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 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 fo r appell ant (Robert Carter Pie rce, Designated Counsel, on the brief).

J oseph 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 The opinion of the court was delivered by SUTER, J.A.D. NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court . " A lthough 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.

November 6, 20172 A - 3129
- 15T4

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 s et 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 defendan t's
cooper ation with the police on its investigation of an alleged drug dealer and in certain controlled purchases of CDS. A copy of the credit memo randum 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 and3 A - 3129
- 15T4

nine, outweighed mitigating factors one, two, four, eleven and
twelve. Defen dant was sentenced to an extended term of five years
on each cou nt to run concurrently. Defendant filed a direct appeal, arguing only that his sentence was excessive. We affirmed his sentence. State v. Gabriele , No. A - 0 283
- 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 co mpel 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
th an 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, t he PCR court denied defendant's petition . In rejecti ng defendant's claim of ine ffective assistance of counsel , the court found th at 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 into4 A - 3129
- 15T4

consideration by the sentencing judge. Finding no "reaso nable likelihood of success . . . on the merits of this case," the PCR court denied defendant's request for an evidentiary hearing.
Defend ant presents the following issues for our consideration in his appeal.

THE TRIAL COU RT ERRED IN DENYING MR. GABRIEL E'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 COOPER ATION AGREEMENT WITH MR. GABRIE LE BY NOT DISMISSING OR AMENDING THE CHARGES AFTER HE HAD FULLY COOPERATED WITH THE STATE.

We are not persuaded by any of these argumen ts 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 C ourt 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 fair5 A - 3129
- 15T4

trial such that there exists a "reasonable probabili ty 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 makin g 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

mo tion to enforce the oral promises that he alleged were made to him arising from h is cooperation with the police on their other investigations . We agree with the PCR court , however, that
defe ndant 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 S tate 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 into6 A - 3129
- 15T4

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 memorialize d any specific agreement about sentencing. In his direct appeal, def enda nt 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 . De fendant was sentenced at the lowest end of the extended term
range and then both five

- year sentences were con current . We are satisfied from our revie w 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.