On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 0369-03-92.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Wefing and Weissbard.
Defendant, Luis Angel Torres, appeals pro se from the denial of his motion for a new trial on the ground of newly discovered evidence. We affirm.
After a jury trial in June 1993, defendant was convicted of knowing and purposeful murder, felony murder, armed robbery, possession of a handgun for an unlawful purpose and unlawful possession of a handgun. Defendant had been indicted with Luis Gamboa after their cases were waived to adult court.*fn1 The cases were severed and Gamboa testified as a witness for the State.
On August 4, 1993, defendant was sentenced to life imprisonment with thirty years of parole ineligibility for murder. The felony murder was merged and concurrent prison terms were imposed on the other convictions. Following defendant's trial, on December 20, 1993, Gamboa pled guilty to first-degree armed robbery. Pursuant to a plea agreement, the State agreed to recommend a sentence of twenty years with ten years of parole ineligibility, and dismissal of the other charges. He was thereafter sentenced, on January 28, 1994, in accordance with the plea agreement.
While defendant's direct appeal was pending, he moved to expand the appellate record to include transcripts of Gamboa's guilty plea and sentence. We granted that motion. In a published opinion, we affirmed defendant's conviction. State v. Torres, 313 N.J. Super. 129 (App. Div.), certif. denied, 156 N.J. 425 (1998).
In August 1998, defendant filed for post conviction relief. His petition was denied without a hearing. We reversed and ordered an evidentiary hearing on defendant's claim that he had been denied the effective assistance of counsel. After a full hearing, the PCR petition was denied and we affirmed in an unpublished opinion filed on October 31, 2003. A petition for certification was denied on February 10, 2004. On April 19, 2004, defendant filed a second PCR petition, which was denied without a hearing on September 2, 2004. We summarily affirmed that ruling on March 3, 2006.
Finally, in February 2006, defendant filed a motion for a new trial that is the subject of this appeal. The motion was denied on the papers on February 24, 2006, on the basis that it was out of time. On June 21, 2006, defendant's motion for reconsideration was denied on the basis that "there is no newly discovered evidence and [the application] is therefore out of time." On appeal, defendant argues that:
THE COURT BELOW ERRED WHEN IT CONCLUDED THAT THERE WAS NO NEWLY DISCOVERED EVIDENCE, WHEN THE EVIDENCE IN QUESTION COULD NOT HAVE BEEN PRIVY TO APPELLANT DURING THE TRIAL PROCEEDING.
(A) The Trial Court's Denial Of Appellant's Motion For Reconsideration Was Erroneous And His Failure To Provide Any Reason For The Denial Was Likewise Erroneous.
Defendant's argument focuses on Gamboa's direct examination by the Assistant Prosecutor at defendant's trial, in which Gamboa denied that he had been offered or expected to receive any benefit in exchange for his testimony. The critical part of that examination was set out in our published opinion as follows:
Q: Mr. [Gamboa], are you aware of the fact that if you tell us that you knew there was a gun when the robbery was being committed and that someone died, that you're basically admitting to felony murder?
Q: You realize that, do you not?
Q: Was it explained to you prior to giving the statement by your ...