STATE OF NEW JERSEY v. JOSEPH JOHNSON

NOT FOR PUBLICATION WITHOUT THE
                      APPROVAL OF THE APPELLATE DIVISION
     This opinion shall not "constitute precedent or be binding upon any court."
      Although it is posted on the internet, this opinion is binding only on the
        parties in the case and its use in other cases is limited. R. 1:36-3.




                                       SUPERIOR COURT OF NEW JERSEY
                                       APPELLATE DIVISION
                                       DOCKET NO. A-1409-16T3

STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

JOSEPH JOHNSON,

     Defendant-Appellant.
____________________________

              Submitted February 15, 2018 – Decided March 22, 2018

              Before Judges Haas and Gooden Brown.

              On appeal from Superior Court of New Jersey,
              Law Division, Hudson County, Indictment No.
              08-08-1461.

              Joseph Johnson, appellant pro se.

              Esther Suarez, Hudson County Prosecutor,
              attorney for respondent (Stephanie Davis
              Elson, Assistant Prosecutor, on the brief).

PER CURIAM

        Defendant appeals from a January 27, 2016 Law Division order,

denying his motion for a new trial based on newly discovered

evidence.      We affirm.
       Following a jury trial, defendant was convicted of second-

degree robbery, 
N.J.S.A. 2C:15-1, and first-degree carjacking,


N.J.S.A. 2C:15-2, and sentenced to an aggregate term of forty

years, subject to the No Early Release Act (NERA), 
N.J.S.A. 2C:43-

7.2.      The   convictions   stemmed       from   defendant   assaulting   two

employees and a customer in the course of committing a robbery at

a delicatessen, and assaulting a driver in the course of carjacking

a vehicle to facilitate his subsequent escape.                  Defendant was

ultimately apprehended by police at the scene, and all four victims

identified defendant as the assailant.

       Defendant's convictions and sentence were affirmed in an

unpublished     opinion,   and   his    petition     for   certification    was

denied. State v. Johnson, No. A-1131-09 (App. Div. Mar. 12, 2012),

certif. denied, 
213 N.J. 397 (2013). Defendant filed two petitions

for post-conviction relief (PCR), both of which were denied by the

trial court without an evidentiary hearing.             Those decisions were

affirmed in a consolidated unpublished opinion, and his petition

for certification was denied.      State v. Johnson, No. A-4711-13 and

A-2754-14 (App. Div. July 21, 2016), certif. denied, 
230 N.J. 476

(2017).

       While his PCR appeal was pending, defendant filed a pro se

motion for a new trial pursuant to Rule 3:20-2, essentially arguing

the State failed to provide in discovery all the video surveillance

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tapes from the delicatessen that were in their possession in

violation of Brady v. Maryland, 
373 U.S. 83, 87 (1963).     According

to defendant, the State provided one tape in discovery, which he

described as depicting grainy surveillance footage of the robbery.

However, references to "surveillance tapes" and "a new tape" in

written communications from his PCR counsel dated August 23 and

November 2, 2013, respectively, led defendant to believe that

there were additional exculpatory tapes in the State's possession

depicting a clearer image of the robber that were never turned

over in discovery.

      In a January 27, 2016 order, the court denied defendant's

motion.    Citing State v. Carter, 
85 N.J. 300, 314 (1981), the

court found that "[t]his evidence is not newly discovered, clearly

exculpatory, or of the sort that would probably change the jury's

verdict if a new trial were granted."   This appeal followed.

      On appeal, defendant argues:

           POINT I1

           THE TRIAL COURT ERRED IN NOT FINDING A BRADY
           VIOLATION, WHEN IT BECAME CLEAR THAT THE STATE
           VIOLATED   BRADY   AND   R.   3:13-3(B)(1)  BY
           WITHHOLDING   PIECES    OF   EXCULPATORY   AND
           IMPEACHMENT   EVIDENCE,    THE   EVIDENCE  WAS
           UNQUESTIONABLY MATERIAL.




1
    We condensed Point I for clarity.

                                 3                            A-1409-16T3
           POINT II

           IF   THE   STATE   DID   PROVIDE   THE   VIDEO
           SURVEILLANCE TAPE TO THE DEFENSE, THEN DEFENSE
           COUNSEL WAS CLEARLY INEFFECTIVE IN FAILING TO
           UTILIZE IT AS EVIDENCE TO EXCULPATE DEFENDANT
           FROM THE CRIME AS THIRD PARTY EVIDENCE.

     As to Point I, we find insufficient merit in this argument

to warrant discussion in a written opinion, R. 2:11-3(e)(2), and

add only the following brief comments. It is clear from the record

that defendant misconstrued the import of PCR counsel's references

to a video surveillance tape in correspondence with defendant.

There was only one surveillance tape capturing the robbery, which

was turned over by the State in discovery.

     Previously, the PCR judge who viewed the surveillance tape

rejected defendant's assertion that it was clearly exculpatory

"because   it   [did]    not   show   that   it   was    someone    other   than

[defendant] who committed the offense."                 According to the PCR

judge,   "[t]he   face    of   the    perpetrator   [was]     not   clear    and

[d]efendant was wearing the same clothing as depicted in the video

at the time of his arrest moments after the offense."

     In Carter, the Court set forth the elements that a defendant

must meet in order to prevail on a new trial motion.                 The newly

discovered evidence must be (1) material, meaning not merely

cumulative, impeaching, or contradictory; (2) the evidence must

have been discovered after the trial and not discoverable by

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reasonable diligence beforehand; and (3) the evidence must be of

the type that would probably change the jury's verdict at a new

trial.    Id. at 314.   Here, defendant failed to meet the Carter

standard. As such, defendant's motion for a new trial was properly

denied.

     In his second point, defendant argues for the first time on

appeal that if the State did provide the tape, then his attorney

was ineffective for failing to use it at trial. However, "[i]ssues

not raised below, even constitutional issues, will ordinarily not

be considered on appeal unless they are jurisdictional in nature

or substantially implicate public interest."   Pressler & Verniero,

Current N.J. Court Rules, cmt. 3 on R. 2:6-2 (2018) (citing State

v. Robinson, 
200 N.J. 1, 20-22 (2009)).   Here, neither concern is

implicated.

     Affirmed.




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