3:22-10. Presence of Defendant at Hearing; Preference; Evidentiary Hearing
[The proceedings shall be given preference and be determined promptly.] A
defendant in custody may be present in court in the court's discretion and shall be
entitled to be present when oral testimony is adduced on a material issue of fact within
the defendant's personal knowledge.
(a) A defendant shall be entitled to an evidentiary hearing only upon the
establishment of a prima facie case in support of post-conviction relief, a determination
by the court that there are material issues of disputed fact that cannot be resolved by
reference to the existing record, and a determination that an evidentiary hearing is
necessary to resolve the claims for relief. To establish a prima facie case, defendant
must demonstrate 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.
(b) Any factual assertion that provides the predicate for a claim of relief must be
made by an affidavit or certification pursuant to Rule 1:4-4 and based upon personal
knowledge of the declarant before the court may grant an evidentiary hearing.
(c) The scope of an evidentiary hearing shall be limited to the issue of whether
the defendant was improperly convicted.
(d) A court shall not grant an evidentiary hearing:
(1) if an evidentiary hearing will not aid the court’s analysis of the defendant’s
entitlement to post-conviction relief;
(2) if the defendant’s allegations are too vague, conclusory or speculative; or
(3) for the purpose of permitting a defendant to investigate whether additional
claims for relief exist for which defendant has not demonstrated a reasonable likelihood
of success as required by R. 3:22-10(a).
