Jump To

Top Caption Combined Opinion

Support FLP

CourtListener is a project of Free
Law Project, a federally-recognized 501(c)(3) non-profit. Members help support our work and get special access to features.

Please become a member today.

Join Free.law Now

March 5, 2026 Get Citation Alerts Download PDF Add Note

State of New Jersey v. David Cooper

New Jersey Superior Court Appellate Division

• Citations: None known
• Docket Number: A-2809-23

• Precedential Status: Non-Precedential

• Opinion

• Authorities (12)

• Cited By (0)

• Summaries (0)

• Similar Cases (12.6K)

• PDF

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NOT FOR PUBLICATION WITHOUT THE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-2809-23

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DAVID COOPER,

Defendant-Appellant.

---

Submitted October 16, 2025 – Decided March 5, 2026

Before Judges Mayer and Gummer.

On appeal from the Superior Court of New Jersey, Law
Division, Hudson County, Indictment Nos. 16-12-1542,
17-02-0124, and 17-10-0670.

Jennifer N. Sellitti, Public Defender, attorney for
appellant (David A. Gies, Designated Counsel, on the
briefs).

Wayne Mello, Acting Hudson County Prosecutor,
attorney for respondent (Patrick F. Galdieri, II,
Assistant Prosecutor, of counsel and on the brief;
Josemiguel Rodriguez, Law Clerk, on the brief).

PER CURIAM
Defendant David Cooper appeals from an order denying his post-

conviction relief (PCR) petition, which the court entered after hearing argument

but without conducting an evidentiary hearing. Perceiving no error in the PCR

court's finding that defendant did not establish a prima facie case of ineffective

assistance of counsel and no abuse of discretion in the court's decision not to

conduct an evidentiary hearing, we affirm.

In connection with a shooting that took place in 2016, a jury convicted

defendant of first-degree murder, N.J.S.A. 2C:11-3a(1), (2); second-degree

unlawful possession of a weapon, N.J.S.A. 2C:39-5b(1); and second-degree

possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a(1). The

trial court sentenced defendant to life in prison with twenty-five years of parole

ineligibility on the murder conviction concurrent to seven-year terms with

forty-two months of parole ineligibility for each of the weapons convictions.

We affirmed defendant's convictions and remanded for resentencing.

State v. Cooper, No. A-4692-18 (App. Div. Apr. 13, 2022) (slip op. at 36-37).

On remand, the trial court sentenced defendant to an imprisonment term of

thirty-five years with thirty years of parole ineligibility on the murder conviction

concurrent to the seven-year terms with forty-two months of parole ineligibility

A-2809-23
2
for the weapons convictions. The Supreme Court denied defendant's petition

for certification. State v. Cooper, 252 N.J. 320 (2022).

In his subsequent PCR petition, defendant alleged his trial counsel had

been ineffective in not challenging an out-of-court identification or moving to

exclude a videotape of the identification.1 Two days after the murder, police

interviewed defendant's then girlfriend. She also testified at trial. During the

interview and at trial, she reviewed still photographs taken from videos,

including a video of the shooting, and identified defendant and her car, which

defendant had borrowed on the morning of the shooting, at the scene of the

shooting. In our opinion on his direct appeal, we rejected defendant's argument

his girlfriend's out-of-court identification failed to comport with the procedures

established in State v. Henderson, 208 N.J. 208, 289-93 (2011). Cooper, slip

op. at 22.

After hearing argument on April 18, 2024, the PCR court placed a decision

on the record and entered an order and written opinion denying defendant's

petition. In its written opinion, the court found defense counsel's decision to

1
Defendant made other allegations of ineffective assistance of counsel in his
petition. Because he does not challenge on appeal the PCR court's rejection of
those assertions, we conclude he waived those issues, and we do not address
them. See State v. Rochat, 470 N.J. Super. 392, 456 (App. Div. 2022) (deeming
waived an issue not argued on appeal).
A-2809-23
3
forego challenging the girlfriend's pre-trial identification was "not objectively

deficient" but was "a strategic decision." And as the court said in its oral

opinion, the decision was "probably honestly good strategy." The court also

found defendant had failed to demonstrate how a motion to suppress the

identification "would have been meritorious or led to a different verdict" given

the other evidence presented by the State at trial, including cellphone records

that placed defendant at the crime scene at the time of the murder, bullets found

in defendant's home that matched shell casings located at the crime scene, and a

photograph defendant had taken of himself wearing the same hat worn by the

shooter in video footage.

The court held defendant was not entitled to an evidentiary hearing

because he had failed to make a prima facie showing he received ineffective

assistance of counsel under the two-pronged test articulated by the United States

Supreme Court in Strickland v. Washington, 466 U.S. 668, 687 (1984), and

adopted by the New Jersey Supreme Court in State v. Fritz, 105 N.J. 42, 58

(1987).

Defendant makes the following arguments on appeal:

POINT ONE

THE PCR JUDGE ERRED WHERE HE
DETERMINED DEFENDANT DID NOT

A-2809-23
4
DEMONSTRATE A PRIMA FACIE CASE THAT HIS
TRIAL ATTORNEY WAS CONSTITUTIONALLY
INEFFECTIVE AS HIS LEGAL REPRESENTATIVE.

A. Defense counsel's failure to file a suppression
motion regarding the identification procedure
constitutes a deficient performance under
prevailing professional norms.

B. Defendant suffered prejudice as a result of his trial
attorney's deficient performance.

POINT TWO

THE PCR JUDGE ERRED WHERE HE
DETERMINED THAT AN EVIDENTIARY
HEARING WAS NOT WARRANTED.

We affirm substantially for the reasons set forth in Judge Carlo Abad's

comprehensive written opinion. As the judge found, a defendant in a PCR

petition must "overcome a 'strong presumption' that counsel exercised

'reasonable professional judgment' and 'sound trial strategy' in fulfilling his

responsibilities." State v. Nash, 212 N.J. 518, 542 (2013) (quoting State v. Hess,

207 N.J. 123, 147 (2011)). "Mere dissatisfaction with a 'counsel's exercise of

judgment' is insufficient to warrant overturning a conviction." Ibid. (quoting

State v. Echols, 199 N.J. 344, 358 (2009) (internal quotations omitted)).

We see no basis to disturb the judge's finding about the confirmatory

nature of the girlfriend's identification of defendant. A confirmatory

A-2809-23
5
identification occurs when a witness identifies someone he or she already knew

from past experience, even if the witness cannot identify that person by name.

State v. Pressley, 232 N.J. 587, 592-93 (2018). Because of the witness's past

experience with the defendant, a confirmatory identification is not considered to

be the product of suggestive tactics by the interviewing police officers . Ibid.;

see also People v. Rodriguez, 79 N.Y.2d 445, 450 (1992) ("as a matter of law,

the witness is so familiar with the defendant that there is 'little or no risk' that

police suggestion could lead to misidentification").

During argument of the PCR petition, defendant and his counsel did not

dispute the girlfriend knew defendant. The evidence at trial supported the PCR

judge's conclusion regarding the confirmatory nature of the identification, even

if the girlfriend did not know defendant's last name or family. See Pressley, 232

N.J. at 592-93. The girlfriend told detectives she had seen defendant "around

the neighborhood for a long time" and had been in a relationship with him that

began approximately three months before the murder. In her testimony, she

described defendant as a "boyfriend." She told police and testified he had spent

the night before the murder at her apartment, had driven her to work that

morning, and had borrowed her car. Defense counsel vigorously cross-

A-2809-23
6
examined the girlfriend at trial regarding her identification of defendant. The

jury was free to accept or reject her testimony.

"Moreover, when a defendant asserts their attorney was ineffective by

failing to file a specific motion, they must establish that the motion would have

been successful." State v. Balbosa, 481 N.J. Super. 497, 520 (App. Div. 2025)

(citing State v. O'Neal, 190 N.J. 601, 619 (2007)), certif. denied, 262 N.J. 410

(2026). Indeed, "[i]t is not ineffective assistance of counsel for defense counsel

not to file a meritless motion." Ibid. (quoting O'Neal, 190 N.J. at 619). As the

PCR judge found, defendant failed to establish a motion to suppress the

girlfriend's out-of-court statement would have been successful or a reasonable

probability existed that the suppression would have altered the verdict given the

other extensive evidence of defendant's guilt. See State v. Pierre, 223 N.J. 560,

583 (2015) (to establish prejudice under the Strickland/Fritz analysis, a

defendant must demonstrate that but for counsel's deficient performance, a

reasonable probability exists that the result of the proceeding would have been

different).

Thus, defendant failed to meet either prong under the Strickland/Fritz

analysis.

A-2809-23
7
We discern no abuse of discretion in Judge Abad's decision to forego an

evidentiary hearing. See State v. L.G.-M., 462 N.J. Super. 357, 365 (App. Div.

2020) (holding "[w]e review a trial court's decision to grant or deny a defendant's

request for a hearing under an abuse of discretion standard"). A PCR petitioner

is not automatically entitled to an evidentiary hearing. State v. Porter, 216 N.J.

343, 355 (2013); see also State v. Peoples, 446 N.J. Super. 245, 254 (App. Div.

2016) (holding "[t]he mere raising of a claim of [ineffective assistance of

counsel] does not entitle the defendant to an evidentiary hearing"). Rule 3:22-

10(b) provides that a court should hold an evidentiary hearing on a PCR petition

only if the defendant establishes a prima facie case in support of PCR, "there are

material issues of disputed fact that cannot be resolved by reference to the

existing record," and "an evidentiary hearing is necessary to resolve the claims

for relief." See also Porter, 216 N.J. at 354.

"A prima facie case is established when a defendant demonstrates 'a

reasonable likelihood that his or her claim, viewing the facts alleged in the light

most favorable to the defendant, will ultimately succeed on the merits.'" Id. at

355 (quoting R. 3:22-10(b)). Defendant did not meet that standard, and, thus,

the judge did not abuse his discretion by deciding the petition without

conducting an evidentiary hearing. Because defendant failed to meet either

A-2809-23
8
prong under the Strickland/Fritz analysis to establish a prima facie case of

ineffective assistance of counsel, defendant was not entitled to an evidentiary

hearing.

Because we have addressed substantively the PCR judge's findings under

Strickland/Fritz, we do not reach the State's argument about a procedural bar

under Rule 3:22-5.

Affirmed.

A-2809-23
9