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State v. Verrico

April 26, 2010

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
GERARD VERRICO, DEFENDANT-APPELLANT.



On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 03-12-3976.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued January 6, 2010

Before Judges Cuff, Payne and Miniman.

Following a jury trial, defendant, Gerard Verrico, was found guilty of third-degree criminal restraint, N.J.S.A. 2C:13-2 as a lesser-included offense within first-degree kidnapping N.J.S.A. 2C:13-1b (Count One);*fn1 first-degree aggravated sexual assault by fellatio, N.J.S.A. 2C:14-2a(4) (Count Two); first-degree aggravated sexual assault by vaginal penetration, N.J.S.A. 2C:14-2a(4) (Count Three);*fn2 third-degree terroristic threats, N.J.S.A. 2C:12-3a (Count Four); fourth-degree unlawful possession of a weapon (a knife), N.J.S.A. 2C:39-5d (Count Five); and third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d (Count Six). He was given concurrent fifteen-year sentences on the first-degree aggravated sexual assault convictions, subject to the eighty-five percent parole ineligibility provisions of the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, and lesser sentences for criminal restraint and unlawful possession of a weapon. The remaining convictions were merged. Defendant was additionally sentenced as a sex offender to community supervision for life.

On direct appeal, we reversed the conviction for first-degree aggravated sexual assault by vaginal penetration and for third-degree terroristic threats as the result of inadequate jury instructions. State v. Verrico, No. A-5046-04 (App. Div. May 17, 2007). Certification was denied. State v. Verrico, 192 N.J. 478 (2007).

Defendant then moved for post-conviction relief (PCR). In an amended petition filed by counsel, defendant argued (1) ineffective assistance of trial counsel in failing to request a N.J.R.E. 404(b) limiting instruction in connection with evidence of defendant's illegal drug use both prior to and in and around the time of the offenses charged; (2) ineffective assistance of appellate counsel in failing to assert error in the absence of the limiting instruction; (3) ineffective assistance of trial counsel in failing to object to statements by the prosecutor in closing regarding defendant's drug use as it related to his marital status and to obtain a curative instruction or mistrial; (4) ineffective assistance of trial counsel in failing to call three character witness, politician Carmen Orecchio and friends Douglas Johnson and Harold Schnack; and (5) ineffective assistance of trial counsel in failing to retain and call an expert to testify that defendant was suffering from withdrawal symptoms at the time of his confession, and that the confession was thus involuntarily given. The PCR judge denied PCR without a hearing. The present appeal followed.

On appeal, defendant presents the following arguments:

I. DEFENDANT WAS DENIED A FAIR TRIAL AND THE EFFECTIVE ASSISTANCE OF COUNSEL WHEN HIS TRIAL COUNSEL FAILED TO OBJECT TO EVIDENCE OF DEFENDANT'S CHRONIC DRUG ABUSE OR REQUEST A LIMITING INSTRUCTION ON THE PERMISSIBLE AND IMPERMISSIBLE USES OF SUCH EVIDENCE AND THE TRIAL COURT FAILED TO GIVE SUCH AN INSTRUCTION ON ITS OWN MOTION AND THE PCR COURT ERRED IN DENYING POST CONVICTION RELIEF ON THAT BASIS.

II. DEFENDANT WAS DENIED A FAIR TRIAL AND THE EFFECTIVE ASSISTANCE OF COUNSEL WHEN HIS TRIAL COUNSEL FAILED TO OBJECT TO THE PROSECUTOR'S IMPROPER COMMENTS IN SUMMATION AND HIS APPELLATE COUNSEL FAILED TO RAISE THE PROSECUTOR'S IMPROPER COMMENTS AS ERROR ON APPEAL AND THE PCR COURT ERRED IN DENYING POST CONVICTION RELIEF ON THAT BASIS.

III. DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL WHEN HIS TRIAL ATTORNEY FAILED TO CALL AS WITNESSES SEVERAL REPUTABLE FRIENDS OF THE DEFENDANT WHO WERE WILLING AND AVAILABLE TO TESTIFY AS CHARACTER WITNESSES ON DEFENDANT'S BEHALF AND THE PCR COURT ERRED IN DENYING POST CONVICTION RELIEF ON THAT BASIS.

IV. DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL BY HIS TRIAL COUNSEL'S FAILURE TO RETAIN AND PRESENT AN EXPERT WITNESS CASTING DOUBT ON THE VOLUNTARINESS OF DEFENDANT'S STATEMENT AND THE REQUISITE KNOWING AND INTELLIGENT WAIVER BY DEFENDANT OF HIS MIRANDA RIGHTS AND THE PCR COURT ERRED IN DENYING POST CONVICTION RELIEF ON THIS GROUND.

V. THE PCR COURT ABUSED ITS DISCRETION IN FAILING TO CONDUCT AN EVIDENTIARY HEARING ON TRIAL COUNSEL'S FAILURES TO CALL CHARACTEER WITNESSES, REQUEST A 404(B) JURY INSTRUCTION AND RETAIN AN EXPERT ON ADDICTION ...


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