September 24, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
JERMAINE BRYANT, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, 93-03-1078-I.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 11, 2008
Before Judges Winkelstein and Chambers.
Defendant, Jermaine Bryant, appeals from a March 8, 2007 order of the Law Division that denied his motion for a new juvenile waiver hearing. The court rejected defendant's claim of newly discovered evidence.*fn1 We affirm.
Following defendant's waiver to the Law Division by the Family Part in March 1993, he was tried to a jury, which found him guilty of murder, N.J.S.A. 2C:11-3a(1) and (2); aggravated assault, N.J.S.A. 2C:12-1b(1); possession of a firearm for an unlawful purpose, N.J.S.A. 2C:39-4a; and possession of a rifle without a permit, N.J.S.A. 2C:39-5c(1). State v. Bryant, 288 N.J. Super. 27, 31 (App. Div.), certif. denied, 144 N.J. 589 (1996). The trial judge imposed an aggregate life term, plus ten years, with a thirty-five-year period of parole ineligibility. Ibid. We affirmed defendant's judgment of conviction and the Supreme Court denied certification. Ibid.
The offenses for which defendant was convicted occurred on November 11, 1992, when a dispute arose between defendant and a number of other individuals. Id. at 31-32. During an altercation, two victims were shot, one of whom died. Id. at 32.
On March 6, 2001, we denied defendant's first petition for post-conviction relief. State v. Bryant, No. A-3571-99 (App. Div. March 6, 2001). Defendant filed additional post-conviction relief petitions in October 2005 and April 2006. The trial court denied those applications by order of July 25, 2006. Defendant did not appeal from that order.
On August 8, 2006, defendant filed another petition for post-conviction relief. By order of October 13, 2006, the trial court denied that petition. In a letter opinion dated October 27, 2006, addressing defendant's motion for reconsideration, the court made the following findings:
In addition to the reasons set forth in the Court's letter opinion dated October 13, 2006, an argument is advanced that the State has engaged in prosecutorial misconduct by virtue of its alleged failure to provide a Ballistic Report which purportedly states the crime was committed with a 22 caliber revolver. In addition to an allegation of prosecutorial misconduct by reason of an alleged failure to disclose the alleged State's Ballistic Report, you state that the State's case was premised on the possession of a rifle or a shotgun. However, in order to establish a fundamental injustice of a constitutional infirmity in the prosecution, it is incumbent to demonstrate that the "undisclosed" information is "material" to the guilt or punishment of the defendant, Brady v. Maryland, 373 U.S. 83 (1963), and "the suppressed evidence might have affected the outcome of the Trial." State v. Carter, 69 N.J. 420 [(1976)]. Assuming the accuracy of the alleged suppression of the ballistic report, and the State's representation of the use of a rifle/shotgun, there is no showing of "materiality" or how the outcome of the Trial would be affected. The alleged prosecutorial misconduct does not reach a level or magnitude to warrant a finding of "injustice" or "constitutional violation."
On appeal, defendant raised the following issues:
THE POST-CONVICTION RELIEF JUDGE ERRED IN DENYING THE DEFENDANT[']S MOTION FOR POST-CONVICTION RELIEF, BY CONCLUDING THAT THE DEFENDANT COULD [HAVE] RAISED THE CURRENT ISSUES IN A PRIOR PROCEEDING.
THE POST-CONVICTION RELIEF JUDGE ERRED BY FAILING TO GRANT DEFENDANT P.C.R. CONCLUDING THAT THE DEFENDANT['S] PETITION IS MORE [THAN] FIVE YEARS AFTER JUDGMENT AND ANY GROUND FOR RELIEF NOT RAISED IN A PRIOR PROCEEDING RESULTING IN A CONVICTION OR IN A POST CONVICTION PROCEEDING OR IN ANY APPEAL IS BARRED.
THE POST CONVICTION RELIEF JUDGE ERRED IN FINDING THAT DEFENDANT[']S CONTENTION THAT HE WAS DENIED THE EFFECTIVE ASSISTANCE OF WAIVER COUNSEL WAS WITHOUT MERIT.
THE POST CONVICTION RELIEF JUDGE ERRED IN CONCLUDING THAT THE DEFENDANT['S] CONTENTION THAT HE WAS DENIED THE EFFECTIVE ASSISTANCE OF TRIAL COUNSEL WAS WITHOUT MERIT.
THE POST CONVICTION RELIEF JUDGE FAILED TO NOTICE OR TO ADDRESS THE PLAIN ERROR BROUGHT FORTH WITHIN THE DEFENDANT[']S PETITION FOR POST CONVICTION RELIEF THAT VIOLATES THE DEFENDANT[']S 4th AMEND, 6th AMEND, AND 14th AMEND CONSTITUTIONAL RIGHTS.
TRIAL JUDGE COMMITTED PLAIN ERROR BY DENYING THE DEFENDANT[']S REQUEST TO CHANGE OUT OF HIS PRISON [CLOTHES] INTO HIS SUIT FOR JURY SELECTION AND TRIAL[;] HERE THE TRIAL JUDGE VIOLATED THE DEFENDANT[']S, 6th AMEND, 14th AMEND CONSTITUTIONAL RIGHT OF DUE PROCESS.
THE DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF TRIAL COUNSEL, THAT VIOLATED THE DEFENDANT[']S SIXTH AMEND. AND FOURTEENTH AMEND. CONSTITUTIONAL RIGHTS UNDER DUE PROCESS.
THE STATE FAILED TO COMPLY WITH R.3:13-3(c) WITHIN (sic) PROVIDING THE DEFENDANT A COPY OF THE STATE BALLISTIC REPORT AND MEDICAL REPORT WHICH VIOLATES THE DEFENDANT[']S 6th AMEND, 14th AMEND, CONSTITUTIONAL RIGHTS.
THE POST CONVICTION RELIEF JUDGE ERRED IN CONCLUDING THAT THE STATE['S] FAILURE TO PROVIDE THE DEFENDANT A COPY OF THE MEDICAL REPORT AND BALLISTIC REPORT DID NOT VIOLATE THE DEFENDANT[']S CONSTITUTIONAL RIGHTS, NOT TO PROVIDE THOSE ITEMS IS A CLEAR VIOLATION OF THE DEFENDANT[']S "FIFTH AMEND, SIXTH AMEND AND FOURTEENTH AMEND CONSTITUTIONAL RIGHT TO A FAIR TRIAL UNDER DUE PROCESS".
[State v. Bryant, No. A-6274-05 (App. Div. Dec. 14, 2007) (slip op. at 3-5).]
We affirmed substantially for the reasons expressed by Judge Winard. Id. at 5.
On January 11, 2007, defendant moved for a new juvenile waiver hearing, claiming newly discovered evidence. In denying that application, in a letter opinion dated March 8, 2007, Judge Winard made the following findings:
The present application asserts "newly discovered evidence" more specifically, a copy of a Medical and Ballistic Report stating decedent's death was caused by a 22 caliber revolver. It is further alleged that the aforementioned information was not provided to the then juvenile defendant's counsel for presentation before the Family Court Judge during the conduct of the "Waiver" Hearing.
It is noteworthy that defendant has failed to specify how and when the alleged "newly discovered evidence" was obtained and whether or not it was available or made available by the State prior to the entry of an Order to Transfer.
In the context of the State's burden to show "probable cause" for a transfer to the adult court, the defendant has not shown to this Court's satisfaction, any of the threshold requirements to establish any evidence of a constitutional violation of the juvenile's rights at the juvenile "Waiver" Hearing. It is true that in cases of homicide, the presumption is in favor of waiver and the probability of rehabilitation must substantially outweigh the reasons for a waiver. The defendant has not made any showing whatsoever that the Family Part Judge's findings relative to the probability of rehabilitation outweighed the presumptive justification for a waiver. The materiality, therefore, of the alleged "newly discovered evidence" to the ultimate outcome of a waiver to the adult Criminal Court is without merit. Furthermore, no argument has been presented to support an ineffective assistance of counsel claim. State v. Jack, 144 N.J. 240 [(1996)].
We affirm substantially for the reasons expressed by Judge Winard. Defendant's arguments are without merit and do not warrant discussion in a written opinion. R. 2:11-3(e)(2).