STATE OF NEW JERSEY v. PAUL A. DIBIASE

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1386-05T51386-05T5

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

PAUL A. DIBIASE,

Defendant-Appellant.

__________________________________

 

Submitted September 12, 2006 - Decided September 22, 2006

Before Judges Skillman and Lisa.

On appeal from Superior Court of New Jersey, Division, Monmouth County, Indictment No. 89-07-1267.

Paul A. DiBiase, appellant, pro se.

Anne Milgram, Acting Attorney General, attorney for respondent (Deborah Bartolomey, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

A jury found defendant guilty together with codefendant Jose Guzman of receiving stolen property, in violation of N.J.S.A. 2C:20-7(a); burglary, in violation of N.J.S.A. 2C:18-2; theft of movable property, in violation of N.J.S.A. 2C:20-3(a); second-degree robbery, in violation of N.J.S.A. 2C:15-1; unlawful possession of a handgun, in violation of N.J.S.A. 2C:39-5(b); possession of a weapon for an unlawful purpose, in violation of N.J.S.A. 2C:39-4(a); armed burglary, in violation of N.J.S.A. 2C:18-2; armed robbery, in violation of N.J.S.A. 2C:15-1; false imprisonment, in violation of N.J.S.A. 2C:13-1(b); terroristic threats, in violation of N.J.S.A. 2C:12-3; and conspiracy to commit the foregoing offenses, in violation of N.J.S.A. 2C:5-2. The trial court sentenced defendant to an extended term of fifty-years imprisonment, with twenty years of parole ineligibility, for the armed robbery. The court merged or imposed concurrent sentences for defendant's other convictions. The judgment of conviction memorializing this sentence was entered on December 3, 1990.

On appeal, we affirmed defendant's conviction and sentence in an unreported opinion. State v. Guzman, Nos. A-2364-90T1, A-2484-90T1 (Nov. 19, 1992). The Supreme Court denied defendant's petition for certification. 133 N.J. 436 (1993).

On October 24, 1995, defendant filed a petition for post-conviction relief, which the court denied on May 16, 1996. We affirmed the denial of that petition in an unreported opinion, State v. DiBiasi, No. A-6046-95T2 (March 13, 1998), and the Supreme Court denied defendant's petition for certification, 156 N.J. 404 (1998).

On May 1, 2005, defendant filed what he characterized as a motion for new trial based on alleged newly discovered evidence. On August 30, 2005, the trial court denied defendant's motion.

On appeal from the denial of his motion, defendant presents the following argument:

THE TRIAL COURT ERRONEOUSLY DENIED PETITIONER A NEW TRIAL UNDER R. 3:20-2 ON THE GROUNDS OF NEWLY DISCOVERED INFORMATION AFTER PETITIONER PROVED BY THE COURT RECORD THAT THE PETITIONER'S CONVICTION WAS OBTAINED BY THE STATE THROUGH THE PRESENTATION OF FALSE TESTIMONY BY THE STATE'S EXPERT WITNESS, A CELEBRATED FORENSIC SCIENTIST ON HAIR EVIDENCE WHO PRESENTED THE JURY WITH FALSE TESTIMONY ON HIS SCIENTIFIC CONCLUSIONS ON THE ONLY TANGIBLE EVIDENCE THE STATE HAD TO LINK PETITIONER TO A BOAT LINKED TO A CRIME AND BY DESIGN THE PROSECUTOR PARTICIPATED IN THIS FALSITY BECAUSE DURING PETITIONER'S TRIAL THE FORENSIC SCIENTIST TOLD THE JURY THE HAIR EVIDENCE HE EXAMINED FROM THE BLACK JACKET RECOVERED FROM THE CRIME SCENE CAME FROM THE SAME PERSON AND THE PROSECUTOR TOLD THE JURY THEY COULD CONNECT PETITIONER TO THE BOAT THAT WAS LINKED TO THE CRIME BECAUSE THE HAIR ON THE JACKET WAS PETITIONER'S, THEN SIX YEARS LATER AFTER THE TRIAL AT THE PETITIONER'S POST CONVICTION THE PROSECUTOR PLACED ON THE RECORD THAT HE CONTACTED HIS EXPERT WHILE PREPARING FOR TRIAL AND HIS EXPERT IMPRESSED UPON HIM THE FACT THAT HE WOULD NOT ACTUALLY BE ABLE TO SAY THAT THE HAIR ACTUALLY CAME FROM ANY CERTAIN PERSON AND THE PROSECUTOR HID HIS EXCULPATORY INFORMATION FROM THE DEFENSE AND THESE DECEPTIONS DENIED THE PETITIONER HIS RIGHT TO A FAIR TRIAL AND DUE PROCESS UNDER THE SIXTH AND FOURTEENTH AMENDMENT RIGHTS IN THE UNITED STATES AND NEW JERSEY CONSTITUTION.

Defendant's argument is clearly without merit and does not warrant discussion in a written opinion. R. 2:11-3(e)(2).

Affirmed.

 

In the intervening nine years between the denial of his petition for post-conviction relief and the filing of this motion, defendant filed a petition for habeas corpus in federal district court. The district court denied the petition and the Third Circuit Court of Appeals affirmed the denial.

(continued)

(continued)

4

A-1386-05T5

September 22, 2006