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State v. Gallicchio


June 16, 2008


On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 91-06-0047.

Per curiam.


Submitted May 27, 2008

Before Judges Parrillo and Baxter.

Defendant Nicholas Gallicchio appeals from an August 3, 2006 order that denied his petition for post-conviction relief (PCR). We affirm.


On December 2, 1993, following a trial by jury, defendant was convicted of first-degree racketeering (count two) and second-degree theft by extortion (count five). He was sentenced to an extended term of fifty-years imprisonment on the racketeering conviction and to a concurrent seven-year term for theft by extortion.

Defendant filed a direct appeal in which he raised the following claims: the evidence of theft by extortion was insufficient to have warranted its submission to the jury; the court's instructions on the racketeering and extortion charges were inadequate; the court should have granted defendant's motion to dismiss the racketeering charge; the racketeering statute is void for vagueness; the racketeering count of the indictment was over-broad and should have been dismissed; comments made by the prosecutor in summation denied defendant a fair trial; the court should have given the jury a limiting instruction concerning the testimony of the pleading co-defendants; the judge should have charged the jury on a lesser included offense of theft by extortion; and the sentence was illegal. We rejected each of those claims and affirmed defendant's conviction and the length of the sentence.*fn1 State v. Gallicchio, No. A-3621-93 (App. Div. April 29, 1997). On July 11, 1997, the Supreme Court denied defendant's petition for certification.

Thereafter, according to defendant, he filed his first PCR petition on July 22, 2005, which would have been more than eleven years after the date of his conviction. Such a filing date would contravene Rule 3:22-12(a), which provides that absent facts showing excusable neglect, a PCR petition "shall be filed . . . [no] more than 5 years after . . . the judgment . . . sought to be attacked . . . ." R. 3:22-12(a).

Although the procedural history contained in defendant's brief does not so acknowledge, we are satisfied that defendant filed two earlier PCR petitions. We are informed by the State that, due to the passage of time, the briefs and transcripts pertaining to defendant's two earlier PCR filings cannot be located. The State has, however, provided copies of two Promis Gavel print-outs. The first establishes that defendant filed a first PCR petition on July 13, 1998, which was denied by Judge Julius A. Feinberg on October 30, 1998. A second Promis Gavel print-out shows that defendant filed a second PCR petition on October 28, 1999, which was dismissed without prejudice on December 3, 2001. When the judge dismissed defendant's second petition without prejudice on December 3, 2001, he stated that he intended to permit defendant's anticipated third petition to be filed nunc pro tunc. On March 21, 2000, defendant filed a pro se verified petition for post-conviction relief. Another five years elapsed between the time defendant filed that third pro se petition on March 21, 2000, and July 22, 2005, when assigned counsel filed an amended PCR petition, the denial of which is the subject of this appeal.

Judge Casale heard argument on defendant's PCR petition on August 3, 2006. At the conclusion of that hearing, he declined to rule that defendant's claims were time-barred. The judge observed that although Rule 3:22-12(a) requires that a PCR petition be filed no later than five years after conviction, the complex nature of defendant's trial, the voluminous record and the time involved in reviewing 170 cassette tapes constituted a justification for defendant's failure to comply with the five-year time-bar established by the Rule.

The judge then proceeded to review each of the thirteen claims defendant had presented in support of his July 22, 2005 amended petition. In a comprehensive and well-reasoned oral opinion covering twenty transcript pages, Judge Casale substantively discussed each of the thirteen claims and ultimately rejected them:

In conclusion, this court has addressed substantive issues and the post-conviction relief application. [Defendant] has not established that either his trial counsel or appellate counsel was ineffective. There are no facts here that would require an evidentiary hearing. There was no evidence to establish any decisions made by either [trial or appellate] counsel prejudiced the petitioner.

After reviewing the record in its entirety, it is evident that both trial and appellate counsel provided professional assistance. Both pursued a sound trial strategy in their defense [of defendant]. For the aforesaid reasons, defendant's petition for post-conviction relief is denied by this court.

A confirming order was signed on August 3, 2006.

On appeal, defendant raises the following claims:


A. Trial counsel failed to call an essential witness to trial.

B. Trial counsel failed to cross-examine in an effective manner.

C. Trial counsel failed to file motions to dismiss the indictment.




We begin by addressing the judge's conclusion that this PCR petition, filed on March 21, 2000 (one year and four months after the Rule 3:22-12(a) five-year time-bar had expired), was not precluded from consideration by the provisions of that Rule. The State has not cross-appealed from that ruling. Consequently, we decline to consider the State's argument that the judge erred when he concluded that the instant petition is not time-barred.

We do, however, agree with the State's contention that defendant's PCR claims should not be addressed on the merits because of the provisions of Rule 3:22-4, which provides:

3:22-4. Bar of Grounds Not Raised in Prior Proceedings; Exceptions Any ground for relief not raised in a prior proceeding under this rule, or in the proceedings resulting in the conviction, or in a post-conviction proceeding brought and decided prior to the adoption of this rule, 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 (a) that the ground for relief not previously asserted could not reasonably have been raised in any prior proceeding; or (b) that enforcement of the bar would result in fundamental injustice; or (c) that denial of relief would be contrary to the Constitution of the United States or the State of New Jersey.

That Rule provides that a defendant is barred from raising in a second or third PCR petition any claim that could have been adjudicated either on direct appeal or in the defendant's first PCR petition. As the Court observed in State v. Mitchell, 126 N.J. 565, 584 (1992), this procedural bar achieves the legitimate purpose of protecting the judiciary and the State from the need to repeatedly and indefinitely address in a piecemeal fashion issues that could have been presented in a singular and orderly fashion in one proceeding:

The State has a strong interest in achieving finality. Without procedural rules requiring the consolidation of issues, litigation would continue indefinitely in a disconnected and piecemeal fashion. Each time a petitioner brought forward a new issue, attorneys and courts would waste their limited resources acquainting themselves with all of the complex details necessary to adjudicate it. When the grounds for challenging a conviction are consolidated, that investment need occur only once, and judicial resources can be more efficiently used to decide cases in a timely fashion. Moreover, relevant issues in a case are often interrelated. Adjudicating them separately would impair a court's ability to reach a result that fairly synthesizes all of the relevant factors into a just and reasoned outcome.

Defendant bears the burden of establishing that the claims he now raises in this, his third PCR petition, could not have been, or were not, raised on direct appeal or in the two prior PCR proceedings. R. 3:22-4; R. 3:22-5. Defendant has not produced transcripts of the PCR hearing on October 30, 1998. It is entirely conceivable that the same claims he presents today were advanced by him and rejected by the judge during that long-ago proceeding in 1998. If so, then the procedural bar of Rule 3:22-5 becomes operative. That Rule provides:

3:22-5. Bar of ground expressly adjudicated A prior adjudication upon the merits of any ground for relief is conclusive whether made in the proceedings resulting in the conviction or in any post-conviction proceeding brought pursuant to this rule or prior to the adoption thereof, or in any appeal taken from such proceedings.

[R. 3:22-5.]

Because defendant has failed to provide us with the transcripts of the 1998 PCR proceeding, we are unable to determine whether the claims he advances today were heard and rejected in 1998, in which case such claims are barred by Rule 3:22-5, or whether instead defendant could have, but did not, present those claims in 1998, in which case they are barred by Rule 3:22-4.

We cannot condone defendant's failure to provide the transcripts of that 1998 proceeding. Although we recognize that a decade has now elapsed, the passage of time is solely attributable to defendant's choice and is not the result of any action or inaction by either the court or the State. We will not permit defendant to re-litigate claims that he could have, and perhaps did, litigate in 1998.

As the Court observed in Mitchell, procedural rules requiring the consolidation of issues promote a strong societal interest by preventing the endless re-litigation of the same issues in a disconnected, disjointed and piecemeal fashion. Mitchell, supra, 126 N.J. at 584. The State, too, has a strong interest in finality. Ibid. Its limited resources should not be needlessly expended in the litigation of inter-related claims that should have been addressed comprehensively and conclusively in defendant's first filing a decade ago. Accordingly, we rely on Rules 3:22-4 and 3:22-5 and conclude that defendant is not entitled to consideration of his claims of ineffective assistance of counsel on the merits.


Notwithstanding our conclusion that defendant is not entitled to appellate review of Judge Casale's order of August 3, 2006, for the sake of complete appellate review we have reviewed defendant's claims substantively and conclude that they lack sufficient merit to warrant extended discussion. We affirm substantially for the reasons provided by Judge Casale in his comprehensive and well-reasoned oral opinion of August 3, 2006. R. 2:11-3(e)(2).


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