STATE OF NEW JERSEY v. THOMAS S. PENDLETON

RECORD IMPOUNDED

                                NOT FOR PUBLICATION WITHOUT THE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-4709-18

STATE OF NEW JERSEY,

         Plaintiff-Respondent,

v.

THOMAS S. PENDLETON,

     Defendant-Appellant.
_________________________

                   Submitted February 22, 2021 – Decided November 18, 2021

                   Before Judges Messano and Smith.

                   On appeal from the Superior Court of New Jersey,
                   Law Division, Burlington County, Indictment No.
                   90-12-1013.

                   Joseph E. Krakora, Public Defender, attorney for
                   appellant (Anthony J. Vecchio, Designated Counsel,
                   on the brief).

                   Scotta A. Coffina, Burlington County Prosecutor,
                   attorney for respondent (Alexis R. Agre, Assistant
                   Prosecutor, of counsel and on the brief).

         The opinion of the court was delivered by
SMITH, J.A.D.

      Defendant Thomas Pendleton appeals the trial court's denial of his

motion for a new trial based upon newly discovered evidence pursuant to R.

3:20-1 and R. 3:20-2. We affirm for the reasons set forth below.

                                         I.

      We incorporate the relevant facts and procedural history from our

opinion in State v. Pendleton (Pendleton II), No. A-3198-13 (App. Div. Oct.

15, 2015) (slip op. at 1-5).1 Defendant was convicted in 1993 of various crimes

committed against a minor, M.R.         We affirmed defendant's conviction and

sentence in an unpublished opinion. State v. Pendleton (Pendleton I), No. A-6333-

92 (App. Div. Dec. 2, 1994) (slip op. at 36). One of the points that defendant

raised on appeal was the State's alleged failure to turn over "Brady" material. 2 Id.

at 9. This material was disclosed during discovery in a federal civil suit M.R. filed

against defendant.    Defendant argued that the information relating to M.R.'s

psychological condition and treatment impeached M.R.'s credibility regarding the

events at the heart of the crimes. Id. at 22-25. We rejected defendant's claim,

concluding that "the defense really knew as much about the subject of M.R.'s

1
   We recite the relevant facts we deem necessary to decide the issues
presented on this appeal. A detailed recitation of the facts adduced at
defendant's 1992 trial can be found at Pendleton I, slip. op. at 1-9.
2
  Brady v. Maryland,  373 U.S. 83 (1963).
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mental condition as [did the State][,]" and there was no Brady violation. Id. at 30.

Defendant was subsequently convicted of federal crimes in 2010.3

      In April 2013, while in federal custody, defendant filed a "petition for new

trial based on newly discovered evidence pursuant to R. 4:50-1."           Defendant

asserted that during his federal prosecution, the United States Attorney disclosed

M.R.'s full psychiatric history. Defendant attached portions of M.R.'s federal trial

testimony in which he answered questions regarding that history.           Defendant

further alleged inconsistencies existed between M.R.'s trial testimony in New

Jersey and his testimony in federal court years later. Defendant sought "any

discovery the State possesses regarding th[e] prosecution including any psychiatric

or psychological documents and things regarding [M.R.][,]" as well as "all

transcripts and documents concerning the case."

      The Law Division heard argument on defendant's request in January 2014.

Defense counsel contended that the record should be produced so that defendant

could pursue his motion for a new trial based upon newly-discovered evidence.

Counsel acknowledged "concerns [for] privacy here," and suggested the judge

could, in her discretion, limit disclosure. After reserving decision, the judge issued

a written opinion on February 4, 2014. Citing Rule 4:50-1(b) and our decision on

3
  Defendant was convicted of engaging in illicit sexual conduct in Germany in
violation of 18 U.S.C. § 2423(c).
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direct appeal (Pendleton I), the judge concluded that "the evidence [defendant]

specifically requested would not have affected the outcome of the trial." She also

determined that the records defendant requested were "excluded from public

access" pursuant to R. 1:38-3(d)(11). The judge then denied defendant's motion.

Pendleton II, slip op. 1-5. We reversed and remanded, finding the trial judge

should have applied R. 3:20-1 in analyzing whether defendant's relief should have

been granted. Instead of conducting a de novo review, we determined that the trial

judge was in the best position to "assess and clearly articulate whether defendant's

application was sufficient to trigger the State's obligation to turn over the

appellate file, or whether the file needed to be reviewed in camera before a

complete evaluation could be made." Id. at 9.

      As a result of that ruling, a different motion judge issued an order

granting in camera review of the State's trial and appellate files to both the

State and defense. The in-camera review was conducted "over the course of

[one] year . . . ." After the in-camera review was completed, the judge granted

leave for defendant to file an amended motion for post-conviction discovery

and a new trial. Defendant sought: additional file review, including th e trial

court's file, as well as the Prosecutor's and Attorney General's files; all of

M.R.'s personal medical files; and an order compelling M.R. to testify. The


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judge heard oral argument and issued a written opinion on March 27, 2019,

denying both motions.

      The judge confirmed at oral argument that defendant failed to notify

M.R. of the motion, preventing M.R. from filing opposition to protect his

medical privilege. The judge disagreed with defendant's position that plaintiff

had waived his medical privilege by testifying at the federal trial in 2009,

concluding that the three-prong test set forth in In re Kozlov,  79 N.J. 232, 243-

44 (1979), had not been satisfied. See State v. Mauti,  208 N.J. 519, 536-39

(2012). Analyzing Kozlov's first prong, the judge specifically found defendant

failed to show a legitimate need to reach the evidence sought to be shielded.

Kozlov,  79 N.J. at 243-44. As to the request for a new trial based on "newly

discovered" evidence, the judge found that defendant did not meet the standard

required under R. 3:20-1 to grant a new trial, concluding that M.R.'s post-trial

diagnosis of schizoaffective disorder was not sufficient without evidence that

M.R. was symptomatic at the time of trial.           The judge attributed any

inconsistencies argued by defendant between M.R.'s testimony in the 1992 trial

and the 2009 trial to "the significant passage of time between events," and

found defendant was not entitled to a new trial.




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                                      5
      Defendant appeals, arguing that the trial court erred in denying both his

request for post-conviction discovery and his motion for a new trial.

                                       II.

      We review a trial court's post-conviction discovery ruling under the

same abuse of discretion standard governing pre- and post-indictment

discovery.   State v. Kane,  449 N.J. Super. 119, 132 (App. Div. 2017);

Defendant argues that an analysis of the three-prong test set forth in Kozlov

justifies release of M.R.'s medical records, where the State does not have

possession of same. We disagree. Notably, the motion judge found defendant

failed to show a legitimate need to "reach the evidence sought to be shielded,"

because, as the trial judge determined, "defendant was aware of [M.R.'s]

condition at the time of the [sexual assault] incidents and at trial[.]" We note

this finding is consistent with our conclusion in Pendleton I. Pendleton I, slip

op. at 30. We "recognize[] that only in the most narrow of circumstances, such

as where a privilege is in conflict with a defendant's right to a constitutionally

guaranteed fair trial, would the need prong of [the Kozlov] test be satisfied."

Mauti,  208 N.J. at 538. We see no basis in the entire record to disturb the

motion judge's finding that defendant failed to satisfy the needs prong of

Kozlov, and consequently we discern no abuse of discretion.


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      Motions for a new trial based upon newly discovered evidence are

governed by Rule 3:20-2.       A party seeking a new trial based on newly

discovered evidence must demonstrate that the evidence is, indeed, newly

discovered; a new trial is warranted only if the evidence is "'(1) material to the

issue and not merely cumulative or impeaching or contradictory; (2)

discovered since 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. Nash,  212 N.J. 518, 549 (2013) (quoting

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

      Defendant argues that disclosure of M.R.'s psychiatric diagnosis after his

conviction is newly discovered evidence which satisfies all three Carter

conditions and warrants a new trial.         We disagree, and reject defendant's

theory, which posits that since the psychiatric diagnosis came up so soon after

trial, M.R. may have suffered from schizoaffective disorder during the trial,

affecting his credibility. Defendant offered no proof in the trial record to

support the speculative notion that M.R. was in any way symptomatic at the

time of his testimony at defendant's trial. 4 M.R.'s credibility was at issue


4
  Defendant also relies upon State v. Henries,  306 N.J. Super. 512 (App. Div.
1997), for the principle that a new trial is warranted where a key witness is
diagnosed with a severe mental health disorder after they testified at trial. In
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during the entire trial, and defendant, who had known M.R. for years, had

ample opportunity to challenge his capacity for truthfulness before the jury.

      Finally, defendant argues that there are inconsistencies between M.R.'s

testimony in state court almost thirty years ago and his testimony in federal

court in 2009. We see no basis in the record to second-guess the motion judge

who attributed any "inconsistencies" in M.R.'s testimony to the "significant

passage of time between the events."


      Any arguments not addressed here are without sufficient merit to warrant

discussion in a written opinion. R. 2:11-3(e)(2).


Affirmed.




that case, however, the witness displayed symptoms of mental illness while
testifying. Id. at 522-28. This fact pattern is distinguishable from the present
case. Defendant has pointed to no proof in the record to show M.R. was
symptomatic with respect to schizoaffective disorder while testifying at trial.
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