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State v. Foye


February 19, 2008


On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 00-03-0433.

Per curiam.


Submitted January 22, 2008

Before Judges Stern and Collester.

Defendant appeals from the denial of his petition for post-conviction relief (PCR). He asserts he received ineffective assistance of counsel at his murder trial,*fn1 on the direct appeal and at the PCR. He claims that the PCR proceeding should have been adjourned so that counsel could prepare for the case. He also asserts that "the lower court order must be reversed on the basis of newly discovered evidence" and that he was entitled to an evidentiary hearing on the PCR.

The evidence is detailed in our opinion on the direct appeal. The aggregate sentence, because of the consecutive term on the convicted felon offense, was life plus ten years in the custody of the Commissioner of the Department of Corrections, with thirty-five years to be served before parole eligibility.

We affirm the denial of the petition substantially for the reasons expressed by Judge Paul F. Chaiet in his oral opinion of November 18, 2005. We add only the following comments.

Defendant claims "trial counsel was ineffective in failing to procure Leon Bell as a witness to testify at trial." The judge noted that Bell was to testify for the State and "had given a statement in this particular case, which was certainly incriminatory of this defendant [and] in fact he gave two statements," but that Bell and his wife had been arrested in Jamaica, and he was unavailable for trial. Defendant does not contest this finding, and in fact stated at the PCR hearing that Bell "[d]eclined to make any statement different than the statement he made." In any event, there is no certification or affidavit as to what Bell would testify at a new trial.*fn2 Hence, there was no basis even for an evidentiary hearing as to his credibility and whether, if Bell testified, "that would probably change the jury's verdict if a new trial were granted." State v. Carter, 85 N.J. 300, 314 (1981).

Defendant is correct that the co-defendant could not have been compelled to testify at trial. However, State v. Robinson makes clear that a co-defendant's post-trial exoneration is generally "inherently suspect," 253 N.J. Super. 346, 367 (App. Div.), certif. denied, 130 N.J. 6 (1992), and even where a post-verdict exculpatory statement is given by a co-defendant, it does not generally provide a basis for a new trial based on newly discovered evidence. Nothing whatsoever is presented here to overcome that general "presumption." Whatever the co-defendant may have said to defendant's PCR counsel during his two visits to Trenton State Prison, he refused to provide a written statement. According to PCR counsel, "he declined to enter into any kind of written rendering or any kind of rendering of this information. So I do not have that."

In short, there is nothing that would suggest that the co-defendant would testify (whether or not the Fifth Amendment continues following the conviction, see Robinson, supra, 253 N.J. Super. at 366), or what he would have said if called.

Defendant states "[s]ince both witnesses were reluctant to offer evidence by way of certification or affidavit, defendant should have been afforded a hearing at which these witness[es]' testimony could have been compelled." However, defendant must present something to suggest the new witnesses would offer exculpatory evidence in order to obtain the hearing to test credibility in terms of whether or not such testimony would give rise to a different result or warrant a new trial. See, e.g., State v. Carter, supra, 85 N.J. at 314; State v. Cummings, 321 N.J. Super. 154, 164 (App. Div.), certif. denied, 162 N.J. 199 (1999).

As to the claim of ineffective assistance of PCR counsel, defendant asserts that he did not have the opportunity to consider or investigate and "raise" issues. Defendant did have an opportunity to advance all contentions defendant had asserted in the petition and which were apparent to him. State v. Webster, 187 N.J. 254 (2006); State v. Rue, 175 N.J. 1, 16-17 (2002). Certainly, defendants have the right to seek PCR, and to have counsel to assist in that regard and support vacation of an unfair conviction. See R. 3:22-6(a). However, PCR was not designed to be an endless procedure at which a defendant convicted at a trial, with counsel, can seek to explore any possible avenue merely to look for a basis for relief. In any event, all conceivable issues were now presumably raised or noted in the present brief, and there is nothing before us to suggest that any such issue has merit. See also State v. Webster, supra, 187 N.J. 254. There is nothing before us which would suggest that any adjournment of the already delayed PCR would have changed the result.

In sum, there is nothing in the record which gives rise to the right to an evidentiary hearing on the PCR or motion for new trial, and there was no abuse of discretion in denying it. State v. Preciose, 129 N.J. 451 (1992); State v. Cummings, supra, 321 N.J. Super. at 164; State v. Robinson, supra, 253 N.J. Super. 346.


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