STATE OF NEW JERSEY v. ANGEL COLON

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3382-10T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ANGEL COLON,

Defendant-Appellant.

________________________________________________________________

March 14, 2012

Argued February 28, 2012 - Decided

Before Judges Yannotti and Espinosa.

On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 93-04-00606.

Craig S. Leeds argued the cause for appellant.

Meredith L. Balo, Assistant Prosecutor, argued the cause for respondent (Theodore J. Romankow, Union County Prosecutor, attorney; Ms. Balo, of counsel and on the brief).

PER CURIAM

Defendant appeals from the denial of his fourth petition for post-conviction relief (PCR) and motion for a new trial. We affirm.

In December 1994, defendant was convicted of first-degree murder, N.J.S.A. 2C:11-3(a)(1) or (2) (counts one and two); second-degree conspiracy, N.J.S.A. 2C:5-2 (count three); first-degree felony murder, N.J.S.A. 2C:11-3(a)(3) (count four); second-degree burglary, N.J.S.A. 2C:18-2 (count six); third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d) (count seven); and fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(d) (count eight). The jury acquitted defendant of first-degree robbery, N.J.S.A. 2C:15-1 (count five).

He was sentenced February 17, 1995, to fifty years in prison, with a thirty-year period of parole ineligibility, on count one and concurrent terms on counts six and eight. The judge merged counts three, four and seven into count one for purposes of sentencing and dismissed count two.

Defendant appealed and we affirmed his conviction and sentence. State v. Colon, No. A-5327-94 (App. Div. Apr. 14, 1997). His petition for certification was denied on July 10, 1997. State v. Colon, 151 N.J. 77 (1997).

Defendant filed his first PCR petition in November 1997. After conducting an evidentiary hearing, the PCR judge denied relief. We affirmed, State v. Colon, No. A-6621-97 (App. Div. Dec. 27, 1999), and the Supreme Court denied certification. State v. Colon, 164 N.J. 560 (2000).

Defendant filed a second PCR petition in June 2000. The Public Defender's Office (the PD) asked the PCR judge to determine whether good cause existed for the Public Defender to represent defendant on this subsequent PCR, and later wrote to defendant, explaining the steps he needed to follow in order to raise his claims in a pro se petition. By order dated January 17, 2002, the PCR court dismissed the petition without prejudice and indicated the PD was not required to represent defendant.

On April 16, 2002, defendant filed a third PCR petition. After it was ordered to represent defendant, the PD wrote to the Assignment Judge requesting a determination as to whether good cause existed requiring the PD to represent defendant. The PD later wrote to the PCR judge, enclosing defendant's first petition, supplemental brief and a transcript of the evidentiary hearing. The PD also stated that it did "not see anything in Defendant's subsequent Petition that provid[ed] Good Cause for this Office to provide Counsel." The PCR judge denied defendant's petition on October 29, 2002, finding that more than five years had passed since the date of defendant's judgment; his sentence was not illegal; and there were no facts alleged to excuse the untimeliness.

Defendant filed his fourth PCR petition and a Motion for New Trial Based Upon Newly Discovered Evidence on July 28, 2010. Both the PCR petition and motion were denied.

Defendant raises the following issues in this appeal:

POINT I

DEFENDANT WAS ENTITLED TO A NEW TRIAL BASED UPON NEWLY DISCOVERED EVIDENCE.

POINT II

THE DEFENDANT WAS DEPRIVED HIS CONSTITUTIONAL RIGHT TO TESTIFY ON HIS OWN BEHALF.

POINT III

THE DEFENDANT WAS DEPRIVED HIS CONSTITUTIONAL RIGHT TO PRESENT A DEFENSE.

POINT IV

THE DEFENDANT WAS DEPRIVED HIS CONSTITUTIONAL RIGHT TO CROSS-EXAMINATION.

POINT V

DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF TRIAL COUNSEL IN VIOLATION OF THE UNITED STATES AND NEW JERSEY CONSTITUTIONS.

A. DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF TRIAL COUNSEL.

B. DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF PREVIOUS POST CONVICTION RELIEF COUNSEL.

POINT VI

THE CUMULATIVE EFFECT OF THE ERRORS COMPLAINED OF RENDERED THE TRIAL UNFAIR.

POINT VII

THE LOWER COURT ERRED IN DENYING DEFENDANT'S PETITION FOR POST CONVICTION RELIEF WITHOUT AFFORDING THE DEFENDANT AN EVIDENTIARY HEARING.

POINT VIII

THE DEFENDANT'S MOTION FOR POST-CONVICTION RELIEF SHOULD NOT HAVE BEEN BARRED BY PROCEDURAL CONSIDERATION.

We are satisfied that none of these arguments have sufficient merit to warrant discussion in a written opinion beyond the following comments. R. 2:11-3(e)(2).

Because this is defendant's fourth PCR petition, it is governed by Rule 3:22-4(b), which provides in pertinent part:

A second or subsequent petition for post-conviction relief shall be dismissed unless:

(1) it is timely under R. 3:22-12(a)(2); and

(2) it alleges on its face either:

(A) that the petition relies on a new rule of constitutional law, made retroactive to defendant's petition by the United States Supreme Court or the Supreme Court of New Jersey, that was unavailable during the pendency of any prior proceedings; or

(B) that the factual predicate for the relief sought could not have been discovered earlier through the exercise of reasonable diligence, and the facts underlying the ground for relief, if proven and viewed in light of the evidence as a whole, would raise a reasonable probability that the relief sought would be granted; or

(C) that the petition alleges a prima facie case of ineffective assistance of counsel that represented the defendant on the first or subsequent application for post-conviction relief.

To be timely under Rule 3:22-12(a)(2), the petition must be filed no more than one year after the latest of:

(A) the date on which the constitutional right asserted was initially recognized by the United States Supreme Court or the Supreme Court of New Jersey, if that right has been newly recognized by either of those Courts and made retroactive by either of those Courts to cases on collateral review; or

(B) the date on which the factual predicate for the relief sought was discovered, if that factual predicate could not have been discovered earlier through the exercise of reasonable diligence; or

(C) the date of the denial of the first or subsequent application for post-conviction relief where ineffective assistance of counsel that represented the defendant on the first or subsequent application for post-conviction relief is being alleged.

Defendant's petition was not filed within one year of any such date and does not make any of the allegations identified in Rule 3:22-4(b)(2). It was, therefore, properly dismissed.

Defendant also argues that his motion for a new trial should have been granted because he obtained a statement in July 2009 from his co-defendant, Henry Castro, that defendant had been subjected to threats by another co-defendant, Dwayne Porter, which would have supported a defense of duress. He admits that he never told his defense counsel he was subject to such threats, purportedly because he remained in fear of Porter.

In State v. Ways, 180 N.J. 171 (2004), the Supreme Court described the standard applicable to a motion for a new trial based upon newly discovered evidence:

[D]efendant must show that the evidence is 1) material, and not "merely" cumulative, impeaching, or contradictory; 2) that the evidence was discovered after completion of the trial and was "not discoverable by reasonable diligence beforehand"; and 3) that the evidence "would probably change the jury's verdict if a new trial were granted."

[Id. at 187 (quoting State v. Carter, 85 N.J. 300, 314 (1981)).]

All three prongs of that test must be satisfied before a new trial is warranted. Ibid.

We need not speculate as to the probability that Castro's statement would change the jury's verdict because the proffered evidence plainly fails to satisfy the first two criteria. Defendant knew of Porter's alleged threats and also, that Castro was aware of the threats prior to trial. Since he could have but did not testify regarding Porter's threats, a corroborative statement from Castro would have been merely cumulative. We are therefore satisfied that defendant's motion for a new trial lacked merit.

Affirmed.