SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3670-17T3

STATE OF NEW JERSEY, 

Plaintiff-Respondent,

v.

THOMAS J. D'AMICO,

Defendant-Appellant.

__________________________

Argued March 10, 2020 – Decided May 14, 2020

Before Judges Accurso and Gilson.

On appeal from the Superior Court of New Jersey, 

Law Division, Union County, Indictment No. 00-06-

0676.

Adam W. Toraya, Designated Counsel, argued the 

cause for appellant (Joseph E. Krakora, Public 

Defender, attorney; Adam W. Toraya, on the brief).

Milton Samuel Leibowitz, Special Deputy Attorney 

General/Acting Assistant Prosecutor, argued the cause

of respondent (Lyndsay V. Ruotolo, Acting Union 

County Prosecutor, attorney; Milton Samuel

Leibowitz, of counsel and on the brief).

NOT FOR PUBLICATION WITHOUT THE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.
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PER CURIAM

Defendant Thomas J. D'Amico appeals from the November 3, 2017 order 

dismissing his second petition for post-conviction relief (PCR), filed seven 

years after the denial of his first petition. He claims the attorney who 

represented him on his direct appeal and first PCR application rendered 

ineffective assistance of counsel by not arguing that he was denied a fair trial 

by the judge's failure to charge the jury, sua sponte, on passion/provocation 

manslaughter. The trial court dismissed the claim as time-barred. We agree 

and affirm.

The facts of this brutal killing are fully set forth in the consolidated 

opinions of this court in State v. Castagna, 376 N.J. Super. 323, 336-51 (App.

Div. 2005), where we reversed the convictions of defendant and two codefendants, Jean Morales and Josephine Castagna, and the Supreme Court, 

which reversed our decision as to defendant and Castagna, but affirmed our 

decision that Morales should receive a new trial, State v. Castagna, 187 N.J. 

293, 300-03 (2006). We do not repeat those facts here, but note only that 

defendant, an off-duty police officer, was part of a mob that chased and 

savagely beat the victim before Morales, who was convicted of murder in the 
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first trial, dropped a twenty-five pound Belgian block on his head as he lay 

helpless on the ground. Castagna, 376 N.J. Super. at 331, 341-42.

Defendant was convicted of first-degree aggravated manslaughter, by 

recklessly causing the victim's death under circumstances manifesting extreme 

indifference to the value of human life, N.J.S.A. 2C:11-4(a); and two counts of 

second-degree official misconduct, N.J.S.A. 2C:30-2(a), but acquitted of firstdegree murder, N.J.S.A. 2C:11-3(a)(1) and (2). Id. at 332. He was sentenced 

to twenty years in prison for the manslaughter, subject to the periods of parole 

ineligibility and supervision required by the No Early Release Act (NERA), 

N.J.S.A. 2C:43-7.2, and to a consecutive seven-year term for the official 

misconduct. Ibid.

Defendant filed his first petition for PCR in 2007, which the court 

denied following a four-day evidentiary hearing. State v. D'Amico, No. A3187-07 (App. Div. May 3, 2010) (slip op at 8). Defendant, who was 

represented by the same private counsel who represented him on direct appeal, 

did not include trial counsel's failure to seek a passion/provocation charge

among his several claims of ineffective assistance, notwithstanding his obvious 

awareness of Morales' success in obtaining a new trial on that ground. Id. at 8-
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9. We affirmed, id. at 1, and the Supreme Court denied defendant's petition 

for certification, State v. D'Amico, 205 N.J. 79 (2011). 

Defendant filed a habeas petition, which the district court likewise 

denied. D'Amico v. Balicki, No. 11-4168 (SDW) (D.N.J. Sep. 6, 2012). The 

Third Circuit affirmed, D'Amico v. Balicki, 592 F. App'x 76 (3d Cir. 2014), 

and the United States Supreme Court denied defendant's petition for certiorari, 

D'Amico v. Holmes, 135 S. Ct. 2362 (2015).

Two weeks before the United States Supreme Court rendered its decision 

on defendant's petition for certiorari, defendant filed a second petition for 

PCR, alleging, among other things, that his appellate counsel was ineffective 

for failing to argue the "clearly meritorious claim" of trial counsel's failure to 

seek a jury instruction on passion/provocation manslaughter, the claim which 

had secured Morales a new trial. He also claimed his first PCR counsel, the 

same lawyer who represented him on direct appeal, failed to advise him that

"[counsel] could not raise an ineffective claim against himself," entitling 

defendant to a new PCR hearing based on his counsel's conflict of interest. 

Further, he asserted those claims "should not be time-barred" because they 

couldn't have been raised previously. Alternatively, defendant argued that 

should the court find the claims could have been raised previously, that failure 
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provided additional support for his claims of ineffective assistance of counsel 

on the part of appellate and PCR counsel.

The trial court appointed counsel for defendant, who filed a brief on his 

behalf. In addition to arguing that defendant received ineffective assistance on 

direct appeal and on his first PCR, counsel also argued that defendant's claims 

were not procedurally barred, including time-barred under Rule 3:22-12. 

Specifically, counsel argued defendant had "established excusable neglect 

sufficient to overcome the filing of his petition one year late." 

Second PCR counsel argued defendant sought to have the failure to 

charge passion/provocation manslaughter "raised at an earlier time," but his 

prior counsel "insisted on raising only issues regarding trial counsel," and that 

it was "fundamentally unfair" to impose a procedural bar where defendant's

counsel "failed to raise a critical issue and then tried to hide that failure for ten 

years." In a supplemental brief, counsel argued that appellate counsel's 

response to defendant's inquiry as to whether counsel had erred on direct 

appeal by not raising the jury charge issue Morales successfully asserted —

that if defendant "thinks we did something wrong, he is going to have to find 

other counsel" — was "clear ineffective assistance of counsel."
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The trial court denied defendant's petition following argument. In a 

written opinion, the judge noted that pursuant to Rule 3:22-12(a)(2), no second 

or subsequent petition for PCR, "[n]otwithstanding any other provision in 

[Rule 3:22-12], . . . shall be filed more than one year after the latest of . . . C) 

the date of the denial of the first . . . application for post-conviction relief" 

where the defendant alleges ineffective assistance of counsel representing him 

on that petition. R. 3:22-12(a)(2)(C). The court found defendant's second 

petition alleging ineffective assistance of first PCR counsel was filed seven 

years and four months after his first petition was denied. Because Rule 3:22-

4(b)(1) mandates dismissal of a second petition unless timely filed under Rule

3:22-12(a)(2), and there is no "fundamental injustice" exception for second 

petitions, unlike in Rule 3:22-12(a)(1)(A), the court dismissed defendant's 

second petition as time-barred.

Defendant appeals, raising the following arguments:

POINT I:

THE TRIAL COURT MISAPPLIED ITS 

DISCRETION IN APPLYING R. 3:22-4(b) AND R.

3:22-12(a) (2) AS PROCEDURAL BARS AGAINST 

THE DEFENDANT'S PETITION FOR POSTCONVICTION RELIEF IN THIS CASE. 

A. Defendant has a vested right to file a second

PCR and have it heard under the excusable neglect
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and fundamental injustice standard because his

first PCR attorney failed to provide him a true

first application for post conviction relief.

B. The trial court misapplied its discretion in

failing to consider the exception under R. 3: 22-

12 (a)(2)(b) where the one year time limit starts to

run upon discovery of-the factual predicate for the

relief sought. 

C. The trial court misapplied its discretion in

failing to consider the exception under R. 3:22-

12 (a)(2)(c) where the one year time limit starts to

run after the denial of the first PCR petition where

ineffective assistance of counsel is alleged.

D. The trial court misapplied its discretion in

finding that there is no injustice exception for a

second or subsequent filing for petition for post

conviction relief.

E. Enforcement of the procedural time bar in this

case would force the court to acquiesce to an

injustice and deny defendant his constitutional

right to the effective assistance of counsel and

his constitutional right to a fair trial.

POINT II:

THE TRIAL COURT ERRED IN DENYING THE 

DEFENDANT'S PETITION FOR POST 

CONVICTION RELIEF WITHOUT AFFORDING 

HIM AN EVIDENTIARY HEARING TO FULLY 

ADDRESS HIS CONTENTION THAT HE FAILED 

TO RECEIVE ADEQUATE LEGAL 

REPRESENTATION IN HIS CASE. 

We reject defendant's arguments as plainly without merit. See R. 2:11-3(e)(2).
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The trial court was correct that Rule 3:22-12(a)(2) expressly limits the 

time in which a second petition for PCR alleging ineffective assistance on the 

first petition can be filed to one year following the denial of the first petition. 

Amendments to the rule make clear beyond question that the one-year 

limitation for second or subsequent petitions is non-relaxable. See R. 3:22-

12(b); R. 3:22-12(a)(2); R. 3:22-4(b); State v. Jackson, 454 N.J. Super. 284, 

293 (App. Div.), certif. denied, 236 N.J. 35 (2018); see also R. 1:3-4(c). Rule

3:22-4(b)(1) mandates dismissal of a second petition if untimely under Rule

3:22-12(a)(2).

Application of those rules here makes plain the trial court was correct in 

dismissing defendant's second PCR petition as untimely, and that defendant's 

arguments to the contrary are without merit. The rules regarding second PCR 

petitions establish that the trial court was without discretion to consider 

defendant's arguments due entirely to defendant's late filing. Accordingly, we 

affirm the dismissal of defendant's second PCR petition for the reasons 

expressed in Judge McDaniel's November 3, 2017 opinion.

Affirmed.