STATE OF NEW JERSEY v. RASOOL MCCRIMMON, a/k/a RASOOL W. MCCRIMMON, a/k/a DAHEEM MCWRITTE, a/k/a DAHEEM MCWRITE, a/k/a ANTHONY M. WOODS, a/k/a OOKIE

Defendant was convicted after a jury trial of first-degree

knowing and purposeful murder, N.J.S.A. 2C:11-3(a)(1) and (2),

third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b),

and second-degree possession of a weapon for an unlawful purpose,

N.J.S.A. 2C:39-4(a). The judge imposed an aggregate custodial

sentence of fifty years subject to the requirements of the No

Early Release Act (NERA), N.J.S.A. 2C:43-7.2.

We summarized the facts giving rise to defendant's conviction

in our opinion on his direct appeal, State v. McCrimmon, No. A

0477-07 (App. Div. August 18, 2011) (slip op. at 1-5), certif.

denied, 209 N.J. 232 (2012). We restate the facts relevant to this

appeal.

On the morning of July 17, 2004, Darius Davis, known as Kojak, had his hair cut by Bowman "Bomber" Caldwell at Bombers Unisex Salon on South 8th Street in Newark. Willard Lester was in the shop at the same time, as were several other people, including Idrissa Wilson and two young girls about eight or nine years old. After Bomber Caldwell cut Kojak's hair, Kojak went into the bathroom. A man described as a light-skinned black man, identified by Caldwell and Lester as defendant, entered the

shop looking for Kojak. Informed that he was in the bathroom, defendant went to find Kojak. Caldwell and Idrissa Wilson heard defendant tell Kojak they had something to talk about and the two men left the shop, although Wilson was unable to identify defendant as the man that left the shop with Kojak.



Within minutes, Lester, who was sitting near the door and front window, exclaimed that Kojak had been or was in the course of being shot. Lester described Kojak walking up the street trying to return to Bomber's shop. As he reached the top step, Kojak collapsed. Bomber Caldwell did not witness the shooting or Kojak's progress up the street. When he heard Lester exclaim that Kojak had been shot, he hurried to put the young girls in a back room away from harm. Then, he tried to call for an ambulance. He encountered the victim as he reached the top step and porch of his shop.



Kojak was pronounced dead at the hospital. The medical examiner, Dr. Wayne Wilson, testified that the victim died of four perforating gunshot wounds: one in and out of his right shoulder; two in and out of his right chest; and one in the lower left side of his back. All entered through the back and exited through the front of the body. . . . The medical examiner opined that the victim may have been slightly bent over when the bullet in the left lower back entered his body. He was not shot at close range. The muzzle of the gun was no less than eighteen inches to two feet from the victim when the shots were fired. The medical examiner could not determine the farthest distance between the muzzle of the gun and the victim when the shots were fired.



Detectives at the crime scene were able to determine that six shots were fired. Two shots were fired into the victim's truck from the passenger side of defendant's vehicle. None of those shots struck the victim. The other four shots struck the victim in the back as he left the area of his truck and tried to flee in the direction of Bomber Caldwell's shop. Ballistic examination of the bullets confirmed that all of the shots were fired from a single gun.



The crime scene observations of the detectives confirmed Lester's July 14 and August 6 statements and his grand jury testimony, except that Lester stated at one time that defendant fired at Kojak from the driver's side of the truck. In his statements and in his grand jury testimony, Lester also stated that Kojak and defendant left the shop together and that he saw defendant fire at least six shots. He also testified that he observed defendant walk calmly across the street, enter a black sport car, and slowly drive away from the scene. He also provided detectives with a partial license plate number. Neither the car nor the gun were ever located.



At trial, Lester was less forthcoming. He testified that Kojak was in Bomber's shop and that he saw defendant enter the shop. He testified that he did not hear defendant state that Kojak and he needed to talk. He related that both left the shop but not together. Lester testified that he did not see the two men meet until they were further down the street and close to the victim's truck. He did identify defendant, however, as the shooter. As a result of the inconsistencies in Lester's testimony, after a Gross hearing, the trial judge permitted several portions of Lester's July and August statements to be introduced in evidence.



Following the disposition of defendant's direct appeal,

defendant filed a PCR petition and was assigned counsel. In support

of the petition defendant argued:

POINT I



AN EVIDENTIARY HEARING SHOULD BE GRANTED TO PETITIONER TO PRESENT HIS PCR CLAIMS.



POINT II



PETITIONER WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL GUARANTEED HIM BY THE UNITED STATES AND NEW JERSEY CONSTITUTIONS.



A. FAILURE TO NOTIFY PETITIONER THAT HE FACED A MINIMUM SENTENCE OF THIRTY (30) YEARS WITHOUT PAROLE IF CONVICTED AT TRIAL.



B. FAILURE TO CALL A CERTAIN WITNESS.



C. FAILURE OF DEFENSE COUNSEL TO OBJECT TO THE IN COURT AND OUT OF COURT IDENTIFICATION BY MR. LESTER BY THE POLICE.



D. FAILURE TO MEMORIALIZE THE PRE-TRIAL INTERVIEW OF MR. CALDWELL.



E. FAILURE TO REQUEST THE VOIR DIRE OF JUROR, MR. ELPHICK.



F. FAILURE OF DEFENSE COUNSEL TO OBJECT TO ALL IMPROPER AND PREJUDICIAL REMARKS MADE BY THE PROSECUTOR DURING HIS SUMMATION.



G. FAILURE TO ADEQUATELY EXPLAIN TO PETITIONER THE RAMIFICATIONS OF NOT TESTIFYING ON [HIS] OWN BEHALF.



H. PREJUDICE.





POINT III



THE AGGREGATE ERRORS DENIED DEFENDANT A FAIR TRIAL. . . .



The PCR court conducted an evidentiary hearing during which

defendant's trial counsel was the sole witness. The court denied

the PCR petition, determined trial counsel was a credible witness,

made findings of fact, and determined defendant failed to prove

counsel was ineffective. The court also concluded defendant failed

to establish that there was a reasonable probability that but for

trial counsel's purported errors, the result of the trial would

have been different. The court entered an order denying defendant's

PCR petition. This appeal followed.

On appeal, defendant makes the following arguments:

THE TRIAL COURT ERRED IN DENYING MCCRIMMON'S PETITION FOR POST-CONVICTION RELIEF DESPITE THE FACT THAT MCCRIMMON DEMONSTRATES A PRIMA FACIE CASE OF INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL.



A. Trial Counsel Was Ineffective When He Failed to Notify McCrimmon That He Faced A Minimum Sentence of Thirty Years Without Parole If Convicted At Trial.



B. Trial Counsel Was Ineffective When He Failed To Call Important Witnesses At Trial Who Would Have Benefitted The Defense.



C. Trial Counsel Was Ineffective When He Failed To Object To Lester's In-Court and Outof-Court Identification of McCrimmon To The Police.





D. Trial Counsel Was Ineffective When He Failed To Memorialize His Pre-Trial Interview of Caldwell.



E. Trial Counsel Was Ineffective When He Failed To Object to All Improper and Prejudicial Remarks Made By The Prosecutor During His Summation.



F. Trial Counsel Was Ineffective When He Failed to Adequately Explain to McCrimmon The Ramifications of Not Testifying At Trial.



Defendant further argues the following points in his pro se

supplemental brief:

POINT ONE



TRIAL COUNSEL WAS INEFFECTIVE WHEN HE FAILED TO NOTIFY MCCRIMMON THAT HE FACED A MINIMUM OF THIRTY YEARS WITHOUT PAROLE IF CONVICTED AT TRIAL.



POINT TWO



THE COURT SHOULD REMAND THIS CASE FOR A COMPLETE EVIDENTIARY HEARING BECAUSE DEFENDANT DID NOT TESTIFY AT THE FIRST HEARING WHICH DEPRIVED THE JUDGE THE OPPORTUNITY TO WEIGH DEFENDANT'S CREDIBILITY (Not raised below)[.]



II.

The Sixth Amendment to the United States Constitution and

Article I, Paragraph 10 of the New Jersey Constitution guarantee

a defendant in a criminal proceeding the right to the assistance

of counsel. State v. Nash, 212 N.J. 518, 541 (2013). This right

includes "the right to the effective assistance of counsel." Ibid.



(quoting Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct.

2052, 2063, 80 L. Ed. 2d 674, 692 (1984)).

The Court established a two-part test in Strickland, later

adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58

(1987), to determine whether a defendant has been deprived of the

effective assistance of counsel. Strickland, supra, 466 U.S. at

687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. Under the first

prong of this test, a petitioner must show that counsel's

performance was deficient by demonstrating that counsel's handling

of the matter "fell below an objective standard of reasonableness"

and that "counsel made errors so serious that counsel was not

functioning as the 'counsel' guaranteed the defendant by the Sixth

Amendment." Id. at 687-88, 104 S. Ct. at 2064, 80 L. Ed. 2d at

693.

"The first prong of the test is satisfied by a showing that

counsel's acts or omissions fell outside the wide range of

professionally competent assistance considered in light of all the

circumstances of the case." State v. Allegro, 193 N.J. 352, 366

(2008) (quoting State v. Castagna, 187 N.J. 293, 314 (2006)).

"[T]here is 'a strong presumption that counsel's conduct falls

within the wide range of reasonable professional assistance.'"

Castagna, supra, 187 N.J. at 314 (quoting Strickland, supra, 466

U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694).



Under the second prong, a defendant "must show that the

deficient performance prejudiced the defense." Strickland, supra,

466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. That is,

there must be a "reasonable probability that, but for counsel's

unprofessional errors, the result of the proceeding would have

been different." Id. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at

698. "The error committed must be so serious as to undermine the

court's confidence in the jury's verdict or the result

reached." Castagna, supra, 187 N.J. at 315.

"Thus, in order to sustain a claim of ineffective assistance

of counsel, two separate elements must coalesce: a defendant must

prove an objectively deficient performance by defense

counsel, and that such deficient performance so inured to the

defendant's prejudice that it is reasonably probable that the

result would be altered." Allegro, supra, 193 N.J. at 366. "With

respect to both prongs of the Strickland test, a defendant

asserting ineffective assistance of counsel on PCR bears the burden

of proving his or her right to relief by a preponderance of the

evidence." State v. Gaitan, 209 N.J. 339, 350 (2012), cert. denied,

___ U.S. ___, 133 S. Ct. 1454, 185 L. Ed. 2d 361 (2013). A failure

to satisfy either prong of the Strickland standard requires the

denial of a petition for PCR. Strickland, supra, 466 U.S. at 700,

104 S. Ct. at 2071, 80 L. Ed. 2d at 702; Nash, supra, 212 N.J. at

542; Fritz, supra, 105 N.J. at 52.

Our review of a PCR's court's decision after an evidentiary

hearing "is necessarily deferential to [the] court's factual

findings based on its review of live witness testimony." Nash,

supra, 212 N.J. at 540. We review any legal conclusions of the

trial court de novo. Id. at 540-41. We also apply a de novo

standard of review to mixed questions of fact and law. State v.

Harris, 181 N.J. 391, 419 (2004), cert. denied, 545 U.S. 1145, 125

S. Ct. 2973, 162 L. Ed. 2d 898 (2005).

A.

Defendant first argues the PCR court erred by rejecting his

claim that his trial counsel was ineffective by failing to inform

him that he was exposed to a minimum sentence of thirty years

without parole if convicted of murder at trial. See N.J.S.A. 2C:11

3(b)(1). Defendant argues that if he had been so advised, he would

have accepted the State's plea offer and not gone to trial.

"A defendant . . . has 'the ultimate authority' to determine

'whether to plead guilty, waive a jury, testify in his or her own

behalf, or take an appeal.'" Florida v. Nixon, 543 U.S. 175, 187,

125 S. Ct. 551, 560, 160 L. Ed. 2d 565, 578 (2004) (quoting

Jones v. Barnes, 463 U.S. 745, 751, 103 S. Ct. 3308, 3312, 77 L.

Ed. 2d 987, 993 (1983); Wainwright v. Sykes, 433 U.S. 72, 93, n.



1, 97 S. Ct. 2497, 53 L. Ed. 2d 594 (1977) (Burger, C.J.,

concurring)). "Concerning those decisions, an attorney must both

consult with the defendant and obtain consent to the recommended

course of action." Ibid.

If a defendant alleges prejudice based on allegedly

ineffective advice that led the rejection of a plea offer,

a defendant must show that but for the ineffective advice of counsel there is a reasonable probability that the plea offer would have been presented to the court (i.e., that the defendant would have accepted the plea and the prosecution would not have withdrawn it in light of intervening circumstances), that the court would have accepted its terms, and that the conviction or sentence, or both, under the offer's terms would have been less severe than under the judgment and sentence that in fact were imposed.



In sum, a defendant must show "a reasonable probability that but

for counsel's errors he would have accepted the plea." Id. at 171,

132 S. Ct. at 1389, 182 L. Ed. 2d at 412.

We are satisfied the court correctly rejected defendant's

claim that his attorney was ineffective by failing to advise him

of his minimum sentencing exposure if convicted at trial. The

record supports the court's factual determination that trial

counsel discussed defendant's minimum sentencing exposure during

their discussion of the State's pre-trial plea offer, and there

was no evidence presented to the contrary.

Trial counsel testified he had a discussion with defendant

about a plea offer from the State that included a sentencing

recommendation of less than ten years. Counsel and defendant

discussed the plea offer and whether defendant wanted to accept

the offer or proceed to trial. Although counsel did not have a

specific recollection discussing the minimum sentence with

defendant, counsel testified the minimum sentence "came up at the

time that [the State] made the [plea] offer," he could not

"conceive of" not telling defendant about his minimum sentencing

exposure, and he "would have done it at some point."

Accordingly, the record supports the PCR court's conclusion

that trial counsel advised defendant of his minimum sentencing

exposure if convicted at trial. The court credited trial counsel's

testimony that he would have told defendant about the offer and

the thirty-year minimum exposure with a trial, and compared the

two options because "it was his practice to do so," and we defer

to the court's fact-finding. Nash, supra, 212 N.J. at 540. Thus,

defendant did not satisfy his burden of proving by a preponderance

of the evidence that his counsel's performance was deficient under

the first prong of the Strickland standard.



Moreover, defendant failed to present any evidence showing

that if he had been advised of his minimum sentencing exposure,

there is a reasonable probability he would have accepted the

State's plea offer. Lafler, supra, 566 U.S. at 171, 132 S. Ct. at

1389, 182 L. Ed. 2d at 412. Defendant therefore failed to show

he suffered any prejudice as a result of trial counsel's alleged

error.

Because defendant failed to satisfy his burden under the

Strickland standard, the court correctly rejected his claim that

his counsel was constitutionally ineffective by allegedly failing

to advise defendant of his minimum sentencing exposure if convicted

after trial. Strickland, supra, 466 U.S. at 700, 104 S. Ct. at

2071, 80 L. Ed. 2d at 702; Nash, supra, 212 N.J. at 542; Fritz,

supra, 105 N.J. at 52.

B.

Defendant next argues the PCR court erred by rejecting his

claim that his trial counsel was ineffective by failing to call

Kevin Ford as a witness at trial. Defendant argues Ford would have

testified that Lester had a substance abuse problem and was

intoxicated at the time he said he witnessed defendant shoot the

victim.

When a defendant asserts that his attorney failed to call

exculpatory witnesses, "he must assert the facts that would have

been revealed, 'supported by affidavits or certifications based

upon the personal knowledge of the affiant or the person making

the certification.'" State v. Petrozelli, 351 N.J. Super. 14, 23

(App. Div. 2002) (quoting State v. Cummings, 321 N.J. Super. 154,

170 (App. Div.), certif. denied, 162 N.J. 199 (1999)); see also

R. 3:22-10(c).

"Determining which witnesses to call to the stand is one of

the most difficult strategic decisions that any trial attorney

must confront." State v. Arthur, 184 N.J. 307, 320 (2005).

A trial attorney must consider what testimony a witness can be expected to give, whether the witness's testimony will be subject to effective impeachment by prior inconsistent statements or other means, whether the witness is likely to contradict the testimony of other witnesses the attorney intends to present and thereby undermine their credibility, whether the trier of fact is likely to find the witness credible, and a variety of other tangible and intangible factors. Therefore, like other aspects of trial representation, a defense attorney's decision concerning which witnesses to call to the stand is "an art," and a court's review of such a decision should be "highly deferential."





The evidence showed that trial counsel's private investigator

interviewed Ford prior to trial. Ford stated he knew Lester for

over thirty years and had seen Lester drinking alcohol "on the

street all the time," using drugs two to three times a day during

the previous two years, and last saw Lester buying drugs the day

before the murder. Ford, however, did not have any knowledge that

Lester used drugs or alcohol on the day of the murder.

Trial counsel testified that he thought Ford could not

establish Lester was under the influence of drugs on the day of

the murder because Ford did not have any knowledge that Lester

used drugs that day. The PCR court determined trial counsel's

decision not to call Ford was a strategic decision, and that

defendant failed to demonstrate that his counsel's decision

resulted in any prejudice.

Trial counsel attempted to elicit testimony concerning

Lester's prior drug use from Bowman Caldwell, who testified during

a N.J.R.E. 104 hearing that he had seen Lester drunk and high

prior to the day of the murder. Caldwell, however, did not know

the last time Lester used drugs prior to the murder and could not

testify if Lester was under the influence of drugs at the time the

murder was committed. The trial judge excluded the testimony

finding it failed to establish a basis to impeach Lester's

testimony "as to his observations and [the] clarity of his mind

on the date" of the murder.

Ford's putative testimony was substantially similar to

Caldwell's testimony that the court ruled was inadmissible. Like

Caldwell, Ford had no knowledge Lester used drugs on the day of

the murder or was under the influence of drugs at the time he

observed the commission of the murder. The trial judge's exclusion

of the Caldwell's testimony concerning Lester's alleged drug use

was not challenged on defendant's direct appeal, McCrimmon, supra,

slip op. at 5-7, and it could be reasonably anticipated Ford's

testimony would be ruled inadmissble for the same reason Caldwell's

testimony was excluded – a lack of any knowledge that Lester was

under the influence of drugs at the time he observed the murder.

Trial counsel's performance was not deficient by failing to

introduce evidence the trial court would have rejected as

inadmissible. See State v. Worlock, 117 N.J. 596, 625 (1990) ("The

failure to raise unsuccessful legal arguments does not constitute

ineffective assistance of counsel.").

Even assuming trial counsel should have attempted to present

Ford's testimony, the record supports the court's determination

that defendant failed to prove that there is a reasonable

probability that had Ford testified the result of the trial would

have been different. Strickland, supra, 466 U.S. at 694, 104 S.

Ct. at 2068, 80 L. Ed. 2d at 698.

Any claim Lester's ability to perceive and relate the events

was adversely affected by any purported drug use is belied by the

trial record. Caldwell testified defendant entered the barbershop,

asked for the victim, Davis,1 told Davis they needed to talk, and

left with Davis. Caldwell also testified Lester was present in

the barbershop when defendant and Davis left, and "[w]ithin

minutes" after their departure Lester exclaimed that Davis was

being shot outside. McCrimmon, supra, slip op. at 3. Caldwell

further testified that Lester said Davis was shot by the person

with whom Davis left the barbershop, who was later identified by

Caldwell and Lester as defendant. Moreover, Lester's statements

to the police following the incident were consistent with the

victim's injuries and the physical evidence recovered by the police

at the scene. McCrimmon, supra, slip op. at 4-5.

Defendant's trial counsel was not constitutionally

ineffective by failing to call witnesses at a hearing whose

testimony would not change the outcome. State v. Bey, 161 N.J.

233, 262 (1999), cert. denied, 530 U.S. 1245, 120 S. Ct. 2693, 147

L. Ed. 2d 964 (2000). The PCR court correctly concluded defendant

failed to sustain his burden of demonstrating otherwise.

C.

Defendant also argues the PCR court erred by rejecting his

contention that trial counsel was ineffective because he failed

to challenge Lester's in-court and out-of-court identification of

defendant. The PCR court noted that there was conflicting evidence

in the trial record as to whether Lester knew defendant prior to

the murder, but the court rejected defendant's claim because he

failed demonstrate any "impermissible suggestiveness" that would

have supported the suppression of Lester's out-of-court

identification.

The admissibility of Lester's out-of-court identification of

defendant is governed by the standards established by the United

States Supreme Court in Manson v. Brathwaite, 432 U.S. 98, 97 S.

Ct. 2243, 53 L. Ed. 2d 140 (1977), as adopted by our Supreme Court

in State v. Madison, 109 N.J. 223 (1988).2 The Manson/Madison

standard required a two step analysis:

[A] court must first decide whether the procedure in question was in fact impermissibly suggestive. If the court does find the procedure impermissibly suggestive, it must then decide whether the objectionable procedure resulted in a "very substantial likelihood of irreparable misidentification." In carrying out the second part of the analysis, the court will focus on the reliability of the identification. If the court finds that the identification is reliable despite the impermissibly suggestive nature of the procedure, the identification may be admitted into evidence.



In order to obtain a hearing on the admissibility of an

identification, a defendant is required to show "some evidence of

impermissible suggestiveness." State v. Rodriquez, 264 N.J. Super.

261, 269 (App. Div. 1993), aff'd o.b., 135 N.J. 3 (1994). If the

court determines at the hearing that the identification procedure

"was in fact impermissibly suggestive," it must then consider the

reliability of the identification. Madison, supra, 109 N.J. at

232.

The reliability of an identification was dependent on a

consideration of five factors: (1) the "opportunity of the witness

to view the criminal at the time of the crime"; (2) "the witness's

degree of attention"; (3) "the accuracy of his [or her] prior

description of the criminal"; (4) "the level of certainty

demonstrated at the time of the confrontation"; and (5) "the time

between the crime and the confrontation." Id. at 239-40 (quoting

Manson, supra, 432 U.S. at 114, 97 S. Ct. at 2253, 53 L. Ed. 2d

at 154). The factors "must be weighed against the corrupting effect

of the suggestive procedure." Id. at 240.

Here, defendant failed to present any evidence that Lester's

out-of-court identification was the result of any impermissible

suggestiveness. In contrast, Lester testified he was shown six

pictures, told to pick out a picture if he recognized the person

he described as the shooter, and then selected defendant's picture.

He testified he was not threatened or coerced and was not told to

select a certain picture.

Accordingly, trial counsel's failure to challenge Lester's

out-of-court identification of defendant did not "[fall] outside

the wide range of professionally competent assistance considered

in light of all the circumstances of the case," Allegro, supra,

193 N.J. at 366, because there was no basis to challenge Lester's

out-of-court or in-court identification of defendant. In addition,

defendant failed to show a "reasonable probability that, but for

counsel's unprofessional errors, the result of the proceeding

would have been different." Strickland, supra, 466 U.S. at 694,

104 S. Ct. at 2068, 80 L. Ed. 2d at 698. "The failure to raise

unsuccessful legal arguments does not constitute ineffective

assistance of counsel." Worlock, supra, 117 N.J. at 625; see also

State v. O'Neal, 190 N.J. 601, 619 (2007) (holding that counsel

was not ineffective by failing to file a meritless motion).

D.

We also reject defendant's contention that his trial counsel

was ineffective by failing to memorialize a pre-trial interview

he conducted of Caldwell. Defendant argues that Caldwell said in

the interview that Lester was "high on a daily basis," but

testified at trial that Lester "was not high that day or week,"

and that had trial counsel memorialized the interview, trial

counsel could have confronted Caldwell with this contradictory

statement.

At the PCR hearing, however, trial counsel testified that he

interviewed Caldwell, who said Lester consistently used drugs but

could not testify that Lester used drugs on the day of the

shooting. Trial counsel also explained he did not memorialize the

statement because he did not want supply a document to the State

that could be used to cross-examine Caldwell.

There was no evidence presented supporting defendant's

contention that Caldwell said in the interview that Lester was

"high on a daily basis." Trial counsel, who conducted the

interview, did not testify Caldwell made the statement and

defendant presented no affirmative evidence that Caldwell made

such a statement during trial counsel's interview. In addition,

as the PCR court correctly found, trial counsel made a strategic

decision not to create a document that could be used by the State

to cross-examine Caldwell, and thus, defendant failed to show his

counsel's decision "fell outside the wide range of professionally

competent assistance considered in light of all the circumstances

of the case." Allegro, supra, 193 N.J. at 366. Last, defendant

failed to show a "reasonable probability that, but for counsel's

unprofessional errors, the result of the proceeding would have

been different." Strickland, supra, 466 U.S. at 694, 104 S. Ct.

at 2068, 80 L. Ed. 2d at 698.

E.

Defendant argues trial counsel was ineffective by failing to

object to certain alleged improper and prejudicial remarks made

by the prosecutor during summation.3 Defendant argues "[h]ad trial

counsel objected to the improper comments made by the prosecutor,

the standard of appellate review [on these issues] would not have

been plain error" on appeal.

We reject defendant's contention because even assuming his

counsel erred by failing to object to certain of the prosecutor's

statements, defendant did not prove prejudice under the Strickland

standard. Defendant correctly argues that trial counsel's failure

to object resulted in the appellate review of the prosecutor's

statements under the plain error standard instead of the harmless

error standard. See R. 2:10-2.



Application of the plain error and harmless error rules

require an identical determination of whether the error is "clearly

capable of producing an unjust result." R. 2:10-2. Our Supreme

Court has "made clear that '[a]ny error or omission shall be

disregarded by the appellate court unless it is of such a nature.'"

State v. Colbert, 190 N.J. 14, 30 (2007) (quoting R. 2:10-2). The

Court explained:

[t]he use with respect to 'harmless error' of the same formula we had stated for 'plain error' was simply an acknowledgment that after all was said, the question for the appellate court was simply whether in all the circumstances there was a reasonable doubt as to whether the error denied a fair trial and a fair decision on the merits . . . .



[Id. at 30-31 (quoting State v. Macon, 57 N.J. 325, 338 (1971)).]



Thus, application of the plain error standard did not result

in any prejudice to defendant in our review of defendant's

challenge to the prosecutor's statements on direct appeal. In

addition, we found that the prosecutor's statements were not

improper and did not deprive defendant of his right to a fair

trial. McCrimmon, supra, slip op. at 9-29. Again, defendant's

failure to establish by a preponderance of the evidence that there

is a reasonable probability he suffered any prejudice as the result

of his counsel's purported errors required the court's rejection

of his claim. Strickland, supra, 466 U.S. at 687, 104 S. Ct. at

2064, 80 L. Ed. 2d at 693.

F.

We also reject defendant's contention the PCR court erred by

rejecting his claim that his trial counsel failed to adequately

explain the ramifications of his decision not to testify at trial.

Trial counsel's testimony, which the court found credible,

provides ample support for the PCR court's finding that counsel

discussed with defendant the potential ramifications of

defendant's decision not to testify. There is no evidence to the

contrary. As a result, defendant did not prove his counsel's

performance was deficient.

Moreover, the trial record shows that the court questioned

defendant concerning his decision not to testify. Defendant stated

he did not wish to testify, he had sufficient time to consider his

decision, and he made that decision of his own free will.

Defendant also failed to present any evidence that had his attorney

fully informed him concerning the ramifications of his decision

not to testify, he would have opted to waive his right to remain

silent and testified at trial. Again, defendant failed to prove

either prong of the Strickland standard. The court therefore

correctly rejected his claim. Id. at 687-88, 104 S. Ct. at 2064,



Any arguments made by defendant that have not be addressed

are without sufficient merit to warrant discussion in a written

opinion, R. 2:11-3(e)(2). We note only that defendant offers no

basis supporting his request for a remand to the PCR court to

provide him with the opportunity to testify.