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State v. Gannone

Superior Court of New Jersey, Appellate Division

November 12, 2013

STATE OF NEW JERSEY, Plaintiff-Respondent,
v.
FRANCIS GANNONE, JR., Defendant-Appellant.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted March 18, 2013

On appeal from Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 99-02-0085.

Joseph E. Krakora, Public Defender, attorney for appellant (Monique Moyse, Designated Counsel, on the brief).

Geoffrey D. Soriano, Somerset County Prosecutor, attorney for respondent (James L. McConnell, Assistant Prosecutor, of counsel and on the brief).

Appellant filed pro se supplemental briefs.

Before Judges Graves and Guadagno.

OPINION

GRAVES, J.A.D.

Defendant Francis Gannone, Jr., appeals from an August 24, 2011 order denying his petition for post-conviction relief (PCR) without an evidentiary hearing. We affirm.

Following a two-week jury trial, defendant was convicted of the purposeful and knowing murder of Valerie Fasanello, his former girlfriend, who he had been living with. Prior to sentencing, defendant filed a motion for a judgment of acquittal or, alternatively, the reversal of his conviction and a new trial. In denying defendant's motion, the trial judge found the following items of evidence were particularly compelling: (1) defendant's "underwear containing the blood of [Ms.] Fasanello was found at the scene"; (2) DNA testing also confirmed that socks found in defendant's duffel bag after he was arrested contained the victim's blood; (3) "defendant fled the scene" and "used false names along the way at motels"; (4) in a telephone conversation with his brother after Valerie was killed, defendant's primary "concern was whether or not the police were going to accuse him" and "how he was going to avoid being found by the police"; (5) after waiving his Miranda[1] rights, defendant confessed to police officers that he killed Valerie; and (6) the fact that the victim's residence was locked and there were no signs of a forced entry, suggested the killer "had permission or a right to be there."

At sentencing on July 13, 2001, the trial court found that Valerie was "particularly vulnerable and incapable of resistance because the defendant sneaked up on her and stabbed her while she was sleeping." The court sentenced defendant to life imprisonment with thirty years to be served without parole.

On his direct appeal, defendant presented the following arguments:

POINT I
THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN REFUSING TO STRIKE THE "EXPERT" TESTIMONY OF MABEL HORES THAT THE BLOODY HAIRS WERE SIMILAR TO THE VICTIM'S, EVEN THOUGH MS. HORES HERSELF ADMITTED THAT THAT OPINION WAS NOT SUFFICIENTLY RELIABLE TO MEET THE STANDARDS OF HER OFFICE.
POINT II
THE TRIAL COURT ERRED IN MODIFYING THE MODEL CHARGE ON PASSION-PROVOCATION MANSLAUGHTER IN A WAY WHICH MISSTATED THE NATURE OF THE PROOFS AND IMPLIED THAT THE FACTS DID NOT SUPPORT A VERDICT ON THAT LESSER OFFENSE.

Defendant also raised additional issues in a pro se supplemental brief:

POINT I
PROSECUTORIAL MISCONDUCT.
POINT II
DEFENDANT'S CONVICTION IS AGAINST THE WEIGHT OF THE EVIDENCE AND THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION FOR A JUDGMENT OF ...

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