NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

PER CURIAM.

The State appeals from an order granting defendant Jeffrey Ayers post-conviction relief (PCR) on the basis that his defense counsel rendered ineffective assistance when she failed to apprise defendant of the consequences of waiving his right to testify at trial. Defendant was convicted of charges that included murder, felony murder, armed robbery, and conspiracy to commit robbery, following a jury trial presided over by Judge Garry J. Furnari. He subsequently filed a PCR petition. A different judge held an evidentiary hearing on defendant's PCR petition, and concluded that counsel's failure to properly advise defendant amounted to constitutionally deficient representation, entitling defendant to a new trial. The PCR court granted the State's application for a stay and this appeal followed.

On appeal, the State argues that the PCR court "erred in presuming ineffectiveness [of counsel and in] presuming prejudice." Defendant disagrees and argues that the trial record and the PCR hearing record supported the PCR court's decision. We have considered these arguments after a careful review of the record, and conclude that we agree with the PCR court's decision that counsel failed to adequately advise defendant of the consequences of waiving his right to testify at trial; but we find no evidence, under the second prong of the Strickland/Fritz1 test, that the deficiency prejudiced defendant's right to a fair trial. Accordingly, we reverse the PCR court's granting of relief to defendant and reinstate his conviction and sentence.

I.

A.

On September 28, 2007, an Essex County grand jury returned an indictment charging defendant with first-degree purposeful or knowing murder, N.J.S.A. 2C:11-3(a)(1),-3(a)(2) (count one); first-degree felony murder, N.J.S.A. 2C:11-3(a)(3) (count two); first-degree armed robbery, N.J.S.A. 2C:15-1 (count three); third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b) (count four); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count five); and conspiracy to commit robbery, N.J.S.A. 2C:5-2, 15-1 (count six). At the conclusion of defendant's trial, a jury convicted defendant of all charges. Judge Furnari subsequently sentenced defendant to an aggregate term of thirty-five years imprisonment, subject to parole ineligibility for eighty-five percent of his term, and imposed applicable fines and penalties. Defendant appealed and we affirmed his convictions and sentences. State v. Ayers, No. A-0372-09 (App. Div. May 20, 2011). The Supreme Court later denied defendant's petition for certification. State v. Ayers, 208 N.J. 598 (2011).

B.2

Defendant's conviction arose from events that occurred on the evening of February 28, 2007, when Quenting Scott Lacewell was shot near Fifteenth Avenue and Bruce Street in Newark. Shortly after the shooting occurred, William Rowe, an off-duty East Orange police officer happened upon Lacewell, and stopped to give assistance. Before Lacewell died, he twice told the officer that "Al-Barr's son," a person other than defendant, had shot him. However, the police located two eyewitnesses, Jocelyn Brooks and Rosalyn Williams, who both identified defendant, and not "Al-Barr's son," as the shooter. The State also presented evidence that, shortly after the shooting, defendant was in possession of the victim's cell phone and allowed a friend to make calls from that phone.

Earlier that same evening, some time between 9:30 p.m. and 10:00 p.m., Lacewell, Brooks, and Williams were together in a car as Lacewell drove Brooks back to her home. According to Brooks, shortly after they arrived at her home, "a couple of [young] guys" between the ages of eighteen and twenty-two approached and stood around Lacewell's parked vehicle. Both Brooks and Williams recognized Al-Barr Edrington and his brother, Al-Meer Edrington, among the group. The Edrington brothers' father was known as Al-Barr, and his son of the same name was sometimes known as "little Al-Barr."

Lacewell had a brief conversation with the group, and then he and Brooks together walked some distance away and purchased cocaine from an unnamed person. Williams remained in the car. As the two began to walk back to the car, Brooks stated that "a tall, thin, dark-skinned man" wearing a black hoodie tied tight to his face approached Lacewell, brandishing a gun. He demanded that Lacewell give him "whatever he had." At trial, both Brooks and Williams apparently testified that they believed this man to be defendant, but Brooks also conceded that she was not "100 percent sure."

According to Brooks and Williams, after confronting Lacewell outside the car, the gunman dragged Lacewell into an alleyway. Lacewell "sounded scared" and asked, "Why are you doing this?" Meanwhile, Williams exited the car and witnessed Lacewell breaking away from the gunman and running out of the alley towards Fifteenth Avenue. The gunman then chased Lacewell and tripped him. According to Williams, when Lacewell fell, the gunman stood over him, pointed the gun at him, and attempted to shoot. The gun, however, did not fire. Lacewell then got up and started running again, with the gunman giving chase. Williams and Brooks then heard "at least" three gun shots, followed by a "holler" from Lacewell.

Both women ran to the back entrance of Brooks' apartment. As they headed for the steps to the apartment, Williams, who was approximately thirty-five feet from the gunman, saw him running past Brooks' apartment, down Fifteenth Avenue. The two women entered Brooks' apartment, and about fifteen minutes later, Williams went home. Neither Brooks nor Williams called the police.

At approximately 11:00 p.m., Officer Rowe was driving eastbound on Springfield Avenue towards downtown Newark. He saw Lacewell lying in the road, thought he had been hit by a car, and approached him. Lacewell told Rowe that "he had been shot two or three times in the side and the back." Rowe asked Lacewell who had shot him, to which Lacewell replied, "Al-Barr's son." Lacewell subsequently died from "a gunshot wound to the back," which perforated an artery in his upper right arm.

Newark police officers arrived at the scene minutes later. Detectives Richard Warren, of the Newark Police Department, and Steve Roberts, of the Essex County Prosecutor's Office, also responded to the scene. Roberts saw a blood trail beginning at Fifteenth Avenue and Bruce Street. Also on Bruce Street, Roberts found five spent bullet shell casings "spaced apart" and "a live round" of ammunition. A ballistics analysis of the spent shell casings concluded that all five bullets were fired from the same.40 caliber handgun, and the live round of unfired ammunition was most likely for the same weapon.

At defendant's trial, the State presented testimony from several witnesses, including Brooks and Williams. Brooks, who knew and liked defendant and lived in his neighborhood, was equivocal in her trial testimony. On the other hand, Williams, who lived elsewhere and had never seen defendant before the night of the shooting, testified without hesitation that defendant was the shooter. Williams, who knew Al-Barr and his son, "little Al-Barr," also testified unequivocally that Al-Barr's son was not the person who shot Lacewell.

Crucially, the State introduced evidence that police officers recovered the victim's cell phone from defendant following the shooting. To support this claim, the State introduced Jaquetta Britton as a witness. She explained that some time after 10:30 p.m. on the night of the shooting, defendant arrived at Britton's aunt's apartment on Bedford Street. Britton asked to use a cell phone that defendant was holding in his hand, and defendant let her use it. While Britton had the phone, it received incoming calls that the caller ID feature identified as "wifey." Although defendant told Britton not to answer the phone, she answered it once, but hung up. The State introduced evidence that the caller was Lacewell's wife, and that the phone belonged to Lacewell.

Defendant presented the testimony of a witnesses to support his defense of mistaken identity — that one of Al-Barr's sons, and not defendant, was the shooter. To this end, defendant presented one of his friends, Darnell Bronson, as an alibi witness, who testified that defendant was with him at the time of the shooting.3 Defendant also presented character witness testimony from two of his former high school football coaches and teachers. One former coach described defendant as a peaceful, law-abiding, non-violent, good young man who was trying to get a football scholarship for college. The other coach, who also taught defendant physical education and health, likewise described him as peaceful, law-abiding, and non-violent.

Defendant chose to not testify at trial. Judge Furnari carefully questioned defendant to determine defendant's understanding of that decision:

C.

In his certification filed in support of his PCR petition, defendant stated that his trial counsel "coerc[ed him] into not testifying [and h]ad [he] testified, [he] would have been acquitted of all charges." However, he did not disclose any facts to which he would have testified.

His trial counsel filed a certification that stated,

At defendant's later PCR hearing, both defendant and his trial counsel testified. Defendant spoke first about wanting to testify at trial:

Absent from defendant's direct examination was any description of what his testimony would have been, other than corroborating his alibi witness' testimony. Defendant never mentioned anything about how he acquired the victim's cell phone.

On cross-examination, the prosecutor reviewed defendant's answers to Judge Furnari's questions when the judge conducted voir dire to confirm defendant's understanding of his decision to not testify:

On direct examination, defendant's trial counsel testified that defendant did not want to testify at trial::

The PCR judge also questioned trial counsel about her representation of defendant in his decision to not testify at trial:

After considering the testimony adduced at the PCR hearing, the judge issued a written opinion on September 24, 2013 granting defendant's petition. Specifically, the judge explained that she did not find trial counsel's testimony credible.

The PCR judge also discussed defendant's testimony, highlighting salient facts including defendant's otherwise clean criminal record; his asking defense counsel, "When is it going to be our turn?" during the trial; his intention to have given substantially the same account as his alibi witness had he testified; and his reliance on his defense counsel's advice to not take the stand, "because she was the professional."

The PCR judge also considered the State's alternative argument that, even if trial counsel rendered ineffective assistance, Judge Furnari's explicit instructions to defendant during voir dire ameliorated that deficiency, based on State v. Ball, 381 N.J.Super. 545, 557 (App. Div. 2005). The PCR judge, however, rejected this argument and stated only that:

Consequently, the court found that defendant's trial counsel rendered deficient representation, as she had not "made [defendant] fully aware of his right to testify and the consequences of testifying or not testifying." It also found "that there is nothing in the record to suggest that [defendant] freely waived his right to testify." The PCR judge, however, did not analyze or make any findings regarding whether trial counsel's deficient representation prejudiced defendant's right to a fair trial.

II.

A.

We begin with a review of the well-settled principles that guide our analysis. Claims of ineffective assistance of counsel must satisfy the two-prong test set forth in Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693, as adopted by our Supreme Court in Fritz, supra, 105 N.J. at 52-53. The test requires a showing of deficient performance by counsel, and "`that the deficient performance prejudiced the defense.'" Fritz, supra, 105 N.J. at 52 (quoting Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693).

A petitioner must establish the right to relief by a preponderance of the evidence. State v. Preciose, 129 N.J. 451, 459 (1992) (citing State v. Mitchell, 126 N.J. 565, 579 (1992); State v. Zold, 105 N.J.Super. 194, 203 (Law Div. 1969), aff'd o.b., 110 N.J.Super. 33 (App. Div.), certif. denied, 57 N.J. 131 (1970)). "[B]ald assertions" of ineffective assistance are not enough. State v. Cummings, 321 N.J.Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). A petitioner "must allege facts sufficient to demonstrate counsel's alleged substandard performance," and the court must view the facts alleged in the light most favorable to the petitioner. Ibid. In our review of a PCR court's determination after an evidentiary hearing, "we are not bound by and give no deference to the legal conclusions of the PCR court," but we will not disturb its factual findings if supported by "adequate substantial and credible evidence." State v. Harris, 181 N.J. 391, 415-16 (2004), cert. denied, 545 U.S. 1145, 125 S.Ct. 2973, 162 L. Ed. 2d 898 (2005),

B.

The State argues that defendant failed to meet his burden to prove that his defense counsel's representation was so deficient as to trigger constitutional considerations. Defendant maintains that his counsel did not properly apprise him of either the benefits or detriments of not testifying at trial. He argues that without this advice, he was unable to make an informed decision, and that his election to waive his right to testify was invalid. The PCR court held that defense counsel did indeed render deficient representation because she had not provided defendant with sufficient information to make a knowing waiver of his right to testify. We agree.

To prevail on a claim of ineffective assistance of counsel, a defendant must first 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; Fritz, supra, 105 N.J. at 52. "This requires showing that counsel made errors so serious that counsel was not functioning as the `counsel' guaranteed the defendant by the Sixth Amendment." Strickland, supra, 466 U.S. at 668, 104 S. Ct. at 2064, 80 L. Ed. 2d at 674. "[C]omplaints `merely of matters of trial strategy' will not serve to ground a constitutional claim of inadequacy." Fritz, supra, 105 N.J. at 54 (quoting State v. Williams, 39 N.J. 471, 489, cert. denied, 374 U.S. 855, 83 S.Ct. 1924, 10 L. Ed. 2d 1075 (1963), overruled on other grounds by, State v. Czachor, 82 N.J. 392 (1980)); see also State v. Perry, 124 N.J. 128, 153 (1991).

Counsel's failure to properly advise a defendant about his or her right to testify can give rise to a claim of ineffectiveness of counsel. State v. Savage, 120 N.J. 594, 631 (1990). "It is the responsibility of a defendant's counsel, not the trial court, to advise defendant on whether or not to testify and to explain the tactical advantages and disadvantages of doing so or of not doing so." Bogus, supra, 223 N.J. Super. at 423. "Counsel's responsibility includes advising a defendant of the benefits inherent in exercising that right and the consequences inherent in waiving it." Savage, supra, 120 N.J. at 631.

Here, we are satisfied that defendant met his burden to establish his counsel's substandard performance. During the PCR hearing, defendant testified that he communicated to his trial counsel that he wanted to take the stand and present his account of the events that occurred on the night of the shooting. Defendant stated that he wanted to do this because "he had nothing to hide," and that his testimony would bolster that of his alibi witness, who had previously explained that defendant was not at the scene of the crime. Moreover, when asked why he did not ultimately testify on his own behalf, defendant explained that trial counsel had advised him against doing so. Defendant deferred to her advice "because she was the professional."

The record fails to demonstrate any evidence that trial counsel adequately apprised defendant so that defendant was able to make a knowing waiver of his right to testify on his own behalf. To be sure, factually, there may have been good reasons for trial counsel to advise defendant against testifying. This included not only the fact that she believed his alibi to be of questionable credibility, but also that doing so would have exposed defendant to potentially fatal cross-examination from the prosecutor, who would have questioned defendant why he had the victim's cell phone on his person that night.

Notwithstanding these valid reasons to advise defendant against taking the stand, however, the record is absent of evidence that trial counsel had, at the very least, undertaken efforts to inform defendant of the consequences of exercising his right to testify. Although trial counsel claimed that she asked defendant whether he wanted to testify, she never elaborated about the extent of those conversations, including whether she specifically discussed with him that testifying would open the door to cross-examination about his possession of the victim's cell phone that night.

Accordingly, we believe that counsel rendered inadequate representation to defendant because she failed to sufficiently provide him with information necessary to make a knowing waiver of his right to testify at trial. For these reasons, we find that the PCR court was correct in finding that this omission amounted to deficient representation by counsel.

C.

Having established that trial counsel's performance was deficient, the second prong of the Strickland/Fritz analysis requires a defendant to prove that his counsel's deficient representation prejudiced his defense. Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693; Fritz, supra, 105 N.J. at 52. He must show there is "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.

Prejudice cannot be presumed "except in cases exemplified by egregious shortcomings in the professional performance of counsel." Fritz, supra, 105 N.J. at 61; see also Strickland, supra, 466 U.S. at 690, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695 ("[T]he court should recognize that counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment."). The requirement for proving prejudice applies to a finding that trial counsel did not properly advise defendant regarding his right to testify at trial. State v. Bey, 161 N.J. 233, 271 (1999).

Despite that requirement, the PCR court did not undertake an analysis of the second prong. Following the court's finding of ineffective assistance of defense counsel, it concluded that defendant "did not receive a fair trial," vacated defendant's sentence, and ordered a new trial. The PCR judge's opinion does not mention how defense counsel's ineffective assistance prejudiced defendant. In essence, the opinion presumed that the defense counsel's failure to advise defendant of the consequences of testifying or not was per se prejudicial.

Defendant argues that he was prejudiced by not testifying because he "could only have hoped to obtain a favorable verdict from the jury by testifying himself, since he was the only individual who could have provided an explanation to the jury regarding the circumstances under which he came into possession of the victim's cell phone." (emphasis added). However, defendant never provided that explanation to the PCR court. Without it, there was no proof of any prejudice.

Our review of the record satisfies us that trial counsel's deficient representation did not prejudice defendant's right to a fair trial. The record is unequivocal that defendant's testimony would not have produced any new evidence; instead, it would merely have reiterated the testimony of his alibi witness. Second, had defendant testified, he would have opened the door to potentially devastating cross-examination, which would likely have proven fatal to his defense. Defendant therefore failed to demonstrate that trial counsel's error was "so serious as to undermine the court's confidence in the jury's verdict or the result rendered." State vs. Chew, 179 N.J. 186, 204 (2004) (citing Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698).

Finally, the record indicates that when Judge Furnari conducted his voir dire of defendant, he questioned him about his decision to not testify at trial. It is true that "[i]t is the responsibility of a defendant's counsel, not the trial court, to advise defendant on whether or not to testify and to explain the tactical advantages or disadvantages or doing so or not doing so." Bogus, supra, 223 N.J. Super. at 423. Nevertheless, the our Supreme Court has advised that "the better practice [may be] for a trial court to inquire of counsel whether he or she has advised a defendant ... of his or her right to testify ... [o]r, alternatively, to advise defendant directly." Ball, supra, 381 N.J. Super. at 556 (quoting Savage, supra, 120 N.J. at 631) (internal quotations omitted). "This will best ensure that defendant's constitutional rights are fully protected." Savage, supra, 120 N.J. at 631; see also Ball, supra, 381 N.J. Super. at 557 (finding defendant's case not prejudiced because "regardless of whether defendant was advised by counsel, the trial judge fully explained defendant's right to testify, the possible consequences of his choice and the option to have the jury instructed to draw no inference from defendant's choice not to testify").

We are satisfied that Judge Furnari's questioning provided the additional safeguard necessary to ensure that defendant understood his right to testify, even if counsel advised against him taking the stand. Here, during the voir dire, defendant indicated to Judge Furnari that he understood that his choice to testify at trial was his alone, and neither trial counsel nor the court could prevent him from exercising that right.4 He also indicated that he had ample opportunity to talk with his counsel about that decision to testify, and that he was satisfied to not do so. Judge Furnari gave defendant an option to present the appropriate charge to the jury, which would instruct the jury not to draw adverse inferences based on defendant's decision to not testify and defendant accepted that option himself.

We are satisfied that defendant understood he could testify no matter what his attorney advised. We are equally satisfied that trial counsel did not adequately discuss the ramifications of defendant's options. However, we cannot sustain the PCR's court's decision to vacate defendant's conviction and order a new trial as defendant failed to meet his burden to prove that it was more likely than not that the outcome of his trial would have been different if he had testified.

Reversed. Remanded for reinstatement of defendant's judgment of conviction and sentence.