STATE OF NEW JERSEY v. KEVIN ROBINSON

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1894-07T41894-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

KEVIN ROBINSON,

Defendant-Appellant.

___________________________________________

 

Submitted March 3, 2009 - Decided

Before Judges Gilroy and Chambers.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 03-01-0002.

Yvonne Smith Segars, Public Defender, attorney for appellant (Philip Lago, Designated Counsel, of counsel and on the brief).

Bruce J. Kaplan, Middlesex County Prosecutor, attorney for respondent (Simon Louis Rosenbach, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Kevin Robinson appeals from the denial of his application for post-conviction relief. He raises the following issues:

POINT I

THE LOWER COURT ORDER MUST BE REVERSED SINCE DEFENDANT IS ENTITLED TO A NEW TRIAL BY VIRTUE OF NEWLY DISCOVERED EVIDENCE.

POINT II

THE LOWER COURT ORDER MUST BE REVERSED SINCE THE PROSECUTOR ENGAGED IN MISCONDUCT WHICH DEPRIVED DEFENDANT OF A FAIR TRIAL.

POINT III

THE LOWER COURT ORDER MUST BE REVERSED SINCE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL.

POINT IV

THE LOWER COURT ERRED IN NOT GRANTING DEFENDANT'S REQUEST FOR A HEARING AND THE LOWER COURT ORDER MUST THEREFORE BE REVERSED.

For the reasons set forth below, we affirm.

Defendant was convicted by a jury of second degree conspiracy, N.J.S.A. 2C:5-2 and 2C:15-1 (count one); first degree use of a juvenile to commit a criminal offense, N.J.S.A. 2C:15-1 and 2C:24-9(a) (count two); first degree armed robbery, N.J.S.A. 2C:15-1 (count three); second degree possession of a weapon for unlawful purposes, N.J.S.A. 2C:39-4(a) (count four); and third degree unlawful possession of a weapon, N.J.S.A. 2C:58-4 and 2C:39-5(b) (count five). He received an aggregate sentence of twelve years imprisonment with an eighty-five percent period of parole ineligibility and five years of parole supervision pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2. The convictions and sentence were affirmed on appeal. State v. Robinson, No. A-4459-03 (App. Div. Oct. 18, 2005). Defendant's petition for certification was denied by the Supreme Court on January 26, 2006. State v. Robinson, 186 N.J. 244 (2006).

Defendant's convictions arise out of the robbery of Raul Cotto on a street in New Brunswick on August 1, 2002. The State contended that defendant, age eighteen, and two codefendants, J.T., a juvenile age seventeen, and Sharef Balaam, age eighteen, robbed Cotto, a drug dealer, at gun point. They stole cash from Cotto as well as his boots. Immediately after the robbery, Cotto gave pursuit. When a police officer came by, Cotto explained that he had been robbed, pointing to the suspects, and the police apprehended the three defendants shortly thereafter. According to the police officer, Cotto identified the three defendants at the scene as the men who had robbed him, and Cotto gave a statement at the police station confirming that the three had robbed him. However, at trial, Cotto testified that he only identified two of the robbers at the scene. He also testified that he could not see the robbers' faces because they were wearing ski masks. Cotto did not identify defendant at trial as one of the three robbers.

The codefendants, Balaam and J.T., who had pled guilty pursuant to plea agreements, were presented as witnesses by the State. J.T. testified that defendant had been a participant in the robbery. Balaam, however, did not testify that he and defendant had participated in the robbery. He acknowledged that during his plea he had said that defendant participated in the robbery. At trial, he explained that he was told he had to provide that statement in order to obtain a favorable plea agreement. He maintained, at trial, that his earlier statements were not truthful. Despite this conflicting testimony, the jury convicted defendant as noted above.

In this post-conviction relief application, defendant submits, as newly discovered evidence, affidavits from Cotto and Balaam. Cotto denies in his affidavit that defendant participated in the crime. He further explains that when the crime happened, only two perpetrators were present and that a third person came by and ran in front of the two. He does not know whether the third person was involved or not in the crime. Balaam, in his affidavit, also exonerates defendant of the crime. He states that after J.T. and he robbed Cotto, defendant joined them. He further explains that he implicated defendant in the crime in order to obtain a favorable plea agreement. Based on these affidavits, defendant contends that he is entitled to a new trial.

In order to be entitled to a new trial based on newly discovered evidence, a defendant must establish that the new evidence (1) is material, and is "not 'merely' cumulative, impeaching, or contradictory;" (2) "was not discoverable by reasonable diligence" before the trial; and (3) "would probably change the jury's verdict if a new trial were granted." State v. Ways, 180 N.J. 171, 187 (2004) (quoting State v. Carter, 85 N.J. 300, 314 (1981)).

These two new affidavits do not meet this criteria. Neither Cotto nor Balaam implicated defendant in the robbery during their testimony at trial. It was only their pretrial statements that implicated defendant. Their new affidavits, once again exonerating defendant of involvement in the crime, do not change this equation. This is not a situation where witnesses are recanting damaging trial testimony. At a new trial, the same pretrial statements will be available to implicate defendant. The new affidavits only change a detail in the facts, namely Balaam now says that defendant joined him after the robbery occurred and Cotto indicates that the third person came along after the robbery occurred. These new details are not material to the fact at issue which is whether defendant participated in the crime. At trial, the jury had before it evidence of the pretrial statements of these two witnesses along with their contrary trial testimony. It also had all of the other evidence in the case, including the testimony of J.T. who directly implicated defendant in the crime. The fact that Cotto and Balaam have added another detail to their accounts exonerating defendant cannot be expected to change the outcome of the trial. Evidence that "is not of great significance and would probably not alter the outcome of a verdict" is not a basis to overturn a conviction and grant a new trial. Id. at 189.

The balance of the issues raised in this appeal are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

Affirmed.

 

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A-1894-07T4

April 7, 2009