STATE OF NEW JERSEY v. NICOLA SCIROCCO

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5399-04T45399-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

NICOLA SCIROCCO,

Defendant-Appellant.

_____________________________________________________________

 

Submitted October 31, 2006 - Decided December 26, 2006

Before Judges Weissbard and Graves.

On appeal from Superior Court of New Jersey,

Law Division, Bergen County, Ind. No. 97-10-1680.

Yvonne Smith Segars, Public Defender, attorney

for appellant (James A. Plaisted, Designated

Counsel, on the brief).

John L. Molinelli, Bergen County Prosecutor,

attorney for respondent (John J. Scaliti,

Assistant Prosecutor, of counsel and on the

brief).

PER CURIAM

Defendant Nicola Scirocco appeals from an order denying his petition for post-conviction relief (PCR). Because the trial court summarily dismissed defendant's PCR petition without oral argument, without an evidentiary hearing, and without an adequate statement of reasons, we are constrained to reverse and remand the matter for further proceedings.

In a three-count indictment, defendant was charged with first-degree carjacking, second-degree aggravated assault, and third-degree aggravated assault. Defendant was acquitted of these charges by a jury, but he was convicted of the lesser included offenses of fourth-degree joyriding and disorderly persons simple assault. An aggregate term of probation for three years with 250 hours of community service was imposed. Defendant appealed, claiming that the trial court erred in denying his motion for judgment of acquittal on the carjacking charge. In an unpublished opinion, we affirmed defendant's conviction but remanded the matter for entry of an amended judgment of conviction to reduce the Law Enforcement Officers Training and Equipment Fund assessment from $60 to $30, under N.J.S.A. 2C:43-3.3. State v. Scirocco, No. A-1918-99T4 (App. Div. September 21, 2001), certif. denied, 171 N.J. 41 (2002). We summarized the relevant facts of the case as follows:

Prior to January 28, 1996, defendant and Thomas Glenn had been friends. At Glenn's request, defendant, who had some experience in repairing vehicles, agreed to do some repairs on a 1989 Firebird Glenn had recently purchased "as is." The car had been in an accident and required a fair amount of work. A dispute arose between the two over the repairs performed by defendant as Glenn thought they were defective and defendant wanted more money.

Ultimately, on January 28, 1996, defendant, along with a friend, went to Glenn's house to demand the money. Initially, Glenn was inside his house. He took the keys to the Firebird and went outside where he showed defendant what he considered to be problems with the repairs. He retained possession of the keys and ordered defendant and his friend to leave the property. He was, then, attacked by both men and the keys to the car were snatched from his hand. Defendant drove the Firebird away, eventually leaving it in a Grand Union parking lot.

We recognize defendant's version of what occurred was quite different and that the jury obviously did not accept all of the inferences the State argues could be drawn from the evidence. But for the purposes of the issue raised by defendant here, we must view the evidence most favorably to the State and give it all of the reasonable inferences that can be drawn therefrom. State v. Reyes, 50 N.J. 454, 459 (1967). Our recitation of the facts reflects that standard.

In his PCR petition, which was submitted to the same judge who presided over his criminal trial and imposed sentence, defendant alleges that he was denied the effective assistance of trial counsel. On October 27, 2004, in a letter to defendant's attorney, the judge stated:

I have reviewed the documents submitted by the [S]tate and yourself on behalf of Nicola Scirocco's Motion for Post[-] Conviction Relief. I am denying the motion pursuant to R. 1:6-6, and R. 3:22-10 where the defendant has not established a prima facie case entitling him to an evidentiary hearing. Therefore the Motion of Post[-] Conviction Relief is denied without need for a hearing on this matter.

An order denying defendant's PCR petition was entered on May 9, 2005.

Defendant now argues that "the trial court did not in any way (orally or in writing) explain its reasons for simply denying, out of hand, the petition for post-conviction relief. This treatment does not accord with this [c]ourt's admonitions to trial courts . . . ." We agree that the order of May 9, 2005, was entered in contravention of our court rules. See R. 1:7-4(a) (stating that a trial court sitting without a jury must find the facts and state its conclusions of law on every motion decided by a written order that is appealable as of right); R. 3:22-11 (requiring a trial court to separately state its findings of fact and conclusions of law when reviewing a PCR petition); and R. 3:29 (requiring a statement of reasons when a trial court disposes of a criminal matter).

We recognize, of course, that defendant's trial counsel was largely successful in his efforts on defendant's behalf, and that the PCR judge was intimately familiar with the facts of the case because he was also the trial judge. Nevertheless, the letter denying defendant's petition contained nothing but the trial court's ultimate conclusion. Fairness to the parties, effective appellate review, and our court rules require "greater elucidation by the court of its reasons for denying the petition." State v. Flores, 228 N.J. Super. 586, 590 (App. Div. 1988), certif. denied, 115 N.J. 78 (1989).

We are also satisfied that defendant is entitled to oral argument. As we have previously noted, there is a strong presumption in favor of allowing oral argument on a PCR petition. State v. Mayron, 344 N.J. Super. 382, 386 (App. Div. 2001). While some petitions may be so facially without merit as to not warrant oral argument, the present petition does not fall into that category. The trial court's reliance on R. 3:22-10 as authority for deciding a PCR petition on the papers was misplaced. That rule speaks only to defendant's presence in court, not to counsel's entitlement to oral argument.

Reversed and remanded for further proceedings consistent with this opinion. We imply no disposition on the merits, and we do not retain jurisdiction.

 

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A-5399-04T4

December 26, 2006