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State v. Tirone


September 1, 2010


On appeal from Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 03-01-0083.

Per curiam.


Submitted August 3, 2010

Before Judges Axelrad and Espinosa.

Defendant appeals from the denial of his petition for post-conviction relief without an evidentiary hearing. We affirm.

In December 2004, defendant pled guilty to second-degree robbery, N.J.S.A. 2C:15-1; resisting arrest, N.J.S.A. 2C:29- 2(a)(3)(a), and two counts of aggravated assault on a law enforcement officer, N.J.S.A. 2C:12-1(b)(5), pursuant to a plea agreement. The State retained the right to seek an extended term sentence of twelve years on the robbery, subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, and agreed to recommend that the sentences imposed on the remaining counts be concurrent. He was sentenced consistent with the plea agreement.

Defendant's appeal was limited to the length of this sentence and was listed for consideration on an Excessive Sentence Oral Argument calendar. We remanded for a revision of the judgment of conviction to reflect a three-year period of parole supervision rather than a five-year period. State v. Tirone, No. A-4633-04 (App. Div. February 8, 2006).

On January 29, 2007, defendant filed a petition for post-conviction relief, in which he alleged ineffective assistance of trial counsel and that there was no factual basis for the assault charges to which he had pled guilty. This petition was withdrawn in May 2007. Defendant filed another petition for post-conviction relief in December 2007, in which he asserted a number of grounds for such relief to be granted. In an extensive written opinion, the trial court denied his petition for relief.

In this appeal, defendant advances only one of those grounds as a basis for relief, that he received ineffective assistance of counsel. After carefully reviewing the record and briefs, we are satisfied that this argument lacks merit.

The standard for determining whether counsel's performance was ineffective for purposes of the Sixth Amendment was formulated in Strickland v. Washington, 466 U.S. 668, l04 S.Ct. 2052, 80 L.Ed. 2d 674 (1984), and adopted by our Supreme Court in State v. Fritz, l05 N.J. 42 (l987). In order to prevail on a claim of ineffective assistance of counsel, defendant must meet the two-prong test of establishing both that: (l) counsel's performance was deficient and he or she made errors that were so egregious that counsel was not functioning effectively as guaranteed by the Sixth Amendment to the United States Constitution; and (2) the defect in performance prejudiced defendant's rights to a fair trial such that there exists a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, supra, 466 U.S. at 687, 694, l04 S.Ct. at 2064, 2068, 80 L.Ed. 2d at 693, 698.

Defendant focuses upon an isolated statement he made during his allocution at sentencing to support the argument that both his trial counsel and PCR counsel were ineffective for failing to recognize the statement as suggesting that defendant had a diminished capacity or was suffering from insanity and failing to take appropriate action. The statement relied upon is underlined in this excerpt from defendant's allocution:

I didn't mean to fail in my life. I never wanted to walk down this road. I made very bad decisions. I can't - - I don't look for any forgiveness for what I did. I can't even ask for any understanding for what I did, because I can't find the understanding in my own life.

Once I picked up that drug, I allowed that drug to become everything to me. I gave up my brothers, my sisters, nieces and nephews and family. I became nothing but - - well, a drug addict is not even a good enough word to say it, because I wasn't a drug addict per se, every day. I used the drug and when I used the drug I lost all perspective of everything that was right or for - - or wrong.


I'm ashamed that I - - I have - - that I've grown up and I'm - - I'm - - I'm intelligent enough to know right from wrong and I became a burden to my country instead of an assets [sic] to my country. I've become a burden to my family, instead of a good loving brother that I should have been or an uncle.

And for those things, I'm very sorry.

Defendant's statement represents an accurate depiction of the consequences of substance abuse, rather than any evidence that he suffered from insanity or any mental condition that would support a defense of diminished capacity. There is a fundamental difference between losing perspective of what is right and wrong and being unable to distinguish between the two. See N.J.S.A. 2C:4-1. Moreover, defendant also related an apparent ability to make rational decisions by speaking of his "bad decisions" and that he was "intelligent enough to know right from wrong[.]" In short, there was nothing in defendant's allocution to alert defense counsel at the trial or PCR phases that they should investigate further.

We are satisfied from our review of the record that defendant failed to make a prima facie showing of ineffectiveness of trial counsel under the Strickland-Fritz test. Accordingly, the PCR judge correctly concluded that an evidentiary hearing was not warranted. See State v. Preciose, 129 N.J. 451, 462-63 (1992).



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