NOT FOR PUBLICATION WITHOUT THE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
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                                                        SUPERIOR COURT OF NEW JERSEY
                                                        APPELLATE DIVISION
                                                        DOCKET NO. A-0807-19






                   Submitted April 12, 2021 - Decided May 10, 2021

                   Before Judges Messano and Suter.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Cumberland County, Indictment No. 12-05-

                   Joseph E. Krakora, Public Defender, attorney for
                   appellant (Karen A. Lodeserto, Designated Counsel, on
                   the brief).

                   Jennifer    Webb-McRae,       Cumberland     County
                   Prosecutor, attorney for respondent (Danielle R.
                   Pennino, Assistant Prosecutor, of counsel and on the

      A jury convicted defendant Ryon Green of first-degree robbery and

related offenses, and the judge sentenced him to a fifteen-year term of

imprisonment subject to the No Early Release Act, N.J.S.A. 2C:43-7.2. We

affirmed defendant's conviction and sentence on direct appeal. State v. Green,

No. A-5355-13 (App. Div. Aug. 5, 2016) (slip op. at 2). The Court denied his

petition for certification. 

228 N.J. 90


      Defendant was indicted with Vascell McKoy for the armed robbery of a

gas station. We briefly summarize the trial evidence referenced in our prior

opinion. Green, slip op. at 3–6.

      Neither the victim nor witnesses could identify the assailants, who wore

face coverings.

Id. at 3–4.

Based on a description of the getaway vehicle, police

proceeded to McKoy's nearby home minutes after receiving the report of the

robbery and arrived as he was backing the car out of the driveway; defendant

was in the passenger seat.

Id. at 4–5.

Police stopped the car nearby.

Id. at 5.

Eventually, police recovered clothing, a gun and money from the car, McKoy's

home and from an area behind the gas station.

Id. at 6.

DNA evidence linked

McKoy to a hat found near the gas station, but no DNA evidence implicated




testified at trial and denied any involvement.

Id. at 6.

He was

at McKoy's home, with his girlfriend, Vascell's sister, Vinchel McKoy, at the

time of the robbery.1

Ibid. Vascell was giving

defendant a ride home when

police stopped the vehicle.

      Defendant filed a timely pro se petition for post-conviction relief (PCR)

in which he asserted the ineffective assistance of trial counsel (IAC).          In

defendant's supplemental certification, prepared with appointed PCR counsel's

assistance, defendant claimed that trial counsel failed to interview Vascell and

Vinchel. Both, he claimed, would have supported defendant's testimony at trial.

Defendant alleged that trial counsel refused to call either Vascell or Vinchel as

a witness despite defendant's direction to do so.

      In his brief, PCR counsel asserted counsel's failure to investigate

corroboration of defendant's alibi required reversal of defendant's conviction, or

alternatively, an evidentiary hearing on defendant's petition.2      Attached to

counsel's brief were certifications from Vascell and Vinchel, and documentary

evidence that the Disciplinary Review Board considered three complaints made

  For the balance of our opinion, to avoid confusion, we use the first names of
the McKoy family members, as necessary. We apologize for the informality.
  We do not discuss other specific IAC claims defendant asserted because they
are not preserved for appeal.
against trial counsel, one of which was in close proximity to the trial in this case,

and twice censured him.3 PCR counsel also noted that he was unable to obtain

trial counsel's file without first securing a court order. 4

        The certification from Vascell, who had pled guilty prior to defendant's

trial and received a five-year term of imprisonment, said that defendant had

spent most of the two days prior to the robbery with Vinchel. Consistent with

defendant's trial testimony, Vascell claimed that defendant did not participate in

the robbery, and he was giving defendant a ride home when police stopped the


        Vinchel's certification confirmed that defendant was with her at the time

of the robbery and until Vascell returned home and defendant left with him in

Vascell's car. Vinchel certified that trial counsel never contacted her. Vascell

and Vinchel each certified that in 2018, they went to the prosecutor's off ice and

advised that defendant "did not have anything to do with the robbery."

   In his PCR brief, counsel asserted that trial counsel was disciplined for
"negligence and lack of diligence," however, the documents in the appendix do
not specify the nature of the complaints.
    The order is not in the record.
      In response, the State produced a certification from trial counsel. He said

defendant's claim that he instructed counsel to interview and subpoena Vascell

and Vinchel "to testify as alibi witnesses is not true." Counsel then averred:

             Had [defendant] made such a suggestion, by no means
             would I have agreed to involve either of the McKoys as
             alibi witnesses because I am absolutely certain neither
             . . . was able to provide truthful and legitimate alibi

                   In addition to the ethical and legal barriers that
             would have prevented my calling the McKoys as trial
             witnesses, it is presently my belief that their
             involvement in the trial would have assured a

There was no further explanation of these rather vague assertions.

      After considering oral argument, the PCR judge, who was not the trial

judge, announced a brief oral opinion on the record. Citing trial counsel's

certification, the judge concluded the decision not to call either or both McKoys

as witnesses was deserving of "great deference," because "[d]etermining which

witnesses to call . . . is one of those difficult, strategic decisions that any [t]rial

[a]ttorney must confront." Rejecting PCR counsel's argument that trial counsel

failed to provide any basis for not calling the McKoys as witnesses, the judge

reasoned, "the inference is that there would be ethical legal barriers" to doing

so. According to the judge, trial counsel "either knew that their testimony would

be false and would not be permitted to present them, or something else . . . that

was obviously known."

      The judge then considered both prongs of the Strickland/Fritz standard

applicable to IAC claims. 5 He concluded trial counsel "did investigate the alibi

witnesses and other witnesses and chose not to call those witnesses for reasons

stated in his [certification]." The judge also concluded defendant failed to

demonstrate any prejudice, noting, "[T]here was great evidence against the

defendants in this case.    Their identifications . . . [and] other evidence[]

presented [was] sufficient to sustain the verdict of guilty." The judge concluded

defendant had not presented a prima facie case warranting an evidentiary

hearing. He entered the order under review denying defendant's petition, and

this appeal followed.

      Before us, defendant argues in a single point that the PCR judge erred by

not granting an evidentiary hearing, which was necessary to resolve whether

trial counsel adequately investigated potential witnesses that could have

bolstered defendant's alibi at trial. We agree and remand for an evidentiary

hearing before a different judge.

  Strickland v. Washington, 

466 U.S. 668

, 687 (1984); State v. Fritz, 

105 N.J.

, 58 (1987).
      Our rules anticipate the need to hold an evidentiary hearing on a PCR

petition, "only upon the establishment of a prima facie case in support of post-

conviction relief." 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.'" State v. Porter, 

216 N.J. 343

, 355 (2013) (emphasis

added) (quoting R. 3:22-10(b)).

      To succeed on an IAC claim, a defendant must first show "that counsel

made errors so serious that counsel was not functioning as the 'counsel'

guaranteed . . . by the Sixth Amendment."         

Fritz, 105 N.J. at 52


Strickland, 466 U.S. at 687

). Second, a defendant must show by a "reasonable

probability" that the deficient performance affected the outcome.

Id. at 58.


reasonable probability is a probability sufficient to undermine confidence in th e

outcome." State v. Pierre, 

223 N.J. 560

, 583 (2015) (quoting 

Strickland, 466

U.S. at 694


Fritz, 105 N.J. at 52


      "To satisfy prong one, [defendant] had to 'overcome a "strong

presumption" that counsel exercised "reasonable professional judgment" and

"sound trial strategy" in fulfilling his responsibilities.'" State v. Nash, 

212 N.J.


, 542 (2013) (quoting State v. Hess, 

207 N.J. 123

, 147 (2011)). "[I]f counsel

makes a thorough investigation of the law and facts and considers all likely

options, counsel's trial strategy is 'virtually unchallengeable.'"

Ibid. (alteration

in original)

(quoting State v. Chew, 

179 N.J. 186

, 217 (2004)).

      When the court conducts an evidentiary hearing, "[o]ur standard of review

is necessarily deferential to a PCR court's factual findings . . . that are supported

by sufficient credible evidence in the record."

Id. at 540

(citing State v. Harris,

181 N.J. 391

, 415 (2004)). However, here, the judge did not conduct any

hearing; instead, he made factual determinations based solely on trial counsel's

certification. He never addressed the certifications furnished by defendant,

Vascell and Vinchel.

      More importantly, the judge seemingly concluded that trial counsel had

actually investigated what Vascell or Vinchel might testify to if called as

witnesses; however, counsel never acknowledged speaking to either of them in

his certification. Vinchel's certification stated unequivocally that trial counsel

never spoke with her.

      Counsel's certification made only oblique references to possible ethical

constraints that prevented him from calling the McKoys as witnesses. The judge

concluded that counsel believed the McKoys would perjure themselves or there

was "something else," known but undisclosed by counsel, that entered his

decision-making process. Of course, that reasoning begs the question of how

counsel could have ethically permitted his client to testify at trial regarding an

alibi in which he claimed to be with Vinchel, yet somehow be ethically

prohibited from offering Vinchel's corroborative testimony. To the extent the

judge made credibility determinations based on the certifications, which were

sometimes contradictory, it was error, and we owe no deference to his factual

determinations. See 

Porter, 216 N.J. at 356

(noting it was "abundantly clear that

an evidentiary hearing was warranted" when the judge made credibility

determinations based only on certifications). Simply put, applying the indulgent

standards required, the evidence failed to support a claim that trial counsel

actually conducted any investigation of the alibi defense.

      In considering the second, prejudice prong of the Strickland/Fritz

standard, "the strength of the evidence that was before the fact-finder at trial" is


Pierre, 223 N.J. at 583

. Clearly, the judge misspoke when evaluating

the strength of the State's case, since there was no identification of defendant by

any witness at trial and all the forensic evidence inculpated Vascell, not

defendant. The State's case against defendant was entirely circumstantial.

      Seen in this light, trial counsel's alleged investigative failures, if true, are

critical. "Failure to investigate an alibi defense is a serious deficiency that can

result in the reversal of a conviction.      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].'" 

Porter, 216 N.J. at 353

(alteration in original) (quoting

State v. Mitchell, 

149 N.J. Super. 259

, 262 (App. Div. 1977)).

      In sum, defendant presented a prima facie case for PCR relief that

warranted an evidentiary hearing. We remand the matter to the Law Division to

conduct such a hearing. We further order that because the PCR judge made

unwarranted credibility assessments on the limited record before him, the

hearing on remand should be conducted by a different judge. See, e.g., P.T. v.


325 N.J. Super. 193

, 220–21 (App. Div. 1999) (collecting cases

demonstrating reasons for ordering remand before a different judge).

      Reversed and remanded. We do not retain jurisdiction.


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