NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

PER CURIAM.

Defendant Craig O'Reilly appeals from the March 7, 2008 order of the Law Division denying his petition for post-conviction relief (PCR) without an evidentiary hearing. Defendant had asserted, in part, ineffective assistance of trial counsel in failing to obtain psychiatric evaluations and medical records and failing to assert a diminished capacity defense. He also claimed trial counsel was ineffective and the State committed a Brady1 discovery violation by not recovering the video surveillance from the restaurant. We affirm.

Defendant was convicted by a jury of second-degree robbery, N.J.S.A. 2C:15-1. On August 9, 2004, defendant was sentenced by Judge Ravin to an eight-year custodial term, subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.

Defendant filed a direct appeal, challenging his conviction as against the weight of the evidence, asserting ineffective assistance of trial counsel in failing to move for a judgment of acquittal, and challenging his sentence as violative of State v. Natale, 184 N.J. 458 (2005). We affirmed defendant's conviction and rejected his ineffective assistance of counsel claim, but remanded for reconsideration of the sentence pursuant to Natale. State v. O'Reilly, No. A-0459-04T4 (App. Div. Dec. 22, 2005). On February 16, 2006, defendant was re-sentenced to the same term. The Supreme Court denied defendant's petition for certification. State v. O'Reilly, 186 N.J. 257 (2006).

We incorporate by reference the factual history of the case recited at length in our opinion on direct appeal. Suffice it to say that defendant approached Christopher Reeves and the victim, Sheila Darden, in a Royal Fried Chicken restaurant. He first asked Reeves if he wanted to purchase a bike, to which Reeves responded in the negative, and then requested a cigarette from Reeves. Defendant then requested a cigarette from Darden. Defendant observed Darden take money out of her pocket to pay for her food. Reeves and Darden left the restaurant and, as Darden was entering her vehicle, defendant attacked her from behind, reaching his hand into her pocket. Defendant was not successful in stealing Darden's money, however, and dropped a magnetic swipe access card as he fled. The swipe card was eventually traced to defendant. Darden identified defendant in a photo array at headquarters about six weeks after the incident. Reeves also identified defendant at trial. Both witnesses testified that the man who attacked Darden outside the restaurant was the same one who confronted them inside. Both were cross examined at length. Defendant testified at trial, asserting defenses of misidentification and alibi.2

Defendant then filed this first PCR petition. In a pro se submission and that of PCR counsel, defendant asserted as ineffective his trial counsel's cross-examination of the State's witnesses and failure to obtain defendant's mental health records and assert an insanity or diminished capacity defense. He also asserted ineffective assistance by trial counsel and discovery violations by the State in failing to obtain the surveillance video of the restaurant, contending the video would have demonstrated he was not inside the restaurant.

Judge Ravin denied the PCR petition on the papers in a written opinion3 of March 17, 2008. The judge comprehensively addressed and rejected each of defendant's arguments as without substantive merit and provided a detailed explanation as to why none of the issues were sufficient to warrant relief under the applicable law and the two-prong Strickland/Fritz test. See Strickland v. Washington, 466 U.S. 668, 687, 694, 104 S.Ct. 2052, 2064, 2068, 80 L. Ed. 2d 674, 693, 698 (1984) (holding that in order to prevail on a claim of ineffective assistance of counsel, a defendant must meet the two-prong test of establishing both that: (1) counsel's performance was deficient and he or she made errors that were so serious that counsel was not functioning effectively as guaranteed by the Sixth Amendment to the United States Constitution and (2) the defect in performance prejudiced defendant's right to a fair trial such that there exists a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different"). See also State v. Fritz, 105 N.J. 42, 58 (1987) (adopting the Strickland test in New Jersey); State v. Preciose, 129 N.J. 451, 462-63 (1992) (holding that to establish a prima facie claim of ineffectiveness of counsel within the Strickland/Fritz test warranting an evidentiary hearing, a defendant must demonstrate a reasonable likelihood that his or her claim will ultimately succeed on the merits).

In response to defendant's claim that trial counsel was deficient in failing to vigorously cross examine the witnesses, Judge Ravin detailed the cross-examination, made express findings, and concluded that trial counsel did ask "very pointed questions" of both witnesses, attacking their credibility and the accuracy of their identifications. Accordingly, the judge found trial counsel's cross-examination was not deficient and her questions were appropriate. The judge also found defendant failed to meet the second prong of prejudice as it was obvious the jury found the testimony of both witnesses to be more credible than the testimony offered by defendant.

Additionally, Judge Ravin found defendant's challenges respecting the video surveillance tape to be procedurally barred pursuant to Rule 3:22-4, as the issues could have been raised on direct appeal, and were not. He also found defendant failed to set forth any justification under the Rule to overcome the procedural bar. This appeal ensued.

On appeal, defendant renews the bulk of his arguments made to the PCR judge, with the addition of asserting ineffective assistance of PCR counsel. He argues:

Based on our review of the record and applicable law, we are satisfied defendant failed to make a prima facie showing of ineffective assistance of trial or PCR counsel within the Strickland/Fritz test warranting an evidentiary hearing. We are further satisfied defendant's arguments asserting error by trial counsel and the State in not obtaining the restaurant's video surveillance tape and by his trial counsel in not investigating and pursuing a diminished capacity defense are both procedurally barred under Rule 3:22-4. Moreover, they are without substantive merit. As defendant's arguments renewed on appeal were more than adequately addressed by the PCR judge, they do not warrant additional discussion in this opinion. R. 2:113-(e)(2). Accordingly, we affirm substantially for the reasons articulated by Judge Ravin in his thorough written opinion. We add the following brief comments.

Defendant neither makes, nor supports, a claim that the restaurant's video surveillance system would have caught on tape Darden's and Reeves' encounters with the man who approached them inside. Nevertheless, neither trial counsel nor the State was deficient in failing to produce the video. Immediately after the incident, Darden asked an employee for the restaurant surveillance tape but was refused. The responding officer then requested the tape and was told to return the next day to speak with the owner. An investigating officer followed up by calling the restaurant and speaking with an employee who told her the person in charge was not there, further commenting that "the video might not be working." Trial counsel also certified in connection with defendant's PCR that her "investigator was unable to obtain the surveillance tape, having been told by restaurant staff either that it was not extant or no longer available." Clearly, the State did not commit any Brady discovery violations as it could not turn over to the defense evidence it did not possess. Nor could trial counsel be faulted as she made appropriate efforts to obtain the surveillance tape.

Defendant's allegation that his trial and PCR counsel were ineffective for failing to investigate a mental fitness claim is equally without merit. Defendant's purposeful conduct during and immediately after the robbery belied that he was acting with diminished capacity. Neither witness testified as to any apparent mental issues or idiosyncrasies of defendant when he encountered them in the restaurant. Defendant was coherent as he offered to sell a bicycle to one witness and request a cigarette from both witnesses. The facts adduced at trial clearly show defendant acted in a clear and calculating manner as he staked out Darden in the restaurant and ambushed her as she was entering her vehicle.

The trial record also reveals that, on direct, defendant provided detailed testimony about his tattoo and had a precise recollection of events occurring during the early morning of the incident. Defendant also related with specificity his version of his encounter with the witnesses, which he contended was after the robbery as he was looking for his swipe card, upon discovering that morning it had been misplaced. Defendant gave no indication at that time that he wished to discuss any mental impairments or present a psychiatric defense. Rather, defendant testified consistently with his misidentification and alibi defenses. Having failed to assert a claim on direct appeal, defendant now wants a third bite of the apple on PCR.

Additionally, defendant has failed to provide any medical records or expert reports verifying he had a psychiatric condition at the time of the incident sufficient to constitute a defense to the charges. In fact, the evidence is to the contrary. Defendant self-reported in the PSR that his mental health was in poor condition and he was taking medication for dementia and depression. Trial counsel also informed the judge at sentencing that defendant "suffers from what is certainly schizophrenia, undifferentiated type." Nevertheless, trial counsel clearly stated "[i]n no way are we suggesting that his mental health problems had a role in the incident [in question]."

Affirmed.