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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-1352-24 STATE OF NEW JERSEY, Plaintiff-Respondent, v. MARVIN EURE, JR., a/k/a MARVIN EURIE, MARVIN EURE, Defendant-Appellant. ________________________ Submitted September 23, 2026 – Decided October 20, 2026 Before Judges Marczyk and Jacobs. On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 15-08-1860. Jennifer N. Sellitti, Public Defender, attorney for appellant (Frank M. Gennaro, Designated Counsel, on the brief). Theodore N. Stephens II, Essex County Prosecutor, attorney for respondent (Lucille M. Rosano, Assistant Prosecutor, of counsel and on the brief). PER CURIAM Defendant Marvin Eure, Jr. appeals from a June 27, 2024 order denying his petition for post-conviction relief (PCR) following an evidentiary hearing. We affirm. I. In August 2015, defendant was indicted and charged with: first-degree conspiracy to commit murder, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:11-3(a) (count one); first-degree purposeful or knowing murder, N.J.S.A. 2C:11-3(a)(1)(2) (count two); second-degree unlawful possession of a handgun without a permit, N.J.S.A. 2C:39-5(b) (count three); second-degree possession of a handgun for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count four); third-degree conspiracy to hinder apprehension, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:29-3(b) (count five); and third-degree hindering prosecution, N.J.S.A. 2C:29-3(b) (count six). On May 19, 2017, defendant pled guilty to: count one; count two, which was amended to aggravated manslaughter; and count three. At the plea hearing, defendant provided a factual basis for the charges. He testified that on December 2, 2014, he shot and killed Elijah Adams. He acknowledged he agreed with other individuals to commit the homicide and did not have a permit to carry a gun. Defendant stated he understood the charges against him, and he was giving up his right to a trial and to remain silent. He A-1352-24 2 also stated he was satisfied with the representation provided by plea counsel, Roy Breslow, and had no questions for the court. The State recommended an aggregate sentence of twenty years, subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, to run concurrently with defendant's federal sentence in a separate matter. It agreed to dismiss the balance of the charges against defendant and co-defendants.1 In September 2017, defendant was sentenced to eighteen years in prison subject to NERA for aggravated manslaughter, and a concurrent five-year sentence for the weapons charge.2 The conspiracy count merged with the aggravated manslaughter count. Defendant subsequently filed a PCR petition supported by his own certification and certifications from Crystal Coles, Khalil Sykes, and Jahson Coles. The PCR court denied the application without an evidentiary hearing. In March 2021, we remanded for the PCR court to conduct an evidentiary hearing to determine whether defendant's plea counsel failed to properly investigate a possible alibi witness, Sykes. State v. Eure, No. A-5595-18 (App. Div. Mar. 5, 1 Crystal Coles and Marvin Eure, Sr., defendant's mother and father, were charged in the same indictment with third-degree hindering apprehension, N.J.S.A. 2C:5-2 and 2C:29-3(b), and fourth-degree hindering apprehension, N.J.S.A. 2C:29-3(a)(3). 2 Defendant did not appeal his conviction or sentence. A-1352-24 3 2021) (slip op. at 8). We noted Sykes's certification raised a fact issue as to whether he was with defendant at the time of the murder. Id. at 6. We further explained, "The PCR court should not have considered defendant's admissions during the plea colloquy in light of his contention that he may not have made those admissions if his counsel had investigated the alibi defense." Ibid. Against this backdrop, the PCR court subsequently conducted an evidentiary hearing over the course of three days. Defendant asserted he advised his plea counsel Sykes was with him at the time of the shooting, and the two were not at the crime scene. He claimed counsel failed to pursue this line of defense. Sykes testified he was with defendant on the night of December 2, 2014. Sykes stated he left work at 6:30 p.m. and received a call from defendant requesting a ride to defendant's cousin's home. He drove defendant to the cousin's home. Thereafter, Sykes stated they traveled to the Essex County Correctional Facility (ECCF), where defendant made a deposit into his brother's commissary account, and then to Delaney Hall, where defendant made a deposit into a friend's commissary account. He then drove defendant to defendant's home on Chadwick Avenue. He later drove defendant a few blocks down Chadwick Avenue at approximately 11:00 p.m., where defendant left the car to A-1352-24 4 speak to some individuals while Sykes remained in his car. While he was in the car, he looked up from his phone from time to time and could see defendant. He testified defendant eventually returned to the car around 1:00 a.m., and Sykes drove him home. They spoke briefly, and defendant then entered his home. Sykes presented a cell phone video obtained from Instagram purportedly depicting defendant going into the ECCF that evening. He testified he obtained the video from defendant's Instagram account and screen recorded it. He testified he believed he left the ECCF before 11:00 p.m. that evening, and he did not know when the homicide occurred. After Sykes learned defendant had been charged with murder, he contacted Breslow and gave him the Instagram video showing defendant entering the ECCF. Breslow took the video but never contacted Sykes again. Defendant testified he asked Breslow to contact Sykes because he was an alibi witness. He stated he posted to Instagram the video Sykes referenced, which showed him entering the correctional facility. He recounted he recorded the video around 10:30 or 11:00 p.m. on December 2, 2014, prior to the homicide, which occurred at 11:22 p.m. According to defendant, Breslow advised him he would present the alibi evidence from Sykes to the prosecutor, but later said he would not do so because "it was going to be useless in the case." A-1352-24 5 Defendant claimed he told Breslow he was innocent and wanted to go to trial but pled guilty because Breslow never investigated the alibi information and advised him he would lose at trial, face life imprisonment, and expose his parents to jail time. Defendant testified on cross-examination that, during the plea hearing, he acknowledged he and Breslow went over all the discovery, and Breslow provided him copies of everything. He understood he had the right to proceed to trial, represented he was satisfied with Breslow's representation, and was not forced to enter a guilty plea. In addition, defendant acknowledged he gave two statements to the Essex County Prosecutor's Office on January 22 and 23, 2015, placing him at the shooting. He also admitted drawing a map of the location of the homicide for authorities. Breslow, who had fifty years of experience as a criminal defense attorney, testified he recalled defendant was involved in a street shooting. He noted an individual was shot after being mistaken for a person with whom defendant and his companions had an altercation. He added defendant made two inculpatory statements to police placing him at the scene of the crime. He remembered discussing an alibi defense with defendant but advised him it was not an alibi defense because defendant gave two incriminating statements establishing his A-1352-24 6 presence at the homicide. Although Breslow had no specific recollection of speaking with Sykes, he believed he spoke with someone about an alibi witness before the plea was entered. He also recalled some reference to the ECCF, but defendant's presence there did not coincide with the time of the murder, so he did not pursue it. Breslow recounted he spoke with defendant numerous times about the possibility of pleading guilty and the fact he faced seventy years in prison for conspiracy, murder, and weapons charges. Defendant ultimately advised Breslow he would accept a twenty-year plea offer if it ran concurrent with his federal charges and the charges against his parents were dismissed. Breslow further noted he was successful in persuading the sentencing judge to reduce defendant's sentence to eighteen years. He stated defendant was pleased with the result. According to Breslow, defendant reviewed the plea offer prior to proceeding, initialed each page, and signed the last page.3 Between the time of the plea and sentencing, Breslow explained defendant never advised him he wanted to proceed to trial. Although Breslow stated he would have gone to trial 3 It appears defendant only initialed the final page. However, defendant was questioned about the form and agreed he read each statement in question. A-1352-24 7 if requested, he believed defendant's chances of prevailing were "pretty slim considering his statements." The PCR court found Sykes to be "substantially incredible" based on the established record that contradicted his testimony, his prior inconsistent statements on the record, and lack of reasonableness of his testimony. It also found defendant was not credible based on the contradictory evidence in the record, including his own statements before his plea, during his plea, and before the PCR court. The court found Breslow credible. It noted he testified he recalled defendant had given two inculpatory statements placing himself at the scene of the shootings, and he "didn't think [defendant] was going anyplace with an alibi defense" because of his prior statements to police. In short, Breslow did not believe an alibi defense would be viable. The court further noted Breslow testified defendant believed he received "an excellent deal" and recounted defendant never advised him between the time of his guilty plea and sentencing he wished to go to trial. The PCR court determined defendant failed to establish Breslow was ineffective for failing to investigate an alibi defense. It indicated, in the video Sykes presented, a person could be heard talking about "being on that gang shit A-1352-24 8 and taking care of his boy by putting money on his account." It observed Sykes identified defendant as the individual speaking on the video, although he denied defendant was a gang member. The court noted, "[t]his drastically undercuts . . . Sykes'[s] credibility as a witness and as a person identifying the speaker on the video. The unseen person on the video . . . Sykes claims is [defendant] . . . is admittedly engaging in 'gang shit' . . . . However, . . . Sykes denied that [defendant] was in a gang previously." The court further commented, "Nothing in the record corroborates when [the Instagram] video was recorded, who recorded it, nor who captured the screen recording." The PCR court found defendant had "not established . . . counsel's acts or omissions fell outside the wide range of professionally competent assistance considered in light of all the circumstances of the case." After discussing Breslow's thought process regarding the lack of a legitimate alibi defense, it observed, "Sykes was not able to credibly establish . . . he was with [defendant] at all times and observed [defendant] at the time of the shooting . . . ." The court further reasoned Breslow's "zealous representation" was demonstrated by his ability to secure a very favorable plea offer and persuade the sentencing judge to impose a sentence two years shorter than the term the A-1352-24 9 State recommended. Accordingly, the court determined defendant failed to satisfy prong one of the Strickland4 test. As to prong two of Strickland, the PCR court explained, "the State had a strong case against [defendant] with corroborating evidence that included: surveillance video, cell[]phone records, and defendant's recorded statement which he gave after he waived his Miranda[5] [r]ights." It elaborated defendant's statements revealed "his personal knowledge of the murder," and he admitted being present on the block when the shots were fired and described the victim after he was killed. The court further noted defendant drew a map of the murder scene during his confession which "accurately depicted" the location of the murder. The PCR court found Sykes's testimony did not remove defendant from the area of the murder and "would not have bolstered . . . [defendant]'s alibi defense on the fundamental point of . . . [defendant]'s whereabouts at the time 4 Strickland v. Washington, 466 U.S. 668, 687 (1984). 5 Miranda v. Arizona, 384 U.S. 436 (1966). A-1352-24 10 of the crime." Accordingly, it determined "any alibi defense . . . Breslow was aware of would not have changed the proceeding." 6 The court determined "based on the underlying facts of the case, the corroborating evidence, the strength of the State's case, and . . . defendant's knowing, intelligent, and voluntary plea, . . . defendant has not established that trial counsel was ineffective by not interposing an alibi defense." Furthermore, given "the lack of an alibi defense[,] [defendant] fail[ed] to demonstrate prejudice by trial counsel." The court concluded, "Given the strength of the State's case, the likelihood of conviction, and a much greater sentence upon conviction after trial, . . . [defendant] has not established that trial counsel failed to investigate an alibi defense which affected the outcome of his case." On June 27, 2024, the PCR court entered an order denying defendant's PCR application. This appeal ensued. II. Defendant raises the following points on appeal: POINT I DEFENDANT ESTABLISHED BY A PREPONDERANCE OF THE EVIDENCE THAT HIS 6 Furthermore, the court stated, "at the time of the plea . . . defendant admitted, under oath, that he in fact murdered the victim." A-1352-24 11 PLEA COUNSEL PROVIDED HIM INEFFECTIVE ASSISTANCE. A. THE PREVAILING LEGAL PRINCIPLES REGARDING CLAIMS OF INEFFECTIVE ASSISTANCE OF COUNSEL AND PETITIONS FOR [PCR]. B. PLEA COUNSEL PROVIDED DEFENDANT WITH INEFFECTIVE ASSISTANCE BY FAILING TO ADEQUATELY INVESTIGATE THE CASE AND BY INTERVIEWING AND PRESENTING AN ALIBI WITNESS. More particularly, defendant contends he notified his trial counsel regarding Sykes being an alibi witness, but counsel did not file a notice of alibi or adequately investigate his alibi defense. He maintains the evidence adduced at the evidentiary hearing established his right to relief based on a preponderance of the evidence. Defendant further asserts Breslow disregarded Sykes's alibi evidence and failed to request the commissary records from the ECCF and Delaney Hall to corroborate he and Sykes had been at those facilities on the night of the shooting. He argues the court improperly discounted Sykes's testimony based on the Instagram video mentioning "gang" and Sykes's denial defendant was a gang member. According to defendant, there was no evidence to suggest Sykes had any knowledge of defendant being a gang member. Because counsel did not A-1352-24 12 investigate his alibi defense, defendant asserts he was "left with no recourse but to enter the guilty plea." The PCR process affords an adjudged defendant a "last chance to challenge the 'fairness and reliability of a criminal [conviction].'" State v. Nash, 212 N.J. 518, 540 (2013) (quoting State v. Feaster, 184 N.J. 235, 249 (2005)). Consequently, "[i]f an error led to a miscarriage of justice in an earlier trial, the PCR proceeding must provide a meaningful opportunity to root it out." Ibid. When a defendant's basis for relief is premised on a claim of ineffective assistance of counsel, they must show counsel's performance was deficient , and the deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687-88 (1984); State v. Fritz, 105 N.J. 42, 58-60 (1987). Where there is a guilty plea, a defendant must demonstrate: (1) counsel's performance was not "within the range of competence demanded of attorneys in criminal cases," and (2) "that there is a reasonable probability that, but for counsel's errors, [the defendant] would not have pled guilty and would have insisted o n going to trial." State v. DiFrisco, 137 N.J. 434, 457 (1994) (alteration in original) (first quoting Tollett v. Henderson, 411 U.S. 258, 266 (1973); then quoting Hill v. Lockhart, 474 U.S. 52, 59 (1985)). A-1352-24 13 When a PCR court has conducted an evidentiary hearing, we defer to its "factual findings based on its review of live witness testimony. . . . [and] we will uphold the PCR court's findings that are supported by sufficient credible evidence in the record." Nash, 212 N.J. at 540. "An appellate court 'should give deference to those findings of the trial judge which are substantially influenced by [their] opportunity to hear and see the witnesses . . . .'" State v. Elders, 192 N.J. 224, 244 (2007) (quoting State v. Johnson, 42 N.J. 146, 161 (1964)). "An appellate court's reading of a cold record is a pale substitute for a trial judge's assessment of the credibility of a witness [they have] observed firsthand." Nash, 212 N.J. at 540. We do not defer to a PCR court's interpretation of the law. State v. Harris, 181 N.J. 391, 415 (2004). The legal conclusions of the PCR court are reviewed de novo. Ibid. An ineffective assistance of counsel claim may occur when counsel fails to conduct an adequate pre-trial investigation. State v. Preciose, 129 N.J. 451, 464 (1992); State v. Savage, 120 N.J. 594, 621-22 (1990); State v. Petrozelli, 351 N.J. Super. 14, 23 (App. Div. 2002). "[C]ounsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary." State v. Porter, 216 N.J. 343, 353 (2013) (alteration in original) (citations omitted). Counsel's failure to do so will "render A-1352-24 14 the lawyer's performance deficient." State v. Chew, 179 N.J. 186, 217 (2004) (quoting Savage, 120 N.J. at 618). Failure to investigate an alibi defense is a serious deficiency that can result in the reversal of a conviction. Porter, 216 N.J. at 353. Indeed, "few defenses have greater potential for creating reasonable doubt as to a defendant's guilt in the minds of the jury [than an alibi]." Ibid. (alteration in original) (quoting State v. Mitchell, 149 N.J. Super. 259, 262 (App. Div. 1977)). "[W]hen a petitioner claims [their] trial attorney inadequately investigated [their] case, [they] must assert the facts that an investigation would have revealed, supported by affidavits or certifications based upon the personal knowledge of the affiant or the person making the certification." Ibid. (first alteration in original) (quoting State v. Cummings, 321 N.J. Super. 154, 170 (App. Div. 1999)). Guided by these principles and based on our review of the record, we affirm substantially for the reasons set forth in the PCR court's comprehensive and well-reasoned opinion. We add the following comments to amplify and explain our decision. As a threshold matter, we are mindful the PCR court referenced defendant's statements made during the plea hearing despite our prior admonition the court should not consider those admissions in the context of the A-1352-24 15 alibi defense. We conclude, however, the court's reference to those statements was not dispositive to its decision which otherwise relied on substantial credible evidence in the record. Moreover, the court clearly stated, "In light of the remand instruction from the Appellate Division and the testimony . . . , this opinion is limited to addressing whether trial counsel was ineffective for not" investigating an alibi witness "without consideration of [defendant's] admissions during his plea colloquy." (Emphasis added). For these reasons, we are satisfied the court did not improperly rely on the plea admissions and discern no basis to disturb the court's decision. Defense counsel's strategic decision not to present an alibi defense based on the information known to him, including defendant's prior statements to police, did not constitute ineffective assistance of counsel. "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) (alteration in original) (quoting State v. Buonadonna, 122 N.J. 22, 42 (1991)). "[A]n otherwise valid conviction will not be overturned merely because the defendant is dissatisfied with [their] counsel's exercise of judgment." State v. Allegro, 193 N.J. 352, 367 (2008) (quoting Castagna, 187 N.J. at 314). As A-1352-24 16 counsel testified, he advised defendant he did not have an alibi defense because defendant placed himself at the scene of the murder in two inculpatory statements made to police. Moreover, defendant drew a map of the murder scene and described the victim after he was killed. In sum, as the PCR court found, trial counsel reasonably discounted Sykes's alleged alibi defense because it did not remove defendant from the general area of the homicide, and the visit to the ECCF did not correspond with the time frame. The above, coupled with the State's other proofs, including video surveillance and defendant's cell phone records, provided ample credible evidence in the record to support the PCR court's factual findings. We conclude the court did not err in finding defendant failed to meet either prong of Strickland. Affirmed. A-1352-24 17