On appeal from Superior Court of New Jersey, Law Division, Atlantic County, 00-10-2025-I.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges A. A. Rodríguez and Collester.
Tried to a jury, defendant Jay Britt was convicted of attempted murder, N.J.S.A. 2C:5-1; two counts of aggravated assault, N.J.S.A. 2C:12-1b(1) and (2); possession of a handgun for an unlawful purpose, N.J.S.A. 2C:39-4a; unlawful possession of a handgun, N.J.S.A. 2C:39-5b; hindering his own prosecution by suppression of evidence, N.J.S.A. 2C:29-3b(1); and tampering with evidence (handgun), N.J.S.A. 2C:28-6(1). He was sentenced on May 31, 2002, to an aggregate term of fifteen years with eighty-five percent parole ineligibility pursuant to NERA. On March 2, 2004, we affirmed defendant's convictions and sentence on his direct appeal, and the Supreme Court denied certification on May 19, 2004.
Defendant then filed a petition for post-conviction relief (PCR) based on his contention that his trial counsel's failure to file a motion to suppress was ineffective assistance of counsel. On December 19, 2005, the motion judge denied defendant's application for failure to present a prima facie showing of ineffectiveness of counsel. Subsequently, defendant filed a separate appeal from the denial of PCR.
This appeal is from the December 8, 2006 order of Judge James E. Isman denying defendant's motion for a new trial. Defendant annexed to his motion a report dated March 15, 2006 by Investigator Luis A. Rios of an interview on March 15, 2006 at Southern State Correctional Facility of Adrian M. Howard, the victim of the September 4, 2000 shooting for which defendant was convicted. Quoting from Rios' report,
Victim indicated to this investigator that the defendant, Jay Britt was not the person who shot him on September 4, 2000. Victim related that he previously testified in court and stated that Mr. Britt did shoot him and that the male who perpetrated the assault was a "light skin" African-American male. Victim indicated that he will reiterate to the court that Mr. Britt was not the person responsible for the shooting, also related that he will cooperate with Mr. Britt's attorney if required to do so.
Defendant moved for a new trial based upon the report, which he contended constituted newly discovered evidence. Judge Isman denied the motion, noting that it was technically deficient as there was no sworn statement from Howard, only the inadmissible hearsay in Rios' report. Furthermore, despite Howard's statements in the report, the trial record reveals that Howard testified that he could not see who shot him. Identification of the defendant was made through testimony of other witnesses. Therefore, the unsworn statements do not constitute newly discovered evidence.
We affirm substantially for the reasons set forth by Judge Isman in his oral opinion of November 30, 2006.
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