STATE OF NEW JERSEY v. JOHN FITZGERALD

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JOHN FITZGERALD,

Defendant-Appellant.

__________________________________

October 30, 2013

Submitted October 17, 2013 Decided

 
Before Judges Fuentes, Simonelli and Fasciale.

On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 03-08-0819.

Joseph E. Krakora, Public Defender, attorney for appellant (Steven M. Gilson, Designated Counsel, on the brief).

Grace H. Park, Acting Union County Prosecutor, attorney for respondent (Meredith L. Balo, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief; Kimberly Donnelly, on the brief).

PER CURIAM

Defendant appeals from a May 16, 2011 order denying his petition for post-conviction relief (PCR). He contends that he received ineffective assistance of counsel from his trial attorney. We affirm.

Defendant and sixteen co-defendants were charged with committing numerous drug trafficking offenses. The State produced overwhelming evidence of guilt as a result of wiretap applications, search warrants, and testimony from two co-conspirators. After the conclusion of a lengthy trial, the jury concluded that defendant participated in operating a large-scale drug distribution network.1

In April 2005, Judge William L'E. Wertheimer sentenced defendant to an aggregate term of life in prison, plus forty years, with a fifty-year period of parole ineligibility. We affirmed the convictions but remanded for re-sentencing, State v. Fitzgerald, No. A-1282-05 (App. Div. June 30, 2008), and the Supreme Court denied certification, State v. Fitzgerald, 196 N.J. 597 (2008). In November 2008, the judge re-sentenced defendant to a prison term of life plus twenty years, with thirty-five years of parole ineligibility, which we affirmed on our excessive sentencing calendar.

In March 2009, defendant filed his petition for PCR. The judge stated in part that

[t]he vast majority of defendant's assertions should have been raised on appeal and not in the manner being conducted here. There was a plethora of motions by defendant's counsel and the co-counsel of the other three defendants, some of which defendant now attempts to resurrect, whose rulings are subject for appeal not for a PCR.

Reviewing the specifics of defendant's arguments concerning claims of ineffective representation, defendant's memory is either faulty or fanciful. For instance, his allegation that the application for the wiretap should have been challenged belies the fact that a Franks[2] hearing was requested and denied. In fact, defendant raises a series of allegations, . . . which [the court] addressed at trial. The rulings on those are grounds for appeal, not a PCR.

The simple conclusion is that allegations of ineffective assistance of counsel are belied by the overwhelming of each, and all, defendants' guilt. . . .

. . . .

Quite simply, in the face of the overwhelming proof in this case, the eyewitness identifications, the hours of audio-taped conversations implicating defendant directly through co-conspirators, and the sub rosa video tape taken of defendant inside a car orchestrating drug sales, [defendant's] assertions of a right to [PCR] are absurd.

This court presided over the trial in question and had an opportunity to hear and see overwhelming evidence of guilt, weigh the believability of the witnesses and the impressive wiretap evidence and identifications. In [twenty-seven] years on the bench, this court never saw such overwhelming evidence of each defendant's guilt. There was nothing that defendants' attorneys did not do or attempt to do that could have overcame the mountain of evidence, the professional testimony of the constabulary or the damming ramifications of eyewitness identification. The [defendant] cannot, therefore, demonstrate any possibility of a different result let alone a "reasonable probability" of same.

It is important to note that [defendant] was one of four defendants who were not only related by blood[,] but who also had virtually identical interests. . . . [The] consortium of competent criminal counsel did all that was reasonable and proper to keep damaging evidence from the trier of fact. While each lawyer may not have initially moved for a certain ruling, all joined in on each motion, and when taken together[,] each defendant was competently protected by all the lawyers who sought to protect their joint and several interests. The court's rulings on these matters are for appeal.

This appeal followed.

On appeal, defendant raises the following points:

POINT I

DEFENDANT'S PCR PETITION WAS NOT PROCEDURALLY BARRED REGARDING HIS INEFFECTIVE-ASSISTANCE-OF-COUNSEL, "FUNDAMENTAL INJUSTICE," AND CONSTITUTIONAL CLAIMS (Partially Raised Below).

POINT II

THIS MATTER MUST BE REMANDED FOR FINDINGS OF FACT AND CONCLUSIONS OF LAW BECAUSE THE PCR COURT FAILED TO ADDRESS THE MERITS OF DEFENDANT'S VARIOUS CLAIMS (Not Raised Below).

We find no merit to these contentions, Rule 2:11-3(e)(2), and therefore affirm substantially for the reasons stated by Judge Wertheimer in his thorough written decision of May 16, 2011. Suffice it to say, for defendant to obtain relief based on ineffective assistance grounds, he is obliged to show not only the particular manner in which counsel's performance was deficient, but also that the deficiency prejudiced his right to a fair trial. Strickland v. Washington, 466 U.S. 668, 687, l 04 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984); State v. Fritz, 105 N.J. 42, 58 (1987). We are persuaded that the alleged deficiencies here clearly fail to meet either the performance or prejudice prong of the Strickland test.

1 Defendant was tried with three co-defendants, who were found guilty as charged.

2 Franks v. Delaware, 438 U.S. 154, 98 S. Ct. 2674, 57 L. Ed. 2d 667 (1978).