On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 97-06-0621.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 7, 2011 - Decided Before Judges Lisa and Sabatino.
This case returns to us following an evidentiary hearing required by our limited remand in connection with defendant's appeal of denial of his petition for post-conviction relief (PCR). After the hearing, the judge again denied the petition by order of February 9, 2009. Defendant appeals and, for the reasons that follow, we affirm.
After a trial by jury, defendant was convicted of multiple offenses, including murder of one victim, attempted murder of another, and aggravated manslaughter with respect to the death of a third victim. The incident occurred on March 30, 1997, when defendant fired multiple rounds from a handgun, initially at a group of individuals on the street in Paterson. Defendant did not testify at his trial. However, he had given a statement to the police which was admitted at trial. In the statement, defendant contended he was shooting in self-defense. In support of that contention, he said he had not brought the gun to the scene but, when he felt threatened, he retrieved it from a tire well, where it had been previously placed by his co-defendant.
In the course of their investigation, the police learned that defendant had been involved in an incident in Connecticut thirteen days prior to this incident in Paterson. In the Connecticut incident, defendant shot and killed an individual in the course of robbing a restaurant. Ballistic testing revealed that the gun used in Connecticut was the same gun that was used in Paterson.
Over defense objection, Judge De Luccia allowed the State to present evidence, pursuant to N.J.R.E. 404(b), that defendant had fired that particular gun in Connecticut thirteen days earlier. The evidence was sanitized to delete any reference to a robbery or killing or to the fact that the incident occurred in a restaurant. The witness merely testified that defendant had possessed and fired a gun, which the witness described as being of the same type as the one used in Paterson. The witness was also permitted to testify that he had spoken to police authorities in Connecticut about that incident.
Judge De Luccia inquired of defense counsel whether he wanted a limiting instruction regarding the other-crimes evidence. Counsel advised the court that no such instruction was requested. None was given.
On direct appeal, defendant did not argue any error with respect to admission of the other-crimes evidence or the lack of a limiting instruction. We affirmed defendant's convictions. State v. Gentile, No. A-0846-00 (App. Div. October 10, 2002).
Defendant then filed a PCR petition. He argued that admission of the other-crimes evidence was error, that his appellate counsel was ineffective for failing to raise the issue on direct appeal, and that his trial counsel was ineffective for waiving a limiting instruction. Judge De Luccia denied the petition without granting an evidentiary hearing.
On the initial PCR appeal, we held that admission of the other-crimes evidence was not error, and therefore defendant's appellate counsel was not ineffective for failing to raise it. State v. Gentile, No. A-4157-05 (App. Div. December 7, 2007) (slip op. at 11-14). We concluded "that the State was entitled to attack defendant's credibility by presenting evidence that he lied when he claimed to police that the gun he used to shoot the victims [in Paterson] was not his, but belonged to [his co-defendant]." Id. at 14.
However, we concluded that an evidentiary hearing was required to evaluate defendant's claim of ineffective assistance of trial counsel for waiving a limiting instruction. Id. at 16. We noted that such an instruction "would have eliminated the risk that the jury might have impermissibly viewed the Connecticut evidence as proof of defendant's proclivity to engage in violent behavior." Id. at 15. We directed that trial counsel "should explain his reasons" for the waiver, and that the remand hearing "shall be limited to that issue." Id. at 16.
Judge De Luccia conducted the evidentiary hearing on January 22, 2009. Defendant's trial counsel testified, as did defendant. Trial counsel testified that he discussed with defendant the advisability of requesting a limiting instruction, and they jointly made a decision not to do so because it would have the potential to highlight defendant's use of a gun in the Connecticut incident. Counsel explained that this was a carefully considered strategic decision, and, had defendant not agreed with the decision, counsel would have not overridden his client's position but would have requested a limiting instruction. Defendant denied having that discussion or agreeing with that decision.
Judge De Luccia made extensive credibility findings. He found trial counsel's testimony credible and defendant's incredible. The judge further found that the trial strategy fell within the very wide range of discretion afforded trial attorneys in making strategic decisions, and was therefore not deficient conduct. Finally, the judge concluded that even if a limiting instruction had been requested and given, the outcome of the trial would not have been ...