On appeal from the Superior Court of New Jersey, Law Division, Criminal Part, Sussex County, Indictment No. 97-07-00153.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: March 24, 2010
Before Judges Stern and Sabatino.
Defendant seeks reversal of the denial of his petition for post conviction relief (PCR) and an evidentiary hearing on his claim that he received ineffective assistance of counsel. He asserts the claim against trial, appellate and PCR counsel. We affirm the order of August 29, 2007, denying PCR substantially for the reasons stated by Judge Thomas J. Critchley in his comprehensive oral opinion of August 7, 2007. By way of emphasis with respect to the issues raised on this appeal, we add the following.
As defendant stated on his direct appeal:
This case concerns the death of two pizza deliverymen, Jeremy Giordano and Georgio Gallara, which occurred on the evening of April 19, 1997. The [S]tate alleged they were killed by defendant Jayson Vreeland and co-defendant Thomas Koscovich. The State alleged Koscovich and Vreeland telephoned for pizza to be delivered to a remote location in Sussex County and then shot and robbed the deliverymen upon their arrival.
Defendant was found guilty of purposeful or knowing murder of Gallara, felony murder of Gallara, aggravated manslaughter of Giordano, first degree robbery, second degree burglary, conspiracy, possession of a firearm for an unlawful purpose, and possession of the firearm without a permit.*fn1 Defendant was sentenced to life imprisonment with thirty years to be served before parole eligibility for the purposeful or knowing murder of Gallara, a consecutive sentence of twenty years, with ten years to be served before eligibility, for the aggravated manslaughter, and consecutive sentences for the armed robbery, burglary and permit convictions aggregating life imprisonment plus forty-six years with fifty-one years to be served before parole eligibility. On defendant's direct appeal, we affirmed the convictions, and the consecutive sentences for the two homicides and armed robbery, but ordered the remaining terms to be served concurrently. As a result, defendant is now serving an aggregate sentence of life imprisonment plus thirty-five years, with forty-seven years to be served before parole eligibility.
On this appeal defendant argues:
POINT I: THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED AND THE MATTER REMANDED FOR A FULL EVIDENTIARY HEARING BECAUSE THE COURT FAILED TO APPLY APPROPRIATE R. 3:22-2 CRITERIA.
POINT II: THE COURT ERRED IN DENYING POST-CONVICTION RELIEF WITHOUT CONDUCTING A FULL EVIDENTIARY HEARING BECAUSE TRIAL COUNSEL'S FAILURE TO PROTECT THE DEFENDANT'S RIGHT TO TESTIFY AT THE JURISDICTIONAL WAIVER HEARING AND THE DEFENDANT'S RIGHT TO BE PRESENT IN COURT DURING THE JURY CHARGE CONFERENCE; TRIAL COUNSEL'S FAILURE TO CALL WITNESSES TO IMPEACH CHARLES VARELLA'S CREDIBILITY; AND TRIAL COUNSEL'S FAILURE TO OBJECT TO THE TRIAL COURT'S JURY INSTRUCTION ON MOTIVE; SATISFIED BOTH PRONGS OF THE STRICKLAND/FRITZ TEST FOR INEFFECTIVE ASSISTANCE OF COUNSEL.
POINT III: THE COURT ERRED IN DENYING POST-CONVICTION RELIEF BECAUSE THE DEFENDANT'S SIXTH AMENDMENT RIGHT TO EFFECTIVE ASSISTANCE OF APPELLATE COUNSEL, AND SIXTH AMENDMENT RIGHT TO A FAIR TRIAL BY AN IMPARTIAL JURY, WERE VIOLATED. ALTERNATIVELY, THE MATTER SHOULD BE REMANDED FOR A FULL EVIDENTIARY HEARING CONCERNING INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL. POINT IV: THE COURT'S RULING DENYING POST-CONVICTION RELIEF VIOLATED THE DEFENDANT'S RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AND THE DEFENDANT'S RIGHT TO A FAIR TRIAL BY AN IMPARTIAL JURY AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ARTICLE I, PAR. 9 AND PAR. 10, OF THE NEW JERESY CONSTITUTION.
POINT V: DEFENDANT REASSERTS ALL OTHER ISSUES RAISED IN DEFENDANT'S PRO SE SUBMISSIONS IN SUUPPORT OF POST-CONVICTION RELIEF AND IN PCR COUNSEL'S ...