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DOCKET NO. A-5628-09T2







September 27, 2012


Submitted May 2, 2012 - Decided


Before Judges Sapp-Peterson and Ostrer.


On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 90-11-5479.


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


Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Lucille M. Rosano, Special Deputy Attorney General/ Acting Assistant Prosecutor, of counsel and on the brief).


Defendant appeals from the denial of his fifth collateral challenge in state and federal courts to his 1991 conviction, after a jury trial, of first-degree armed robbery, N.J.S.A. 2C:15-1, possession of a handgun for an unlawful purpose, N.J.S.A. 2C:39-4a, and handgun possession, N.J.S.A. 2C:39-5b. After merger, he was sentenced to a term of twenty years, with ten years of parole ineligibility.2 We affirm.

Defendant robbed Brian Lovejoy of $30 at gunpoint on September 5, 1990 in Newark. Lovejoy recognized defendant from the neighborhood and identified defendant's photograph at the police station. At trial, Lovejoy identified defendant in court. Defendant, his mother and girlfriend all testified defendant was home the day of the alleged robbery. Defendant testified he did not know Lovejoy personally, but had seen him before.

We affirmed defendant's conviction on direct appeal, State v. Frazier, No. A-0072-91 (App. Div. Oct. 28, 1993), certif. denied, 135 N.J. 300 (1994). The trial court denied defendant's first application for post-conviction relief (PCR) without an evidentiary hearing in April 1995, and we affirmed, rejecting defendant's non-specific argument that his trial counsel was ineffective by failing to conduct an adequate investigation. State v. Frazier, No. A-0547-95 (July 16, 1997), certif. denied, 153 N.J. 48 (1998).

Defendant then petitioned for a writ of habeas corpus, which the federal court denied. Frazier v. Hendricks, No. 99-514 (D.N.J. Dec. 29, 1999). The court concluded that no constitutional violation resulted from the admission into evidence of a "mugshot" of defendant and Lovejoy's related testimony, both without objection, and the court's failure sua sponte to deliver a limiting instruction. Id., slip op. at 4.

Defendant filed a second PCR petition. Judge Betty J. Lester conducted a two-day evidentiary hearing in January and April 2002, and then denied the petition in a thoroughly written opinion in August 2002. Judge Lester noted that at the PCR hearing, Jamil Horton testified that he had overheard three men, including persons connected to Lovejoy, conspire to "set up" defendant, in retaliation for defendant's failure to turn over the proceeds of drug sales. Before trial, Horton informed defendant's mother of the conspiracy. Defendant testified his mother told him. Horton did not commit his observations to writing until "approximately 1997" while he was at Rahway State Prison, where he saw defendant.

Defendant testified he gave this information to his trial attorney, attorney on his direct appeal, first PCR attorney, and PCR appellate attorney. Except for the PCR appellate attorney, who raised the information too late to be considered, none of the attorneys used the information, which defendant asserted constituted ineffective assistance of counsel. However, each of the defendant's first three attorneys testified at the PCR hearing they were unaware of Horton's information. The PCR appellate attorney admitted she received information from defendant about Horton, but it was in April 1997, months after she filed her initial brief. She filed a motion for remand in July 1997, but we had affirmed the PCR denial before the motion was heard.

Judge Lester found that Horton's information was not newly-discovered evidence warranting a new trial because it was known to defendant before trial. She also rejected defendant's claim that his first three attorneys were ineffective because she credited the attorneys' statements that they were not made aware of the information. Defendant appealed and we affirmed. State v. Frazier, No. A-5012-02 (App. Div. Sept. 24, 2004), certif. denied, 182 N.J. 426 (2005).

Defendant then filed his second petition for a writ of habeas corpus in federal court asserting ineffective assistance of trial, appellate and PCR counsel for their failure to locate and present exculpatory witnesses, including Horton; prosecutorial misconduct; and an excessive sentence. Frazier v. Sullivan, No. 05-3374, 2 006 U.S. Dist. LEXIS 82002, at *8 (D.N.J. 2006). The court denied the petition without prejudice because it was procedurally barred as a second petition. Id. at *13-14.

On February 5, 2010, defendant pro se filed what he styled a motion for a new trial, or alternatively, for a reduction of his sentence to time served. He claimed he was entitled to this relief because his trial file was lost or destroyed. As best we can discern, defendant argued that the loss of the trial file, allegedly as early as 2000, prevented him from establishing his claim that his trial counsel was ineffective by failing to pursue exculpatory witnesses. However, defendant argued that the attorney never included such evidence in the file. Defendant also complained about the trial errors regarding jury instructions and the admission of Lovejoy's out-of-court identification.

Counsel was appointed. After a non-evidentiary hearing, Judge Robert H. Gardner denied relief, concluding the interests of justice did not require a new trial under Rule 3:20-1.

On appeal, defendant argues, "DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL ON HIS MOTION FOR A NEW TRIAL." He argues that appointed counsel did not effectively present defendant's motion for a new trial before Judge Gardner and therefore, the denial of the motion should be reversed, and the matter remanded for further proceedings with new counsel.

We disagree. Defendant's conviction has been thoroughly and repeatedly reviewed. At this point, our judicial system's interest in finality predominates. See, e.g., State v. Mitchell, 126 N.J. 565, 584 (1992) ("The State has a strong interest in achieving finality. Without procedural rules requiring the consolidation of issues, litigation would continue indefinitely . . . ."). Defendant's motion for a new trial almost twenty years after his conviction was untimely. The motion may be made at any time only in the case of newly-discovered evidence. R. 3:20-2. However, the fact that the trial file was lost in 2000 was not newly-discovered evidence as it was not material evidence capable of affecting the jury's verdict. See State v. Carter, 85 N.J. 300, 314 (1981). Nor would defendant's motion be viable if deemed a petition for PCR. It too would be untimely. R. 3:22-12.

Moreover, the loss of the trial file in 2000 does not constitute a violation of defendant's constitutional rights. First, by 2000, defendant's conviction had already been subject to direct review, a first PCR and federal habeas corpus review. Cf. State v. Izaguirre, 272 N.J. Super. 51, 56-57 (App. Div. 1994) (due process can be implicated by loss of trial transcript if it impedes defendant's ability to secure meaningful review of the trial). Second, given defendant's assertion that the file did not contain exculpatory information that he allegedly gave to trial counsel (but which Judge Lester did not credit), the loss of the file did not impair defendant's ability to litigate, albeit unsuccessfully, his claims of ineffective assistance of counsel.



1 We have corrected the caption to reflect the correct spelling of defendant's name.

2 After his jury trial, defendant also pled guilty to additional charges, including instances of first-degree armed robbery and possession of a handgun for an unlawful purpose, for which he received an aggregate concurrent twenty-year term. He also pled guilty to receiving stolen property, N.J.S.A. 2C:20-7, for which he received a five-year consecutive term.