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State v. Gallicchio

June 16, 2008

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
NICHOLAS GALLICCHIO, DEFENDANT-APPELLANT.



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

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

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.

I.

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 ...


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