July 24, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
AKBAR NA'IM, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 88-02-0124.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 29, 2008
Before Judges Fuentes and Grall.
Defendant Akbar Na'im appeals from the order of the trial court denying his motion for a new trial based on a claim of newly discovered evidence. We affirm.
Defendant was tried before a jury in 1988 and convicted of murder, N.J.S.A. 2C:11-3a(1) and (2), second-degree possession of a handgun for an unlawful purpose, N.J.S.A. 2C:39-4a, and third-degree unlawful possession of a handgun, N.J.S.A. 2C:39- 5b. After merging the conviction for the second-degree offense with the murder conviction, the court sentenced defendant to life imprisonment, with thirty years of parole ineligibility.
The court also imposed a concurrent five-year term with two and one half years of parole ineligibility on the conviction for the third-degree offense, and assessed the mandatory fines and penalties.
On direct appeal, we affirmed defendant's conviction and sentence, State v. Naim, No. A-1287-88 (App. Div. March 14, 1990), and the Supreme Court denied certification, State v. Naim, 122 N.J. 188 (1990). Defendant filed his first petition for post conviction relief (PCR), which the trial court denied on December 21, 1992. We subsequently affirmed the trial court's ruling. State v. Naim, No. A-2848-92 (App. Div. June 22, 1995). The Supreme Court denied certification. State v. Na'Im, 142 N.J. 516 (1995).*fn1
On June 30, 2003, defendant filed a second PCR petition, which the trial court denied on May 28, 2004. We affirmed the trial court's ruling on direct appeal. State v. Na'im, No. A- 6402-03 (App. Div. Dec. 21, 2005). The Supreme Court again denied certification. State v. Na'Im, 186 N.J. 258 (2006).
On May 1, 2006, defendant filed a pro se motion seeking a new trial based on newly discovered evidence. By order dated March 16, 2007, Judge Wertheimer denied defendant's motion.
Judge Wertheimer explained the basis for his ruling in a well- reasoned memorandum of opinion filed simultaneously with the order denying relief.
Defendant now appeals pro se from this order, raising the following arguments.
THE MOTION FOR A NEW TRIAL BASED UPON NEWLY DISCOVERED EVIDENCE SHOULD BE GRANTED BY THE APPELLATE TRIBUNAL BECAUSE THE TRIAL JUDGE'S FINDING IS CLEARLY A MISTAKEN ONE AND SO PLAINLY UNWARRANTED THAT THE INTEREST OF JUSTICE DEMAND [SIC] INTERVENTION AND CORRECTION BY THE APPELLATE TRIBUNAL TO APPRAISE THE RECORD AS IF IT WERE DECIDING THE MATTER AT INCEPTION AND MAKE ITS OWN FINDINGS AND CONCLUSIONS, WHERE, AS HERE, IT IS CLEAR THAT IN VIOLATION OF DEFENDANT'S FEDERAL AND STATE CONSTITUTIONAL RIGHTS TO DUE PROCESS AND TO A FAIR TRIAL, THE STATE WITHHELD FROM DEFENDANT MATERIAL EVIDENCE AND POLICE STATEMENTS, POLICE OFFICER'S COMMENTS, NOTES OR OTHER MATERIALS AS THEY RELATE TO THEIR WITNESS LUCY BULLOCK AKA GWENDOLYN GRAY'S CONTACT WITH THE ELIZABETH POLICE DEPARTMENT OFFICIALS.
Defendant's arguments lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We affirm substantially for the reasons expressed by Judge Wertheimer in his memorandum of opinion dated March 16, 2007.