STATE OF NEW JERSEY v. LUIS MANSO

NOT FOR PUBLICATION WITHOUT THE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.

LUIS MANSO,

Defendant-Appellant.

_________________________________

August 26, 2015

 

Argued January 14, 2015 Decided

Before Judges Waugh, Maven, and Carroll.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 98-11-4417.

Alan L. Zegas argued the cause for appellant (Law Offices of Alan L. Zegas, attorneys; Mr. Zegas and Stephanie G. Forbes, on the briefs).

Andrew R. Burroughs, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent (Carolyn A. Murray, Acting Essex County Prosecutor, attorney; Mr. Burroughs, of counsel and on the brief).

PER CURIAM

Defendant Luis Manso appeals the denial of his petition for post-conviction relief (PCR). We affirm.

I.

We discern the following facts and procedural history from the record on appeal.

A.

In November 1998, Manso and nine co-defendants were indicted and charged in eighteen counts with six different crimes against four victims, two of whom were killed. They were all charged with four counts of second-degree conspiracy to commit kidnapping, N.J.S.A. 2C:5-2 and 2C:13-1; four counts of first-degree kidnapping, N.J.S.A. 2C:13-1(b); four counts of second-degree conspiracy to commit murder, N.J.S.A. 2C:5-2 and 2C:11-3; two counts of murder, N.J.S.A. 2C:11-3(a)(1) and (2); two counts of felony murder, N.J.S.A. 2C:11-3(a)(3); and two counts of attempted murder, N.J.S.A. 2C:5-1 and 2C:11-3. Edwin Diaz, who was also charged with additional counts, Ricardo Diaz (Diaz),1 David Martinez, Sfand Rajabzaden, Edmund (or Edwin) Rivera, and Miguel Torres, pled guilty. The trial judge denied motions for separate trials.

Manso and co-defendants Jesus Rodriguez (Rodriguez), Michael Romero, Jose Antonio Perez, and Charles Byrd were tried jointly between January 24 and March 17, 2000. Manso was convicted on all counts. He received an aggregate sentence of incarceration for sixty years.

Manso and the co-defendants who were tried with him appealed. In an unpublished opinion, we affirmed the convictions. State v. Romero, Nos. A-4974-99, A-6593-99, A-0282-00, A-0834-00, A-5704-00 (App. Div. Apr. 12, 2004) (slip op. at 1-118). The Supreme Court denied certification. State v. Romero, 181 N.J. 548 (2004).

B.

All of the defendants were members of the Latin Kings. According to Martinez, who pled guilty to conspiracy to commit murder in exchange for a five-year sentence, Byrd was the highest-ranking Latin King in New Jersey. Romero was next in line. He was chairman of the statewide Crown Council, which Martinez characterized as a court consisting of the chairs of the six regional crown councils.

There were four regional officers below the state officers. Manso was a regional officer with oversight of the local chapters in Elizabeth, Perth Amboy, and Newark. Manso established the Orange Crush, which was an elite enforcement group appointed by him to handle special problems. Martinez and Perez were members of the Orange Crush. Luis Rodriguez2 testified that he had been the head of Orange Crush "[a]t one time."

Each local chapter had a First Crown, who was in overall charge; a Second Crown, who assisted the First Crown; a Third Crown, who acted as an enforcer;3 a Fourth Crown, who acted as secretary; and a Fifth Crown, who was the treasurer. Rodriguez was the First Crown in Newark. Rivera was the First Crown in Jersey City. Diaz was the Enforcer for Paterson. Martinez was the Enforcer for Elizabeth.

According to Martinez, Romero held a meeting of Latin Kings members at his home in Jersey City on June 29. He explained that, on the previous day, Omar D. Morante (Morante) and Jimmy Cabrera had conducted a drive-by shooting at the apartment complex where he lived. Romero believed that he had been the intended target of the shooting. He wanted the Latin Kings to retaliate on his behalf. Byrd, who was at the meeting, agreed to Romero's request. He ordered the Orange Crush to kidnap Morante and Cabrera that night, break their shooting arms, and then kill them.

Later in the day, there was a meeting of approximately twenty-five Latin Kings at Romero's home. Jose Torres, an Orange Crush member, Martinez, Manso, and Perez left the meeting, picked up Omar W. Morante and Juan Cortes, and brought them to Romero's house. Other Latin King members brought Morante and Cabrera to Romero's house.4 Diaz testified that Romero, Manso, and Rivera discussed the situation privately. Juan DeJesus (DeJesus) overheard them trying to dissuade Manso from carrying out Byrd's order, but he responded that "an order is an order."

After the meeting, Martinez drove Rivera's Ford Bronco, with Rivera, Torres, Cortes, and Omar W. Morante as passengers. Manso drove his car, with Romero, Perez, and Morante as passengers. DeJesus drove Rodriguez's vehicle, with Rodriguez, Luis Rodriguez, Diaz, Cabrera, and Rajabzaden as passengers.

Because Martinez was not sure of their destination in Newark, he pulled over near an interchange on the New Jersey Turnpike. The other cars followed. Manso used the pay phones at the interchange to call Byrd and confirm that their orders were to carry out the punishment without a trial. According to Martinez, while Manso was speaking to Byrd, Luis Rodriguez asked to speak to Byrd to persuade him that a trial was necessary, but Manso told him Byrd refused to reconsider the issue. According to DeJesus, when Manso hung up the phone, he said, "[Byrd] said we got to do this."5

While they were stopped at the tollbooth, Omar W. Morante received permission to leave the car to use the bathroom. Instead, he went to a nearby Turnpike office and asked someone to call the State Police. Cortes was subsequently released. Martinez and the others concluded it was too risky to kill him because he had been seen by toll collectors with some of the defendants during the stop.

Two eyewitnesses to the murders testified for the State, Diaz and Luis Rodriguez.6 Although Diaz's and Luis Rodriguez's versions of the circumstances surrounding the murders of Morante and Cabrera differed to some extent, they testified that Rodriguez and Romero directly participated in the killings. They also testified that Manso was at the scene and said, "Set it off," after which the attack began. Diaz further testified that Manso directed him to drag Cabrera's body to the water, which he did. According to Luis Rodriguez, Manso ordered him to help Perez drown Morante, but he refused.

DeJesus also testified for the State.7 He confirmed Martinez's account of the Turnpike stop and Manso's call to Byrd. He explained that he stayed in the car at the scene of the attack because Rodriguez had told him to do so. DeJesus did not witness the murders. He testified, however, that he saw the others run out of the bushes all sweaty and dirty.

C.

Manso filed his PCR petition in April 2005. He argued that he had received ineffective assistance of counsel with respect to his trial counsel's failure to investigate potential witnesses and to advise him concerning his right to testify at trial.

Manso also alleged that: (1) his trial counsel rendered ineffective assistance because he was intoxicated at times during the trial; (2) he was entitled to a new trial because of newly discovered evidence in the form of a witness's recantation of his trial testimony; and (3) prosecutorial misconduct violated his right to due process and a fair trial.

The trial judge held an evidentiary hearing on Manso's PCR petition, as well as those filed by Romero, Rodriguez, and Perez, on three days between November 22, 2011, and April 11, 2012. In a written decision and order dated January 7, 2013, the PCR judge denied relief and dismissed Manso's petition. He reached the same result with respect to the other petitions. This appeal followed.

II.

Manso raises the following issues on appeal

POINT I: THE TRIAL COURT ERRED IN FINDING THAT [MANSO] WAS NOT DENIED HIS FEDERAL AND STATE CONSTITUTIONAL RIGHTS TO THE EFFECTIVE ASSISTANCE OF COUNSEL.

A. Trial Counsel Was Ineffective in That He Failed to Call Key Witnesses and Failed to Conduct a Proper Investigation.

B. Trial Counsel Was Ineffective in That He Denied [Manso] the Right to Testify in His Own Defense.

C. Trial Counsel Was Ineffective Due to Being Intoxicated During Trial.

D. The Cumulative Errors of Trial Counsel Rendered His Assistance Ineffective, Entitling [Manso] to Relief.

POINT II: [MANSO] IS ENTITLED TO A NEW TRIAL DUE TO NEWLY DISCOVERED EVIDENCE.

POINT III: [MANSO] IS ENTITLED TO A NEW TRIAL AS PERVASIVE PROSECUTORIAL MISCONDUCT VIOLATED HIS FAIR TRIAL AND DUE PROCESS RIGHTS.

POINT IV: THE CUMULATIVE ERRORS OF THE PCR COURT REQUIRES REVERSAL.

"Post-conviction relief is New Jersey's analogue to the federal writ of habeas corpus." State v. Preciose, 129 N.J. 451, 459 (1992). Under Rule 3:22-2(a), a criminal defendant is entitled to post-conviction relief if there was a "[s]ubstantial denial in the conviction proceedings of defendant's rights under the Constitution of the United States or the Constitution or laws of the State of New Jersey." "A petitioner must establish the right to such relief by a preponderance of the credible evidence." Preciose, supra, 129 N.J. at 459 (citations omitted). "To sustain that burden, specific facts" that "provide the court with an adequate basis on which to rest its decision" must be articulated. State v. Mitchell, 126 N.J. 565, 579 (1992).

Claims of constitutionally ineffective assistance of counsel are well suited for post-conviction review. R. 3:22-4(a)(2); Preciose, supra, 129 N.J. at 460. In determining whether a defendant is entitled to such relief, New Jersey courts apply the test articulated by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 2068, 80 L. Ed. 2d 674, 698 (1984) and United States v. Cronic, 466 U.S. 648, 658-60, 104 S. Ct. 2039, 2046-47, 80 L. Ed. 2d 657, 667-68 (1984). Preciose, supra, 129 N.J. at 463; State v. Fritz, 105 N.J. 42, 49-50 (1987).

Under the first prong of the Strickland test, a "defendant must show that [defense] counsel's performance was deficient." Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. Under the second prong, a defendant must demonstrate "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698.

In demonstrating that counsel's performance was deficient under the first prong of Strickland, a defendant must overcome "a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Fritz, supra, 105 N.J. at 52 (quoting Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694) (internal quotation marks omitted). Further, because prejudice is not presumed, in satisfying the second prong, a defendant must typically demonstrate "how specific errors of counsel undermined the reliability of the finding of guilt." Cronic, supra, 466 U.S. at 659 n.26, 104 S. Ct. at 2047 n.26, 80 L. Ed. 2d at 668 n.26. See also Roe v. Flores-Ortega, 528 U.S. 470, 482, 120 S. Ct. 1029, 1037, 145 L. Ed. 2d 985, 998 (2000). There must be "a probability sufficient to undermine confidence in the outcome." Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698.

We generally defer to a PCR judge's factual findings resulting from a plenary hearing when they are based on "adequate, substantial and credible evidence." State v. Harris, 181 N.J. 391, 415 (2004) (internal quotation marks omitted), cert. denied, 545 U.S. 1145, 125 S. Ct. 2973, 162 L. Ed. 2d 898 (2005). See State v. Locurto, 157 N.J. 463, 470-71 (1999). When addressing issues of credibility, we recognize that a trial judge has the unique "opportunity to hear and see the witnesses and to have the 'feel' of the case." State v. Johnson, 42 N.J. 146, 161 (1964). For mixed questions of law and fact, we will uphold "the supported factual findings of the trial court, but review de novo the . . . application of any legal rules to such factual findings." Harris, supra, 181 N.J. at 416 (citation omitted); State v. Williams, 342 N.J. Super. 83, 92-93 (App. Div.), certif. denied, 170 N.J. 207 (2001). The standard of review on questions of law raised in a PCR petition is de novo. Harris, supra, 181 N.J. at 415.

A.

We turn first to Manso's contention that his trial counsel was ineffective with respect to the calling of witnesses.

It is well established that, "[i]n matters of trial strategy, we accord great deference to the decisions of counsel." State v. Biegenwald, 126 N.J. 1, 56 (1991).

[S]trategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable; and strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation. In other words, counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary. In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments.

[Strickland, supra, 466 U.S. at 690-91, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695.]

Accord State v. Cooper, 410 N.J. Super. 43, 57-58 (App. Div. 2009), certif. denied, 201 N.J. 155 (2010).

When a defendant asserts that trial counsel failed to investigate the case adequately, the defendant "'must assert the facts that an investigation would have revealed, supported by affidavits or certifications based upon the personal knowledge of the affiant or the person making the certification.'" State v. Porter, 216 N.J. 343, 353 (2013) (quoting State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999)). Additionally, "[i]n considering the impact of the absent witness, a court should consider: '(1) the credibility of all witnesses, including the likely impeachment of the uncalled defense witnesses; (2) the interplay of the uncalled witnesses with the actual defense witnesses called; and (3) the strength of the evidence actually presented by the prosecution.'" State v. L.A., 433 N.J. Super. 1, 16-17 (App. Div. 2013) (quoting McCauley-Bey v. Delo, 97 F.3d 1104, 1106 (8th Cir. 1996), cert. denied, 520 U.S. 1178, 117 S. Ct. 1453, 137 L. Ed. 2d 558 (1997)).

Manso testified that he told Ronald Sampson,8 his trial attorney, that he wanted Joseph Cruz and Luis DeJesus to testify on his behalf, but that Sampson did not interview or call them as witnesses at trial. According to Manso, he believed testimony by Cruz and Luis DeJesus would have cast doubt on Luis Rodriguez's credibility at trial.

Cruz testified at the PCR hearing. While he and Luis Rodriguez were incarcerated in the Essex County Jail, Luis Rodriguez told him that he had "completely fabricated" all of his testimony against Manso because "that's what . . . [the State] wanted to hear." According to Cruz, Luis Rodriguez also claimed that he had been given the statements of witnesses who had already testified so his testimony would be consistent. Cruz further testified that in 2001, while they were both at Trenton State Prison, Luis Rodriguez told him that he intended to provide truthful testimony once he was released from prison, but that he feared a recantation before then would adversely affect the terms of his plea bargain. Luis Rodriguez himself was not called as a witness at the PCR hearing.

Cruz acknowledged that he had been convicted of murder and was serving a ninety-nine year sentence. He also admitted to other convictions, including burglary, attempted theft, and aggravated assault. He denied belonging to the Latin Kings.

Luis DeJesus testified that he had been incarcerated with Luis Rodriguez, in Essex County Jail from 1998 to 2000. Luis Rodriguez told him that he had testified falsely at Manso's trial. At some point between April and June 2009, Luis DeJesus told Manso that he was willing to testify about his conversation with Luis Rodriguez because he believed that it was the "[r]ight thing to do." He confirmed that Sampson had not contacted him.

Luis DeJesus acknowledged that he had been convicted of felony murder and was serving a sixty-four year sentence. He also admitted belonging to the Latin Kings in Newark.

Manso further testified that he gave Sampson the names of approximately ten potential character witnesses, all of whom Manso maintained were willing to testify on his behalf. Sampson told Manso that he would "look into" their testimony, but none of the witnesses were called at trial.

In concluding that Sampson was not ineffective for failing to call Cruz and Luis DeJesus to testify, the PCR judge explained

Assuming arguendo that the late defense counsel, Ronald Sampson, was furnished with the oral statements of [Luis Rodriguez] as related to the two witnesses, the decision to "not call" the witnesses would have been a clear tactical determination. First, the testimony was inadmissible hearsay. Second, given the lengthy criminal history of each, including homicide convictions, their credibility was nil. Third, neither was a neutral witness but rather members of the Latin King criminal enterprise. Fourth, the content of their remarks and demeanor on the witness stand during the PCR proceeding leads this court to conclude that neither were credible. Indeed, the more reasonable assessment is that "they lied" to save their Latin King comrade.

Thus, for defense counsel to place either on the witness stand would have had a

negative and devastating impact on the defense of not only Manso, but all the Latin King trial defendants.

Regarding Sampson's failure to call Manso's character witnesses, the PCR judge concluded that that decision "falls within the purview of 'strategic decision-making.'" He explained

[N]o information has been furnished as to (1) the actual names of the witnesses; (2) their proposed testimony and availability; (3) their relationship to [Manso] and the basis for possessing "knowledge of character." Moreover, putting character in issue in a case of this nature would clearly be counterproductive and may result in the introduction of a defendant's prior criminal history.

Having reviewed the proofs and testimony presented at trial, it can be said with a fair degree of certainty that character testimony would not "have changed the outcome of the trial." The State offered ample, if not overwhelming, proof of [Manso's] guilt. Accepting as true Manso's averment, counsel's decision not to call character witnesses on [his] behalf was a reasonable, strategic determination that cannot form the basis for an ineffective assistance of counsel claim.

We find no error in the judge's analysis of Manso's claims with respect to uncalled witnesses. Most importantly, the judge did not credit the testimony given by Cruz and Luis DeJesus, but concluded that they were "lying" in an attempt to help Manso. In addition, having had the opportunity to observe and hear their testimony, the judge concluded that they would not have been credible witnesses at trial, especially in light of their records and Luis DeJesus's affiliation with the Latin Kings.9 The judge's analysis of the issue was consistent with that required by L.A., supra, 433 N.J. Super. at 16-17.

Even if Sampson had failed to investigate them as potential witnesses, there is no reason to believe that, had he done so, he would have called them for the same reasons expressed by the PCR judge. At trial, Sampson attacked Luis Rodriguez's credibility through cross-examination, by establishing that he had cooperated with the State in hopes of obtaining a favorable plea bargain, without running the risk of calling Cruz and Luis DeJesus and having them turn out to be damaging witnesses, as they were at the PCR hearing.

With respect to the character witnesses, we concur in the judge's finding that they would not have been called, even if investigated, as a matter of trial strategy. Manso is correct that he did submit certifications with a description of proposed testimony by some of the witnesses. However, the proposed witnesses, who did not testify at the PCR hearing, knew Manso during the time he was convicted of drug possession in 1992 and 1995. As the PCR judge correctly noted, their testimony could well have resulted in the prosecutor receiving permission to cross-examine them about their knowledge of Manso's prior convictions. See State v. Whittle, 52 N.J. 407, 410-11 (1968).

We conclude that the PCR judge's ruling was not erroneous, and, even if there was error, Manso has not demonstrated that there was prejudice "sufficient to undermine confidence in the outcome" of the trial. Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698.

B.

We turn next to Manso's argument that Sampson was constitutionally ineffective with respect to Manso's right to testify on his own behalf at trial.

A criminal defendant has a constitutional right to testify. State v. Savage, 120 N.J. 594, 626-28 (1990). Defense counsel's failure to advise a defendant properly concerning that constitutional right can give rise to a claim of ineffectiveness of counsel. Id. at 631. "It is the responsibility of a defendant's counsel, not the trial court, to advise defendant on whether or not to testify and to explain the tactical advantages and disadvantages of doing so or of not doing so." State v. Bogus, 223 N.J. Super. 409, 423 (App. Div.), certif. denied, 111 N.J. 567 (1988). "Counsel's responsibility includes advising a defendant of the benefits inherent in exercising that right and the consequences inherent in waiving it." Savage, supra, 120 N.J. at 631.

At the PCR hearing, Manso testified that he asked Sampson at some point during trial when he would testify. Sampson responded: "I'm not really sure if we're going to go that route, but we'll talk about that later." According to Manso, the promised conversation never took place. Manso further testified that he concluded it was up to Sampson to decide whether he would testify because Sampson never discussed it with him. However, the prosecutor cross-examined Manso with respect to his PCR certification, in which he asserted that Sampson "strenuously advised" him against testifying.

Manso asserted that he would have denied any involvement in the crimes and any knowledge about them. Instead, he would have testified that he was not at the crime scene, "where the physical things were happening." Manso would also have denied being a Latin King regional officer, as well as any involvement with the Orange Crush. He was cross-examined about the more extensive involvement in the murders that he outlined in his certification. For example, he conceded on cross-examination that he had picked up some Latin King members and taken them to Romero's house and later drove Morante from Jersey City to Branch Brook Park in his car.

Manso acknowledged his prior drug convictions. He also acknowledged that Sampson had tried to impeach the credibility of the four witnesses (Martinez, Diaz, Luis Rodriguez, and DeJesus) who had testified against him at trial on the basis of their prior convictions.

The trial record reflects that the judge asked all counsel whether they wanted her to read the election-not-to-testify charge as part of her final instructions. Byrd's attorney responded that he did. The remaining defense attorneys did not respond either way. The trial judge gave the charge.

In his opinion, the PCR judge concluded that the record was "devoid of any voir dire by the trial court or representations by defense counsel regarding defendants['] 'right to testify.'" He noted that the trial judge gave the election-not-to-testify charge in her final jury instructions, and explained its significance to his decision.

The first sentence [of the charge] reads "Now, in this case, the defendants have chosen not to be witnesses." Based upon that instruction, two clear and irrefutable facts emerge. First, defendants were advised of their right to offer testimony, but declined; and second, defense counsel and defendants communicated to the trial judge their collective and individual approval of the charge. Indeed, this conclusion, predicated on the total circumstances described in the record, is bolstered by the pertinent case law. . . .

Further support for this determination is reflected in the comments of Andrew Rojas and Paul Feinberg, defense counsel for Jose Perez and Michael Romero [sic]. . . . In short, each attorney had no independent recollection of consulting with their respective clients or having colloquy with the court after twelve plus years, but concluded they would have engaged in an advantage/disadvantage balancing process with each defendant.

With respect to the second Strickland prong, the judge rejected Manso's assertion that his trial attorney's failure to advise him of his right to testify "in and of itself prejudiced him." He concluded that Manso had failed to show how the verdict would have been different had he testified. The judge found that Manso failed to provide sufficient specifics with respect to his proposed trial testimony.

Having reviewed the record, we are satisfied that the PCR judge's conclusion that Manso was advised of his right to testify finds sufficient support in the record. It is implicit in the judge's opinion that he did not credit Manso's testimony that he and Sampson never had a substantive discussion concerning his wish to testify. Manso's statement in his certification was that Sampson "strenuously advised" against testifying. That statement reflects that they discussed the issue and that his trial attorney gave him advice. It totally undercuts the credibility of his testimonial assertions, especially his purported understanding that the decision was Sampson's rather than his own.10

In addition, even if Sampson was somehow deficient, there is no basis to find that there was "a reasonable probability that, but for [his] unprofessional errors, the result of the proceeding would have been different." Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698. That requirement is applicable even in a case involving a defendant's right to testify. State v. Bey, 161 N.J. 233, 271-72 (1999), cert. denied, 530 U.S. 1245, 120 S. Ct. 2693, 147 L. Ed. 2d 964 (2000).

Manso had a criminal record and would have been cross-examined on that basis. The proposed testimony outlined in his certification would have been counterproductive because it demonstrated his significant participation in the criminal event. The proposed testimony outlined at the PCR hearing, that he was not involved, would have been of questionable value in light of his record. Manso's appellate brief offers no convincing argument to support a finding of prejudice.

Consequently, we find no error in the PCR judge's determination that Manso was not entitled to relief on this issue.

C.

We now turn to Manso's argument that he was entitled to a new trial based on newly discovered evidence, specifically Martinez's recantation of his trial testimony at the PCR hearing.

We apply an abuse of discretion standard in reviewing denial of an application for a new trial. State v. Smith, 29 N.J. 561, 573, cert. denied, 361 U.S. 861, 80 S. Ct. 120, 4 L. Ed. 2d 103 (1959); State v. Henries, 306 N.J. Super. 512, 529 (App. Div. 1997).

To meet the standard for a new trial based on newly discovered evidence, defendant 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." State v. Carter, 85 N.J. 300, 314, 426 (1981).

[State v. Ways, 180 N.J. 171, 187 (2004).]

"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." Id. at 187-88. "[T]he reviewing court must engage in a thorough, fact-sensitive analysis to determine whether the newly discovered evidence would probably make a difference to the jury." Id. at 191.

"Recantations are inherently suspect." State v. Baldwin, 47 N.J. 379, 400, cert. denied, 385 U.S. 980, 87 S. Ct. 527, 17 L. Ed. 2d 442 (1966). "Consequently, the burden of proof rests on those presenting such testimony to establish that it is probably true and the trial testimony probably false." State v. Carter, 69 N.J. 420, 427 (1976). In evaluating a recantation upon a motion for a new trial, it is the judge's "first duty . . . to determine whether the recanting statement is believable." State v. Puchalski, 45 N.J. 97, 108 (1965).

In stark contrast to his trial testimony, Martinez testified at the PCR hearing that Manso had no involvement in the crimes against Morante and Cabrera. He explained that some Essex County assistant prosecutors and Detective Ruben Contreras encouraged him to testify falsely "[t]hroughout the whole process" in exchange for a lenient sentence. Martinez claimed he was allowed to "read papers that [he] wasn't supposed to read . . . to collaborate [sic] other witness[] statements" and was told "what to say [and] how to say it." He was also instructed to "put[] [his] own twist to it . . . in [his] own words."

Martinez further testified that Contreras promised him that he and his girlfriend could engage in sexual activity in the Prosecutor's Office if he testified as instructed. He asserted that they were left alone in an office for an hour after he testified, during which he and his girlfriend engaged in sexual activity.

On cross-examination, Martinez acknowledged his use of seven aliases because he "was trying to get away from the warrant check" on seven different occasions. He also admitted to writing a letter to someone, whose identity he could not recall, seeking $1000 in exchange for an affidavit that exculpated Manso. In addition, Martinez confirmed that he had six prior felony convictions, which included burglary, conspiracy to commit murder, and drug possession.

Contreras testified at the hearing and denied that he or anyone else connected with the Prosecutor's Office had coached Martinez to lie. He also denied that Martinez was left alone with his girlfriend so he could engage in sexual relations with her.

The PCR judge found that a recantation by Martinez could be characterized as newly discovered evidence. However, he concluded that Martinez's testimony was "simply false and bereft of credibility." That conclusion is well supported in the record. As the Court held in Puchalski, supra, 45 N.J. at 108, a judge's "first duty" in considering a recantation is "to determine whether the recantation statement is believable." Consequently, we find no error or abuse of discretion in the judge's rejection of Manso's claim that a new trial was warranted.

D.

Having reviewed the remainder of Manso's arguments in light of the applicable law and the record before us, we find them to be without merit and not warranting discussion in a written opinion. R. 2:11-3(e)(2). We add only the following.

There was no credible evidence that Sampson was intoxicated during the trial. The two trial attorneys who testified at the PCR hearing saw no signs of such intoxication during the trial. The argument that the State relied on two perjured witnesses, Martinez and Luis Rodriguez, fails because Manso failed to demonstrate that their testimony was perjured or that any perjury was induced by the State. We see no cumulative error.

Affirmed.

1 Because some of those involved in this case share the same surname, we refer to those mentioned less frequently by their full names to avoid confusion.

2 Luis Rodriguez pled guilty to conspiracy to commit murder in August 1998, prior to the return of the indictment. His recommended sentence was incarceration for ten years, but he had not been sentenced at the time of trial.

3 An enforcer was in charge of taking care of problems outside the chapter and giving "violations" or "physicals" (beatings) to members who broke rules. The beatings varied in scope and ranged from head to toe or more limited areas of the body, as well as length of time and number of attackers. The most severe "physical" involved being beaten by five men for five minutes, but was not intended to result in death.

4 The two Morantes and Cabrera were brothers.

5 Defendants stipulated that a call was placed from Byrd's place of employment to a pay phone at Exit 14C of the Turnpike on the night of the murders.

6 Diaz pled guilty to two counts of aggravated manslaughter, conspiracy to kidnap, and conspiracy to commit murder, and received a twenty-year recommended sentence with eighty-five percent parole ineligibility. At the time of his testimony, Diaz had not yet been sentenced.

7 DeJesus pled guilty to conspiracy to commit murder and received a ten-year recommended sentence, but had not yet been sentenced at the time of trial.

8 Sampson was deceased at the time of the PCR hearing.

9 The record does not support the judge's assumption that Cruz was a Latin King.

10 We give no weight, however, to the PCR judge's assertion that the giving of the election-not-to-testify charge supports his conclusion that trial counsel discussed the right to testify with their clients. There is no reason to conclude that the trial judge had any such knowledge.