On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 85-06-2616.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 12, 2007
Before Judges R. B. Coleman and Lyons.
Defendant Dexter Tyson (Tyson) appeals from the denial of his fourth petition for post-conviction relief (PCR) seeking a new trial based on the submission of an affidavit of Jason Hines. The PCR judge denied the petition. We affirm.
Tyson, who was tried before a jury and Judge Donald E. King, was found guilty on November 8, 1985, on all counts charged in Essex County Indictment No. 85-06-2616: felony murder, contrary to N.J.S.A. 2C:11-3(a)(3) (count one); first-degree robbery, contrary to N.J.S.A. 2C:15-1 (count two); third-degree possession of a weapon (handgun), contrary to N.J.S.A. 2C:39-5(b) (count three); and second-degree possession of a handgun for an unlawful purpose, contrary to N.J.S.A. 2C:39-4(a). At the sentencing hearing on March 7, 1986, Judge King merged counts two and three into counts one and four respectively, and sentenced petitioner to an aggregate life term of imprisonment, including a thirty-year mandatory parole disqualifier, and imposed other relevant penalties. On August 25, 1988, this court affirmed the judgments of conviction of Tyson and co-defendants Aaron Chandler and Walter Lee, Jr. in an unreported per curiam opinion. State v. Tyson, No. A-3844-85T4 (App. Div. Aug. 25, 1988); State v. Lee, No. A-3441-85T4 (App. Div. Aug. 25, 1988); State v. Chandler, No. A-3016-85T4 (App. Div. Aug. 25, 1988). On January 26, 1989, the Supreme Court of New Jersey filed an order denying Tyson's petition for certification. State v. Tyson, 114 N.J. 497 (1989).
On April 20, 1992, Tyson filed his first petition for PCR, which Judge King denied, by letter opinion dated September 23, 1993, on the grounds that the same issues had been raised on appeal, Rule 3:22-5, and the application had not been filed timely, Rule 3:22-12.
On October 22, 1992, May 18, 1993, and December 15, 1995, the United States District Court denied three petitions for a habeas corpus filed by Tyson. On January 24, 1996, the Third Circuit Court of Appeals denied Tyson's appeal from the December 15, 1995, denial of his habeas corpus petition.
On January 13, 2000, defendant filed a second petition for PCR. On April 9, 2000, Judge Harold W. Fullilove, by letter, denied the application for the appointment of a public defender. Then, on June 19, 2000, Judge Michael J. Nelson denied defendant's application, finding that due to the gravity of the offenses, the best efforts of counsel during the waiver hearing would not have prevented waiver from Family Part, Juvenile jurisdiction, to Law Division Criminal Part, because the prospects for rehabilitation of defendant, then seventeen years old, did not substantially outweigh the reasons for waiver.
On July 24, 2002, defendant filed a motion for a new trial, based on newly discovered evidence and an assertedly unconstitutional sentence. On July 11, 2003, Judge Joseph V. Isabella entertained oral argument on the application and denied the petition for reasons stated on the record. An order dated March 8, 2004, memorialized that ruling, and on April 6, 2004, defendant filed a notice of appeal. In that appeal, Tyson argued that a notarized affidavit of Kevin Hayes (Hayes) dated July 31, 2002, was newly discovered evidence that warranted a new trial or an evidentiary hearing. In his affidavit, Hayes stated he testified falsely at trial that Tyson, Lee, and Chandler had told him they had committed a homicide near an establishment called Sonny Oliver's. We affirmed the trial judge's denial of Tyson's PCR petition on August 10, 2005, finding that the statement given by Hayes at trial was cumulative and that this recantation made some seventeen years after the trial was "extremely weak in believability and trustworthiness."
On January 12, 2006, Tyson, along with Chandler and Lee, filed another PCR motion for a new trial based on newly discovered evidence. In furtherance of his petition, Tyson presented, as newly discovered evidence, a notarized certification of Jason Hines (Hines) dated July 11, 2005. According to the trial testimony, Hines, along with Tyson, Chandler, and Lee, robbed the victim who was shot by Tyson.
Hines was a juvenile at the time of the incident. In his certification, Hines states in pertinent part:
In 1985, I testified falsely against Walter "Wali" Lee, Dexter Tyson and Aaron "Shahid" Chandler.
In all my statements to the police and prosecutor I maintained that we (meaning myself, Lee and Chandler) were not aware that Tyson had ...