STATE OF NEW JERSEY v. JOHN MARTINEZ

NOT FOR PUBLICATION WITHOUT THE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.

JOHN MARTINEZ,

Defendant-Appellant.

________________________________________________________________

August 18, 2014

Submitted July 22, 2014 Decided

Before Judges Yannotti and Maven.

On appeal from the Superior Court of New Jersey, Law Division, Morris County, Indictment No. 99-07-0885.

John Martinez, appellant pro se.

Fredric M. Knapp, Acting Morris County Prosecutor, attorney for respondent (John McNamara, Jr., Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant John Martinez appeals from a June 14, 2013 order of the Law Division denying his second petition for post-conviction relief (PCR). We affirm.

In 2000, a jury convicted defendant of aggravated manslaughter, a lesser-included offense of murder, N.J.S.A. 2C:11-4(c), and conspiracy to commit aggravated assault, N.J.S.A. 2C:12-1(b) and 2C:5-2. The court imposed a sentence of twenty-five years of imprisonment subject to an eighty-five percent parole disqualifier pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2(a). We affirmed the conviction on direct appeal. State v. Martinez, A-5005-00 (App. Div. May 27, 2003). The Supreme Court denied certification on October 14, 2003. State v. Martinez, 178 N.J. 32 (2003).

Defendant's initial petition for PCR was denied, and he appealed. We dismissed the appeal without prejudice on July 2, 2008, and remanded the matter in order to permit defendant to present new issues to the PCR court. On remand, the new issues were considered and the trial court denied PCR, without an evidentiary hearing. We affirmed the denial, State v. Martinez, No. A-0648-09 (App. Div. November 2, 2011), and the Supreme Court denied certification on May 9, 2012. State v. Martinez, 210 N.J. 219 (2012).

Thereafter, defendant filed a Motion for A New Trial based on newly discovered evidence, pursuant to Rule 3:20-1. He argued the State's failure to apply for or produce proof of court authorization granting the Morris County Prosecutor's Office the authority to monitor and record his conversation with his codefendant amounted to a violation of his rights to due process of law and a fair trial under federal and state constitutions. Alternatively, defendant argued the failure of his prior counsel to adequately examine the evidence with respect to this issue amounted to ineffective assistance of counsel.

Following oral argument, Judge Stuart A. Minkowitz issued a comprehensive and well-reasoned written opinion on June 14, 2013, in which he denied the petition.1 The judge first determined the application failed to satisfy the standards for a new trial based on newly discovered evidence. The judge found defendant failed to demonstrate that the evidence was material or was not discoverable by reasonable diligence. Next, the judge addressed defendant's alternative argument that prior counsel was ineffective for failing to scrutinize the evidence or the trial and post-trial records. In that regard, the judge determined that as a second petition for PCR, defendant's claims were procedurally barred under Rule 3:22-5, finding defendant had raised the State's alleged violation of the New Jersey Wiretapping and Electronic Surveillance Control Act (Act) N.J.S.A. 2A:156A-8, as well as the ineffective assistance of counsel claims, in his first PCR petition. This appeal followed.

On appeal, defendant raises the following issues:

I. NEWLY DISCOVERED EVIDENCE IS MATERIAL AND OF THE NATURE TO HAVE ALTERED THE JURY VERDICT UNDER [RULE] 3:20-1.

A. The Illegally Obtained Evidence, (the Intercepted Conversation) is in Violation to the New Jersey Wire Tap Act, [N.J.S.A.] 2A:156A-1.

B. A Violation of the Fourteenth Amendment (Due Process Clause), and a Violation to the Fourth Amendment (Search and Seizure Clause), of the United States, and a Violation of Article I, [ ] 7, of the New Jersey Constitution.

C. Prosecutor Knowingly Presented Illegally Obtained Evidence From the State of New York, and Used It Before a New Jersey Grand Jury and at Trial, in Violation of State and Federal Jurisdictions.

II. APPELLATE COURT ERRED IN ITS EVALUATION OF A PREVIOUSLY SUBMITTED ARGUMENT REGARDING THE INTRODUCTION OF A COMPUTER COMPACT DISK DURING THE DRIVER HEARING.

In his pro se reply brief, defendant raises two additional issues:

I. LOWER COURT ERRED IN ITS EVALUATION OF NEWLY DISCOVERED EVIDENCE.

II. EXTRAORDINARY CIRCUMSTANCES EXIST TO REVISIT PRIOR RULING MADE BY THIS COURT.

Whether to grant a motion for a new trial based upon newly discovered evidence is a decision which rests within the court's sound discretion. State v. Russo, 333 N.J. Super. 119, 137 (App. Div. 2000). Such a motion should not be granted unless the proffered evidence is (1) material to the issue and not merely cumulative, impeaching, or contradictory; (2) discovered after 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. Ways, 180 N.J. 171, 187 (2004).

A motion for a new trial on the basis of newly discovered evidence is not favored and "should be granted with caution." State v. Conway, 193 N.J. Super. 133, 171 (App. Div.), certif. denied, 97 N.J. 650 (1984). To warrant a new trial, the newly-discovered evidence must be capable "of raising a reasonable doubt as to the defendant's guilt." Ways, supra, 180 N.J. at 189.

First, Judge Minkowitz correctly determined that the materiality of this evidence had already been addressed in our appeal of the denial of defendant's first PCR petition. In our opinion we stated

Defendant argues that the trial court erred by admitting the recorded conversation between him and Forbes, that admission of the evidence was a violation of the [Act], N.J.S.A. 2A:156-A, and that his trial counsel and appellate counsel were ineffective for failing to address the issue. [Defendant further argued t]he State did not present proof, as required under the . . . Act, that the taping of defendant's March 2, 1999 conversation with Forbes was approved by "the Attorney General or his designee or a county prosecutor." N.J.S.A. 2A:156A-4(c). This issue, however, was not raised before the judge on PCR. Despite the general rule barring consideration on appeal, we nonetheless choose to briefly comment upon it. See State v. Robinson, 200 N.J. 1, 20-22 (2009).

Martinez, supra, slip op. at 13.

We concluded that "[i]n light of the sheer volume of the State's evidence[,] the introduction of one recorded conversation would have had little impact on the outcome" of the case. Id. at 14. We also concluded that "counsel's failure to raise the Act in order to bar one recording's admission at trial, or appellate counsel's failure to raise the issue on appeal, [did] not establish that there was a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Ibid. (internal quotation marks omitted). Here, defendant presents arguments which are merely cumulative as having previously been raised and decided in the appeal from the denial of the first PCR petition. See Ways, supra, 180 N.J. at 187.

Next, we turn to defendant's claim that the State failed to produce proof of an authorization order from the Attorney General and County Prosecutor permitting the recordation of the conversation between defendant and the codefendant. The State maintains that an authorization order was not required since it was a consensual interception made by his co-conspirator.

The Act provides a series of procedures to be followed with regard to wiretaps. See e.g., N.J.S.A. 2A:156A-8 and-9. We recognize that the law at the time of this recording required that applications for an order of authorization to intercept non-consensual communications be made by the Attorney General, county prosecutor or a designee. State v. Toth, 354 N.J Super. 12, 22 (App. Div. 2002) (internal quotation marks omitted). In Toth, we concluded that because there was no limiting language for consensual interceptions no authorization order was required. Ibid.

That interpretation of the Act applies to this case. Here, defendant failed to demonstrate that the recording of the conversation by his co-defendant was not consensual. As such, defendant's bare assertions error lack merit.

We do not reach the merits of the other points presented in defendant's primary and supplemental briefs as they were either not raised before the PCR court and do not involve matters of great public interest, or they are without sufficient merit to warrant discussion in a written opinion. See Robinson, supra, 200 NJ. at 20; R. 2:11-3(e)(2).

Affirmed.

1 We have not been provided a transcript of the March 27, 2013 motion hearing.