STATE OF NEW JERSEY v. DEBRA A. AQUILINA

NOT FOR PUBLICATION WITHOUT THE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-00001-20

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

DEBRA A. AQUILINA, a/k/a
DEBRA LUDVIK, DEBRA
SAKEVICH, DEBRA VITARO,
and DEBRA AQYUKUBA,

     Defendant-Appellant.
___________________________

                   Submitted February 15, 2022 – Decided February 28, 2022

                   Before Judges Fisher and Smith.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Bergen County, Indictment No. 05-10-1857.

                   Debra A. Aquilina, appellant pro se.

                   Mark Musella, Bergen County Prosecutor, attorney for
                   respondent (Ian C. Kennedy, Assistant Prosecutor, of
                   counsel and on the brief).

PER CURIAM
      Defendant, Debra A. Aquilina, appeals the March 9, 2021 order denying

her motion for a new trial. She argues that new scientific evidence exculpates

her and warrants a new trial. We reject her argument and for the reasons set

forth below, we affirm.

      In 2009 defendant was convicted of first-degree murder of her husband,

Ralph Ludvik, Jr., conspiracy to commit murder, third-degree drug offenses, and

third-degree hindering apprehension. We remanded for the merger of the two

drug-offenses, but otherwise affirmed her conviction and sentence. State v.

Aquilina (Aquilina I), No. A-0656-09 (App. Div. Jan. 19, 2012), certif. denied,

 210 N.J. 479 (2012). We affirmed the denial of defendant's first petition for

post-conviction relief in State v. Aquilina (Aquilina II), No. A-2184-14 (App.

Div. Oct. 4, 2016), certif. denied,  228 N.J. 474 (2017). Defendant filed two

additional petitions for post-conviction relief and a motion for reconsideration

of her sentence, all of which were denied.

      On February 28, 2020, defendant filed a motion for a new trial on the basis

of newly discovered evidence. The trial court denied the motion and this appeal

ensued.

      The facts underlying defendant’s conviction are set forth in our previous

opinions and need not be repeated here.


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       We review a motion for a new trial decision for an abuse of discretion.

State v. Fortin,  464 N.J. Super. 193, 216 (App. Div. 2020), certif. denied,  246 N.J. 50 (2021), and recons. denied,  249 N.J. 60 (2021). Questions of law are

reviewed de novo. Ibid. (citing State v. Miles,  229 N.J. 83, 90 (2017)).

       Defendant argues that the trial court erred in denying her motion for a new

trial on the basis of newly discovered evidence. Rule 3:20 provides that a

motion for a new trial may be granted "if required in the interest of justice." R.

3:20-1. Generally, a motion for a new trial must "be made within 10 days [of]

the verdict or finding of guilty." R. 3:20-2. However, "[a] motion for a new

trial based on the ground of newly-discovered evidence may be made at any time

. . . ." Ibid.

       The trial court's order specified that "defendant . . . failed to establish a

factual basis to except [her] motion from the general time limitations required

by R. 3:20-2." It provided a brief statement of reasons that listed Rule 3:20-2

without more. Ibid. Based on this, it is difficult to discern whether the court

denied her motion on timeliness grounds, or because her new evidence did not

meet the criteria to justify a new trial. Bearing in mind that we review orders

and not opinions, Hayes v. Delamotte,  231 N.J. 373, 387 (2018), we affirm,




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because the trial court arrived at what we agree was the correct disposition of

defendant's attempt to relitigate her case.

      "[T]o qualify as newly discovered evidence entitling a party to a new trial,

the new evidence must be (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." Fortin,  464 N.J. Super. at
 216 (citing State v. Carter,  85 N.J. 300, 314 (1981)). "All three [prongs of the]

test[ ] must be met before the evidence can be said to justify a new trial." Ibid.

(citing Carter,  85 N.J. at 314) (alterations in original). "The defendant has the

burden to establish each prong is met." Ibid. (citing State v. Smith,  29 N.J. 561,

573 (1959)).

      Here, defendant argues that she's entitled to a new trial based on the

evidence that "a person can snort themselves to death." Defendant discovered

this new evidence in early 2019 when she happened upon the book "'Dangerous

Drugs' A Hazeldon Guide Book, 2nd Edition" in the prison library. She also

asserts that this evidence is further supported by "information from the Internet,"

forwarded to her by "others free in society" including research from the

American Addiction Center and Addictionblog.org.


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      She argues that this new evidence reveals a "relatively new route of heroin

administration [that] involves squirting or dripping heroin that has been

dissolved in water up the nose" from a bottle or barrel of a syringe. A "change

in the usual route of heroin administration from injection to snorting" sparked

by the "growing awareness of the dangers of HIV and hepatitis" and commonly

"known in Texas as 'shebanging'."

      Defendant alleges, among other things, that this method of heroin

consumption was not considered in her trial and constitutes newly discovered

evidence that "can exculpate [her] scientifically." We disagree.

      "[P]rong two of the Carter test recognizes that judgments must be

accorded a degree of finality and, therefore, requires that the new evidence must

have been discovered after completion of trial and must not have been

discoverable earlier through the exercise of reasonable diligence." State v.

Ways,  180 N.J. 171, 192 (2004) (citing Carter,  85 N.J. at 314). This prong

encourages defendants and attorneys "to act with reasonable dispatch in

searching for evidence before the start of the trial." Ibid.

      After applying this prong of Carter to defendant's claims, we are not

persuaded that her "new" evidence meets the requisite criteria because not only

was it discoverable at the time of trial, the evidence was also introduced during


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the toxicologist's testimony.     The book which defendant relies upon was

published in 2003, several years before the start of her 2008 trial. Moreover,

the toxicologist, Dr. Seik, was specifically questioned at trial on direct

examination about his familiarity with "someone being able to snort themselves

to death."

      Defendant attempts to discredit Dr. Seik's testimony as outdated compared

to the "Dangerous Drugs" book because he explained the risks associated with

snorting powdered heroin but did not explore the possibility that the victim

"shebanged" it. She also asserts that her attorney's failure to call expert witness,

Dr. Taff, "limit[ed] the information that [she] could have learned at trial . . .

about the snorting and its . . . fatal effect via overdose."

      These contentions undermine defendant's theory in that they demonstrate

that information about "shebanging" was knowable at the time of trial.

Defendant's premise is further weakened by testimony from the medical

examiner, Dr. Singh, confirming the victim's nostrils were free of any residue

consistent with inhaling cocaine or heroin. We note defendant's argument for

failing to call Dr. Taff as a witness was previously rejected by this court in

Aquilina II. Finally, if we accept the remote possibility that the victim ingested




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the drug nasally instead of intravenously, this fact wouldn't alter defendant's

culpability for providing him with the lethal dose of heroin.

      Because all three prongs must be satisfied, Ways,  180 N.J. at 187, we

needn't address the materiality of this evidence or its probability of changing the

jury's verdict. Defendant's remaining arguments lack sufficient merit to warrant

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

      Affirmed.




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