March 23, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
GIUSEPPE GAMBINO, DEFENDANT-APPELLANT.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 RECEIVE ADEQUATE LEGAL REPRESENTATION AT THE TRIAL LEVEL.
A. THE PREVAILING LEGAL PRINCIPLES REGARDING CLAIMS OF INEFFECTIVE ASSISTANCE OF COUNSEL, EVIDENTIARY HEARINGS AND PETITIONS FOR POST-CONVICTION RELIEF.
B. SINCE THE DEFENDANT PRESENTED A PRIMA FACIE CASE OF INEFFECTIVE ASSISTANCE OF COUNSEL AT THE TRIAL LEVEL, THE TRIAL COURT ERRED BY DENYING THE PETITION IN ITS ENTIRETY WITHOUT AFFORDING HIM AN EVIDENTIARY HEARING TO FULLY ADDRESS THIS CONTENTION.
In addition, in his pro se brief to this court, defendant contends that certain information given to his attorney prior to the trial was ignored and that further investigation could have exonerated him or created reasonable doubt in the minds of the jurors.
Post-conviction relief is appropriate where a defendant's substantial constitutional rights were violated in the conviction proceedings. R. 3:22-1(a). Claims of ineffective assistance of counsel implicate a defendant's constitutional right to counsel under both the federal and state constitutions, Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 2063, 80 L.Ed. 2d 674, 692 (1984); State v. Fritz, 105 N.J. 42, 58 (1987), and are properly raised in post-conviction relief proceedings. See State v. Preciose, 129 N.J. 451, 460 (1992) (stating that ineffective assistance of counsel claims were "particularly suited for post-conviction review because they often cannot reasonably be raised in a prior proceeding"). A defendant's constitutional rights to counsel are violated where "counsel's performance has been so deficient as to create a reasonable probability that these deficiencies materially contributed to defendant's conviction." State v. Fritz, supra, 105 N.J. at 58.
Ordinarily, an evidentiary hearing will be held on ineffective assistance of counsel claims, provided a defendant has made out a prima facie claim for post-conviction relief. State v. Preciose, supra, 129 N.J. at 462-63. In determining whether the defendant has done so, the court must look at the facts from the perspective most favorable to the defendant. Ibid. In order to establish a prima facie case, a defendant must establish two elements: (1) that his attorney's performance was deficient and (2) that without these deficiencies, in reasonable probability, "the result of the proceeding would have been different." Id. at 463-64 (quoting Strickland v. Washington, supra, 466 U.S. at 694, 104 S.Ct. at 2068, 80 L. Ed. 2d at 698).
In his petition to the trial court, defendant set forth fourteen instances where he contended his counsel was deficient. The trial court rejected all fourteen. Of the fourteen, defendant appeals the following five. To avoid confusion in comparing the trial record with our opinion, we will use the numbering found in the trial court record.
6. My attorney did not discuss the case procedure with me, and never presented me a coherent defense plan so that I did not know what he was doing from day to day.
8. My attorney did not include me when choosing the members of the jury although I told him more than once that I wanted to be involved, as is my right.
9. I tried many times to bring certain critical facts and matters to my attorney's attention that involved my defense in the case and he refused to address these issues.
10. My attorney did not examine the available records, failed to prepare a defense and while he did visit me occasionally in the jail, it was only for very short periods and he did not discuss the case in detail, available defenses or any coherent strategy with me. It was only after my conviction that I learned that my attorney had not provided the full discovery package to me, and as a result I was not fully aware of the evidence to be used against me.
11. My attorney did not properly investigate my case, and as a result, certain witnesses that would have provided information that would have caused a different result in the trial were not consulted or subpoenaed to testify.
Even if we assume that defense counsel's performance was defective in these ways, defendant still must establish with reasonable probability that the result would have been different if defense counsel's performance had been sufficient. See State v. Preciose, supra, 129 N.J. at 463-64. This he cannot do. Defendant offers no factual basis for a conclusion that had defense counsel provided sufficient representation, the results of the trial would have been different.
Specifically, defendant contends that his attorney did not discuss the procedure with him nor present him with a coherent defense plan or strategy, but he fails to indicate what defense plan or strategy should have been provided or what procedures were not discussed, and how different conduct on the part of the attorney would have changed the outcome of the trial. Defendant contends that he was not included by defense counsel in the jury selection process, but he fails to identify a single juror that should have been excluded or to identify any aspect of the jury selection process that would have been different had he been included. Defendant maintains that his attorney failed to address certain critical facts he called to the attorney's attention, failed to examine available records, and failed to adequately investigate the case. Due to these failures, defendant maintains that if certain witnesses and information had been presented at trial, the outcome would have been different. Once again, defendant did not identify in the record before the trial court the additional witnesses or evidence that should have been presented at trial and that in all reasonable probability would have led to a different result.
In his supplemental pro se brief to this court, defendant more specifically sets forth information that he maintains counsel should have investigated that would have led to a different outcome at trial. He contends that EZ-Pass records for his vehicle do not fit into the timeline for the State's theory of the case. He maintains that the victim's brother, John Wighard, had the motive and opportunity to commit the crime, since John Wighard had a one million dollar policy on his brother's life and had paid someone known as "Pablo" $80,000. Defendant also contends that he was framed, stating that the Wighard's had keys to his apartment and that the .22 caliber bullets found in his apartment were planted there. Defendant also asserts that Imperatore had a motive to lie because he owed defendant substantial sums of money. Defendant acknowledges that Rolls had no motive to lie or fabricate, but states that "due to the fact of being the sweet person she is, the Police could easily see that she was an easy target for bullying around scaring into talking."
When a defendant asserts that his attorney's performance was deficient, "[h]e must allege facts sufficient to demonstrate counsel's alleged substandard performance." State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). In particular, a defendant who claims that "his trial attorney inadequately investigated his case,  must assert the facts that an investigation would have revealed, supported by affidavits or certifications based upon  personal knowledge." Ibid. While defendant did testify that the Wighards had keys to his apartment, the balance of the statements in the pro se brief are bald assertions of fact, with no certifications or documentation to support them.
In sum, defendant has failed to make out a prima facie case showing that in the absence of the asserted deficiencies by defense counsel, in all reasonable probability, the outcome of the trial would have been different.
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