STATE OF NEW JERSEY VS. DAVID FERNANDEZÂ (08-09-2742, ESSEX COUNTY AND STATEWIDE), A-4313-15T1

Background

David Fernandez was convicted by jury of first-degree murder (count two), attempted murder (count one), possession of a weapon without a permit (count three), and possession of a weapon for an unlawful purpose (count four); his defense was self-defense/defense of a friend.
After trial, Fernandez moved for a new trial alleging ineffective assistance because counsel excluded him from sidebar conferences; the trial court found he could hear sidebars via a wireless device and denied relief.
On direct appeal this Court affirmed convictions and sentence, rejecting challenges based on Juror No. 2's voir dire/deliberation conduct and finding Fernandez waived personal participation in voir dire sidebars; ineffective-assistance claims were preserved for PCR.
Fernandez filed a PCR petition alleging counsel failed to: investigate/obtain exculpatory witnesses; inform him about Juror No. 2 misconduct; confer with him about sidebars; seek voir dire of jurors or a mistrial; and convey a plea offer.
The PCR court denied relief without an evidentiary hearing, concluding Fernandez failed to present a prima facie showing (no witness affidavits, no particulars about what investigation would have shown, no proof of a plea offer) and relied on the prior direct-appeal findings about sidebars and juror misconduct.
This appeal challenges denial of the PCR petition; the Appellate Division affirms, holding Fernandez failed to establish prima facie ineffective assistance and that the record and prior rulings foreclose prejudice.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether PCR petition was procedurally barred	State: petition was untimely/previously litigated (court initially relied on procedural bars)	Fernandez: petition timely and claims preserved for PCR; prior opinion did not decide ineffectiveness on merits	Court: petition not barred; prior opinion preserved ineffective-assistance claims for PCR, but claims lack merit on the merits
Whether counsel ineffective for failing to investigate or call exculpatory witnesses	State: defendant offered no affidavits or specifics about who witnesses were or what they'd say	Fernandez: counsel failed to investigate and obtain witnesses supporting self-defense	Held: No prima facie showing—defendant gave no names, affidavits, or facts; no hearing warranted
Whether counsel ineffective for failing to convey plea offer	State: no evidence a plea offer existed or was not conveyed	Fernandez: counsel failed to inform him of the State's plea offer	Held: Defendant presented no evidence of any plea offer; claim fails
Whether counsel ineffective for excluding defendant from sidebars / failing to seek voir dire or mistrial based on Juror No. 2	State: defendant knowingly waived personal participation in sidebars; he could hear conferences and never objected; prior appeal found juror not tainted	Fernandez: exclusion from sidebars and counsel's failure to consult prejudiced his defense; juror misconduct warranted further voir dire or mistrial	Held: No deficient performance or prejudice shown; prior findings and record show waiver/hearing access and no juror taint; claim fails

Key Cases Cited

State v. Cooper, 151 N.J. 326 (presumption of prejudice from voir dire omission but defendant must show he would have used a challenge)
State v. Castagna, 187 N.J. 293 (preservation of claims for PCR)
State v. R.D., 169 N.J. 551 (analysis of juror exposure to extraneous influence)
State v. McQuaid, 147 N.J. 464 (bar against relitigation of issues determined on the merits)
State v. Porter, 216 N.J. 9 (requirement that PCR allegations about investigation be supported by affidavits/certifications)
State v. Preciose, 129 N.J. 451 (standard for reviewing denial of PCR without evidentiary hearing)
State v. O'Neil, 219 N.J. 598 (standard for ineffective-assistance claims)