On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 00-11-1300.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 3, 2009
Before Judges Winkelstein and Chambers.
Defendant Giuseppe Gambino appeals from the order of February 2, 2007, denying his post-conviction relief application. We affirm.
Petitioner was convicted of murdering his downstairs neighbor Richard Wighard. The killing appeared to be the culmination of a long standing dispute between defendant, who rented an apartment upstairs, and the victim and his brother, John Wighard, who lived downstairs. Defendant contended that the brothers, who controlled the temperature for the building, kept his apartment too hot and that they were causing noxious fumes to enter his apartment.
On August 25, 2000, John Wighard was awakened by gun shots and found his brother lying on the floor in their apartment. The victim had gun shot wounds in his abdomen and back. John Wighard immediately suspected defendant of the shooting, due to threats defendant had previously made. Matthew Puzio, who was visiting a friend in the neighborhood, also heard the shots; he heard someone say, "I had enough of this fuckin' shit"; and then he heard a car drive away. The victim had been shot with two .22 caliber bullets; the police found .22 caliber ammunition and a gun holster in defendant's apartment.
At trial, defendant's business associate and friend George Imperatore testified that on the evening in question, defendant said that he "couldn't take it anymore" and that "I shot him . . . I shot him and then when he fell down I shot him in the back." Imperatore understood defendant to be referring to his downstairs neighbor. Imperatore then drove defendant to a bridge over the Hackensack River where defendant threw away a gun. The following morning defendant told Imperatore that he had shot the victim and that he was glad he had done it.
Linda Roll, a neighbor and friend of defendant, received a telephone call from defendant shortly after the shooting. According to Roll, defendant told her that he "could not take it any more" and that "I shot him." She testified that prior to the shooting, defendant had arguments with the Wighards. Defendant thought the Wighards were trying to kill him with excessive heat and fumes, and defendant said that he was going to shoot one of them.
Defendant testified at trial, denying that he had committed the crime, maintaining that he had not disposed of a gun, and refuting the testimony of Roll and Imperatore about his admissions to the crime. He stated that he did not know how the .22 caliber ammunition got into his apartment, but noted that the Wighards had keys to his residence. He contended that the gun holster belonged to a federal marshal he had worked with on some mortgages.
A jury convicted defendant of first degree murder, N.J.S.A. 2C:11-3(a)(1) or (2) (count one); second degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count two); and third degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b) (count three). The trial court sentenced defendant to thirty-five years of imprisonment with a thirty year period of parole ineligibility on count one, merged count two into count one, and sentenced defendant to a consecutive term of four years on count three.
On defendant's direct appeal, we affirmed the conviction and sentence. State v. Gambino, No. A-6542-02 (App. Div. Apr. 5, 2005). The Supreme Court denied certification. State v. Gambino, 184 N.J. 212 (2005). Defendant then filed his petition for post-conviction relief which was denied by the trial court. This appeal followed.
Defendant, through counsel, raises the following issues in this appeal.
POINT I THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF WITHOUT AFFORDING HIM AN EVIDENTIARY HEARING TO FULLY ADDRESS HIS CONTENTION THAT HE FAILED TO ...