On appeal from Superior Court of New Jersey, Law Division, Essex County, Ind. Nos. 85-6-2616, 85-5-2096.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 29, 2008
Before Judges Coburn and Chambers.
Defendant, serving a sentence of thirty years on a felony murder conviction and related charges, seeks a new trial based on newly discovered evidence. The two witnesses who implicated him in the crime have now recanted. The trial court denied the motion. However, since these are the only two witnesses implicating defendant in the crime, we reverse and remand in order that an evidentiary hearing be held on the motion for a new trial.
Defendant's convictions arose out of a robbery that took place at a bus stop in Newark on March 15, 1985. On that day, four men robbed the victim, Andrew Alexander, at gunpoint. During the course of the robbery, the victim was shot twice by co-defendant Dexter Tyson who had a gun; the victim died. At trial, Jason Hines and Kevin Hayes identified defendant as one of the four participants in the robbery.
Defendant was convicted by jury of felony murder, N.J.S.A. 2C:11-3(a)(3) (count one); first degree robbery, N.J.S.A. 2C:15-1 (count two); third degree possession of a handgun without the requisite permit, N.J.S.A. 2C:39-5(b) (count three) and second degree possession of a handgun for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count four). He was originally sentenced to life imprisonment, with thirty years of parole ineligibility on count one, twenty years concurrent with ten years of parole ineligibility on count two, and ten years on count four. Count three was merged with count four. As the result of a post- conviction relief application, on November 19, 2002, the defendant's aggregate sentence was reduced to thirty years with thirty years of parole ineligibility.
This case has a lengthy post-conviction procedural history. The conviction and sentence were affirmed by the Appellate Division on direct appeal. State v. Chandler, No. A-3016-85T4 (App. Div. August 25, 1988), certif. denied, 114 N.J. 497 (1989). The denial of defendant's first petition for post-conviction relief was upheld on appeal. State v. Chandler, No. A-6075-89T4 (App. Div. March 6, 1992), certif. denied, 130 N.J. 13 (1992). The denial of defendant's second petition for post-conviction relief was also upheld on appeal. State v. Chandler, No. A-2396-99 (App. Div. November 13, 2001), certif. denied, 172 N.J. 178 (2002). Defendant's first motion for a new trial on the basis of newly discovered evidence was also denied, although his sentence was reduced to thirty years. The denial was affirmed on appeal. State v. Chandler, No. A-2239-02T4 (App. Div. April 16, 2004), certif. denied, 181 N.J. 547 (2004). The denial of defendant's third post-conviction relief petition, dealing with commutation and work credit issues, was also affirmed. State v. Chandler, No. A-3462-03T4 (App. Div. September 28, 2005), certif. denied, 185 N.J. 597 (2005).
Thereafter, defendant filed a second motion for a new trial, which was denied by the trial judge in a written opinion dated May 1, 2006. Defendant now appeals the denial of that motion. Post-conviction relief counsel raises the following issues:
POINT I THE LOWER COURT ORDER MUST BE REVERSED SINCE DEFENDANT IS ENTITLED TO A NEW TRIAL BY VIRTUE OF NEW DISCOVERED EVIDENCE.
POINT II THE LOWER COURT ORDER MUST BE REVERSED SINCE THE PROSECUTOR WITHHELD EXCULPATORY EVIDENCE WHICH DEPRIVED DEFENDANT OF A FAIR TRIAL.
POINT III THE LOWER COURT ERRED IN FAILING TO MAKE SPECIFIC FINDINGS OF FACT AND CONCLUSIONS OF LAW ON DEFENDANT'S REQUEST TO COMPEL THE STATE TO TURN OVER HINES' VIDEOTAPED STATEMENT AND ALL DISCOVERY RELATING TO THIS MATTER. THE LOWER COURT ORDER MUST THEREFORE BE REVERSED.
POINT IV THE LOWER COURT ERRED IN NOT GRANTING DEFENDANT'S REQUEST FOR A HEARING AND THE LOWER COURT ORDER ...