, 687-88 (1984), and adopted in
State v. Fritz, 105 N.J. 42, 49-58 (1987), and that the outcome would have been
different without the purported deficient performance. Nash, 212 N.J. at 541-
42. Stated differently, a defendant must show: "(1) 'counsel's performance was
deficient'; and (2) 'the deficient performance prejudiced the defense.'" State v.
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Vanness, 474 N.J. Super. 609, 623 (App. Div. 2023) (quoting Strickland, 466
U.S. at 687).
To satisfy the first prong, a defendant must "show[] that counsel made
errors so serious that counsel was not functioning as the 'counsel' guaranteed
[to] the defendant by the Sixth Amendment" and "that counsel's representation
fell below an objective standard of reasonableness." Strickland, 466 U.S. at
687-88. "[I]n making the evaluation, a court must indulge a strong presumption
that counsel's conduct falls within the wide range of reasonable professional
assistance . . . ." Id. at 689. As such, a defendant "must overcome the
presumption that, under the circumstances, the challenged action 'might be
considered sound trial strategy.'" Ibid. (quoting Michel v. Louisiana, 350 U.S.
91, 101 (1955)).
"Merely because a trial strategy fails does not mean that counsel was
ineffective." State v. Bey, 161 N.J. 233, 251 (1999) (citing State v. Davis, 116
N.J. 341, 357 (1989)). "No particular set of detailed rules for counsel's conduct
can satisfactorily take account of the variety of circumstances faced by defense
counsel or the range of legitimate decisions regarding how best to represent a
criminal defendant." Strickland, 466 U.S. at 688-89.
For that reason,
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an otherwise valid conviction will not be overturned
merely because the defendant is dissatisfied with . . .
[defense] counsel's exercise of judgment during the
trial. The quality of counsel's performance cannot be
fairly assessed by focusing on a handful of issues while
ignoring the totality of counsel's performance in the
context of the State's evidence of defendant's guilt. As
a general rule, strategic miscalculations or trial
mistakes are insufficient to warrant reversal "except in
those rare instances where they are of such magnitude
as to thwart the fundamental guarantee of [a] fair trial."
[State v. Castagna, 187 N.J. 293, 314-15 (2006) (second
alteration in original) (citations omitted) (quoting State
v. Buonadonna, 122 N.J. 22, 42 (1991)).]
Still, "[a]n ineffective assistance of counsel claim may occur when
counsel fails to conduct an adequate pre-trial investigation." Porter, 216 N.J. at
352-53 (citing State v. Savage, 120 N.J. 594, 621-22 (1990)). Indeed, "counsel
has a duty to make reasonable investigations or to make a reasonable decision
that makes particular investigations unnecessary." Strickland, 466 U.S. at 691.
"In evaluating whether defense counsel has satisfied the duty to make reasonable
investigations, the reviewing court must apply 'a heavy measure of deference to
counsel's judgments.'" State v. Chew, 179 N.J. 186, 217 (2004) (quoting
Strickland, 466 U.S. at 691). Thus, "when a petitioner claims his trial attorney
inadequately investigated his case, he must assert the facts that an investigation
would have revealed, supported by affidavits or certifications based upon the
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personal knowledge of the affiant or the person making the certification. "
Cummings, 321 N.J. Super. at 170 (citing R. 1:6-6).
To satisfy the second Strickland/Fritz prong, "[t]he error committed must
be so serious as to undermine the court's confidence in the jury's verdict or result
reached." Chew, 179 N.J. at 204 (2004) (citing Strickland, 466 U.S. at 694).
This prong generally requires that a defendant establish a "reasonable
probability that, but for counsel's unprofessional errors, the result of the
proceeding would have been different." Strickland, 466 U.S. at 694. "That 'is
an exacting standard.'" State v. Gideon, 244 N.J. 538, 551 (2021) (quoting State
v. Allegro, 193 N.J. 352, 367 (2008)).
Failure to meet either prong of the two-pronged Strickland/Fritz test
results in the denial of a petition for PCR. State v. Parker, 212 N.J. 269, 280
(2012) (citing State v. Echols, 199 N.J. 344, 358 (2009)). That said, "courts are
permitted leeway to choose to examine first whether a defendant has been
prejudiced, and if not, to dismiss the claim without determining whether
counsel's performance was constitutionally deficient." State v. Gaitan, 209 N.J.
339, 350 (2012) (citation omitted) (citing Strickland, 466 U.S. at 697).
"Because post-conviction relief is not a substitute for direct appeal and
because of the public policy 'to promote finality in judicial proceedings,' our
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rules provide various procedural bars." Echols, 199 N.J. at 357 (citation
omitted) (quoting State v. McQuaid, 147 N.J. 464, 483 (1997)). In particular,
"a [defendant] may be barred from relief if the [defendant] could have raised the
issue on direct appeal but failed to do so[.]" Ibid. (citing R. 3:22-4). See R.
3:22-4(a)(1)-(3) (delineating exceptions). "The effect of Rule 3:22-4 is that PCR
will be precluded if any ground for relief could have been raised at trial or on
appeal." State v. Peoples, 446 N.J. Super. 245, 254-55 (App. Div. 2016) (citing
State v. Afanador, 151 N.J. 41, 50 (1997)).
Applying these principles, we reject defendant's arguments and affirm
substantially for the reasons articulated in the PCR judge's comprehensive
written decision. Neither the corrupted MVR, the 9-1-1 tapes, nor a Dollar
General receipt was relevant to whether defendant unlawfully possessed
weapons to establish that any purported deficient performance by counsel
prejudiced the defense. The crux of defendant's argument is that these issues
would have discredited Borelli at the suppression hearing and at trial. However,
defendant "must do more than make bald assertions" to establish IAC.
Cummings, 321 N.J. Super. at 170. From our review of the record, we conclude
defendant failed to make a prima facie showing of IAC under the
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Strickland/Fritz test, and we discern no abuse of discretion in the denial of
defendant's PCR petition without an evidentiary hearing.
Affirmed.
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