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State v. Allegro

January 29, 2008


On appeal from the Superior Court, Appellate Division.


(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).

RIVERA-SOTO, J., writing for a unanimous Court.

The question in this appeal is whether defendant's petition for post-conviction relief satisfies the two prongs of the Strickland/Fritz ineffective assistance of counsel standard.

On the morning of February 21, 1999, there was a fire in a Bradley Beach garage apartment that was leased to defendant, William J. Allegro. After extinguishing the fire, police and the fire marshal conducted an investigation into the cause. They discovered an indoor marijuana growing facility that included lights, heating lamps, potted plants and bags of harvested marijuana.

The proofs at trial against defendant were overwhelming. In addition to the evidence retrieved from the scene of the fire, the State presented the testimony of Allegro's landlord. She testified that Allegro rented the garage, and, as far as she knew, he lived in the apartment. The resident of the home in front of the garage also testified that he thought Allegro lived in the garage apartment with his girlfriend. The fire marshal, who also served as the code enforcement officer, testified that the fire resulted from an electrical overload that caused a wire to overheat. He also testified that in 1994 he had issued a certificate of occupancy for the apartment to defendant's brother, James, and that the certificate had been amended in 1998 to add defendant as a listed occupant.

The most damning testimony in the State's case was a recorded telephone call from a person who contacted police shortly after the fire and identified himself using defendant's nickname, "Skip." The caller stated that he was "the one you are looking for." In response to police asking whether the equipment and drugs involved defendant's brother, James, the caller insisted that "[i]t's got nothing to do with Jimmy or anybody else." Allegro did not testify on his own behalf. He did, however, tender the testimony of his brother, James, who claimed that defendant had moved to Belmar some months before the fire. Defendant's former girlfriend also testified, stating that on the day of the fire, Allegro informed her that there had been a fire at the garage apartment "he used to live at."

Allegro was found guilty of first-degree operating a drug production facility and second degree possession with intent to distribute. Based on Allegro's prior drug conviction, the State's application for a mandatory extended term of imprisonment was granted. Allegro was sentenced to a mandatory extended term of fifty years imprisonment with a sixteen-year-eight-month parole ineligibility period. Allegros' conviction and sentence were affirmed on appeal and his petition for certification was denied.

In December 2003, Allegro moved for post-conviction relief. At an evidentiary hearing, Allegro explored, among other allegations, that his trial counsel, L. Gilbert Farr, was ineffective in two respects. First, Allegro claimed that Farr was under the influence of drugs or pending disciplinary charges during trial. (Farr was suspended from the practice of law seven weeks after the jury verdict against Allegro, requiring substitute counsel during sentencing.) Second, Allegro alleged that Farr had failed to prepare and present several witnesses that could have established Allegro's innocence by showing that, at the time of the fire, Allegro lived in Belmar and not at the garage apartment in Bradley Beach.

The PCR judge, who also was the judge during Allegro's trial, denied the application in its entirety. In respect of the allegation about the drug use by defendant's counsel, the trial judge stated that he saw no evidence of any drug use during the trial. In respect of the witnesses who were not called, the PCR judge concluded that he did not believe any of these witnesses would have made a difference in the case. Allegro moved for reconsideration. The PCR court focused on counsel's failure to interview any of defendant's potential witnesses prior to trial. It found that this amounted to incompetence, and undermined the court's confidence about the ultimate outcome of the case. The PCR court therefore granted the petition for post-conviction relief and vacated Allegro's sentences.

The Appellate Division granted the State's motion for leave to appeal and, by a divided panel, reversed and reinstated defendant's convictions and sentence. The majority concluded that it disagreed with the PCR judge's conclusion that Farr's failure to produce the defendant's witnesses constitutes ineffective assistance of counsel. The panel explained that under the Strickland/Fritz standard, Allegro was required to establish that it was "reasonably probable the jury would have reached a different verdict" if Farr had called the additional witnesses. The panel was satisfied that Allegro had failed to do so. As analyzed by the panel, the testimony of defendant's additional friends would have been merely cumulative or repetitive. One judge dissented, expressing the view that the fact that a witness has provided testimony on an issue does not automatically render cumulative the testimony of other persons on the same issue. Allegro appeals as of right based on the dissent filed in the Appellate Division.

HELD: Allegro's ineffective assistance of counsel claims arising from defense counsel's failure to investigate potential witnesses and to call those witnesses do not satisfy the two-pronged Strickland/Fritz standard. His claims in respect of counsel's ineffectiveness in the plea discussions and negotiations requires a remand for development of a more comprehensive record and the PCR court's conclusions based on that record.

1. The two-pronged standard to be applied in considering ineffective assistance of counsel claims was established by the United States Supreme Court in Strickland v. Washington, and has been incorporated into New Jersey's jurisprudence by State v. Fritz, 105 N.J. 42 (1987). In order to sustain a claim of ineffective assistance of counsel under the Strickland/Fritz standard, a defendant must prove: (1) an objectively deficient performance by defense counsel, and (2) that such deficient performance so inured to defendant's prejudice that it is reasonably probable that it altered the result. The first prong of the test is satisfied by a showing that counsel's acts or omissions fell outside the wide range of professionally competent assistance considered in light of all the circumstances of the case. The second prong is satisfied by a defendant's showing that there is a reasonable probability that but for counsel's unprofessional errors, the result of the proceeding would have been different. The error must be so serious as to undermine the court's confidence in the jury's verdict or the result reached. (pp. 16-18)

2. Allegro asserts that he satisfies the deficient performance prong because his attorney, Farr, was under the influence of drugs and faced disciplinary charges at the time of trial. According to defendant, the root cause of Farr's disciplinary problems was his alleged drug abuse. However, the PCR judge, who also served as the trial judge in the trial, saw no evidence of drug use or abuse and conclusively dispelled that notion. Regarding Farr's disciplinary proceedings, other jurisdictions consistently have held that such proceedings are insufficient to create a per se presumption of ineffective counsel. This Court sees no reason to depart from that unbroken line of precedent. Thus, the allegations of defense counsel's drug use or disciplinary problems are, standing alone, insufficient to establish the first prong under Strickland/Fritz. (pp. 18-21)

3. Even if one assumes that Allegro's proofs are sufficient to meet the deficient performance prong, Allegro nonetheless fails to establish Strickland/Fritz's second prong. The Court concludes that the absence of the additional witnesses from defendant's trial could not have created a reasonable probability that, but for Farr's failure to investigate and tender these witnesses, the result of the trial would have been different. (pp. 21-23)

4. Although not raised in the dissent, the Appellate Division addressed the remainder of the assertions defendant advanced in support of his petition for post-conviction relief. One of the claims was that Allegro's counsel was ineffective in plea discussions and negotiations. Allegro alleged, without contradiction, that Farr did not adequately prepare for the plea cut-offs and that Farr misrepresented the import of the plea cut-offs. Allegro claimed that trial counsel advised him not to accept the deal and also incorrectly advised that a deal would be available up to trial. In respect of his extended sentence, counsel allegedly advised Allegro that the threat was a "scare tactic." What makes these claims more troublesome is that Farr was disbarred for conduct substantially similar to that alleged by defendant in respect of the plea negotiations. And, the record on whether Farr was ineffective in respect of the plea deals is less than complete. For those reasons, the Court remands the cause to the Law Division for a more robust exposition of the facts surrounding defendant's claims in respect of his rejection of the plea offers and for the PCR court's conclusions based on that more comprehensive record. (pp. 23-26)

The judgment of the Appellate division is AFFIRMED in part and REVERSED in part, and the matter is REMANDED to the Law Division for further proceedings consistent with this opinion.

The opinion of the court was delivered by: Justice Rivera-soto

Argued November 13, 2007


An early morning fire in a garage apartment in the Borough of Bradley Beach led to the discovery of a marijuana growing facility on the premises. That discovery resulted in defendant William J. Allegro's convictions and sentence for maintaining or operating a controlled dangerous substance production facility and for possession of a controlled dangerous substance with intent to distribute. Defendant's convictions and sentence were affirmed on appeal and his petition for certification was denied. 175 N.J. 547 (2003). Defendant then petitioned for post- conviction relief (PCR), as provided in Rules 3:22-1 to -12, alleging that his trial counsel was ineffective in eighteen separate respects. The PCR court first denied defendant's petition. Defendant sought reconsideration and, focusing exclusively on an alleged failure by defendant's trial counsel to interview and produce additional witnesses at defendant's trial, the PCR court vacated defendant's convictions and ordered a new trial.

On the State's application, a divided Appellate Division panel reversed and reinstated defendant's convictions and sentence, concluding that defendant's petition for post-conviction relief failed to satisfy the two prongs of the Strickland/Fritz ineffective assistance of counsel standard.*fn1

Based on the dissent in the Appellate Division, defendant filed an appeal as of right before this Court. N.J. Const. art. VI, § V, ¶ 1(b); R. 2:2-1(a)(2). We affirm in part and reverse in part the judgment of the Appellate Division.


At 7:19 a.m. on February 21, 1999, there was a fire in a garage apartment located at 408 Monmouth Avenue in the Borough of Bradley Beach; that garage apartment was leased to defendant. Patrolman Michael Ricciardi of the Bradley Beach Police Department, having been dispatched to the scene of the fire, observed flames stretching from the garage on the ground floor to the second floor apartment. Thinking that "the fire might be suspicious[,]" he called the fire marshal and his own police lieutenant. Bradley Beach's Code Enforcement Officer and Fire Marshal, Keith DiLello, responded to Ricciardi's call. DiLello assisted the firefighters in combating the blaze and observed a concentration of fire in the first floor garage that extended to the second floor apartment. However, DiLello did not enter the second floor apartment until the fire was under control and he had the opportunity to start his own investigation.

When DiLello did start his investigation he was accompanied by Ricciardi, as was the practice of the Bradley Beach Police Department. Once in the second floor apartment, DiLello and Ricciardi observed fluorescent lights, irrigation pumps, high wattage light bulbs, potted plants and bags of what was later determined to be marijuana, but no furniture. Although he had been unaware of the presence of marijuana plants on the premises and he had not smelled burning marijuana, Ricciardi's initial reaction was striking:

[T]he first thing that actually came to mind was [it] looks like a rain forest in here. Fluorescent lights, pumps, irrigation, big 800[-]watt light bulbs. All different types of things, potted plants. Some of them had their stems, you know, the ...

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