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March 17, 2026 Get Citation Alerts Download PDF Add Note

State of New Jersey v. Gregory Oliver

New Jersey Superior Court Appellate Division

• Citations: None known
• Docket Number: A-3318-23

• Precedential Status: Non-Precedential

• Opinion

• Authorities (21)

• Cited By (0)

• Summaries (0)

• Similar Cases (14.6K)

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Combined Opinion

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited . R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3318-23

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

GREGORY OLIVER,

Defendant-Appellant.

---

Submitted December 10, 2025 – Decided March 17, 2026

Before Judges Gummer and Paganelli.

On appeal from the Superior Court of New Jersey, Law
Division, Passaic County, Indictment No. 15-04-0352.

Jennifer N. Sellitti, Public Defender, attorney for
appellant (Ruth E. Hunter, Designated Counsel, on the
brief).

Camelia M. Valdes, Passaic County Prosecutor,
attorney for respondent (Julie A. Serfess, Chief
Assistant Prosecutor, of counsel and on the brief).

PER CURIAM
Defendant Gregory Oliver appeals from a May 1, 2024 order denying his

petition for post-conviction relief (PCR) without an evidentiary hearing. Based

on our de novo review of the record and the application of well-established law,

we conclude defendant failed to establish a prima facie case of ineffective

assistance of counsel and affirm.

We affirmed defendant's conviction and sentence on direct appeal,

State v. Oliver, No. A-5140-16 (App. Div. Feb. 18, 2020), certif. denied, 243

N.J. 517 (2020). Therefore, we are fully familiar with the facts and

circumstances surrounding this matter. In the early morning hours of August

31, 2014, two victims were shot in the head. One victim, a male, was

pronounced dead on the sidewalk and the other, a female, suffered non-fatal

wounds while seated in a car. Id. at 2.

Defendant was indicted for: first-degree murder, N.J.S.A. 2C:11-3(a)(1)

or (2), N.J.S.A. 2C:2-6, and N.J.S.A. 2C:2-3(d); two counts of second-degree

possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a); second-

degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b); and first-degree

attempted murder, N.J.S.A. 2C:5-1, N.J.S.A. 2C:11-3(a) and N.J.S.A. 2C:2-

3(d).

A-3318-23
2
As summarized by the PCR court:

[P]rior to the homicide, . . . defendant and his
co-defendants were driving in a [BMW] that was
allegedly shot at by a passing vehicle. The record
showed that following this initial shooting, the
co-defendants were able to exit the vehicle and then get
into another vehicle and drive away, leaving the BMW
with one of the women who were present with . . .
defendant. The record also showed that at some point
later in that evening, the woman in possession of the
BMW was called by the owner of the vehicle to meet
them at a specific location. Testimony at trial indicated
that after they arrived at the new location, . . . defendant
went into the trunk of the BMW and approximately 10
minutes later, several gunshots were heard.

Our review of the trial testimony on direct appeal revealed that a witness

had testified that "a week or two after the shooting, she heard defendant state

that he 'shot him in the eyeball.'" Oliver, slip op. at 5. The male victim's "injury

was a gunshot wound that penetrated his eye." Id. at 14. Another witness

testified that, earlier on the day of the shooting, she saw defendant with a "'a big

grayish colored gun.'" Ibid.

In defense counsel's closing argument to the jury, he contended that the

investigating detective and other witnesses lacked credibility. He further stated

the evidence was weak and the State's case was based on speculation.

Importantly, counsel stressed that defendant "was not present when the shooting

took place." Counsel emphasized that the surviving victim and other witnesses

A-3318-23
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had testified that defendant walked away, was not seen at the scene of the

shooting, or was not there when the shooting took place. Counsel suggested to

the jury that defendant's absence from the scene explained why he had not

initially been arrested.

Ultimately, defendant was convicted of first-degree aggravated

manslaughter, N.J.S.A. 2C:11-4(a)(1), as a lesser-included offense of first-

degree murder, N.J.S.A. 2C:11-3(a)(1) or (2), N.J.S.A. 2C:2-6, and N.J.S.A.

2C:2-3(d); two counts of second-degree possession of a weapon for an unlawful

purpose, N.J.S.A. 2C:39-4(a); second-degree aggravated assault, N.J.S.A.

2C:12-1(b)(1), as a lesser-included offense of first-degree attempted murder,

N.J.S.A. 2C:5-1, N.J.S.A. 2C:11-3(a), and N.J.S.A. 2C:2-3(d); and second-

degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b). See id. at 2.

Defendant was sentenced to a twenty-year prison term, subject to an

eighty-five percent period of parole ineligibility pursuant to the No Early

Release Act (NERA), N.J.S.A. 2C:43-7.2, for the lesser-included offense of

aggravated manslaughter; a seven-year concurrent term for unlawful possession

of a weapon; and a consecutive seven-year sentence, also subject to a NERA

parole ineligibility period, for aggravated assault. See id. at 23.

A-3318-23
4
In our opinion on defendant's direct appeal, among other issues, we

applied "a deferential standard of review to the judge's sentencing

determination, [and] . . . f[ou]nd no error in the judge's identification and balance

of the 'aggravating and mitigating factors that [we]re supported by competent

credible evidence in the record.'" Id. at 26 (quoting State v. Grate, 220 N.J. 317,

337 (2005)). Moreover, we concluded "the judge properly applied the Yarbough

factors in imposing a consecutive sentence for the aggravated assault." 1 Id. at

29 (footnote omitted).

Defendant filed a petition for PCR and later was assigned counsel. After

hearing the parties' arguments, the PCR court issued a written decision

accompanying its order denying defendant's petition without an evidentiary

hearing.

Initially, the PCR court found defendant had not timely filed the petition

under Rule 3:22-12(a)(1). Moreover, the court concluded that because

defendant had filed a timely direct appeal, he had "access to legal resources to

prepare for a PCR petition" and there was no "plausible" excuse for the late

filing. Nevertheless, the court considered the merits of the petition.

1
State v. Yarbough, 100 N.J. 627 (1985).
A-3318-23
5
The PCR court considered defendant's contentions that he had been

provided with ineffective assistance of counsel because of trial counsel's failure

to: (1) "investigate and present the defense of self-defense"; (2) "ask for a self-

defense charge to the jury"; (3) request "the lesser included offense of [p]assion -

[p]rovocation [m]anslaughter be given to the jury"; (4) "ask for a third-party

guilt charge be given to the jury"; (5) "object to certain testimonies"; and (6)

"object to the trial prosecutors evoking jury sympathy during the closing

argument."

The PCR court considered the "trial record" and arguments made "at

sentencing" and determined that defendant "would not have [been] entitled to a

self-defense claim as he would not have met the criteria to establish same." The

court found defendant's self-defense "claim lack[ed] merit and [wa]s not

supported by the record." The court concluded "even if defendant 'did

reasonably believe' that he needed to shoot at the vehicle for fear of being shot

again, he fail[ed] to satisfy the duty to retreat."

Further, as to a jury instruction regarding self-defense, the PCR court

concluded the charge was "unwarranted" and trial counsel's trial strategy was to

"avoid defendant admitting that he was the actual killer in this case."

A-3318-23
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In addition, as to a jury instruction regarding passion/provocation

manslaughter, the PCR court found "there [we]re no credible facts in the record

to indicate" that defendant was fired upon and "even if [it] f[ou]nd[] that . . .

defendant was reasonably provoked, . . . defendant . . . failed to provide evidence

that he did not have sufficient time to cool off."

Further, as to "a third-party guilt instruction," the PCR court concluded

that "defendant ha[d] not provided evidence that having this charge included

would have altered the outcome of [the] trial." Moreover, the court noted that

"[w]hile a defense counsel may attempt to place the blame of [a] client's conduct

on another party, it does not necessarily establish that there was evidence in the

record that there was in fact another actor."

In addition, as to trial counsel's decision not to object to certain testimony,

the PCR court concluded that the failure to object was not prejudicial because it

would not have "changed the outcome of the trial in [defendant's] favor."

Lastly, the PCR court determined that trial counsel's failure to object to

the prosecutor's remarks during closing argument, and request a curative

instruction were "not warranted" because the prosecutor's "closing remarks were

based off of the evidence admitted."

A-3318-23
7
The PCR court denied defendant's request for an evidentiary hearing

because it found defendant "did not establish a prima facie case."

On appeal, defendant presents the following arguments for our

consideration:

POINT I

THE PCR COURT ERRED IN DENYING
DEFENDANT'S PCR PETITION WITHOUT
AFFORDING HIM AN EVIDENTIARY HEARING
BECAUSE THE COURT'S FINDINGS AS TO
PASSION/PROVOCATION, SELF-DEFENSE, AND
THIRD-PARTY GUILT JURY INSTRUCTIONS
WERE NOT BASED ON "OBJECTIVE EVIDENCE
IN THE RECORD." ADDITIONALLY, THE COURT
IMPROPERLY ACTED AS THE "THIRTEENTH
JUROR" WHEN, WITHOUT HEARING
TESTIMONY, IT MADE CREDIBILITY
DETERMINATIONS AND FOUND THAT TRIAL
COUNSEL MADE STRATEGIC DECISIONS.

1. There Should Have Been Jury Instructions on the
   Lesser-Included Offense of Passion/Provocation and
   the Affirmative Defense of Self-Defense.

2. There Should Have Been a Jury Instruction on Third-
   Party Guilt Defense.

3. An Evidentiary Hearing At a Minimum Was
   Required Because [Defendant] Made a Prima Facie
   Case of Ineffective Assistance of Counsel and Because
   There Were Material Issues of Disputed Facts about
   Whether Trial Counsel's Decision Not To Argue Self-
   Defense Was Strategy.

A-3318-23
8
POINT II

THERE MUST BE A REMAND FOR THE PCR
COURT TO CONSIDER PETITIONER'S
UNADDRESSED ARGUMENT THAT APPELLATE
COUNSEL WAS INEFFECTIVE. SEE STATE v.
WEBSTER, 187 N.J. 254, 258 (2006). (Not Raised
Below).

POINT III

DEFENDANT'S SENTENCE, WHICH WAS
IMPOSED WITHOUT CONSIDERATION THAT HE
WAS A "LATE ADOLESCENT" AT THE AGE OF 19
AT THE TIME OF THE OFFENSES, IS CRUEL AND
UNUSUAL PUNISHMENT. THE WELL-
ESTABLISHED SCIENCE SHOWS THAT THE
LAW'S HEIGHTENED PROTECTIONS WHEN
SENTENCING JUVENILES WHO COMMIT
CRIMES SHOULD APPLY TO PERSONS AGED 18
TO 20. THEREFORE, THERE MUST BE A
RESENTENCING IN ACCORDANCE WITH
MILLER v. ALABAMA, 567 U.S. 460, 471 (2012).
(Not Raised Below).

POINT IV

AT THE RESENTENCING, THE COURT SHOULD
RECONSIDER THE CONSECUTIVE SENTENCES
IN ACCORDANCE WITH STATE v. TORRES, 246
N.J. 246 (2021). (Not Raised Below).

When the PCR court does not hold an evidentiary hearing, it "is within

our appellate authority" "to conduct a de novo review of both the factual findings

and legal conclusions of the PCR court." State v. Harris, 181 N.J. 391, 421

A-3318-23
9
(2004); see also State v. Aburoumi, 464 N.J. Super. 326, 338 (App. Div. 2020);

State v. O'Donnell, 435 N.J. Super. 351, 373 (App. Div. 2014).

PCR "is New Jersey's analogue to the federal writ of habeas corpus." State

v. Pierre, 223 N.J. 560, 576 (2015) (quoting State v. Preciose, 129 N.J. 451, 459

(1992)). It "provide[s] a built-in 'safeguard that ensures that a defendant [i]s not

unjustly convicted.'" State v. Nash, 212 N.J. 518, 540 (2013) (quoting State v.

McQuaid, 147 N.J. 464, 482 (1997)).

Under Rule 3:22-4,

(a) First Petition for [PCR]. Any ground for relief not
raised in the proceedings resulting in the conviction, or
in a post-conviction proceeding brought and decided
prior to the adoption of this [R]ule, or in any appeal
taken in any such proceedings is barred from assertion
in a proceeding under this rule unless the court on
motion or at the hearing finds:

(1) that the ground for relief not previously
asserted could not reasonably have been
raised in any prior proceeding;

....

[(Boldface omitted).]

Under Rule 3:22-2,

A petition for [PCR] is cognizable if based upon any of
the following grounds:

A-3318-23
10
(a) Substantial denial in the conviction
proceedings of defendant's rights under the
Constitution of the United States or the
Constitution or laws of the State of New
Jersey;

....

(c) Imposition of sentence in excess of or
otherwise not in accordance with the
sentence authorized by law if raised
together with other grounds cognizable
under paragraph (a), (b), or (d) of this
[R]ule. Otherwise a claim alleging the
imposition of sentence in excess of or
otherwise not in accordance with the
sentence authorized by law shall be filed
pursuant to R[ule] 3:21-10(b)(5).

"Those accused in criminal proceedings are guaranteed the right to

counsel to assist in their defense." State v. Gideon, 244 N.J. 538, 549 (2021)

(citing U.S. Const. amend. VI; N.J. Const. art. I, ¶ 10).2 "[I]t is not enough

2
The Sixth Amendment to the Constitution of the United States provides:

In all criminal prosecutions, the accused shall enjoy the
right to a speedy and public trial, by an impartial jury
of the State and district wherein the crime shall have
been committed, which district shall have been
previously ascertained by law, and to be informed of
the nature and cause of the accusation; to be confronted
with the witnesses against him; to have compulsory
process for obtaining witnesses in his favor, and to have
the Assistance of Counsel for his defence.

A-3318-23
11
'[t]hat a person who happens to be a lawyer is present at trial alongside the

accused,' rather, the right to counsel has been interpreted by the United States

Supreme Court and [the New Jersey Supreme] Court as 'the right to the effective

assistance of counsel.'" Id. at 550 (second alteration in original) (citation

omitted) (quoting Strickland v. Washington, 466 U.S. 668, 685-86 (1984)).3

To establish a prima facie claim for ineffective assistance of counsel, a

defendant must satisfy the two-prong test established in Strickland. "First, the

defendant must show that counsel's performance was deficient. 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,

466 U.S. at 687. "[A] court must indulge a strong presumption that counsel's

conduct falls within the wide range of reasonable professional assistance; that

is, the defendant must overcome the presumption that, under the circumstances,

the challenged action 'might be considered sound trial strategy.'" Id. at 689

(quoting Michel v. Louisiana, 350 U.S. 91, 101 (1955)).

Article I, Paragraph 10 of the Constitution of the State of New Jersey provides:
"In all criminal prosecutions the accused shall have the right . . . to have the
assistance of counsel in his defense."
3
In State v. Fritz, 105 N.J. 42 (1987), the New Jersey Supreme Court adopted
the Strickland standards.

A-3318-23
12
Under "the 'second, and far more difficult, prong,'" a defendant must show

that his or her defense was prejudiced by counsel's purported ineffective

assistance. Gideon, 244 N.J. at 550 (quoting Preciose, 129 N.J. at 463). The

defendant must demonstrate "that counsel's errors were so serious as to deprive

the defendant of a fair trial, a trial whose result is reliable." Strickland, 466 U.S.

at 687. "Prejudice is not to be presumed." Gideon, 244 N.J. at 551 (quoting

Fritz, 105 N.J. at 52). "The defendant must 'affirmatively prove prejudice.'"

Ibid. (quoting Strickland, 466 U.S. at 693).

If a defendant fails to "make[] both showings, it cannot be said that the

conviction . . . resulted from a breakdown in the adversary process that renders

the result unreliable." Strickland, 466 U.S. at 687.

A defendant "must establish the right to [PCR] by a preponderance of the

credible evidence." Preciose, 129 N.J. at 459 (citing State v. Mitchell, 126 N.J.

565, 579 (1992)). "R[ule] 3:22-1 does not require evidentiary hearings to be

held on [PCR] petitions [and] R[ule] 3:22-10 recognizes judicial discretion to

conduct such hearings." State v. Cummings, 321 N.J. Super. 154, 170 (App.

Div. 1999). An evidentiary hearing is held when "there are material issues of

disputed fact that cannot be resolved by reference to the existing record." R.

3:22-10(b). PCR "courts ordinarily should grant evidentiary hearings to resolve

A-3318-23
13
ineffective-assistance-of-counsel claims if a defendant has presented a prima

facie claim in support of" PCR. Preciose, 129 N.J. at 462. "[C]ourts should

view the facts in the light most favorable to a defendant to determine whether a

defendant has established a prima facie claim." Id. at 462-63. "A prima facie

case is established when a defendant demonstrates 'a reasonable likelihood that

his or her claim . . . will ultimately succeed on the merits.'" State v. Porter, 216

N.J. 343, 355 (2013) (quoting R. 3:22-10(b)). A defendant "must do more than

make bald assertions that he was denied the effective assistance of counsel."

Cummings, 321 N.J. Super. at 170.

Applying this well-established law, we consider each of defendant's

arguments. We conclude there is no merit to defendant's argument that trial

counsel was ineffective regarding the failure to request passion/provocation and

self-defense jury instructions. In addition to the PCR court's determination that

there was no factual support in the record for the instructions and, therefore,

counsel was not ineffective for failing to request the instructions, w e add that

our review of the trial transcript reveals counsel's strategy rested on defendant

not being at the scene of the shooting and, thus, not the shooter.

Under these circumstances, failing to request a passion/provocation

instruction was not ineffective assistance of counsel because it would have been

A-3318-23
14
contrary to trial strategy. "Passion/provocation manslaughter, [is] defined as

'[a] homicide which would otherwise be murder . . . [but] is committed in the

heat of passion resulting from a reasonable provocation[.]'" State v. Carrero,

229 N.J. 118, 128-29 (2017) (second and third alterations and omission in

original) (quoting N.J.S.A. 2C:11-4(b)(2)). Counsel's strategy was not to

explain why defendant acted but, instead, was to establish defendant was not at

the scene and, therefore, could not have been the shooter.

Similarly, a self-defense jury instruction would have been counter to trial

strategy because defendant would have had to establish his use of force was

"justifiable." See N.J.S.A. 2C:3-4(a). However, the trial strategy was that he

was not present and did not use force.

Moreover, we are not convinced defendant established that counsel was

ineffective for failing to request a third-party guilt instruction. "A defendant of

course may seek to prove that another agency produced the death with which he

is charged." State v. Sturdivant, 31 N.J. 165, 179 (1959). However, it is not

enough to offer "mere conjecture." Ibid. Here, as the PCR court found, there

was no evidence of a third-party actor. Therefore, trial counsel's representation

was not deficient for failing to request the charge. Moreover, defendant fails to

A-3318-23
15
establish how the absence of the jury instruction, assuming the trial court would

have provided it, prejudiced his defense.

Therefore, we conclude defendant failed to establish a prima facie case of

ineffective assistance of counsel. Accordingly, we determine the PCR court did

not abuse its discretion in denying defendant's request for an evidentiary

hearing.

Next, we consider defendant's argument that a remand is necessary

because the PCR court failed to address his argument that appellate counsel was

ineffective for failing to argue "that it was plain error not to instruct the jury on

passion/provocation." However, we are satisfied that the PCR court's

passion/provocation analysis adequately addressed the argument. Moreover,

given our de novo review, we conclude trial counsel was not ineffective for

failing to request the charge and appellate counsel was not ineffective for failing

to raise an argument about that charge. Further, any argument concerning the

trial court's failure to sua sponte instruct the jury could reasonably have been

raised on direct appeal and is barred. See R. 3:22-4(a) ("Any ground for relief

not raised in the proceedings resulting in the conviction, . . . or in any appeal

taken in any such proceedings is barred.").

A-3318-23
16
Lastly, as to sentencing, defendant argues resentencing is required

because as a nineteen-year-old he was "a 'late adolescent'" and the sentence

imposed "violates the federal and state constitutions' prohibition against cruel

and unusual punishment," relying on Miller v. Alabama, 576 U.S. 460, 471

(2012), and State v. Zuber, 227 N.J. 422, 429 (2017).4 Also, he contends "[t]he

sentencing court's consecutive sentencing analysis was not in accordance with"

State v. Torres, 246 N.J. 246 (2021).

Defendant did not raise the "late adolescent" argument in his direct appeal

even though Miller and Zuber were decided before our 2020 opinion on that

appeal. "Any ground for relief not raised in the proceedings resulting in the

conviction . . . or in any appeal taken in any such proceedings is barred." R.

3:22-4(a). He did not make the "late adolescent" or Torres arguments before the

PCR court. It is a "well-settled principle that . . . appellate courts will decline

to consider questions or issues not properly presented to the trial court when an

opportunity for such a presentation is available unless the questions . . . raised

4
The Eighth Amendment to the Constitution of the United States provides:
"Excessive bail shall not be required, nor excessive fines imposed, nor cruel and
unusual punishments inflicted." Article I, Paragraph 12 of the Constitution of
the State of New Jersey provides: "Excessive bail shall not be required,
excessive fines shall not be imposed, and cruel and unusual punishments shall
not be inflicted. . . ."

A-3318-23
17
on appeal go to the jurisdiction of the trial court or concern matters of great

public interest." State v. Robinson, 200 N.J. 1, 20 (2009) (quoting Nieder v.

Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973)). Because defendant did not

make the sentencing arguments he now presents in this appeal when he was

before the PCR court on his PCR petition or before this court on his direct

appeal, we decline to consider them.

To the extent we have not addressed any of defendant's remaining

arguments, we conclude they are without sufficient merit to warrant discussion

in a written opinion. R. 2:11-3(e)(2).

Affirmed.

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