STATE OF NEW JERSEY v. MARCO A. DIGIOVANNI

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0888-03T40888-03T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MARCO A. DIGIOVANNI,

Defendant-Appellant.

_______________________________________________________________

 

Submitted May 9, 2006 - Decided May 23, 2006

Before Judges Coburn, Collester and Lisa.

On appeal from the Superior Court of New Jersey,

Law Division, Essex County, Indictment No. 86-02-0621.

Yvonne Smith Segars, Public Defender, attorney for

appellant (Jay Bernstein, Designated Counsel, of

counsel and on the brief).

Paula T. Dow, Essex County Prosecutor, attorney for

respondent (Barbara A. Rosenkrans, Assistant

Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant appeals from the denial of his motion for a new trial based on a claim of newly discovered evidence, and he argues for the first time on appeal for DNA testing of some crime scene evidence. The conviction occurred two decades ago, the motion was filed in June 2003, and was denied by an order dated September 3, 2003. We affirm.

In 1986, a jury convicted defendant of murder and weapons offenses, and he received an aggregate sentence of imprisonment for life plus ten years with thirty-five years to be served without parole. He appealed and we affirmed. State v. DiGiovanni, A-2307-86, A-2568-86 (App. Div. August 6, 1990), certif. denied, 127 N.J. 325 (1991). We incorporate by reference our statement of facts from that opinion, and we note that at that time we rejected defendant's claim that the trial judge had erred in permitting him to represent himself with the assistance of stand-by counsel. A few years later, we affirmed the trial court's denial of defendant's motion for post-conviction relief, again rejecting, among other arguments, his claim that he had been wrongly allowed to represent himself at the trial. State v. DiGiovanni, A-2602-91 (App. Div., April 25, 1994), certif. denied, 138 N.J. 271 (1994).

Defendant claimed that he had additional evidence that shows he did not knowingly waive his right to counsel at trial. The evidence is that he was diagnosed with hepatitis C in 1999. He claims that he might have been suffering from the disease in 1986 and that it might have affected his ability to knowingly waive his right to counsel. The claim was submitted without sufficient support to warrant a hearing. Indeed, defendant conceded that he was mentally competent at the time of trial, but argued that in some vague ways the disease, if he then had it, might have affected the decisions he made and his skill in conducting his defense. We agree with defendant's argument that the judge erred in ruling that the claim was time-barred, since "[a] motion for a new trial based on the ground of newly discovered evidence may be made at any time." R. 3:20-2. However, defendant's substantive argument has no merit, given the date of the diagnosis and defendant's vagueness in describing the effect of the disease, if he then had it, in 1986.

Next, defendant claimed that he had discovered new evidence indicating that someone else committed the murder, which was set out in a certification submitted by Thomas Harris. Harris wrote that "on or about the month of August 1986," he met Jimmy Rahdazzo at the Short Stop Diner in Bloomfield. Rahdazzo told him that defendant's son, the co-defendant, was not involved in the murder, and that Rahdazzo had shot and killed the victim. There was no evidence of a particularized guarantee of the reliability of this evidence. As inadmissible double-hearsay, N.J.R.E. 801, 802, it was insufficient to justify a new trial. See State v. Bunyan, 154 N.J. 261, 267 (1998) (holding that a defendant must notice a showing of particularized guarantees of the trustworthiness of the newly proffered evidence when it is inadmissible hearsay).

Defendant's DNA argument was not raised below and therefore we will not consider it. State v. J.M., 182 N.J. 402, 410 (2005). The new argument raised in defendant's reply brief that a 1982 medical diagnosis had some bearing on his ability to defend himself at the trial is without sufficient merit to warrant discussion.

Affirmed.

 

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A-0888-03T4

May 23, 2006