NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

The opinion of the court was delivered by

SUMNERS, Jr., J.A.D.

Defendant Christopher Fountain appeals from an order denying his petition for post-conviction relief (PCR) without an evidentiary hearing. We affirm.

Defendant was a regular patron of a nightclub located in Atlantic City. On April 6, 2007, at approximately 3:00 a.m., one of the nightclub's bouncers witnessed defendant getting into a verbal altercation with a club employee. The bouncer made his way over to defendant in order to diffuse the situation by stepping in between defendant and the employee, forcing defendant to take a step back. He then saw defendant pull a gun from his waistband, and fire a single shot into the body of the employee. Defendant then turned around, walked onto the dance floor, and unsuccessfully attempted to hand off the gun to a female friend. The club's manager, head of club security, and other security personnel then quickly disarmed and secured defendant, taking him outside of the club. Subsequent police investigation revealed that the gun was not registered to defendant, and further, that the bullet recovered from the body of the victim, who survived, was fired from the same gun.

In May 2008, defendant was tried before a jury for various assault and weapons offenses. During the trial, a N.J.R.E. 104 hearing was held concerning defendant's request for an adverse inference jury instruction for the State's failure to call the victim as a witness. The trial court denied the request, determining that the State made reasonable and diligent efforts to produce him at trial. The State did call as a witness Detective Mitzi Cruz, who interviewed the victim at the hospital following the shooting. Cruz testified that she neither took a statement from the victim nor showed him a photo array because he told her that he could not remember what happened. Defendant's attorney did not object to what the victim told Cruz. The jury found defendant guilty of all charges.

At sentencing, the judge granted the State's motion for a discretionary extended term pursuant to N.J.S.A. 2C:44-3(a). After applying three aggravating factors and no mitigating factors, the judge imposed an aggregate seventeen-year sentence with eighty-five percent parole ineligibility, pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2 (NERA), for second-degree aggravated assault offenses, and a consecutive five-year sentence for third-degree unlawful possession of a weapon.

We affirmed the conviction on defendant's direct appeal, but remanded the matter to the trial court to amend the judgment of conviction by merging counts. State v. Fountain, No. A-1743-08 (App. Div. April 19, 2010). Defendant's petition for certification was denied. State v. Fountain, 203 N.J. 96 (2010).

On July 18, 2011, defendant filed a pro se PCR petition alleging ineffective assistance of counsel (IAC). Counsel was subsequently appointed to represent defendant, and filed a brief arguing that defendant: 1) was deprived due process of the law because the ballistics expert did not conform to scientific standards; 2) trial counsel failed to object to the out-of-court identifications of the bouncer and the club manager; and 3) trial counsel failed to argue that the court charge simple assault as a lesser-included offense of second-degree aggravated assault. The PCR judge, who did not preside over defendant's trial, issued a bench decision denying defendant's petition on procedural and substantive grounds.

Before us, defendant argues:

In his brief, defendant admittedly argues for the first time on this appeal that trial counsel was ineffective for withdrawing an initial objection to Cruz' testimony that the victim did not remember who shot him. As this issue was not raised below, any ground for relief not raised may be barred unless it would be plain error; a fundamental injustice or a violation of the federal or state constitution. R. 3:22-4; State v. Preciose, 129 N.J. 451, 460 (1992).

However, defendant also contends that PCR counsel was ineffective by failing to raise this argument in the PCR petition. A defendant has a constitutional right to effective assistance of counsel in a PCR petition when raising for the first time IAC claims. State v. Quixal, 431 N.J.Super. 502, 513 (App. Div. 2013); State v. Loftin, 191 N.J. 172, 197-98 (2007). Normally, we are inclined not to determine an IAC against PCR counsel on an appeal from denial of an initial PCR petition for the same reasons that we disapprove of IAC claims on direct appeal. The reason being that both circumstances pertain to "allegations and evidence that lie outside the trial record." Precoise, supra, 129 N.J. at 460. We see no such obstacle in this case, as defendant's contention can be resolved based on the record.

It is well-settled that to establish a claim of ineffective assistance of counsel, a defendant must demonstrate the reasonable likelihood that his claim will ultimately succeed on the merits under the two-pronged test set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984), and adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987). The first prong requires a "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 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. The test is whether "counsel's representation fell below an objective standard of reasonableness." Id. at 688, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693.

Under the second prong, a defendant must demonstrate that his counsel's errors prejudiced the defense to the extent that the defendant was deprived of a fair and reliable trial outcome. Id. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. To prove this element, 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. Thus, "[t]he failure to raise unsuccessful legal arguments does not constitute ineffective assistance of counsel." State v. Worlock, 117 N.J. 596, 625 (1990) (citing Strickland, supra, 466 U.S. at 688, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693; Fritz, supra, 105 N.J. at 52); see also State v. Echols, 199 N.J. 344, 361 (2009) (rejecting ineffective assistance claim, noting "there being no reversible error in the prosecutor's comments, the failure of trial counsel to object . . . could not lead to the conclusion that there is a reasonable probability that, but for the errors of trial and appellate counsel, the outcome would have been different").

A court reviewing a PCR petition based on claims of ineffective assistance has the discretion to grant an evidentiary hearing only if a defendant establishes a prima facie showing in support of the requested relief. Preciose, supra, 129 N.J. at 462. The mere raising of a claim for PCR does not entitle a defendant to an evidentiary hearing. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). When determining whether to grant an evidentiary hearing, the PCR court must consider the facts in the light most favorable to the defendant to determine if a defendant has established a prima facie claim. Preciose, supra, 129 N.J. at 462-63. A hearing should be conducted only if there are disputed issues as to material facts regarding entitlement to PCR that cannot be resolved based on the existing record. State v. Porter, 216 N.J. 343, 354 (2013).

Examining the merits of defendant's claim, we are convinced that defendant was not denied effective assistance of counsel and there is no need for an evidentiary hearing. First, defendant contends that Cruz' testimony was inadmissible hearsay, and that under Rule 2:10-2, this court must address this plain error on its own volition in order to correct a manifest injustice, regardless of whether trial counsel or PCR counsel raised the issue below. We disagree. The testimony was not hearsay, and its admission was not the result of ineffective assistance of counsel.

In accordance with N.J.R.E. 801(c), "`hearsay' is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." Thus, if the truthfulness of the statement is not being offered into evidence, it is not hearsay. State v. Long, 173 N.J. 138, 152 (2002) (citing State v. Chavies, 345 N.J. Super. 254, 274 (App. Div. 2001)). Cruz' testimony was not an attempt by the State to prove that the victim could not identify the person who shot him, but to explain why no photo array of potential assailants was not shown to him. See also, State v. Frisby, 174 N.J. 583, 592 (2002) (citing State v. Roach, 146 N.J. 208, 224-25, cert. denied, 519 U.S. 1021, 117 S.Ct. 540, 136 L. Ed. 2d 424 (1996)) ("[T]here are circumstances in which an officer will be allowed to testify, based generally on hearsay evidence, to explain the course of his or her investigation.")

Next, defendant argues that because Cruz' statements on the witness stand were testimonial in nature, under Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L. Ed. 2d 177 (2004), such testimony violated the Confrontation Clause of the Sixth Amendment by denying defendant the right to confront the victim's statement in any way. The argument has no merit.

The intent of the Confrontation Clause is to afford a criminal defendant the opportunity to challenge anyone who presents testimony against him or her. Id. 541 U.S. at 51-59, 124 S. Ct. at 1364-69, 158 L. Ed. 2d at 192-97. This includes "when, at trial, a police officer conveys, directly or by inference, information from a non-testifying declarant to incriminate the defendant in the crime charged." State v. Branch, 182 N.J. 338, 350 (2005) (citing State v. Bankston, 63 N.J. 263, 268-69 (1973)). As noted, Cruz' account of his interview with the victim does not accuse defendant of shooting the victim, or have any involvement with the crime for that matter. Thus, no violation of the Confrontation Clause occurred.

In light of our conclusion that Cruz' testimony was not hearsay or a violation of the Confrontation Clause, we find no plain error under Rule 2:10-2. There was no error that was "clearly capable of producing an unjust result," ibid, or in other words, that was "`sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached.'" State v. Taffaro, 195 N.J. 442, 454 (2008) (quoting State v. Macon, 57 N.J. 325, 336 (1971)).

Lastly, we briefly address defendant's contention that the testimony was "devastating" to his defense. Again, we disagree. Based upon our review of the record, the absence of the victim's testimony aids the defense. Trial counsel argued that the victim did not identify defendant as the shooter, by declaring at closing, "[the victim] didn't show up; whether we can all speculate, but whether he decided that maybe this gentlemen wasn't the guy that did it, somebody else did it or what? But he did not show up, and he's the victim of the crime." Despite the jury's decision to convict, the victim's inability to identify defendant supported the defense that defendant did not possess the gun and shoot the victim.

Affirmed.