NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

PER CURIAM.

Defendant Atom Muhammed appeals from a December 6, 2013 order denying his post-conviction relief (PCR) petition without an evidentiary hearing. Defendant argues: the PCR judge erred by finding his petition was procedurally barred; his conviction should be reversed because the trial judge failed to voir dire a sleeping juror; and the matter should be remanded for an evidentiary hearing because he received ineffective assistance of trial counsel. We disagree and affirm.

Defendant was charged with: second-degree conspiracy to commit robbery, N.J.S.A. 2C:5-2, 2C:15-1 (count one); first-degree robbery, N.J.S.A. 2C:15-1 (count two); second-degree aggravated assault, N.J.S.A. 2C:12-1(b) (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 fourth-degree resisting arrest, N.J.S.A. 2C:29-2(a) (count six).

A jury found defendant guilty on counts one, two, three, five and six and not guilty on count four. After merging counts one and five with two, the trial judge sentenced defendant to an aggregate eighteen year prison sentence with an eighty-five percent parole ineligibility term pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2.

Defendant filed a direct appeal where we affirmed his conviction and sentence. State v. Muhammed, No. A-5497-03 (App. Div. July 31, 2006) (slip op. at 11). The Supreme Court granted certification limited to the sentencing issue and summarily remanded the case for resentencing in light of State v. Natale, 184 N.J. 458 (2005). State v. Muhammed, 189 N.J. 101 (2006). On remand, the same sentence was imposed and additional credits granted. Defendant then appealed this sentence, which we affirmed and the Supreme Court denied certification.

Defendant filed a verified petition for PCR. The PCR judge denied defendant's PCR petition without an evidentiary hearing and explained the reasons for his decision on the record.

Defendant now appeals from the order denying his PCR petition.

On appeal, defendant raises the following points:

The relevant facts from the record on appeal are as follows. An armed robbery occurred at a supermarket in Newark, New Jersey. According to the supermarket's owner, three men entered the store, two were wearing ski masks and wielding guns. One assailant demanded money from the owner. The owner then proceeded to the cash register and pressed the panic button, which alerted the police. After a scuffle with the supermarket's owner, the assailants grabbed money and a box of cigarettes and left.

A police officer on foot patrol responded to the scene and observed defendant exiting the store. The officer grabbed defendant's shoulder, causing defendant to spin around and charge the officer. The officer drew his service weapon which accidentally went off during the attack. Defendant then fled the scene. Defendant stated to the police that he fled from the store and from the other assisting police officers in the area. Defendant was chased and ultimately reached a rooftop, where he claims he was "pushed" and fell from the roof onto a balcony or deck below, where he was apprehended. The police then brought defendant back to the supermarket, where a supermarket employee immediately identified him as the third person involved in the robbery. Defendant was identified as the robber who was not wearing a ski mask. Defendant later admitted he picked up the other assailants, drove them to the supermarket, and knew one of them had a gun. However, defendant claims that the other two individuals entered the store and committed the robbery.

The police interviewed an individual who claimed one of the assailants approached him the night of the robbery and asked him for a ride. The assailant explained to the individual he was involved in the robbery and was cold because he was hanging from a roof top. The individual complied with the assailant's request and drove him to his desired destination. The individual described the assailant as light skinned and could have been "Spanish."

The supermarket owner on cross-examination at trial admitted there was a surveillance camera located in the store's ceiling. The supermarket owner contended he gave the video footage to the police.

After summations, but before the jury charge, defense counsel contended juror number eleven was "nodding off" during both summations. Defense counsel asked the trial judge to voir dire juror number eleven or make him an alternate. The trial judge stated he did not see juror number eleven sleeping and declined to impose the requested remedies.

When petitioning for PCR, the defendant must establish by a preponderance of the credible evidence that he or she is entitled to the requested relief. State v. Nash, 212 N.J. 518, 541 (2013). To sustain that burden, the defendant must articulate specific facts that "provide the court with an adequate basis on which to rest its decision." State v. Mitchell, 126 N.J. 565, 579 (1992). The court must view the facts alleged in the light most favorable to the defendant. State v. Cummings, 321 N.J.Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). When the PCR court does not hold an evidentiary hearing, "we may exercise de novo review over the factual inferences the trial court has drawn from the documentary record." State v. O'Donnell, 435 N.J.Super. 351, 373 (App. Div. 2014). We therefore conduct a de novo review of the factual findings and legal conclusions of the PCR court. Ibid.

To establish a prima facie claim of ineffective assistance of counsel, the defendant must satisfy the two-prong test from Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984), as adopted by New Jersey in State v. Fritz, 105 N.J. 42, 58 (1987). The test requires a showing that trial counsel's performance was deficient and, but for the deficient performance, the result would have been different. Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. There is a strong presumption counsel "rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Id. at 690, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695.

The mere raising of a claim for PCR does not entitle the defendant to an evidentiary hearing, and the defendant "must do more than make bald assertions that he was denied the effective assistance of counsel." Cummings, supra, 321 N.J. Super. at 170. Rather, trial courts should grant evidentiary hearings only if the defendant has presented a prima facie claim of ineffective assistance. State v. Preciose, 129 N.J. 451, 462 (1992). To establish a prima facie claim, the defendant "must allege facts sufficient to demonstrate counsel's alleged substandard performance." Cummings, supra, 321 N.J. Super. at 170. In alleging facts to demonstrate trial counsel inadequately investigated a case, the defendant "must assert the facts that an investigation would have revealed, supported by affidavits or certifications based upon the personal knowledge of the affiant or the person making the certification." Ibid.

Here, the PCR judge procedurally barred defendant's PCR petition under Rule 3:22-4 because his arguments should have been raised on direct appeal. Additionally, the PCR judge found barring defendant's claims would not result in a fundamental injustice and defendant's constitutional rights were not infringed. Nonetheless, the PCR judge went on to decide defendant's arguments on their merits. Specifically, he found defendant's contention the trial judge erred by not conducting a voir dire of a supposedly sleeping juror was not error because defendant failed to present any evidence that the juror's lack of attention had affected the outcome of the trial.

The PCR judge also found defendant did not receive ineffective assistance of counsel when defendant's trial counsel failed to call the individual who drove one of the assailants the night of the robbery. The PCR judge found defendant failed to present any credible evidence to satisfy Strickland's second prong or his trial counsel's failure to call this individual at trial fell outside the range of competence demanded of attorneys in criminal cases.

Finally, the PCR judge found defendant did not receive ineffective assistance of counsel when defendant's trial counsel failed to question police officers regarding the surveillance footage or present the surveillance footage at trial. The PCR judge found it was defense counsel's strategy not to question these officers regarding the surveillance video, and defendant failed to present credible evidence showing this line of questioning would have changed the outcome of the case.

On appeal, defendant contends the PCR judge erred by procedurally barring defendant's petition. Additionally, defendant contends the matter must be remanded to determine the merits of his ineffective assistance of trial counsel claims. He contends his trial counsel failed to question the police about the supermarket surveillance footage or introduce the footage at trial, and failed to call the individual who drove the robbery assailant the night of the robbery at trial.

We agree with the trial judge that the issue of the inattentive juror should have been raised on direct appeal and is procedurally barred. R. 3:22-4(a)(1). We further note the trial judge found the juror was not sleeping based on his observations. We also agree with the PCR judge's subsequent conclusion that on the merits, the trial judge did not err by refusing to voir dire the juror.

We agree with defendant that the petition as it relates to defendant's claim of ineffective assistance of counsel should not be procedurally barred. See Preciose, supra, 129 N.J. at 460 (stating New Jersey courts "have expressed a general policy against entertaining ineffective-assistance-of-counsel claims on direct appeal because such claims involve allegations and evidence that lie outside the trial record"). Nevertheless, this error was harmless because the PCR judge also reviewed and denied defendant's petition on its merits.

Defendant's ineffective assistance of counsel claims are based on claims counsel failed to investigate and present exculpatory evidence at trial. Defendant contends the video footage would have shown Hispanic males committed the crime and not defendant who is African-American. There is no dispute defendant drove the other assailants to the supermarket, and he knew one of them had a gun. The jury convicted defendant of conspiracy to commit robbery. Therefore, even if the surveillance footage showed defendant was not in the store during the robbery, he was still guilty of the crimes committed in furtherance of the conspiracy. State v. Bridges, 133 N.J. 447, 468 (1993). The argument that the video footage would have been exculpatory is unsupported by the evidence and fails the second prong of Strickland.

We also disagree with defendant's contention his trial counsel was ineffective for failing to call the individual who may have given a ride to one of the assailants the night of the crime. Defendant claims the witness' testimony would establish the passenger in the car, who we note did not match the description of defendant, was the true culprit. This contention might have merit if there were only one assailant, but there were multiple.

There is no dispute defendant was chased from the scene of the crime, apprehended, and then brought back to the supermarket where he was immediately identified as one of the assailants. Even if the witness' story were true, his testimony would be insufficient to exculpate defendant, as required by Strickland's second prong.

Affirmed.