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 

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.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." 

Although 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, 2017
2 A-3129-15T4

Defendant appeals the order denying his petition for postconviction 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 twoprong 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.