NOT FOR PUBLICATION WITHOUT THE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.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3126-15T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JOSEPH MAGGIO,
Defendant-Appellant.
___________________________________
Submitted June 1, 2017 – Decided November 28, 2017
Before Judges Fuentes and Gooden Brown.
On appeal from Superior Court of New Jersey,
Law Division, Middlesex County, Indictment No.
83-03-0450.
Joseph E. Krakora, Public Defender, attorney
for appellant (Steven M. Gilson, Designated
Counsel, on the brief).
Andrew C. Carey, Middlesex County Prosecutor,
attorney for respondent (Joie Piderit,
Assistant Prosecutor, of counsel and on the
brief).
The opinion of the court was delivered by
FUENTES, P.J.A.D.
Defendant Joseph Maggio appeals from the order of the Criminal
Part denying his post-conviction relief (PCR) petition. We affirm.
On March 16, 1983, a Middlesex County Grand Jury returned
Indictment No. 83-03-0450, charging defendant with first degree
armed robbery, N.J.S.A. 2C:15-1, second degree burglary, N.J.S.A.
2C:18-2, third degree theft, N.J.S.A. 2C:20-3a, second degree
possession of a handgun for an unlawful purpose, N.J.S.A. 2C:39-
4a, third degree unlawful possession of a handgun, N.J.S.A. 2C:39-
5b,1 and third degree terroristic threats, N.J.S.A. 2C:12-3b.
Defendant was arrested in 1983 in the State of New York on
unrelated charges of first and second degree attempted murder.
Defendant was tried and convicted of first and second degree
attempted murder in New York and was sentenced to consecutive
terms on these charges of twenty-five years to life and twelve-
and-one-half years to twenty-five years. In November 1983,
defendant signed a consent agreement pursuant to the Interstate
Agreement on Detainers (IAD), N.J.S.A. 2A:159A-1 to -15, to allow
his transportation from New York to New Jersey to stand trial in
this State on the charges under Indictment No. 83-03-0450. See
State v. Pero, 370 N.J. Super. 203, 206 (App. Div. 2004).
1
Effective August 8, 2013, the Legislature amended N.J.S.A. 2C:39-
5b to elevate the crime of unlawful possession of a handgun to a
second degree offense.
2 A-3126-15T3
Defendant was arraigned before the Criminal Part on the
charges reflected in Indictment No. 83-03-0450 on February 2,
1984. During the arraignment, the State served defendant with
Indictment No. 83-01-0088, reflecting charges unrelated to this
case. On May 15, 1984, the Criminal Part denied defendant's motion
to dismiss Indictment No. 83-01-0088 under Article III of the IAD,
N.J.S.A. 2A:159A-3, and granted the State's motion for a 180-day
extension. Defendant filed a PCR petition challenging the court's
ruling concerning the IAD. The Criminal Part denied defendant's
petition on April 1, 1984.
On June 20, 1984, defendant was tried before a jury on the
charges reflected in Indictment No. 83-03-0450. The jury returned
a verdict finding defendant guilty of first degree armed robbery,
second degree burglary, third degree theft, and third degree
terroristic threats. The jury acquitted defendant of second degree
possession of a handgun for an unlawful purpose and third degree
unlawful possession of a handgun. On August 10, 1984, the court
sentenced defendant on his conviction of first degree robbery as
a persistent offender under N.J.S.A. 2C:44-3, and imposed an
extended term of life imprisonment with a twenty-five-year period
of parole ineligibility. The court also ordered that this sentence
run consecutive to the sentence defendant was serving for the
crimes committed in New York State. Finally, the court sentenced
3 A-3126-15T3
defendant to a term of ten years, with a five-year period of parole
ineligibility on the second degree burglary conviction, and five
years for the third degree theft conviction, with a thirty-month
period of parole ineligibility. However, these three sentences
were to run concurrently with the extended term sentence imposed
for the first degree armed robbery.
Defendant thereafter filed a direct appeal to this court
challenging his conviction and sentence. This court affirmed
defendant's conviction in an unpublished, Per Curiam opinion.
State v. Joseph Maggio, Docket No. A-0375-84 (App. Div. April 20,
1987). With respect to the sentence, we directed the trial court
to merge the third degree theft conviction with the first degree
armed robbery conviction and amend the Judgment of Conviction
accordingly. Id. at 10. The Supreme Court denied defendant's
petition for certification. State v. Maggio, 109 N.J. 54 (1987).
On May 17, 1988, Judge Harold A. Ackerman, U.S.D.J., denied
defendant's pro se petition seeking habeas corpus relief under 28
U.S.C.A. §2254. Joseph Maggio v. Robert J. Henderson, et al., No.
87-5113 (D.N.J. May 17, 1988). The United States Third Circuit
Court of Appeals thereafter denied defendant's request for a
certificate of probable cause pursuant to Rule 22(b) of the Federal
Rules of Appellate Procedure. See Joseph Maggio v. Robert J.
Henderson, et al., No. 88-5447 (3d Cir. Sept. 14, 1988).
4 A-3126-15T3
On June 26, 1992, defendant, represented by counsel, filed a
PCR petition claiming ineffective assistance of trial counsel
based on trial counsel's alleged failure to find and present an
alibi witness. Defendant's counsel in this appeal wrote in the
brief before us that: "No definitive records exist as to the second
petition's disposition, but courtroom records suggest that the
court dismissed this petition or that the court ordered a
withdrawal of the petition." In support of this supposition,
appellate counsel cites to the following statement in the
Memorandum of Opinion written by Judge Diane Pincus in support of
her February 26, 2016 order denying defendant's PCR petition:
"Evidence suggests that [d]efendant filed a second PCR petition
in 1995 ("1995 PCR"). However, neither party has produced orders
demonstrating the result of this 1995 PCR or the reasons behind
its disposition." (Emphasis added.)
On December 17, 2013, defendant filed what he characterizes
as his "third PCR petition," claiming ineffective assistance of
counsel based on counsel's failure to investigate and call to the
stand the alleged alibi witness. The only support defendant
presented for the existence of this alleged alibi witness and for
defense counsel's failure to interview him is his bold assertion,
unsupported by any court records and uncorroborated by any person
with relevant, competent knowledge of the events.
5 A-3126-15T3
In her Memorandum of Opinion, Judge Pincus retraced
defendant's procedural history and summarized the evidence
presented by the State at trial that led the jury to find him
guilty, beyond a reasonable doubt, of the charges for which he was
sentenced. We will not restate these facts here. Instead, we
incorporate by reference Judge Pincus's factual recitation as
reflected in her Memorandum of Opinion. In her legal analysis,
Judge Pincus concluded defendant was procedurally barred from
bringing this latest PCR petition pursuant to Rule 3:22-4(a),
which precludes a defendant from raising "[a]ny ground for relief
not raised in the proceedings resulting in the conviction, or in
a post-conviction proceeding brought and decided prior to the
adoption of this rule, or in any appeal taken in any such
proceedings[.]" Rule 3:22-4(a) also delineates exceptions to this
procedural bar. Judge Pincus carefully reviewed these exceptions
and found no legal or factual basis to apply any of them here.
Judge Pincus also concluded defendant was not entitled to any
relief available under Rule 3:22-4(b).
Despite these procedural impediments, Judge Pincus reviewed
defendant's claims on their merits, and found no factual or legal
grounds to conclude defendant had established a prima facie case
of ineffective assistance of counsel under the standards adopted
by the United States Supreme Court in Strickland v. Washington,
6 A-3126-15T3
466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), and
subsequently adopted by our Supreme Court in State v. Fritz, 105
N.J. 42, 58 (1987). Defendant now appeals raising the following
arguments.
POINT I
DEFENDANT'S PCR PETITION SHOULD NOT HAVE BEEN
PROCEDURALLY BARRED.
POINT II
THIS MATTER MUST BE REMANDED FOR AN
EVIDENTIARY HEARING BECAUSE DEFENDANT
ESTABLISHED A PRIMA FACIE CLAIM OF TRIAL
COUNSEL'S INEFFECTIVENESS FOR FAILING TO
ADEQUATELY INVESTIGATE THIS CASE REGARDING AN
ALIBI WITNESS AND FOR FAILING TO HAVE THAT
WITNESS TESTIFY.
We reject these arguments and affirm substantially for the
reasons expressed by Judge Pincus in her Memorandum of Opinion.
Based on the evidence presented before the PCR court, defendant
has not established a prima facie case of ineffective assistance
of counsel. He was therefore not entitled to an evidentiary
hearing pursuant to Rule 3:22-10(b). State v. Preciose, 129 N.J.
451, 462-63 (1992).
Affirmed.
7 A-3126-15T3