STATE OF NEW JERSEY v. SYHIM JACKSON

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

SYHIM JACKSON, a/k/a

SAHEEM RATTRAY, LEVELL

BURNETT, TERELL MOORE,

Defendant-Appellant.

_______________________________________________

December 30, 2015

Submitted November 17, 2015 Decided

Before Judges Yannotti, St. John, and Vernoia.

On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 04-02-00097.

Joseph E. Krakora, Public Defender, attorney for appellant (Alison Perrone, Designated Counsel, on the brief).

Grace H. Park, Acting Union County Prosecutor, attorney for respondent (Amanda K. Dalton, Special Deputy Attorney General/ Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Syhim Jackson appeals from an order denying his motion for the performance of forensic DNA testing pursuant to N.J.S.A. 2A:84A-32a. We affirm.

I.

We previously set forth the facts in our decisions on defendant's direct appeal, State v. Jackson, No. A-6648-05 (App. Div. Aug. 13, 2009) ("Jackson I"), certif. denied, 200 N.J. 547 (2009), and his appeal of the denial of his petition for post-conviction relief (PCR), State v. Jackson, No. A-1094-11 (App. Div. April 1, 2013) ("Jackson II"), and summarize the pertinent facts as follows.

On March 20, 2003, Union Township police officers responded to a report that men in a white Jeep Cherokee were attempting to steal a car. Upon their arrival at the scene, the officers observed the white Jeep, learned it was reported stolen, and boxed the vehicle in by pulling their patrol cars diagonally in front, behind, and to the side of the Jeep.

Officer Florio (Florio) exited his patrol car, approached the Jeep, and observed the driver, who wore a black and red baseball hat, and a passenger. Florio ordered the occupants out of the vehicle, but the Jeep accelerated forwards and backwards a number of times striking Florio and the patrol cars. Florio fired a gunshot that shattered the driver side window of the Jeep. After additional shots were fired by other officers, the passenger side door of the Jeep opened and both occupants fled on foot.

Florio tackled and arrested the man he identified as the passenger, later identified as L.B., who admitted he was the passenger in the Jeep, and identified the driver as J.T. L.B. could not provide an address or phone number for J.T., but gave a physical description of J.T. that matched defendant. L.B.'s police records reflected that he previously used the name "J.T." as an alias.

The driver of the Jeep was not apprehended at the scene, but police recovered the baseball hat he had been wearing. Police notified local hospitals that a suspect may have been shot and might seek medical attention. On April 1, 2003, an individual who identified himself as "R.R." appeared at a hospital for a pre-scheduled surgery for removal of an object from his body. X-rays and fluoroscopic imaging revealed the object was a bullet that had been present for at least a week. The hospital notified police, who arrested the individual and later identified him as defendant Syhim Jackson.

On April 3, 2003, Florio was shown a photo array and positively identified defendant as the driver of the Jeep. On March 17, 2005, defendant voluntarily submitted to a stipulated polygraph test which revealed he was deceptive when he denied being the driver of the Jeep.

In March 2006, defendant was convicted by a jury of second-degree eluding, N.J.S.A. 2C:29-2(b), second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(6), third-degree receiving stolen property, N.J.S.A. 2C:20-7, and fourth-degree resisting arrest, N.J.S.A. 2C:29-2(a). Defendant was sentenced to an aggregate sixteen-year custodial term as a persistent offender, with an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2.

We affirmed defendant's conviction on direct appeal, but remanded the case for resentencing, Jackson I, supra, No. A-6648-05, slip op. at 13, and the Supreme Court denied his petition for certification, 200 N.J. 547 (2009).

In March 2010, defendant filed a PCR petition alleging in part that his counsel was ineffective because counsel failed to obtain DNA testing of the baseball hat found at the crime scene. We affirmed the trial court's denial of the petition without an evidentiary hearing. Jackson II, supra, No. A-1094-11, slip op. at 11.

Defendant subsequently filed a pro se motion pursuant to N.J.S.A. 2A:84A-32a for the performance of forensic DNA testing of the baseball hat.1 In a written decision, the court denied the motion because of procedural deficiencies and defendant's "failure to meet the requirements of N.J.S.A. 2A:84A-32a(d)(5)." This appeal followed.

On appeal, defendant argues

POINT I

THE ORDER DENYING DEFENDANT'S MOTION TO COMPEL DNA TESTING SHOULD BE REVERSED.

II.

Under N.J.S.A. 2A:84A-32a, "[a]ny person who was convicted of a crime and is currently serving a term of imprisonment may make a motion before the trial court that entered the judgment of conviction for the performance of forensic DNA testing." To obtain the relief provided under the statute, the moving party must, among other requirements, serve notice of the motion "on the Attorney General, the prosecutor in the county of conviction, and if known, the governmental agency or laboratory holding the evidence sought to be tested." N.J.S.A. 2A:84A-32a(a)(2).

In addition, a court "shall not grant" a motion under N.J.S.A. 2A:84A-32a unless "all of the following have been established:"

the evidence to be tested is available and in a condition that would permit the DNA testing that is requested in the motion;

the evidence to be tested has been subject to a chain of custody sufficient to establish it has not been substituted, tampered with, replaced or altered in any material aspect;

the identity of the defendant was a significant issue in the case;

the convicted person has made a prima facie showing that the evidence sought to be tested is material to the issue of the convicted person's identity as the offender;

the requested DNA testing result would raise a reasonable probability that if the results were favorable to the defendant, a motion for a new trial based upon newly discovered evidence would be granted. The court in its discretion may consider any evidence whether or not it was introduced at trial;

the evidence sought to be tested meets either of the following conditions

it was not tested previously;

it was tested previously, but the requested DNA test would provide results that are reasonably more discriminating and probative of the identity of the offender or have a reasonable probability of contradicting prior test results;

the testing requested employs a method generally accepted within the relevant scientific community; and

the motion is not made solely for the purpose of delay.

[N.J.S.A. 2A:84A-32a(d).]

We defer to the factual findings of the trial court so long as they are supported by "'sufficient credible evidence present in the record.'" State v. Reece, 222 N.J. 154, 166 (2015) (quoting State v. Locurto, 157 N.J. 463, 470-71 (1999)). However, our review of a trial court's legal determinations is de novo. Reece, supra, 222 N.J. at 167.

We are convinced the trial court properly denied defendant's motion because he failed to serve the motion upon the Attorney General as mandated under N.J.S.A. 2A:84A-32a(a)(2). Defendant does not dispute the statutory requirement to serve the Attorney General is mandatory, does not contend he served the Attorney General, and does not challenge on this appeal the trial court's determination that his motion is procedurally barred due to his failure to serve the Attorney General. Defendant never requested that the court delay disposition of his motion to permit service on the Attorney General. Defendant provides nothing that would support a reversal of the court's denial of his motion based upon his failure to serve the Attorney General. N.J.S.A. 2A:84A-32a(a)(2).

We are also convinced the trial court properly denied the motion because defendant did not establish there was "a reasonable probability that a new trial [based on newly discovered evidence] would be granted if the DNA results are favorable to the defendant[,]" as required under N.J.S.A. 2A:84A-32a(d)(5). State v. Reldan, 373 N.J. Super. 396, 402 (App. Div. 2004) (citing State v. Peterson, 364 N.J. Super. 387, 396-97 (App. Div. 2003)), certif. denied, 182 N.J. 628 (2005).

To obtain a new trial based upon newly discovered evidence, a defendant must demonstrate 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.'" State v. Ways, 180 N.J. 171, 187 (2004) (quoting State v. Carter, 85 N.J. 300, 314 (1981)). A defendant must establish all three prongs in order to be granted a new trial based upon the requested DNA testing. Ways, supra, 180 N.J. at 187.

We conclude the trial court correctly found that even if the DNA testing results were favorable to defendant, they would not constitute newly discovered evidence entitling him to a new trial. As a result, defendant failed to establish there was a "reasonable probability" that a new trial based on "newly discovered evidence" would be granted if the DNA testing results were favorable. N.J.S.A. 2A:84A-32a(d)(5).

The trial court's finding is supported by the overwhelming evidence defendant was the driver of the Jeep including L.B.'s statement and trial testimony regarding the physical description of the driver of the vehicle, which matched defendant; defendant's bullet wound and his use of an alias when he sought medical treatment; defendant's admission he was in the Jeep at the time of the commission of the crimes; the stipulated polygraph examination which revealed defendant was deceptive when he denied being the driver of the Jeep; and Florio's identification of defendant as the driver. The DNA results "would not change the jury's verdict where, as here, there was overwhelming evidence linking [defendant] to the crimes." Reldan, supra, 373 N.J. Super. at 404.

Moreover, we previously determined that DNA testing of the baseball hat would not have changed the jury's verdict. In our decision on defendant's appeal from the denial of his PCR petition, we affirmed the PCR court's finding that "a match of defendant's DNA with the hat would have been conclusive evidence that he was the driver, while a negative result would not have been exculpatory and would not have changed the outcome of the trial." Jackson II, supra, No. A-1094-11, slip op. at 10.

We are satisfied the court also correctly found that defendant did not establish a reasonable probability the DNA testing would result in a new trial based on newly discovered evidence because the baseball hat was available prior to trial. The hat was discoverable prior to trial, was introduced as evidence at trial, and thus was discoverable by "'reasonable diligence,'" but defendant chose not to test the hat for DNA. Ways, supra, 180 N.J. at 187 (quoting Carter, supra, 85 N.J. at 314). The court therefore properly found defendant could not satisfy the second prong of the standard for a new trial based upon newly discovered evidence "that the evidence was discovered after completion of the trial and was 'not discoverable by reasonable diligence beforehand.'" Ways, supra, 180 N.J. at 187 (quoting Carter, supra, 85 N.J. at 314).

We conclude the court correctly found defendant failed to establish "that the requested DNA testing 'would raise a reasonable probability that if the results were favorable to the defendant, a motion for a new trial based upon newly discovered evidence would be granted.'" Peterson, supra, 364 N.J. Super. at 399 (quoting N.J.S.A. 2A:84A-32a(d)(5)). Based upon the record before the court, the DNA testing results would not constitute newly discovered evidence entitling defendant to a new trial. Ways, supra, 180 N.J. at 187.

Defendant failed to establish there is a reasonable probability that a new trial based on newly discovered evidence would be granted if the DNA results are favorable. N.J.S.A. 2A:84A-32a(d)(5). That failure is fatal to his request for DNA testing. N.J.S.A. 2A:84A-32a.

Affirmed.

1 Defendant's motion papers referred to the baseball hat and a skull cap recovered at the scene. Defendant, however, only requested DNA testing of the baseball hat.