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State v. Giordano

October 6, 2010

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
ROBERT F. GIORDANO, JR., DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 00-05-0734.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted September 20, 2010

Before Judges Lisa and Reisner.

Defendant appeals from an order denying his post-conviction relief (PCR) petition. The jury convicted defendant of the single charge in the indictment, first-degree knowing or purposeful murder, N.J.S.A. 2C:11-3, and defendant was sentenced to life imprisonment with a thirty-year parole disqualifier. In an unpublished opinion, we affirmed his conviction and sentence. State v. Giordano, No. A-5836-02 (App. Div. June 29, 2005). The Supreme Court denied defendant's petition for certification on November 10, 2005. State v. Giordano, 185 N.J. 387 (2005).

Defendant then filed his PCR petition. After hearing oral argument on August 28, 2008, Judge Kreizman rendered an oral decision denying the petition without granting an evidentiary hearing. This appeal followed.

In the brief filed by his attorney, defendant argues:

POINT I.

THIS MATTER MUST BE REMANDED FOR AN EVIDENTIARY HEARING BECAUSE DEFENDANT ESTABLISHED A PRIMA FACIE CASE OF INEFFECTIVENESS OF TRIAL COUNSEL'S FAILING TO PURSUE A DIMINISHED-CAPACITY DEFENSE.

POINT II.

DEFENDANT WAS DENIED HIS CONSTITUTIONAL RIGHT TO A SPEEDY TRIAL, THEREBY MANDATING THAT HIS CONVICTION BE REVERSED.

POINT III.

THE STATE'S USE OF DEFENDANT'S SILENCE VIOLATED HIS STATE LAW RIGHT AGAINST SELF-INCRIMINATION, THEREBY MANDATING THAT HIS CONVICTION BE REVERSED.

POINT IV.

IF THE STATE'S USE OF DEFENDANT'S SILENCE VIOLATED HIS STATE LAW RIGHT AGAINST SELF-INCRIMINATION BUT IS NOT COGNIZABLE VIA A PCR PETITION AS A "FUNDAMENTAL INJUSTICE," THEN INEFFECTIVE ASSISTANCE OF TRIAL AND/OR APPELLATE COUNSEL MANDATES THAT DEFENDANT'S CONVICTION BE REVERSED. (Not Raised Below).

POINT V.

DEFENDANT WAS DENIED HIS CONSTITUTIONAL RIGHT TO BE PRESENT IN THE COURTROOM DURING A CRITICAL STAGE OF THE TRIAL, THEREBY MANDATING THAT HIS CONVICTION BE REVERSED.

In supplemental pro se brief, defendant further argues:

POINT I.

ADMISSION OF A NON-TESTIFYING EXPERT'S OPINION IN THE STATE'S CASE-IN-CHIEF, ON CROSS-EXAMINATION OF THE DEFENSE EXPERT AND IN THE STATE'S SUMMATION VIOLATED THE DEFENDANT'S FEDERAL AND STATE CONSTITUTIONAL RIGHTS TO CONFRONTATION AND TO A FAIR TRIAL.

POINT II.

DUE TO DEFENSE COUNSEL'S INEFFECTIVENESS IN RESPONSE TO A NOTE FROM THE JURY, THE DEFENDANT WAS DENIED HIS STATE AND FEDERAL RIGHTS TO A FAIR AND IMPARTIAL JURY, TO A FAIR TRIAL, AND TO EFFECTIVE ASSISTANCE OF TRIAL AND APPELLATE COUNSEL.

POINT III.

TRIAL COUNSEL'S INEFFECTIVENESS DURING JURY DELIBERATIONS, DEPRIVED THE DEFENDANT OF HIS FEDERAL AND STATE CONSTITUTIONAL RIGHTS TO A FAIR TRIAL, AN IMPARTIAL JURY AND EFFECTIVE ASSISTANCE OF COUNSEL.

POINT IV.

TRIAL COUNSEL'S FAILURE TO OBJECT TO THE NUMEROUS MISSTATEMENTS OF THE EXPERT TESTIMONY BY THE STATE IN SUMMATION DEPRIVED THE DEFENDANT HIS FEDERAL AND STATE CONSTITUTIONAL RIGHTS TO EFFECTIVE ASSISTANCE FO COUNSEL AND FAIR TRIAL.

POINT V.

THE STATE'S USE OF DEFENDANT'S SILENCE VIOLATED HIS FEDERAL AND STATE CONSTITUTIONAL ...


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