STATE OF NEW JERSEY v. MARC A. JORDAN

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0493-09T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MARC A. JORDAN,

Defendant-Appellant.

____________________________________________

May 5, 2011

Submitted March 22, 2011 - Decided

Before Judges Skillman and Roe.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 97-06-0797.

Marc A. Jordan, appellant pro se.

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

PER CURIAM

Defendant, Marc A. Jordan, appeals from a denial of a motion for a new trial based on newly discovered evidence. We affirm.

Following a jury trial in April 1999, defendant was found guilty of conspiracy, in violation of N.J.S.A. 2C:5-2; burglary, in violation of N.J.S.A. 2C:18-2; armed robbery, in violation of N.J.S.A. 2C:15-1; possession of a weapon for an unlawful purpose, in violation of N.J.S.A. 2C:39-4(a); and terroristic threats, in violation of N.J.S.A. 2C:12-3(b).

State's witness, Anthony Mazza, testified at defendant's trial that he and defendant had planned and participated in an armed robbery of John Santora. Mazza stated he pled guilty to several offenses arising out of his participation in the armed robbery, and had been sentenced to a term of fifteen years imprisonment, with a seven and one-half year period of parole ineligibility. Mazza denied having entered into a plea agreement with the State in exchange for his testimony in this case.

On direct appeal, defendant challenged several pretrial and trial decisions, and argued that he had received ineffective assistance of counsel. We affirmed defendant's conviction in an unpublished opinion, but remanded for resentencing. State v. Jordan, No. A-6545-98T4 (App. Div. June 25, 2001).

Thereafter, according to defendant, he reviewed a transcript of Mazza's plea hearing and learned for the first time the State allegedly made several promises to Mazza in exchange for his guilty plea that were not disclosed by the State and denied by Mazza at defendant's trial. Defendant filed a motion for a new trial on March 6, 2009, arguing that he was deprived of his right to due process and a fair trial when the State knowingly elicited alleged false testimony from the State's witness regarding the plea agreement.

On July 30, 2009, the court denied defendant's motion for a new trial without a hearing.

On appeal, defendant presents the following argument for our consideration:

DEFENDANT WAS DEPRIVED OF HIS RIGHT TO DUE PROCESS AND A FAIR TRIAL WHEN THE STATE KNOWINGLY ENLISTED FALSE TESTIMONY FROM ITS KEY WITNESS, ALEXANDER MAZZA, IN ORDER TO OBTAIN A TAINTED CONVICTION.

To meet the standard for a new trial based on newly discovered evidence, defendant must show new evidence was "(1) material to the issue and not merely cumulative or impeaching or contradictory; (2) discovered since the trial and not discoverable by reasonable diligence beforehand; and (3) of the sort that would probably change the jury's verdict if a new trial were granted." State v. Carter, 85 N.J. 300, 314 (1981). "Newly discovered evidence must be reviewed with a certain degree of circumspection to ensure that it is not the product of fabrication, and, if credible and material, is of sufficient weight that it would probably alter the outcome of the verdict in a new trial." State v. Ways, 180 N.J. 171, 187-88 (2004).

Newly discovered evidence of an undisclosed plea agreement with a key prosecutorial witness can be sufficient newly discovered evidence to warrant a new trial. In Giglio v. United States, 405 U.S. 150, 155, 92 S. Ct. 763, 766, 31 L. Ed. 2d 104, 109 (1972), the Court reversed a conviction for passing forged money orders on the basis that the government did not disclose that its key witness had testified in exchange for a promise that he would not be prosecuted. In State v. Taylor, 49 N.J. 440, 447-48 (1967), the Court reversed the defendant's conviction and ordered a new trial on the basis that the State failed to disclose a promise of leniency made to a co-conspirator, who testified as a State's witness.

So viewed, we do not consider the so called newly discovered evidence material to the issue of defendant's guilt or of the type that would probably change the jury's verdict. Mazza entered a guilty plea in this indictment to counts of conspiracy, first degree robbery and possession with an unlawful purpose. In exchange, the State agreed to recommend his sentence not exceed fifteen years with a seven and one-half year period of parole eligibility. The State further agreed to move to dismiss the balance of the indictment at time of sentence. The court specifically inquired of Mazza at his plea hearing on March 9, 1998, whether anyone had made any promises to him or whether he had made any promises to anyone in exchange for the plea offer, to which he replied, "No." Mazza's attorney specifically asked him, "[f]irst of all Mr. Mazza, it's not part of your plea agreement to testify against your co-defendant, is that correct?" Mazza replied, "No."

The sentencing judge accepted the plea after telling Mazza that but for the negotiated terms, Mazza could have received a fifty year sentence on those counts and a twenty-five year period of ineligibility. Mazza, in fact, received the negotiated sentence.

Mazza testified at defendant's trial more than one year later on April 8, 1999. On direct examination, Mazza testified that he was not offered any deals by the State for his plea of guilty. He was then asked whether he was "offered any consideration for his sentencing by the State in return for your plea of guilty to those charges?" and again he answered, "No."

The State's witness, Mazza, entered into a routine plea agreement under which he pled guilty in exchange for the State recommending a particular sentence. There is no indication there was any connection between the plea agreement and Mazza testifying at defendant's trial. In fact, the trial court imposed the recommended sentence on Mazza before he testified at defendant's trial and there is no suggestion that the sentence was reduced after defendant's trial. Thus, defendant's claim that Mazza received favorable treatment from the State because he agreed to testify against defendant is unsupported by the record.

Moreover, the jury knew the State's witness had numerous criminal convictions, even if the specific terms of this plea agreement were not disclosed. The State also produced other compelling evidence of defendant's guilt. Another eyewitness testified, implicating defendant. There was additional circumstantial evidence acquired by the police as a result of their search of defendant's motel room, including, but not limited to, a ski mask and revolver identified as the robbery weapon and $100 bills similar to those stolen by the robber. In light of this strong evidence and additional eyewitness, no reasonable person could fail to have confidence in this verdict.

Given the lack of any proof that the State's witness received favorable treatment in exchange for his testimony, defendant was not entitled to an evidentiary hearing on his motion for a new trial. In the absence of any newly discovered evidence that the State failed to divulge exculpatory evidence, the motion was properly denied without a hearing.