STATE OF NEW JERSEY v. JOHN WESLEY POTEAT

NOT FOR PUBLICATION WITHOUT THE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-3233-18

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

JOHN WESLEY POTEAT,
a/k/a/ JOHN W. POTEAT,

          Defendant-Appellant.


                   Submitted May 19, 2021 – Decided June 2, 2021

                   Before Judges Whipple and Rose.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Cape May County, Indictment No. 96-10-
                   0575.

                   Joseph E. Krakora, Public Defender, attorney for
                   appellant (John Douard, Assistant Deputy Public
                   Defender, of counsel and on the brief).

                   Jeffrey H. Sutherland, Cape May County Prosecutor,
                   attorney for respondent (Brett Yore, Assistant
                   Prosecutor, of counsel and on the brief).

PER CURIAM
      Following a jury trial in 1997, defendant John Wesley Poteat was

convicted of multiple offenses charged in a Cape May indictment, including

murder, felony murder, attempted murder, armed robbery, conspiracy, and

weapons offenses for his part in the stabbing death of a tavern patron and

robbery of the bartender. Defendant's sentence included two life sentences.

      We affirmed defendant's convictions and sentence. State v. Poteat, No.

A-7163-96 (App. Div. May 21, 1999). The Supreme Court denied certification.

 163 N.J. 76 (2000). In May 2006, the trial court denied defendant's initial

petition for post-conviction relief (PCR). In March 2014, defendant filed a

second PCR petition, which was denied as untimely. We affirmed. State v.

Poteat, No. A-4219-13 (App. Div. June 15, 2015). Thereafter defendant's pro

se petition for a writ of habeas corpus was dismissed as untimely. Poteat v. Att'y

Gen. of N.J., No. 16-2351 (D.N.J. Feb. 1, 2017).

      In July 2018, defendant moved pro se for a new trial on the grounds of

newly discovered evidence. Counsel was assigned but did not supplement

defendant's handwritten submission. Defendant raised the following points

before the Law Division:

            I. The State withheld evidence of co[-]defendant's
            mental health issues.




                                        2                                   A-3233-18
              II. Defendant's statement at the police station should
              have been inadmissible because he was intoxicated; he
              was denied food and water and coerced into making the
              statement.

              III. Defendant's initial arrest was invalid and his
              subsequent confession should be inadmissible because
              he was arrested on a non-existent warrant.

              IV. DNA evidence did not identify defendant as a
              source of the DNA.

              V. Co-[d]efendant has recanted any implication of
              defendant in the crimes for which he was convicted.

              VI. Defendant was denied effective assistance of
              counsel because trial counsel failed to file necessary
              motions and failed to present evidence of defendant's
              mental state.

      Following argument on July 31, 2018, Judge Michael J. Donohue reserved

decision. On August 9, 2018, the judge issued a cogent written opinion, denying

defendant's motion. The judge squarely rejected defendant's contentions in view

of the governing law, including the well-established test reiterated by our

Supreme Court in State v. Carter,  85 N.J. 300, 314 (1981). As the judge aptly

recognized:     "Defendant has pursued the full panoply of post-conviction

litigation . . . ." And after fully considering defendant's present claims in view

of his prior post-conviction filings, the judge concluded each claim could not be




                                        3                                   A-3233-18
characterized as newly discovered evidence. The same day, the judge issued a

memorializing order.

       On appeal, defendant maintains a new trial is warranted for the same

reasons raised before Judge Donohue. More particularly, defendant raises the

following points for our consideration:

                                   POINT I

             THE COURT FAILED TO PROPERLY APPLY THE
             . . . CARTER STANDARD IN DENYING THE
             MOTION FOR A NEW TRIAL.

             A. Validity Of The Arrest Warrant.

             B. [Defendant]'s Intoxication During The Interrogation
             Resulted In A Coerced Confession.

             C. Co-Defendant Recanted His Statement Implicating
             [Defendant] In The Crimes Of Which [He] Was
             Convicted.

                                   POINT II

             AS IN CARTER, THERE IS SUFFICIENT
             EVIDENCE OF A BRADY[1] VIOLATION TO
             WARRANT A REMAND FOR AN EVIDENTIARY
             HEARING TO DETERMINE IF THE PROSECUTOR
             IN 1996 FAILED TO PROVIDE DNA EVIDENCE.




1
    Brady v. Maryland,  373 U.S. 83 (1963).

                                          4                           A-3233-18
                                   POINT III

            DEFENDANT      WAS         DENIED      EFFECTIVE
            ASSISTANCE OF COUNSEL BECAUSE TRIAL
            COUNSEL FAILED TO FILE NECESSARY
            MOTIONS. U.S. CONST. AMENDS V, VI and XIV;
            N.J. CONST. ART. I, [¶¶] 1, 9, AND 10.

      We have considered defendant's arguments in view of the applicable law

and the record, and conclude they lack sufficient merit to warrant discussion in

a written opinion. R. 2:11-3(e)(2). We affirm substantially for the reasons

articulated by Judge Donohue in his well-reasoned decision, which was

supported by the record and is entitled to our deference. See State v. Russo,  333 N.J. Super. 119, 137 (App. Div. 2000) (recognizing "a motion for a new trial is

addressed to the sound discretion of the trial judge, and the exercise of that

discretion will not be interfered with on appeal unless a clear abuse has been

shown").

      Affirmed.




                                       5                                   A-3233-18