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State v. Carter

February 11, 1975


Larner, A.j.s.c.


Defendants made a motion for a new trial based on various grounds which were argued and heard at an evidentiary hearing over a period of six days and which culminated in an opinion adverse to the defendants filed by the court on December 10, 1974, reported in 136 N.J. Super. 271 (1975).

Thereupon defendants discharged their counsel and retained New York counsel who saw fit to move for reargument and the reopening of the hearing instead of seeking review through the appellate process. This motion was accompanied by voluminous affidavits and briefs, as well as many collateral motions, all of which were heard by the

court on January 30, 1975. On that date the court heard oral argument for many hours, deciding the collateral motions on the record and reserving decision on the major application to reconsider and reopen the evidentiary hearing. The motion to reargue was heard in the form of reargument on the merits of the application. At the same time counsel presented oral argument on the facets of another motion for a new trial which they represented was to be filed that day. This written notice and accompanying affidavit were in fact filed on January 30, 1975, immediately after the completion of oral argument. Subsequently the court advised counsel that no further oral argument was warranted and that this additional move would be decided with the other applications on the basis of the papers and the oral presentation of January 30.


The motion for reargument and reconsideration consists of an attack upon the validity and propriety of the rationale and conclusions made by the court in its opinion of December 10, 1974. A review and analysis of current counsel's contentions leads to the conclusion that there is no substantial reason for the court to reverse its determination denying a new trial.

It should be noted that the mere fact that new counsel have been substituted, that they may seek to present different or more cogent arguments, or that they find words, phrases or reasoning in the court's opinion to be unpalatable, does not suffice to entitle them to a new hearing or a new trial. Defendants were given full latitude and opportunity to present all relevant factual data and all facets of legal argument at the evidentiary hearing. They were represented by four competent and experienced counsel, who fought vigorously on their behalf. The court made a painstaking review of the trial evidence, as well as the evidence and contentions advanced at the new trial hearing, and reached conclusions that it felt and still feels are fully warranted.

Simply because defendants or their counsel in retrospect and after the court's opinion and determination believe that it might have been better to ask more or different questions, submit more cogent arguments or produce more witnesses does not constitute a valid basis for rehearing. There must be finality to judicial proceedings. Litigants cannot be permitted to play games with the court through piecemeal or repetitive presentation of applications for relief. All available evidence and arguments must be presented at a trial or hearing, and the judicial decision thereon becomes final. The avenue of relief thereafter is by way of appellate review.

It is far from uncommon for an able and experienced lawyer, after losing a case, to conjure up second thoughts about questions which should or should not have been asked of a key witness or about witnesses whom he should have called to the stand. Nevertheless it would be improper for him to seek a new trial or a new hearing on this ground, because of the basic principle of jurisprudence dictating the necessity for finality of judicial judgments. This principle is no different because a new lawyer with another viewpoint enters the litigation. He is bound by the process which preceded him and cannot be permitted to start the entire process over again.


One of the grounds advanced by defendants to reopen the hearing is the submission of affidavits of six witnesses relating to their contacts with Bello and Bradley before they executed their recanting affidavits in support of the initial application for a new trial. It is urged that these witnesses would bolster the credibility of Bello and Bradley because of extra-judicial recantations by the latter communicated to the affiants prior to the new trial application. These affiants include Hector ...

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