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State v. Ross

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


November 15, 2007

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
ROBERT ROSS, DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 96-11-2572.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted: October 31, 2007

Before Judges Cuff and Lihotz.

Following a jury trial in 1998, defendant Robert Ross was convicted of aggravated assault on a parole officer, contrary to N.J.S.A. 2C:12-1b(5)(a). Defendant's motion for a new trial was denied, and he was sentenced to an extended term of ten years on November 20, 1998. His conviction and sentence were affirmed. State v. Ross, No. A-2649-98 (App. Div. May 12, 2000), certif. denied, 165 N.J. 529 (2000). The denial of defendant's petition for post-conviction relief was also affirmed. State v. Ross, No. A-6181-04 (App. Div. June 5, 2006), certif. denied, 188 N.J. 354 (2006). Defendant now appeals from the denial of a motion for a new trial. We affirm.

Defendant's motion for a new trial is founded on the report the parole officer compiled after the assault. He contends that there are material differences between the parole officer's report and his testimony at trial. Judge Garofolo dismissed the motion on procedural grounds. He noted that Rule 3:20-2 requires a motion for a new trial to be filed within ten days of the verdict. This motion was filed almost eight years late.

On appeal, defendant raises the following argument:

THE CONVICTION SHOULD BE SET ASIDE AND A NEW TRIAL MUST BE AWARDED BASED ON THE STATE'S FAILURE TO PROVIDE TO THE DEFENSE THE POLICE REPORT WRITTEN BY OFFICER SARACENI, WHICH CONTRADICTED HIS TRIAL TESTIMONY AND WOULD HAVE DEMONSTRATED PERJURY

Our review of this appeal demonstrates that the issue presented by defendant is without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). Judge Garofolo correctly noted the procedural defect posed by Rule 3:20-2. The ten-day filing requirement is not to be treated lightly, State v. Wiggins, 291 N.J. Super. 441, 452 (App. Div.), certif. denied, 146 N.J. 568 (1996); see also Spedick v. Murphy, 266 N.J. Super. 573, 587 (App. Div.) (noting Rule 4:49-1(b), which requires that a motion for a new trial be filed no later than ten days after the verdict, has historically been strictly construed), certif. denied, 134 N.J. 567 (1993), particularly when the document on which defendant relies cannot be considered newly discovered evidence.

Affirmed.

20071115

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