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State v. Gigliotti

October 23, 2009

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
SUSAN GIGLIOTTI, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 00-07-1482.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted September 23, 2009

Before Judges Collester and Sabatino.

Following a seven-day jury trial in 1990, defendant was found guilty on all six counts of an indictment that stemmed from her involvement in the murder of her husband, Joseph Gigliotti ("Joseph"). In particular, defendant was convicted of first-degree murder, N.J.S.A. 2C:11-3(a)(1) and (2); first-degree conspiracy to commit murder, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:11-3; second and third-degree weapons offenses, N.J.S.A. 2C:39-4(a) and N.J.S.A. 2C:39-5(b); and third-degree receipt of stolen property, N.J.S.A. 2C:20-7. Defendant received a sentence of life imprisonment with thirty years of parole ineligibility, plus a ten-year consecutive sentence on the conspiracy conviction and various concurrent sentences.

After unsuccessfully challenging her conviction on direct appeal, defendant filed a petition in the Law Division for post-conviction relief ("PCR"). Among other things, defendant contended that: (1) her trial counsel was ineffective in numerous respects; (2) the State's witnesses committed perjury; (3) the trial judge was biased against her trial counsel; (4) the State violated the precepts of Brady v. Maryland*fn1 during pretrial discovery; and (5) her appellate counsel was ineffective. Defendant also sought PCR relief based upon alleged newly-discovered evidence. At the conclusion of the PCR hearing, the trial court denied defendant's application.

Defendant now appeals, contending that her PCR claims have merit and that the trial court erred by not conducting a full evidentiary hearing. We affirm.

I.

We need not recite the underlying facts at length, in light of the discrete issues raised in this PCR appeal. The following brief summary will suffice.

The State's proofs showed that defendant persuaded her former boyfriend, Richard DeBow, to shoot and kill her husband Joseph on April 16, 2000 at her mother's residence in Atlantic County. At the time of the homicide, defendant and Joseph were separated and divorce proceedings between them were pending. That evening, accompanied by his girlfriend Susan McChesney, Joseph drove to his mother-in-law's residence to drop off the parties' children, who had been with him that day. Defendant met Joseph when he arrived and immediately asked him to come to the rear of the premises and check on an alleged problem with her Ford Explorer's transmission. After Joseph went into the garage to collect some tools, he was fatally shot four times in the chest by DeBow with a.22 caliber revolver. DeBow then drove away in the Explorer, which had a single key in the ignition left there by defendant.

Three days after the shooting, DeBow was apprehended. He confessed to killing Joseph, stating that defendant had planned the murder with him and that she had provided him with the.22 revolver used in the shooting.

The State's proofs further showed that, at the time of the murder, defendant for several months had been in an ongoing extra-marital relationship with another man, Steven Ferman. In the fall of 1999, defendant showed Ferman a handgun that she had allegedly obtained from an aunt in South Carolina. According to the State's proofs, defendant had developed an obsession with Ferman's wife, Carrie. Defendant planned to have Carrie killed, and she had discussed those plans with Ferman.

After Joseph's shooting, Ferman admitted in a police interview that he was aware of defendant's involvement in the murder, and that defendant had talked about killing her husband on several prior occasions. Ferman also acknowledged that he and defendant previously had stolen computer equipment together from the offices of his federal employer.

Ferman agreed to cooperate with the police and to speak with defendant wearing a hidden recording device. Ferman spoke several times with defendant and recorded various incriminating statements by her acknowledging that she knew that DeBow had shot her husband, that the murder weapon had been disposed of, and that she had burned the weapon's gun case in a wood stove.

Defendant was subsequently arrested. When she thereafter encountered DeBow at the prosecutor's office, DeBow spontaneously stated to her that they were "going up the river together," to which defendant replied, "I told you to keep your mouth shut and don't say a f**king thing."

A grand jury charged defendant with the first-degree murder of Joseph; two separate first-degree conspiracies to murder, respectively, Joseph and Carrie Ferman; second-degree possession of a weapon for an unlawful purpose; third-degree unlawful possession of a weapon; and third-degree receipt of stolen property.

The State presented thirty-one witnesses at trial, including DeBow, Ferman, several other fact witnesses, various law enforcement witnesses, and the medical examiner who performed the autopsy on Joseph. The defense presented three witnesses: defendant's mother; a lay witness who had inspected the Explorer after the murder and who allegedly discovered in the vehicle a malfunctioning transmission part; and a police sergeant who had been involved in the investigation. Defendant's mother testified that she had been with defendant "on and off" at defendant's house the entire day of April 16. She denied ever seeing DeBow that day. The mother also disputed that defendant had an aunt who could have given her a handgun. Defendant elected not to testify.

The jury returned a guilty verdict on all counts on the same day it received the jury charge. At sentencing, the court imposed life imprisonment on defendant for her role in Joseph's murder, with a mandatory thirty-year period of parole ineligibility. The court also imposed a concurrent ten-year sentence for defendant's participation in a conspiracy to murder Carrie Ferman, as well as two concurrent four-year sentences for the merged weapons offenses and the receipt of stolen property offense. The aggregate sentence was a life term plus ten years.*fn2

Defendant filed a direct appeal, which was limited to two grounds claiming entitlement to a mistrial: (1) the prosecutor, when examining a witness, had improperly highlighted defendant's pretrial incarceration in the county jail; and (2) a member of the victim's family had been handed a bunch of flowers in the courtroom by an unidentified person in the jury's presence, near the end of the prosecutor's summation. In an unpublished opinion, we rejected both arguments for lack of merit and affirmed defendant's conviction. State v. Gigliotti, No. A-5453-01T1 (App. Div. Oct. 23, 2003). The Supreme Court subsequently denied certification. 179 N.J. 309 (2004).

Upon failing to obtain relief on direct appeal, defendant filed the instant PCR application in the Law Division in June 2008. The PCR was considered by the same judge who had presided over defendant's trial. After hearing oral argument, the judge rejected defendant's application, finding that no evidentiary hearing in the matter was necessary. In the course of his oral ruling, the trial judge rejected each of the contentions of error raised by defendant, both singularly and cumulatively. The judge also commented on the strength of the State's proofs, ...


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