STATE OF NEW JERSEY v. GINO GENTILE

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4157-05T44157-05T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

GINO GENTILE,

Defendant-Appellant.

________________________________________________________________

 

Submitted November 13, 2007 - Decided

Before Judges S.L. Reisner and Baxter.

On appeal from Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 97-06-0621.

Yvonne Smith Segars, Public Defender, attorney for appellant (Brian D. Driscoll, Designated Counsel, on the brief).

James F. Avigliano, Passaic County Prosecutor, attorney for respondent (Jason F. Statuto, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Gino Gentile appeals from a January 31, 2006 order that denied his first petition for post-conviction relief (PCR). Defendant presents the following claims for our consideration:

I. THE PCR COURT ERRED IN DENYING THE PETITION FOR POST CONVICTION RELIEF. (NOT RAISED BELOW)

II. THE PCR COURT FAILED TO RULE ON ALL THE ISSUES RAISED IN THE PETITION. (NOT RAISED BELOW)

III. DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE FROM PCR COUNSEL. (NOT RAISED BELOW)

IV. DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE FROM TRIAL AND APPELLATE COUNSEL.

We affirm in part, reverse in part, and remand for an evidentiary hearing limited to trial counsel's reasons for waiving a limiting instruction when N.J.R.E. 404(b) evidence was admitted.

I.

In a jury trial, defendant was convicted of murder, aggravated manslaughter, attempted murder, aggravated assault and related weapons offenses. In an unreported opinion, we affirmed defendant's conviction. State v. Gentile, No. A-0846-00 (App. Div. October 10, 2002). In that opinion, we described the trial testimony as follows:

On March 30, 1997, at approximately 5:00 p.m. Mehmet Kulaskiz, Asad Abuhamda, Adnan Ali, Nadal Haq and Isaam Atsham were in the area of Main and Robert Streets in South Paterson when they saw defendant and another, Louis Muniz. Atsham and Haq decided to approach defendant and Muniz in order to discuss with them an incident between the men the night before.

After some verbal exchanges, defendant brandished a handgun and fired it at Ali, hitting him in the right leg. Defendant then approached Haq, who was crouched behind a car in a fetal position, apparently hiding from the gunfire, pointed his gun at Haq and from point blank range fired two shots "execution style" into the back of Haq's head. Haq was taken to St. Joseph's Hospital where he died of his injuries the next day.

After shooting Haq, defendant then opened fire on Kulaskiz and Abuhamda, who were running from the scene. Abuhamda testified that he looked back to see defendant shooting randomly in the middle of the street. Defendant then turned back toward Ali and shot him again, this time hitting Ali's left leg.

Defendant then fled the scene and hid in the back yard of Russell Whaley, Jr.'s house. Upon finding defendant hiding in his yard, Whaley asked why he was there. Defendant told him that some "Arabs in the area didn't want any black people, Hispanics in the area and they were trying to kill him." Whaley, Jr. then asked defendant to leave, but defendant asked to stay. Russell Whaley, Sr. then came out of the house and told defendant he would take him to a hospital.

While en route to the hospital, defendant instructed the elder Whaley to take him to Wayne. Whaley, Sr. refused and told defendant to get out of his car. Defendant exited the car across from the Madison Diner on Madison Street, Paterson.

Meanwhile, Atsham and two other friends, Ahmad Aftekhar and Thaier Abdehady, were on the lookout for defendant when they spotted him entering the Madison Diner. The three men entered the diner, searching for defendant and Atsham entered the restroom to look for defendant. Gunshots were heard from inside the restroom and defendant was seen exiting the restroom and leaving the diner.

When Aftekhar and Abdehady entered the restroom, they found Atsham lying face-down on the floor. He had been shot twice in the torso and died from his wounds.

Defendant eluded police for almost a week before he was caught and detained by New Britain, Connecticut police on April 4, 1997. Paterson Police Detectives Iurato, Maute, and Jadlos traveled to New Britain to question defendant. During an interrogation, defendant admitted to shooting Adnan Ali and to shooting another person in the Madison Diner.

Finally, there was evidence that approximately two weeks before the March 30, 1997 shooting, defendant was in Connecticut with Jorge Concepcion when defendant showed Concepcion a gun and then fired the gun. Although defendant fired the gun out of the view of Concepcion, Concepcion heard the gun discharge and defendant admitted the next day that he in fact discharged the gun. Ballistics tests revealed that spent casings and bullets from the incident matched the casings and bullets retrieved from the March 30 shooting in Paterson.

Defendant raised three claims on direct appeal. He challenged the trial court's failure to: declare a mistrial after a State's witness had an emotional outburst; charge passion/provocation manslaughter and imperfect self-defense; and properly evaluate applicable sentencing criteria.

We rejected each of those contentions and affirmed defendant's conviction. Ibid.

During the PCR proceeding that is the subject of this appeal, defendant argued that the evidence of his firing a handgun in Connecticut two weeks earlier was highly prejudicial and should have been excluded. He asserted that the failure of appellate counsel to have raised this issue on direct appeal constituted ineffective assistance of counsel. He also argued that the evidence of the Connecticut incident was erroneously admitted at trial and trial counsel was ineffective for waiving a limiting instruction. After a hearing, Judge DeLuccia denied the petition.

We quote Jorge Concepcion's testimony on behalf of the State about the Connecticut incident in order to provide context for our analysis. Concepcion testified:

Q: I take your attention specifically to March 17, 1997. At one point that day did you and [defendant] go to a location in the City of New Britain, Connecticut, specifically 22 Horseplane Road? Did you and [defendant] go into that address?

A: Yes.

Q: And before you and [defendant] went in that address, do you know if he had a gun in his possession?

A: Yes.

Q: How do you know he had a gun?

A: Because he took it out.

Q: Did you see it?

A: Yes.

Q: What type of gun did it appear to be to you?

A: 380.

Q: 380 what? What's a 380 mean?

A: 380?

Q: 380?

A: Yeah. Automatic.

Q: Automatic?

A: Yes.

Q: When you and [defendant] were at that location, did you hear the discharge go off?

A: Yes.

Q: You didn't actually see the gun go off, correct?

A: No.

Q: Did you and [defendant] leave together eventually?

A: Yes.

Q: And did you discuss with him the fact that you heard the gun go off?

A: Not right away.

Q: When did you guys talk about that?

A: The next day.

Q: And did he explain to you that he had shot the gun?

A: Yes.

. . . .

Q: And eventually you discussed what you knew about the discharge of the gun with the Connecticut police on October 5, 1998, am I correct? Does that sound about right?

A: Yes.

Prior to permitting Concepcion to testify, the trial court held a 104(a) hearing to determine whether the testimony should be admitted, and if so, the extent to which it should be sanitized. During the Rule 104(a) hearing, the State presented evidence that when defendant fired the gun, he did so at a Chinese restaurant during a robbery, killing a restaurant employee. At the time Concepcion testified here as a State's witness, Concepcion and defendant faced felony murder charges in Connecticut as a result of the shooting there. Before Concepcion testified, Judge DeLuccia ordered that the testimony be sanitized. There was no mention of the premises being a restaurant. Instead, it was referred to merely as a "structure." Additionally, Concepcion did not mention the murder of the employee.

When Judge DeLuccia granted the State's motion to introduce evidence of the Connecticut incident, the judge concluded that the evidence of defendant possessing and firing a weapon in Connecticut satisfied the four-part test established by State v. Cofield, 127 N.J. 328, 338 (1992). The judge also stated that the evidence was "not classic 404(b) evidence." He explained that the State was not attempting to establish that there was any plan, scheme, motive or any other exception to the N.J.R.E. 404(b) prohibition on admitting evidence of prior bad acts. Instead, the judge concluded that the evidence in question was "purely impeachment testimony."

In particular, defendant gave a statement to police in April 1997, days after the Paterson shootings. In that statement, defendant insisted that he had not brought a handgun to the scene. Instead, defendant stated that when some "Arabic kids" threatened him, he grabbed a gun from the wheel well of a parked car, and fired the gun in order to defend himself. Defendant claimed that co-defendant Louis Muniz had placed the gun in the wheel well.

During the Rule 104(a) hearing, the State argued that evidence of defendant firing a gun in Connecticut should be admitted to establish that defendant lied when he claimed that he had not brought the gun to the scene of the Paterson shooting. Through ballistics testing, the State had established that the gun used to kill Haq and Atsham was the same gun that defendant possessed and fired in Connecticut thirteen days earlier. After considering defendant's objection, the judge held that the evidence of defendant having fired a gun in Connecticut was admissible to attack defendant's credibility and to challenge the veracity of his claim that he had not brought a gun to the scene. The judge reasoned that the jury should be entitled to consider defendant's credibility when it evaluated the truthfulness of the self-defense claim he made in his April 1997 statement to police.

During the Rule 104(a) hearing, the judge asked defense counsel if defendant wanted the judge to provide a limiting instruction concerning the use of the Connecticut evidence. Defense counsel told the judge defendant did not want a limiting instruction. On direct appeal, defendant made no claims of error concerning the admission of evidence of the Connecticut incident.

During the PCR hearing, Judge DeLuccia, who was also the judge who had presided at the trial, rejected defendant's claims that trial counsel was ineffective for failing to request a limiting instruction and that appellate counsel was ineffective for failing to raise the issue on direct appeal. Judge DeLuccia concluded that the admission of the evidence was not error, much less plain error. The judge held that admission of evidence of the Connecticut incident "would be certainly persuasive to convince the jury that the weapon was not retrieved from a wheel well [and was not] placed there by another person just prior to the shooting." The judge further reasoned that "the jury was entitled to have all relevant and material evidence that bore upon that issue." As to the failure of appellate counsel to raise the issue on direct appeal, Judge DeLuccia concluded that appellate counsel did not raise the issue because the admission of the Connecticut evidence was not error.

II.

In order to establish a prima facie case of ineffective assistance of counsel, defendant must demonstrate a reasonable likelihood of succeeding under the two-prong test established by the Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). This State has adopted the same test. State v. Fritz, 105 N.J. 42, 58 (1987). First, defendant must show that defense counsel's performance was deficient. Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693; Fritz, supra, 105 N.J. at 58. Second, defendant must demonstrate 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, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698; Fritz, supra, 105 N.J. at 60-61.

In the absence of specific facts, which, if believed, demonstrate the likelihood of injustice by a preponderance of the evidence, the petition will be denied. State v. Mitchell, 126 N.J. 565, 589 (1992). This two-part Strickland/Fritz test is also applied to evaluate claims of ineffective assistance of appellate counsel. State v. Gaither, ___ N.J. Super. ___ (App. Div. 2007)(slip op. at 6-7).

There is a strong presumption that counsel "rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Strickland, supra, 466 U.S. at 690, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695. Adequate assistance of counsel must be measured by a standard of "reasonable competence." Fritz, supra, 105 N.J. at 60; see also State v. Jack, 144 N.J. 240, 248 (1996).

III.

Defendant argues before us that the trial court erred when it denied his petition for post-conviction relief. Specifically, he maintains that the evidence regarding his possession of the handgun in Connecticut was improperly admitted during the trial, and deprived him of a fair trial. He asserts that the Connecticut evidence improperly suggested that he had a "proclivity to commit a violent crime," and that it was cumulative because "many witnesses established defendant as the shooter."

In reply, the State argues, and we agree, that defendant is procedurally barred from raising this issue in his PCR petition. Rule 3:22-3 provides that PCR is not "a substitute for appeal from conviction . . . ." Additionally, Rule 3:22-4 provides that a defendant is barred from raising on PCR any issue that could have been raised on direct appeal. The Rule provides:

Any ground for relief not raised in a prior proceeding under this rule . . . or in any appeal taken in any such proceedings is barred from assertion in a proceeding under this rule unless the court on motion or at the [PCR] hearing finds (a) that the ground for relief not previously asserted could not reasonably have been raised in any prior proceeding; or (b) that enforcement of the bar would result in fundamental injustice; or (c) that denial of relief would be contrary to the Constitution of the United States or the State of New Jersey.

[R. 3:22-4.]

Thus, Rules 3:22-3 and 3:22-4 require a defendant to pursue relief by direct appeal, and prohibit using post-conviction relief to assert a new claim that should have been raised on direct appeal. State v. McQuaid, 147 N.J. 464, 483 (1997). Defendant did not challenge the admission of the disputed evidence on direct appeal, nor has he sought to explain how this case falls within any of the three exceptions set forth in Rule 3:22-4. Accordingly, his claim is procedurally barred. McQuaid, supra, 147 N.J. at 483.

Despite our conclusion that defendant is procedurally barred from challenging the disputed evidence during the PCR proceeding, we nonetheless exercise our discretion to consider the claim substantively in order to provide complete appellate review. We agree with the State that the disputed evidence was properly admitted pursuant to the criteria established first in Cofield, supra, 127 N.J. at 338, and re-affirmed recently in State v. Lykes, ___ N.J. ____ (2007)(slip op. at 22-25). Evidence of a prior bad act is only admissible when it is relevant to a material issue; similar in kind and reasonably close in time to the offense charged; and clear and convincing. Finally, its probative value must not be outweighed by its apparent prejudice. Cofield, supra, 127 N.J. at 338; Lykes, supra, ___ N.J. ___ (slip op. at 22). The evidence of defendant firing a weapon in Connecticut met this four-part Cofield/Lykes test. Moreover, the evidence was sufficiently sanitized to eliminate any undue prejudice to defendant. There was no reference to the murder, nor were the premises identified as a restaurant.

While it is true that defendant's identity as the shooter was not disputed during the trial, defendant argued that he shot the victims in self-defense. Defendant did not testify, and presented no witnesses. Accordingly, his claim of self-defense depended upon the jury accepting as truthful his statement to police in April 1997 that he acted in self-defense. Once defendant claimed that he acted in self-defense, the State bore the burden of disproving that defense beyond a reasonable doubt. State v. Joseph, 174 N.J. 44, 102 (2002). We agree with Judge DeLuccia's conclusion that the State was entitled to attack defendant's credibility by presenting evidence that he lied when he claimed to police that the gun he used to shoot the victims was not his, but belonged to Muniz. We also agree with the judge's conclusion that consequently the admission of evidence of the Connecticut incident was not error.

Because we conclude that the admission of the Connecticut evidence was not error, appellate counsel was not ineffective when she failed to raise the issue on direct appeal. Defendant thus fails to satisfy the first prong of the Strickland/Fritz test as to appellate counsel. Under those circumstances, there is no need to address the second prong. We affirm the denial of post-conviction relief as to appellate counsel.

We turn next to defendant's claims concerning trial counsel. Although trial counsel objected to the State's request to admit the Connecticut evidence, he refused the judge's offer of a limiting instruction. Cofield requires a limiting instruction to be given whenever N.J.R.E. 404(b) evidence is introduced. Cofield, supra, 127 N.J. at 340-41

Although the evidence in question was introduced for purposes of impeachment rather than for a "classic" 404(b) purpose, such as motive, absence of accident, or intent, it nonetheless satisfied the Cofield definition of prior wrongdoing, id. at 335-36, thus necessitating a limiting instruction. Id. at 340-41. We reach this conclusion even though there was no direct evidence that defendant possessed the gun illegally, or that by firing a gun defendant had committed a crime. Because Concepcion testified that he spoke with police about the Connecticut incident, the jury could have assumed that defendant acted unlawfully when he fired the gun in Connecticut. A limiting instruction would have eliminated the risk that the jury might have impermissibly viewed the Connecticut evidence as proof of defendant's proclivity to engage in violent behavior.

During the PCR hearing, the trial judge did not address defendant's contention that trial counsel's waiver of a limiting instruction constituted ineffective assistance of counsel. Because Cofield requires a limiting instruction, we conclude that counsel's waiver entitles defendant to an evidentiary hearing, at which time counsel should explain his reasons for the waiver. See State v. Preciose, 129 N.J. 451 (1992). Counsel might have waived the limiting instruction because he was loathe to draw attention to the testimony, but we decline to speculate. We believe the better practice is to remand to the trial court for a hearing at which counsel should explain his reasons. The hearing on remand shall be limited to that issue. We accordingly reverse the portion of the January 31, 2006 order that rejected defendant's claims as to trial counsel.

IV.

As to Points II and III, defendant's contentions lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

V.

 
Affirmed in part, reversed in part, and remanded for an evidentiary hearing limited to trial counsel's waiver of the limiting instruction. We do not retain jurisdiction.

During the PCR hearing, PCR counsel, the assistant prosecutor and the judge mistakenly believed that trial counsel had not objected to the admission of the evidence, and for that reason all three analyzed it under the plain error of standard of Rule 2:10-2.

(continued)

(continued)

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A-4157-05T4

December 7, 2007