STATE OF NEW JERSEY VS. GREGORY WRIGHT (09-08-0725, UNION COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-0012-18

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

GREGORY WRIGHT,

Defendant-Appellant.
_______________________

Submitted June 3, 2020 – Decided July 13, 2021

Before Judges Fuentes and Enright.

On appeal from the Superior Court of New Jersey, Law
Division, Union County, Indictment No. 09-08-0725.

Joseph E. Krakora, Public Defender, attorney for
appellant (Anthony J. Vecchio, Designated Counsel, on
the brief).

Lyndsay V. Ruotolo, Acting Union County Prosecutor,
attorney for respondent (Meredithj L. Balo, Special
Deputy Attorney General/Acting Assistant Prosecutor,
of counsel and on the brief).

The opinion of the court was delivered by
FUENTES, P.J.A.D.

Defendant Gregory Wright appeals from the order of the Criminal Part

denying his post-conviction relief (PCR) petition. We affirm.

Defendant was tried before a jury from April 3 to April 19, 2012 and

convicted of first degree armed robbery, N.J.S.A. 2C:15-1(a), second degree

possession of a firearm for an unlawful purpose, N.J.S.A. 2C:39-5(b), and

second degree unlawful possession of a firearm, N.J.S.A. 2C:39-4(a). On

August 29, 2012,1 the trial judge sentenced defendant to an aggregate term of

twelve years imprisonment, with an eighty-five percent period of parole

ineligibility and five years of parole supervision, as mandated by the No Early

Release Act (NERA), N.J.S.A. 2C:43-7.2.

This court affirmed the conviction and sentence in an unpublished

opinion, State v. Gregory Wright, A-3810-12, (App. Div. May 10, 2016), certif.

denied, 228 N.J. 455 (2016). We incorporate by reference the facts underlying

defendant's conviction described in our unpublished opinion. Id. slip op. at 2 -

4. On March 3, 2017, defendant filed this timely PCR petition alleging

ineffective assistance of trial and appellate counsel. He described the basis for

1
Although the sentencing hearing occurred on August 17, 2012, the judge did
not sign the Judgement of Conviction until August 29, 2012.
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his claims in a certification attached to his petition. Judge Lara K. DiFabrizio

assigned counsel to represent defendant in the prosecution of the petition. PCR

counsel filed a supplemental certification from defendant and submitted a brief

addressing the legal issues raised in support of the petition.

The matter came before Judge DiFabrizio for oral argument on March 23,

2018. PCR counsel argued that an evidentiary hearing was necessary "because

there is a dispute of fact respecting matters which are not on the record . . . the

disputed facts in the petitioner's case [are] whether his attorney was ineffective."

The prosecutor claimed that defendant's certification in support of this PCR

petition contained "a knowing falsehood," namely that defendant "was

incarcerated the entire time from his initial date of arrest through his date of

conviction. When, in fact, . . . about a little over two years before his eventual

conviction he made bail and was released."

The prosecutor argued that the submission of a certified statement to the

court containing undeniable "falsehoods" directly undermined defendant's

allegations that his trial counsel was ineffective by not moving to dismiss the

charges against him based on a violation of his constitutional right to a speedy

trial. The prosecutor also argued that defendant's claim that his trial counsel

failed to conduct "an adequate" pretrial investigation was unsupported by

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competent evidence and should be rejected accordingly. Finally, the prosecutor

emphasized that defendant's argument predicated on his trial attorney's failure

to object to the jury instruction on accomplice liability was rejected by this court

on direct appeal.

Judge DiFabrizio denied defendant's PCR petition in an order dated May

21, 2018, accompanied by a memorandum of opinion. She agreed with the

State's position that defendant's claims of ineffective assistance of counsel based

on an alleged failure to object to the jury charges was procedurally barred under

Rule 3:22-5. State v. McQuaid, 147 N.J. 464, 484 (1997). Furthermore,

defendant's claims based on violations of his right to a speedy trial did not satisfy

the four-factor balancing analysis established by the United States Supreme

Court in Barker v. Wingo, 407 U.S. 514, 530 (1972). Even if defendant had

successfully shown that he was denied his right to a speedy trial under the Barker

factors, the Judge held he was unable to overcome the two-prong test established

by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668,

687 (1984), and subsequently adopted by our Supreme Court in State v. Fritz,

105 N.J. 42, 58 (1987).

Finally, Judge DiFabrizio rejected defendant's claim that trial counsel

provided ineffective assistance by failing to call as a witness the victim of the

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robbery who would have provided exculpatory testimony. The Judge found

defendant's claims were merely "uncorroborated assertions."

On appeal, defendant raises the following arguments:

I. THE PCR COURT ERRED IN NOT
GRANTING DEFENDANT AN
EVIDENTIARY HEARING WHERE
DEFENDANT RECEIVED INEFFECTIVE
ASSISTANCE OF COUNSEL.

A. Trial counsel was ineffective for
failing to conduct an adequate pre-trial
investigation.

B. Trial counsel was ineffective for
failing to move the trial court for a
dismissal for lack of a speedy trial.

We reject this argument and affirm substantially for the reasons expressed

by Judge DiFabrizio in her memorandum of opinion. We review a claim of

ineffective assistance of counsel under the two-prong test in Strickland, which

first requires defendant to demonstrate that defense counsel's performance was

deficient. Id. at 687. If this prong is satisfied, defendant must then show there

exists "a reasonable probability that, but for counsel's unprofessional errors, the

result of the proceeding would have been different." Id. at 694.

Judge DiFabrizio carefully reviewed defendant's claims and correctly

concluded he did not produce competent evidence to establish a prima facie case

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of ineffective assistance of counsel and therefore was not entitled to an

evidentiary hearing pursuant to Rule 3:22-10(b). State v. Preciose, 129 N.J.

451, 462-63 (1992).

Affirmed.

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