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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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 – 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 In an unpublished opinion, we affirmed defendant's convictions and sentence, rejecting defendant's challenge to the denial of his suppression motion and his sentence.1 State v.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 For context, we recite the facts adduced at trial as recounted in our unpublished opinion: 1 Defendant has completed his prison sentence. A-1708-24 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 A-1708-24 3 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 A-1708-24 4 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. A-1708-24 5 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 6 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 – 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 7 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 8 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 9 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- A-1708-24 10 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. A-1708-24 11 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, A-1708-24 12 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 A-1708-24 13 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 A-1708-24 14 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 A-1708-24 15 Strickland/Fritz test, and we discern no abuse of discretion in the denial of defendant's PCR petition without an evidentiary hearing. Affirmed. A-1708-24 16