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State v. Gallicchio

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


April 30, 2009

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

On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 98-09-3647.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted December 16, 2008

Before Judges Parker and LeWinn.

Defendant Michael Gallicchio appeals from an order entered on June 22, 2007 denying his petition for post-conviction relief (PCR). We affirm.

On July 10, 2000, a judgment of conviction was entered against defendant after he pled guilty to first degree robbery, N.J.S.A. 2C:15-1 (Count One); fourth degree unlawful possession of a weapon, N.J.S.A. 2C:39-5d (Count Three); and third degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d (Count Four). After the appropriate merger, he was sentenced in accordance with the negotiated plea agreement to an aggregate term of sixteen years subject to 85% parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.

On January 8, 2001, defendant filed a notice of appeal "nunc pro tunc." We granted leave to file an untimely appeal and on November 22, 2002, we affirmed his conviction and sentence. The Supreme Court denied certification on February 19, 2003. State v. Gallicchio, 175 N.J. 548 (2003).

On August 8, 2003, defendant filed a pro se PCR petition. Counsel was assigned and defendant was granted an evidentiary hearing. At the evidentiary hearing on June 22, 2007, defendant testified that he had private counsel at the time his plea was negotiated and that counsel told him the plea offer was ten to sixteen years. He acknowledged that his attorney told him about the No Early Release Act but claimed, "I wasn't sure at the time because it was new. So it was like, you know, confusing." Defendant acknowledged that he knew it was not a "flat sentence" and that there was a parole ineligibility period. He claimed, however, that "[b]ecause I did not hit the man at this incident . . . . I felt I was pleading to something I didn't do. I knew I did the robbery . . . . I admit to that." When asked why he pled guilty, he responded: "Because I was sent a message while I was in the bull pen that if I was found guilty I would get eighty years with 85%."

Defendant's trial attorney testified at the PCR hearing that he discussed with defendant the State's recommendation of sixteen years with 85% parole ineligibility. The attorney testified: "It's a first degree crime. So the judge would have discretion to sentence him between a ten and a sixteen-year sentence. And I told [defendant] that in light of the 85%, I would argue against the NERA. I didn't believe the pipe should be considered a deadly weapon." The "pipe" refers to an eight-inch long, two pound pipe wrapped in black electrical tape that was used by the co-defendant during the robbery.

Counsel further testified that at defendant's sentencing, he argued for a lesser sentence than recommended in the plea agreement. Indeed, the transcript of the sentencing reflects that defense counsel argued that the metal pipe was not a deadly weapon and maintained that defendant should be sentenced to ten years with 85% parole ineligibility.

After hearing the testimony, Judge Donald Goldman noted that at the time defendant was sentenced, NERA was determined by the judge, similar to the way in which the Graves Act was applied. Judge Goldman indicated that at the time of the plea, he did not have the pipe and did not know what it looked like. The pipe was presented at sentencing, however, and he noted that he had a colloquy with defendant, during which defendant acknowledged that he knew he did not have to be the one to use the pipe and that accomplice liability was sufficient to impose the full sentence on him.

In denying the PCR petition, Judge Goldman, who was also the sentencing judge, noted that

[A]t the time of sentencing, not only was I faced with a defendant who had pled guilty to a first degree robbery, using a deadly weapon, but I faced a defendant with nine prior indictable convictions in both state and one conviction in federal court. According to the defendant's pre-sentence investigation report, he had been in trouble even as a juvenile.

But he was explicitly extended term eligible, and the [c]court sentenced him accordingly to the plea bargain that was entered into. The defendant filed an appeal . . . . and on November 22nd, of 2002, the Appellate Division filed an opinion affirming the judgment of conviction.

In this appeal, defendant argues:

POINT ONE

AS DEFENDANT FILED HIS PETITION WITHIN FIVE YEARS OF HIS SENTENCE, THE LAW DIVISION PROPERLY CONSIDERED HIS PETITION FOR POST CONVICTION RELIEF

POINT TWO

THE DEFENDANT RECEIVE[D] INEFFECTIVE ASSISTANCE OF COUNSEL DURING HIS POST CONVICTION RELIEF PROCEEDING, AND, CONSEQUENTLY, HIS PETITION FOR POST CONVICTION RELIEF WAS IMPROPERLY DENIED

POINT THREE

DEFENDANT'S PCR COUNSEL FAILED TO RAISE THE ISSUE THAT THE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL ON APPEAL

Defendant maintains that trial, appellate and PCR counsel were all ineffective in representing him. We have carefully considered defendant's arguments in light of the record and applicable law and find that they lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(2). Nevertheless, we make the following observations.

The plea colloquy is very lengthy and indicates that defendant fully understood the terms of the negotiated plea agreement, gave a detailed factual basis and acknowledged that he understood that the negotiated plea was subject to 85% parole ineligibility. His trial counsel argued during the plea proceeding that, with respect to NERA, "it's still our . . . position that there has to be a hearing, that the [c]court may find it does not apply." There was extensive discussion on the record about the eight-inch long, two-pound pipe and its role in the degree of the offense and the sentence that would be imposed. It is clear from the record that defendant was fully advised of the NERA sentence and the consequences of the pipe being used by his co-defendant.

We affirm substantially for the reasons stated by Judge Goldman on the record of June 22, 2007.

20090430

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