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State v. Abruzia

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


August 11, 2008

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
VINCENT ABRUZIA, DEFENDANT-APPELLANT.

On appeal from Superior Court of New Jersey, Law Division, Essex County, 96-11-3865.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted June 2, 2008

Before Judges Graves and Alvarez.

Defendant Vincent Abruzia appeals from an order entered on March 30, 2007, denying his petition for post-conviction relief (PCR). We affirm.

On December 10, 1999, a jury convicted defendant of second- degree conspiracy to commit robbery, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:15-1 (count one); second-degree conspiracy to commit murder, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:11-3 (count two); first- degree robbery, N.J.S.A. 2C:15-1 (counts three through six); second-degree reckless manslaughter as a lesser included offense of murder, N.J.S.A. 2C:11-4(b)(1) (count seven); felony murder, N.J.S.A. 2C:11-3(a)(3) (count eight); third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b) (count nine and thirteen); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count ten); and second-degree conspiracy to commit aggravated assault, N.J.S.A. 2C:12-1 (count eleven). Defendant was acquitted on count twelve, aggravated assault, and count fourteen, possession of a weapon for an unlawful purpose. Counts one through ten covered events which took place on April 20, 1996, while counts eleven through fourteen addressed a prior incident on April 12, 1996.

At sentencing on March 7, 2000, the court imposed an aggregate term of life imprisonment plus fifteen years, with thirty-five years of parole ineligibility. Defendant's convictions and sentence were affirmed on direct appeal and certification was denied. State v. Abruzia, No. A-2324-02 (App. Div. Feb. 20), certif. denied, 180 N.J. 357 (2004). The facts established at defendant's trial were fully set forth in our unpublished opinion and need not be repeated here. In affirming defendant's judgment of conviction we stated:

[T]here is no question that defendant was a drug dealer who was willing to defend his drug turf at any cost. The consequences for defendant are that he is removed from society for an extensive period of time because he has more than demonstrated he does not feel bound by the rules that govern society.

[Ibid.]

Although defendant's PCR petition was not filed in the Law Division until March 10, 2006, it is dated July 12, 2004, and it was received by the Office of the Public Defender on September 9, 2004. The record also confirms the Public Defender's Office submitted defendant's petition to the Essex County Criminal Division Manager's Office for filing on September 29, 2004, but for some unexplained reason the petition was not filed at that time. In any event, because the State concedes "the defendant made all reasonable efforts to timely file his petition," and because the delay in the filing of defendant's petition is attributable to circumstances beyond his control, we are satisfied his petition should not be time-barred by Rule 3:22- 12, which establishes a five-year time limit for petitioning for PCR.

In a brief submitted to the PCR court on October 25, 2006, defendant's attorney advanced the following arguments.

POINT I

FOR REASONS SPECIFICALLY SET FORTH IN THE FOLLOWING POINTS, DEFENDANT WAS DENIED HIS FEDERAL AND STATE CONSTITUTIONAL RIGHTS TO THE EFFECTIVE ASSISTANCE OF BOTH TRIAL AND APPELLATE COUNSEL.

POINT II

DEFENDANT WAS DENIED HIS CONSTITUTIONAL RIGHTS TO THE EFFECTIVE ASSISTANCE OF COUNSEL WHEN HIS APPELLATE ATTORNEY FAILED TO RAISE THE ISSUE OF THE DENIAL OF HIS MOTION FOR THE SEVERANCE OF COUNTS 1 - 10 FROM COUNTS 11 - 15 FOR PURPOSES OF TRIAL BECAUSE OF PREJUDICIAL JOINDER.

POINT III

DEFENDANT WAS DENIED HIS STATE AND FEDERAL CONSTITUTIONAL RIGHTS TO THE EFFECTIVE ASSISTANCE OF COUNSEL WHEN HIS APPELLATE ATTORNEY FAILED TO ARGUE THAT THE TRIAL COURT ERRED IN REFUSING TO GRANT A JUDGMENT OF ACQUITTAL AT THE END OF THE STATE'S CASE ON COUNT 11, CHARGING CONSPIRACY TO COMMIT AGGRAVATED ASSAULT ON LOIDA GONZALEZ.

POINT IV

DEFENDANT WAS DENIED HIS FEDERAL AND STATE CONSTITUTIONAL RIGHTS TO THE EFFECTIVE ASSISTANCE OF COUNSEL DUE TO THE FAILURE OF HIS TRIAL ATTORNEY TO REQUEST A PROPER VOIR DIRE OF JUROR #14, AND THE FAILURE OF HIS APPELLATE ATTORNEY TO CHALLENGE THIS ERROR ON APPEAL.

POINT V

DEFENDANT WAS DEPRIVED OF THE EFFECTIVE ASSISTANCE OF COUNSEL WHEN HIS TRIAL ATTORNEY FAILED TO OBJECT TO THE PROSECUTOR'S REPEATED USE OF PRIOR CONSISTENT STATEMENTS TO BOLSTER THE CREDIBILITY OF HIS WITNESSES.

POINT VI

DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL WHEN HIS TRIAL ATTORNEY FAILED TO COMMUNICATE A PLEA OFFER MADE DURING TRIAL BY THE PROSECUTOR.

Following oral argument on March 9, 2007, the PCR judge rendered an eight-page written decision, which summarized the facts of the case as follows:

The State alleged that Petitioner controlled the sale of narcotics in the area of Mt. Prospect Avenue and Arlington Avenue in April of 1996. In that same year, Andre Reyes, (hereinafter Popeye) began selling drugs in the 77 Steps location, an area within the Petitioner's territory.

On April 11, 1996, at approximately 6 p.m. the Petitioner, Quinones, and other[] gang members fought with Popeye and his gang over the disputed area. Popeye pulled out a gun, but police arrived and broke up the fight. The next night at approximately 8 p.m. the gangs returned to continue the fight. Petitioner brought a .38 caliber handgun; Quinones brought a .357 caliber handgun. The Petitioner agreed to fight a member of the rival gang and gave his gun to Vega. The fight escalated when Popeye began hitting the Petitioner in the back with a golf club; Vega then shot a gun into the air and Quinones tried to shoot Popeye but missed. The stray bullet hit Lioda Gonzalez in a non-fatal shot to the right shoulder-- she had been walking her dog in the vicinity. Afterwards, Quinones hid the gun with Petitioner's help.

Popeye and his gang continued to sell drugs in the area of 77 Steps. On Saturday, April 20, 1996, the Petitioner, Quinones, and others agreed to rob the rival gang members who were selling drugs on the hill. Petitioner gave Quinones the loaded gun previously used by him in the April 11 brawl. The Petitioner agreed to be the lookout while Quinones robbed the gang. Quinones ordered the rival gang members to lie down on the ground and remove the money and drugs from their pockets. One of the members, Torres, moved his head and was subsequently shot and killed by Quinones.

Several of Quinones and the Petitioner's fellow gang members implicated the Defendant in the crime and testified at trial.

In its written decision, the court carefully analyzed each of defendant's PCR arguments, and it explained its reasons for denying defendant's petition. On appeal to this court, defendant contends the court "erred in denying defendant's petition." Having reviewed the record and applicable law, we are satisfied defendant's arguments are without sufficient merit to warrant extended discussion. See R. 2:11-3(e)(2). We therefore affirm with only the following comments.

Pursuant to the Sixth Amendment of the United States Constitution, the right to counsel is recognized as the right to the effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 684-86, 104 S.Ct. 2052, 2063-64, 80 L.Ed. 2d 674, 691-92 (1984). In Strickland, the United States Supreme Court created a two-part test to determine whether a defendant received ineffective assistance of counsel. Id. at 687, 104 S. Ct. at 2064, 80 L.Ed. 2d at 693. "First, the defendant must show that the counsel's performance was deficient" by establishing "that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Ibid. "Second, the defendant must [demonstrate] that the deficient performance prejudiced the defense" by "showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Ibid. Under this prong, "[t]he defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S.Ct. at 2068, 80 L.Ed. 2d at 698; see also State v. Fritz, 105 N.J. 42, 58 (1987) (adopting the Strickland test and applying it to the guarantee of effective assistance of counsel in Article I, Paragraph 10 of the New Jersey Constitution).

As stated by the Strickland Court, "[j]udicial scrutiny of counsel's performance must be highly deferential" and "the performance inquiry must be whether counsel's assistance was reasonable considering all the circumstances." Strickland, supra, 466 U.S. at 688-89, 104 S.Ct. at 2065, 80 L.Ed. 2d at 694. The court will recognize a "strong presumption" that counsel provided "reasonable professional assistance." Id. at 689, 104 S.Ct. at 2065, 80 L.Ed. 2d at 694.

In the present matter, the court concluded there was no showing by defendant that the performance of either his trial counsel or his appellate counsel was constitutionally deficient, and there was no showing that the allegedly deficient performance of counsel prejudiced his defense. Based on our review of the record, we are satisfied the court's findings are amply supported by the record and its conclusions predicated on those findings are legally sound. Accordingly, we affirm the order denying defendant's PCR petition substantially for the reasons stated by Judge Fullilove in his written decision on March 30, 2007.

Affirmed.

20080811

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