NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

PER CURIAM.

Defendant Edward Kuhn appeals from an order entered by the Law Division on May 31, 2013, denying his petition for post-conviction relief ("PCR"). We affirm.

I.

Defendant was charged under Atlantic County Indictment No. 05-10-2285, with five counts of second-degree attempted luring, N.J.S.A. 2C:13-6 (counts one, five, nine, ten and eleven); three counts of third-degree attempted endangering a child, N.J.S.A. 2C:24-4 (counts two, six and fourteen); three counts of attempted second-degree sexual assault by penetration, N.J.S.A. 2C:14-2c (counts three, seven and twelve); and three counts of fourth-degree attempted criminal sexual contact, N.J.S.A. 2C:14-3b (counts four, eight and thirteen). Defendant was tried before a jury.

At the trial, the State presented evidence which established that, in August of 2004, Investigator Thomas Finan of the Atlantic County Prosecutor's Office ("ACPO") was assigned to the Computer Crimes Unit, Child Predator Program.1 He had been portraying himself on the Internet using an online profile for a fictional 13-year-old girl, "Mandi." The profile included a picture of a female investigator from the ACPO, taken when she was ten years old. On August 30, 2004, using Mandi's screen name, Finan entered a chatroom on a Yahoo website entitled "Romance, Regional, New Jersey." A user, later identified as defendant, contacted Mandi. Defendant's profile was designated a sexually-explicit adult profile. Mandi replied, "Hey."

After complimenting Mandi's profile picture, defendant introduced himself as "Ed." During the conversation that ensued, Mandi indicated that she was thirteen years old and lived with her father, who was not home at the time. Defendant asked about her father's work schedule. Defendant then told Mandi to masturbate and asked whether she was doing so. Defendant used a web camera to transmit a live video of himself masturbating.

Similar conversations took place during the following week.

Mandi contacted defendant on the morning of September 7, telling him that she wished to meet him the following day. Mandi told defendant to meet her at a bowling alley in Egg Harbor Township. Defendant suggested that they take a drive in his car after they met. Defendant instructed her to wear something "sexy," specifying a skirt and a thong. Defendant also stated that he would bring cameras to photograph and videotape her. Later the same evening during an online conversation, defendant asked Mandi if she "wanted him." Defendant also asked Mandi if she was a cop. She responded, "No, Y???"

On September 8, 2004, Finan sent a message to defendant's cell phone with the number for the bowling alley. Defendant called the number and said he was on his way. He arrived a short time later. He drove to the rear of the bowling alley and dialed the number he had used on the last call. Mandi was paged. Finan then arrested defendant. A search of defendant's car, conducted pursuant to a warrant, revealed a number of photographic and video cameras.

Defendant waived his Miranda2 rights and gave two recorded statements to the police, which were played during the trial. In the first statement, defendant said he visited adult chatrooms daily and claimed that Mandi's profile picture appeared to be that of a girl sixteen or seventeen years old. Defendant acknowledged that he had read that Mandi was thirteen years old, but he did not believe Mandi was that age. In his second statement, defendant indicated that he believed Mandi to be thirteen years old. He was asked whether he believed Mandi to be thirteen when he masturbated on camera. He responded, "Yes." Defendant was then asked whether he believed the girl he was meeting at the bowling alley was thirteen, and he responded, "Yes."

The jury found defendant guilty of all the charges. The trial judge sentenced defendant to an aggregate term of fourteen years of imprisonment. The judge ordered defendant to comply with Megan's Law, pay fines, penalties, assessments and fees, and forfeit his computer. Defendant appealed from the judgment of conviction. He raised the following issues:

We affirmed defendant's convictions on counts one through nine, but reversed the convictions on counts ten through fourteen. State v. Kuhn, supra, 415 N.J. Super. at 105. We concluded that the State had presented sufficient evidence to support the verdicts regarding conduct alleged prior to September 7, 2004, but the instructions to the jury regarding the offenses charged for conduct on September 7 and 8, 2004 were flawed. Id. at 101-02. We remanded for a new trial on counts ten through fourteen. Id. at 105. The Supreme Court denied defendant's petition for certification. State v. Kuhn, 205 N.J. 78 (2011). Thereafter, defendant entered into a plea agreement on the remaining charges and he was resentenced to an aggregate term of seven years of imprisonment.

II.

Defendant subsequently filed a pro se petition for PCR, claiming that he had been denied the effective assistance of counsel. Defendant then retained counsel and filed a petition for PCR pursuant to Rule 3:22. On May 30, 2013, the court heard oral argument from counsel on the petition. The court determined that defendant had not presented a prima facie case of ineffective assistance of counsel, and denied the petition without a hearing. The court entered an order dated May 31, 2013, memorializing its decision.

On appeal, defendant raises the following arguments:

In order to prevail on a claim of ineffective assistance of counsel, a defendant must satisfy the test established in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L. Ed. 2d 674 (1984), and adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987). A defendant first must establish that his attorney's performance was deficient. Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. To do so, the defendant must show that his attorney's handling of the matter "fell below an objective standard of reasonableness." Id. at 688, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. A defendant also must establish that his attorney's deficient performance prejudiced his defense. Id. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. To meet this part of the test, "[a] defendant must show that there is 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.

Here, defendant asserts that, when he communicated with Finan, he was using a Yahoo website that was "adult restricted." He says it was his expectation that the website could only be accessed by persons who were "of age." In support of his PCR petition, defendant submitted the Yahoo "Terms of Service" which he claims "clearly established" that persons "visiting" an adult-restricted website represented that he or she was "of legal age" and "over the age of 18." In addition, the user represented that he or she had "provided true and accurate information" and was "not impersonating anyone." According to defendant, these representations were the "defense theory of the case."

In his certification, defendant stated that an investigator was retained to testify on his behalf "concerning the issue of the accessibility of the chat room to underage persons" pursuant to Yahoo's "Terms of Service." However, defendant's trial attorney failed to call this individual as a witness. Defendant claims that his trial attorney told him this witness was ill and could not testify. Defendant says that the witness was not ill at the time and there were no other issues that prevented him from attending the trial and testifying on his behalf.

Defendant also asserted that he and the investigator recommended that trial counsel retain a computer expert to analyze the case and to testify on his behalf at trial. Counsel informed defendant that this would cost $5,000, which was in addition to the $20,000 previously paid to counsel. Defendant paid the $5000, but his attorney did not retain a computer expert. Rather, counsel applied the money to the cost of retaining his daughter as co-counsel, since she was said to have some computer expertise. Defendant claimed that his attorney was deficient because he failed to present testimony from a computer expert.

In support of his petition, defendant submitted a report from Patrick J. Cronin ("Cronin"), an attorney, who provided an opinion on: (1) whether Yahoo's security procedures ensure that minors do not access adult profiles; and (2) whether there was any evidence that more than one user accessed the computer that defendant used during his encounters with the investigators. Cronin stated that Yahoo's "Terms of Service" require persons who create a profile to agree that they are of legal age, have provided true and accurate information, and will not impersonate anyone.

The "Terms of Service" also explain that the Yahoo services contain content that is restricted to users over the age of eighteen. Cronin noted that Yahoo "employs an honor system approach to age verification." He also opined that, because the computer had two password files, it could be accessed with "different user credentials."

The PCR court found no merit in defendant's claim that he had been denied the effective assistance of counsel because his attorney failed to present a computer expert to testify at trial. The judge stated that a computer expert was not necessary to inform the jury that persons using an adults-only website might reasonably infer that other persons on the site were also adults, based on the assumption that they had responded truthfully to all of the questions that Yahoo posed when they registered. The judge observed that defendant could have testified on this point, and Yahoo's "Terms of Service" could have been presented as a business record. The judge said an expert was not required to explain Yahoo's registration requirements. The judge also observed that such evidence would have presented "an open invitation" to the prosecutor to argue "the foolhardiness of relying on an assumption that every registrant tells the truth about how old she or he is[.]"

The judge pointed out that defendant also had claimed an expert would have helped cast some doubt on the fact that he was the only person using the computer. The judge found, however, that there was overwhelming evidence indicating that defendant had committed the charged offenses. The judge noted that, in his statements to the police, defendant had acknowledged that he believed Mandi was thirteen years old when he masturbated for her on the webcam. Defendant also had admitted that when he went to the bowling alley on September 8, 2004, he thought he would be encountering a thirteen-year-old girl.

The judge also observed that, in his report, Cronin noted that there were two password files on defendant's computer, but he "cannot and does not say that this means that a person other than [defendant] was using one or the other of those files." Cronin said that one of the files was last accessed on July 7, 2004, and the other file last accessed on September 7, 2004, which was the day before defendant went to the bowling alley. The judge stated that it was "fair to assume" that if Cronin had been retained at the time of trial and had this information to share, he would not have been called as a witness.

In our view, the record fully supports the PCR judge's determination. We are convinced from our review of the record that defendant was not denied the effective assistance of counsel because his trial attorney failed to present the testimony of a computer expert concerning Yahoo's "Terms of Service." As the judge explained in his decision, an expert was not required to explain those terms for the jury. We note that, although Yahoo's "Terms of Service" provide that registrants must be at least eighteen years of age to access and view certain "adult and mature content," Cronin acknowledged that Yahoo employs "an honor system approach to age verification."

Thus, testimony from a computer expert would not have established that persons under the age of eighteen could not access the restricted sites. Moreover, the State presented overwhelming evidence at trial that defendant believed he was communicating with a thirteen-year-old girl on the restricted websites.

Defendant further argues that the court erred by failing to conduct an evidentiary hearing on his petition. We do not agree. An evidentiary hearing is only required on a PCR petition when a defendant presents a prima facie case in support of PCR, there are genuine issues of material fact that cannot be resolved based on the existing record, and a hearing is necessary to resolve the claims presented. R. 3:22-10(b). See also State v. Porter, 216 N.J. 343, 354 (2013) (noting that an evidentiary hearing is required to resolve any claim of ineffective assistance of counsel if defendant presents a prima facie case).

Here, defendant failed to present a prima facie case in support of his petition, there were no disputed material issues of fact relative to his claims, and the existing record was sufficient to decide the issues presented. Therefore, the PCR judge correctly determined that an evidentiary hearing was not required.

Affirmed.