NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

PER CURIAM.

Defendant Dymill Bryant appeals the Law Division's April 29, 2013 order dismissing his petition for post-conviction relief (PCR). We affirm.

I.

We discern the following facts and procedural history from the record on appeal.

On July 27, 2004, Bryant and another man were involved in a fatal shooting in Camden. Nearly five months later, on November 16, Winslow Township Detective Eric Hollinger went to Bryant's residence to question Bryant about his involvement in an unrelated shooting in Winslow Township. Bryant waived his Miranda1 rights and admitted to Hollinger that he had a.32 caliber Colt semi-automatic pistol hidden beneath a trash bag outside his home. Bryant was arrested the same day.

In April 2005, Bryant was indicted on charges stemming from the Winslow Township shooting. He was charged with five counts: second-degree aggravated assault resulting in serious bodily injury, N.J.S.A. 2C:12-1(b)(1) (count one); fourth-degree aggravated assault with a firearm, N.J.S.A. 2C:12-1(b)(4) (count two); second-degree unlawful possession of a firearm, N.J.S.A. 2C:39-4(a) (count three); third-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b) (count four); and fourth-degree possession of dum-dum bullets, N.J.S.A. 2C:39-3(f) (count five).

On September 26, Bryant accepted the State's plea offer and pled guilty to second-degree aggravated assault. He was sentenced to five years' imprisonment with eighty-five percent parole ineligibility pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2. The remaining charges against him were dismissed at sentencing.

In April 2007, Bryant and the other man were indicted on charges arising from the homicide in Camden. Bryant was charged with first-degree murder, N.J.S.A. 2C:11-3(a)(1)(2) (count one); first-degree attempted murder, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3(a) (count two); second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1) (count three); third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(2) (count four); second-degree possession of a weapon (firearm) for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count five); third-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b) (count six); and two counts of third-degree endangering an injured victim, N.J.S.A. 2C:12-1.2 (counts seven and eight).

In October 2008, following a jury trial, Bryant was convicted of third-degree unlawful possession of a handgun and two counts of endangering an injured victim. He was acquitted of the remaining charges. Bryant was sentenced to imprisonment for five years on the unlawful possession charge and two concurrent five-year terms of imprisonment on the endangering counts, resulting in an aggregate term of ten years' imprisonment, with two years of parole ineligibility stemming from the weapons charge. Bryant appealed and we affirmed. State v. Bryant, A-5752-08 (App. Div. Aug. 12, 2011). The Supreme Court denied certification. State v. Bryant, 210 N.J. 108 (2011).

In June 2012, Bryant filed a pro se PCR petition, which was subsequently supplemented by appointed counsel. Bryant argued that his trial attorney provided ineffective assistance of counsel by failing to move for dismissal of the gun possession charge in the 2007 indictment on double jeopardy grounds because both the 2005 and the 2007 indictments charged him with unlawful possession of the same handgun.

Following oral argument on April 26, 2013, the PCR judge delivered a brief oral decision, stating that he could not "find a lawyer to have acted in violation of the Sixth and Fourteenth Amendment ... for failing to make a motion to the [c]ourt concerning double jeopardy when [such a motion would have] had no support in the law." On April 29, the judge issued a written opinion explaining his reasons for denying relief and dismissing the petition in more detail. The implementing order was entered on the same day. This appeal followed.

II.

Bryant raises the following issue on appeal:

"Post-conviction relief is New Jersey's analogue to the federal writ of habeas corpus." State v. Preciose, 129 N.J. 451, 459 (1992). Under Rule 3:22-2(a), a criminal defendant is entitled to post-conviction relief if there was a "[s]ubstantial denial in the conviction proceedings of defendant's rights under the Constitution of the United States or the Constitution or laws of the State of New Jersey." "A petitioner must establish the right to such relief by a preponderance of the credible evidence." Preciose, supra, 129 N.J. at 459 (citations omitted). "To sustain that burden, specific facts" that "provide the court with an adequate basis on which to rest its decision" must be articulated. State v. Mitchell, 126 N.J. 565, 579 (1992).

Claims of constitutionally ineffective assistance of counsel are well suited for post-conviction review. R. 3:22-4(a)(2); Preciose, supra, 129 N.J. at 460. In determining whether a defendant is entitled to such relief, New Jersey courts apply the test articulated by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 2068, 80 L. Ed. 2d 674, 698 (1984) and United States v. Cronic, 466 U.S. 648, 658-60, 104 S.Ct. 2039, 2046-47, 80 L. Ed. 2d 657, 667-68 (1984). Preciose, supra, 129 N.J. at 463; State v. Fritz, 105 N.J. 42, 49-50 (1987).

Under the first prong of the Strickland test, a "defendant must show that [defense] counsel's performance was deficient." Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. Under the second prong, a defendant must demonstrate "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.

In demonstrating that counsel's performance was deficient under the first prong of Strickland, a defendant must overcome "a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Fritz, supra, 105 N.J. at 52 (quoting Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694) (internal quotation marks omitted). Further, because prejudice is not presumed, in satisfying the second prong, a defendant must typically demonstrate "how specific errors of counsel undermined the reliability of the finding of guilt." Cronic, supra, 466 U.S. at 659 n.26, 104 S. Ct. at 2047, 80 L. Ed. 2d at 668; see also Roe v. Flores-Ortega, 528 U.S. 470, 482, 120 S.Ct. 1029, 1037, 145 L. Ed. 2d 985, 998 (2000). There must be "a probability sufficient to undermine confidence in the outcome." Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698.

Finally, a defendant seeking post-conviction relief is not entitled to an evidentiary hearing unless he presents a prima facie case of ineffective assistance of counsel. Preciose, supra, 129 N.J. at 462-64. "As in a summary judgment motion, courts should view the facts in the light most favorable to a defendant to determine whether a defendant has established a prima facie claim." Id. at 462-63 (emphasis omitted).

Having reviewed the arguments raised by Bryant in light of the record before us, we find them to be without merit and not warranting extended discussion in a written opinion. R. 2:11-3(e)(2). We add only the following.

In State v. Martinez, 387 N.J.Super. 129, 142-43 (App. Div.), certif. denied, 188 N.J. 579 (2006), we observed that

We also noted that, "[i]n the context of multiple prosecutions, [our Supreme] Court has held that the State Constitution provides the same and no greater protection than that of the federal double jeopardy clause." Id. at 144.

Although Bryant was charged with illegal possession of the same gun in both the 2005 and 2007 indictments, he was convicted of that offense only once. The 2005 charge was dismissed after he pled guilty, prior to trial, to the single count of second-degree aggravated assault from the 2005 indictment. Possession of a weapon was not even an element of the 2005 charge to which Bryant pled guilty.2 Consequently, his 2008 conviction for illegally possessing the same gun as was charged in the 2005 indictment was not double jeopardy under the principles outlined in Martinez.

Because a motion to dismiss the 2007 charge on double jeopardy grounds would not have been successful, Bryant's trial counsel did not provide ineffective assistance of counsel by failing to make the motion. Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. And, because Bryant failed to make even a prima facie case of ineffective assistance, the PCR judge's decision not to hold an evidentiary hearing was not error. Preciose, supra, 129 N.J. at 462-64.

Affirmed.