On appeal from Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 97-06-0621.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 13, 2007
Before Judges S.L. Reisner and Baxter.
Defendant Gino Gentile appeals from a January 31, 2006 order that denied his first petition for post-conviction relief (PCR). Defendant presents the following claims for our consideration:
I. THE PCR COURT ERRED IN DENYING THE PETITION FOR POST CONVICTION RELIEF. (NOT RAISED BELOW)
II. THE PCR COURT FAILED TO RULE ON ALL THE ISSUES RAISED IN THE PETITION. (NOT RAISED BELOW)
III. DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE FROM PCR COUNSEL. (NOT RAISED BELOW)
IV. DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE FROM TRIAL AND APPELLATE COUNSEL.
We affirm in part, reverse in part, and remand for an evidentiary hearing limited to trial counsel's reasons for waiving a limiting instruction when N.J.R.E. 404(b) evidence was admitted.
In a jury trial, defendant was convicted of murder, aggravated manslaughter, attempted murder, aggravated assault and related weapons offenses. In an unreported opinion, we affirmed defendant's conviction. State v. Gentile, No. A-0846-00 (App. Div. October 10, 2002). In that opinion, we described the trial testimony as follows:
On March 30, 1997, at approximately 5:00 p.m. Mehmet Kulaskiz, Asad Abuhamda, Adnan Ali, Nadal Haq and Isaam Atsham were in the area of Main and Robert Streets in South Paterson when they saw defendant and another, Louis Muniz. Atsham and Haq decided to approach defendant and Muniz in order to discuss with them an incident between the men the night before.
After some verbal exchanges, defendant brandished a handgun and fired it at Ali, hitting him in the right leg. Defendant then approached Haq, who was crouched behind a car in a fetal position, apparently hiding from the gunfire, pointed his gun at Haq and from point blank range fired two shots "execution style" into the back of Haq's head. Haq was taken to St. Joseph's Hospital where he died of his injuries the next day.
After shooting Haq, defendant then opened fire on Kulaskiz and Abuhamda, who were running from the scene. Abuhamda testified that he looked back to see defendant shooting randomly in the middle of the street. Defendant then turned back toward Ali and shot him again, this time hitting Ali's left leg.
Defendant then fled the scene and hid in the back yard of Russell Whaley, Jr.'s house. Upon finding defendant hiding in his yard, Whaley asked why he was there. Defendant told him that some "Arabs in the area didn't want any black people, Hispanics in the area and they were trying to kill him." Whaley, Jr. then asked defendant to leave, but defendant asked to stay. Russell Whaley, Sr. then came out of the house and told defendant he would take him to a hospital. While en route to the hospital, defendant instructed the elder Whaley to take him to Wayne. Whaley, Sr. refused and told defendant to get out of his car. Defendant exited the car across from the Madison Diner on Madison Street, Paterson.
Meanwhile, Atsham and two other friends, Ahmad Aftekhar and Thaier Abdehady, were on the lookout for defendant when they spotted him entering the Madison Diner. The three men entered the diner, searching for defendant and Atsham entered the restroom to look for defendant. Gunshots were heard from inside the restroom and defendant was seen exiting the restroom and leaving the diner.
When Aftekhar and Abdehady entered the restroom, they found Atsham lying face-down on the floor. He had been shot twice in the torso and died from his wounds.
Defendant eluded police for almost a week before he was caught and detained by New Britain, Connecticut police on April 4, 1997. Paterson Police Detectives Iurato, Maute, and Jadlos traveled to New Britain to question defendant. During an interrogation, defendant admitted to shooting Adnan Ali and to shooting another person in the Madison Diner.
Finally, there was evidence that approximately two weeks before the March 30, 1997 shooting, defendant was in Connecticut with Jorge Concepcion when defendant showed Concepcion a gun and then fired the gun. Although defendant fired the gun out of the view of Concepcion, Concepcion heard the gun discharge and defendant admitted the next day that he in fact discharged the gun. Ballistics tests revealed that spent casings and bullets from the incident matched the casings and bullets retrieved from the March 30 shooting in Paterson.
Defendant raised three claims on direct appeal. He challenged the trial court's failure to: declare a mistrial after a State's witness had an emotional outburst; charge passion/provocation manslaughter and imperfect self-defense; and properly evaluate applicable sentencing criteria.
We rejected each of those contentions and affirmed defendant's conviction. Ibid.
During the PCR proceeding that is the subject of this appeal, defendant argued that the evidence of his firing a handgun in Connecticut two weeks earlier was highly prejudicial and should have been excluded. He asserted that the failure of appellate counsel to have raised this issue on direct appeal constituted ineffective assistance of counsel. He also argued that the evidence of the Connecticut incident was erroneously admitted at trial and trial counsel was ineffective for waiving a limiting instruction. After a hearing, Judge DeLuccia denied the petition.
We quote Jorge Concepcion's testimony on behalf of the State about the Connecticut incident in order to provide context for ...