STATE OF NEW JERSEY VS. GREGORY WRIGHT (09-08-0725, UNION COUNTY AND STATEWIDE) ( 2021 )

NOT FOR PUBLICATION WITHOUT THE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-0012-18
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
GREGORY WRIGHT,
Defendant-Appellant.
_______________________
Submitted June 3, 2020 – Decided July 13, 2021
Before Judges Fuentes and Enright.
On appeal from the Superior Court of New Jersey, Law
Division, Union County, Indictment No. 09-08-0725.
Joseph E. Krakora, Public Defender, attorney for
appellant (Anthony J. Vecchio, Designated Counsel, on
the brief).
Lyndsay V. Ruotolo, Acting Union County Prosecutor,
attorney for respondent (Meredithj L. Balo, Special
Deputy Attorney General/Acting Assistant Prosecutor,
of counsel and on the brief).
The opinion of the court was delivered by
FUENTES, P.J.A.D.
Defendant Gregory Wright appeals from the order of the Criminal Part
denying his post-conviction relief (PCR) petition. We affirm.
Defendant was tried before a jury from April 3 to April 19, 2012 and
convicted of first degree armed robbery, N.J.S.A. 2C:15-1(a), second degree
possession of a firearm for an unlawful purpose, N.J.S.A. 2C:39-5(b), and
second degree unlawful possession of a firearm, N.J.S.A. 2C:39-4(a). On
August 29, 2012,1 the trial judge sentenced defendant to an aggregate term of
twelve years imprisonment, with an eighty-five percent period of parole
ineligibility and five years of parole supervision, as mandated by the No Early
Release Act (NERA), N.J.S.A. 2C:43-7.2.
This court affirmed the conviction and sentence in an unpublished
opinion, State v. Gregory Wright, A-3810-12, (App. Div. May 10, 2016), certif.
denied, 228 N.J. 455 (2016). We incorporate by reference the facts underlying
defendant's conviction described in our unpublished opinion. Id. slip op. at 2 -
4. On March 3, 2017, defendant filed this timely PCR petition alleging
ineffective assistance of trial and appellate counsel. He described the basis for
1
Although the sentencing hearing occurred on August 17, 2012, the judge did
not sign the Judgement of Conviction until August 29, 2012.
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his claims in a certification attached to his petition. Judge Lara K. DiFabrizio
assigned counsel to represent defendant in the prosecution of the petition. PCR
counsel filed a supplemental certification from defendant and submitted a brief
addressing the legal issues raised in support of the petition.
The matter came before Judge DiFabrizio for oral argument on March 23,
2018. PCR counsel argued that an evidentiary hearing was necessary "because
there is a dispute of fact respecting matters which are not on the record . . . the
disputed facts in the petitioner's case [are] whether his attorney was ineffective."
The prosecutor claimed that defendant's certification in support of this PCR
petition contained "a knowing falsehood," namely that defendant "was
incarcerated the entire time from his initial date of arrest through his date of
conviction. When, in fact, . . . about a little over two years before his eventual
conviction he made bail and was released."
The prosecutor argued that the submission of a certified statement to the
court containing undeniable "falsehoods" directly undermined defendant's
allegations that his trial counsel was ineffective by not moving to dismiss the
charges against him based on a violation of his constitutional right to a speedy
trial. The prosecutor also argued that defendant's claim that his trial counsel
failed to conduct "an adequate" pretrial investigation was unsupported by
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competent evidence and should be rejected accordingly. Finally, the prosecutor
emphasized that defendant's argument predicated on his trial attorney's failure
to object to the jury instruction on accomplice liability was rejected by this court
on direct appeal.
Judge DiFabrizio denied defendant's PCR petition in an order dated May
21, 2018, accompanied by a memorandum of opinion. She agreed with the
State's position that defendant's claims of ineffective assistance of counsel based
on an alleged failure to object to the jury charges was procedurally barred under
Rule 3:22-5. State v. McQuaid, 147 N.J. 464, 484 (1997). Furthermore,
defendant's claims based on violations of his right to a speedy trial did not satisfy
the four-factor balancing analysis established by the United States Supreme
Court in Barker v. Wingo, 407 U.S. 514, 530 (1972). Even if defendant had
successfully shown that he was denied his right to a speedy trial under the Barker
factors, the Judge held he was unable to overcome the two-prong test established
by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668,
687 (1984), and subsequently adopted by our Supreme Court in State v. Fritz,
105 N.J. 42, 58 (1987).
Finally, Judge DiFabrizio rejected defendant's claim that trial counsel
provided ineffective assistance by failing to call as a witness the victim of the
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robbery who would have provided exculpatory testimony. The Judge found
defendant's claims were merely "uncorroborated assertions."
On appeal, defendant raises the following arguments:
I. THE PCR COURT ERRED IN NOT
GRANTING DEFENDANT AN
EVIDENTIARY HEARING WHERE
DEFENDANT RECEIVED INEFFECTIVE
ASSISTANCE OF COUNSEL.
A. Trial counsel was ineffective for
failing to conduct an adequate pre-trial
investigation.
B. Trial counsel was ineffective for
failing to move the trial court for a
dismissal for lack of a speedy trial.
We reject this argument and affirm substantially for the reasons expressed
by Judge DiFabrizio in her memorandum of opinion. We review a claim of
ineffective assistance of counsel under the two-prong test in Strickland, which
first requires defendant to demonstrate that defense counsel's performance was
deficient. Id. at 687. If this prong is satisfied, defendant must then show there
exists "a reasonable probability that, but for counsel's unprofessional errors, the
result of the proceeding would have been different." Id. at 694.
Judge DiFabrizio carefully reviewed defendant's claims and correctly
concluded he did not produce competent evidence to establish a prima facie case
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of ineffective assistance of counsel and therefore was not entitled to an
evidentiary hearing pursuant to Rule 3:22-10(b). State v. Preciose, 129 N.J.
451, 462-63 (1992).
Affirmed.
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