STATE OF NEW JERSEY VS. JOHN D. GABRIELE(12-03-0521, OCEAN COUNTY AND STATEWIDE)

• Court: New Jersey Superior Court Appellate Division
• Decided: November 6, 2017
• Docket: A-3129-15T4
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-3129-15T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JOHN D. GABRIELE, a/k/a JOHN TEMPLEMAN, a/k/a ROCCO MARONE, a/k/a WILLIAM BURNS, a/k/a JOHN MARONE, a/k/a JOHN TEMPLETON,

Defendant-Appellant. _____________________________________

Submitted May 31, 2017 – Decided November 6, 2017

Before Judges Messano and Suter.

On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 12-03-0521.

Joseph E. Krakora, Public Defender, attorney for appellant (Robert Carter Pierce, Designated Counsel, on the brief).

Joseph D. Coronato, Ocean County Prosecutor, attorney for respondent (Samuel Marzarella, Chief Appellate Attorney, of counsel; Roberta DiBiase, Senior Assistant Prosecutor, on the brief).

The opinion of the court was delivered by

SUTER, J.A.D. Defendant appeals the order denying his petition for post-

conviction relief (PCR) without an evidentiary hearing. We affirm.

In 2012, defendant altered a prescription to make it appear

that he had been prescribed a controlled dangerous substance (CDS).

When he took the altered prescription to be filled, the pharmacy

contacted the police and he was arrested. Defendant was indicted

for third-degree attempt to obtain CDS by fraud, N.J.S.A. 2C:35-

13, and third-degree uttering a forged instrument, N.J.S.A. 2C:21-

1(a)(3). Just before trial, defendant pled guilty to both charges.

The plea form set forth there was no sentencing recommendation by

the State, and that it would file a motion to request extended

term sentencing. The form stated the defense would ask the court

to consider a "flat sentence," and that defendant had not been

made promises other than those mentioned on the plea form.

Defendant was sentenced in 2014. The sentencing court

considered a credit memorandum that detailed defendant's

cooperation with the police on its investigation of an alleged

drug dealer and in certain controlled purchases of CDS. A copy

of the credit memorandum was supplied to counsel. The sentencing

court gave "substantial" weight to mitigating factor number

twelve. See N.J.S.A. 2C:44-1(b)(12) ("The willingness of the

defendant to cooperate with law enforcement authorities.").

However, the court found that aggravating factors three, six and

2 A-3129-15T4 nine, outweighed mitigating factors one, two, four, eleven and

twelve. Defendant was sentenced to an extended term of five years

on each count to run concurrently.

Defendant filed a direct appeal, arguing only that his

sentence was excessive. We affirmed his sentence. State v.

Gabriele, No. A-0283-14 (App. Div. Jan. 13, 2015).

Defendant filed a PCR petition in January 2015, in which he

raised a claim of ineffective assistance of counsel. This petition

was supplemented by a letter brief from PCR counsel. Defendant

alleged that his trial counsel failed to "file[] a motion to compel

the terms of the cooperation agreement." He alleged this would

have "established [his] right" to have the charges dismissed or

downgraded to disorderly persons offenses. He alleged he

cooperated with the police on other investigations, but rather

than having his charges dismissed, he was indicted. When that

occurred, he "yelled, screamed and cursed" at the police and they

retaliated by breaching their cooperation agreement.

On January 13, 2016, the PCR court denied defendant's

petition. In rejecting defendant's claim of ineffective

assistance of counsel, the court found that defendant did not

allege "specific facts and evidence supporting his allegations"

that he was given "a specific promise of a specific sentence" and

that his cooperation with the police had been taken into

3 A-3129-15T4 consideration by the sentencing judge. Finding no "reasonable

likelihood of success . . . on the merits of this case," the PCR

court denied defendant's request for an evidentiary hearing.

Defendant presents the following issues for our consideration

in his appeal.

THE TRIAL COURT ERRED IN DENYING MR. GABRIELE'S PCR WITHOUT AFFORDING HIM AN EVIDENTIARY HEARING TO FULLY ADDRESS HIS CONTENTION THAT HE WAS PROVIDED INEFFECTIVE ASSISTANCE OF COUNSEL DUE TO COUNSEL'S FAILURE TO FILE A MOTION THAT ALLEGED THE STATE BREACHED THEIR COOPERATION AGREEMENT WITH MR. GABRIELE BY NOT DISMISSING OR AMENDING THE CHARGES AFTER HE HAD FULLY COOPERATED WITH THE STATE.

We are not persuaded by any of these arguments and affirm.

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

4 A-3129-15T4 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 694,

l04 S. Ct. at 2068, 80 L. Ed. 2d at 698.

"[W]hen a petitioner claims his trial attorney inadequately

investigated his case, he must assert the facts an investigation

would have revealed, supported by affidavits or certifications

based upon the personal knowledge of the affiant or the person

making the certification." State v. Porter, 216 N.J. 343, 353

(2013) (alteration in original) (quoting State v. Cummings, 321

N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199

(1999)).

Defendant contends his trial counsel erred by not filing a

motion to enforce the oral promises that he alleged were made to

him arising from his cooperation with the police on their other

investigations. We agree with the PCR court, however, that

defendant presented no proof there was any such agreement.

Defendant agreed in the plea form and on the record at his

plea that no promises were made to him. It was clear the State

was seeking a term of incarceration, because the form stated that

the prosecutor intended to, and did, request extended term

sentencing. When defendant raised the issue before he was

sentenced, the court reviewed the credit memo and took that into

5 A-3129-15T4 consideration. The judge asked defendant if the credit memo was

"all we're talking about" and defendant agreed. The sentencing

court found mitigating factor twelve, that defendant cooperated

with the police, and gave that factor significant weight. No one

indicated that the credit memo memorialized any specific agreement

about sentencing. In his direct appeal, defendant challenged the

length of the sentence, again not raising any issue about an

agreement on sentencing.

The record is simply devoid of any facts or evidence of a

promise made to defendant about sentencing. In the absence of

such facts, defendant has not shown that his counsel erred by not

filing a motion to enforce nor has he shown that he was prejudiced.

Defendant was sentenced at the lowest end of the extended term

range and then both five-year sentences were concurrent.

We are satisfied from our review of the record that defendant

failed to make a prima facie showing of ineffectiveness of trial

counsel within the Strickland/Fritz test. Accordingly, the PCR

court correctly concluded that an evidentiary hearing was not

warranted. See State v. Preciose, 129 N.J. 451, 462-63 (1992).

Affirmed.

6 A-3129-15T4