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State v. Fitzgerald

Superior Court of New Jersey, Appellate Division

October 30, 2013

STATE OF NEW JERSEY, Plaintiff-Respondent,
v.
JOHN FITZGERALD, Defendant-Appellant.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted October 17, 2013

On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 03-08-0819.

Joseph E. Krakora, Public Defender, attorney for appellant (Steven M. Gilson, Designated Counsel, on the brief).

Grace H. Park, Acting Union County Prosecutor, attorney for respondent (Meredith L. Balo, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief; Kimberly Donnelly, on the brief).

Before Judges Fuentes, Simonelli and Fasciale.

PER CURIAM

Defendant appeals from a May 16, 2011 order denying his petition for post-conviction relief (PCR). He contends that he received ineffective assistance of counsel from his trial attorney. We affirm.

Defendant and sixteen co-defendants were charged with committing numerous drug trafficking offenses. The State produced overwhelming evidence of guilt as a result of wiretap applications, search warrants, and testimony from two co-conspirators. After the conclusion of a lengthy trial, the jury concluded that defendant participated in operating a large-scale drug distribution network.[1]

In April 2005, Judge William L'E. Wertheimer sentenced defendant to an aggregate term of life in prison, plus forty years, with a fifty-year period of parole ineligibility. We affirmed the convictions but remanded for re-sentencing, State v. Fitzgerald, No. A-1282-05 (App. Div. June 30, 2008), and the Supreme Court denied certification, State v. Fitzgerald, 196 N.J. 597 (2008). In November 2008, the judge re-sentenced defendant to a prison term of life plus twenty years, with thirty-five years of parole ineligibility, which we affirmed on our excessive sentencing calendar.

In March 2009, defendant filed his petition for PCR. The judge stated in part that

[t]he vast majority of defendant's assertions should have been raised on appeal and not in the manner being conducted here. There was a plethora of motions by defendant's counsel and the co-counsel of the other three defendants, some of which defendant now attempts to resurrect, whose rulings are subject for appeal not for a PCR.
Reviewing the specifics of defendant's arguments concerning claims of ineffective representation, defendant's memory is either faulty or fanciful. For instance, his allegation that the application for the wiretap should have been challenged belies the fact that a Franks[2] hearing was requested and denied. In fact, defendant raises a series of allegations, . . . which [the court] addressed at trial. The rulings on those are grounds for appeal, not a PCR.
The simple conclusion is that allegations of ineffective assistance of counsel are belied by the overwhelming of each, ...

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