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

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
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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
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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
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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
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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
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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.
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