On appeal from Superior Court of New Jersey, Law Division, Criminal Part, Bergen County, Indictment No. 98-04-0624.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 7, 2009
Before Judges Parrillo, Lihotz and Messano.
Defendant Miguel Suarez appeals from a Law Division order denying his motion for a new trial based on newly discovered evidence. We affirm.
Tried to a jury jointly with co-defendant Richard Morales, defendant was convicted of multiple charges arising out of a triple homicide, namely second-degree conspiracy to commit armed robbery; second-degree conspiracy to commit murder; first-degree robbery; three counts of first-degree murder; and various weapons offenses.*fn1 After appropriate mergers, defendant was sentenced to three life terms with a ninety-year parole bar. We affirmed the judgment of conviction except to remand for clarification that the No Early Release Act (NERA) did not apply to the murder conviction, and for the court to impose a NERA sentence on the armed robbery charge. State v. Miguel Suarez and Richard Morales, Docket Nos. A-5638-00T4 and A-6768-00T4 (App. Div. May 21, 2004). The Supreme Court denied certification. State v. Suarez, 181 N.J. 547 (2004).
While his appeal was pending, defendant had filed a motion for a new trial on the basis of newly discovered evidence, which was stayed pending the outcome of the appeal. The newly discovered evidence consisted of a co-conspirator's subsequent recantation of certain testimony he gave at defendant's trial and another co-conspirator's so-called "exculpatory" evidence. A hearing on the motion for a new trial was eventually held on October 25, 2005, after which the Law Division judge, who had presided over defendant's trial and that of his co-conspirators, denied the requested relief. On appeal, defendant claims the judge erred in this determination.
We recite fully the facts stated in our earlier opinion because they are relevant to the issue on this appeal. On October 23, 1997, the blood-covered bodies of Rajesh Kalsaria, Ajit Hira, and Bhushan Raval were discovered inside Kalsaria's home at 71 Chestnut Street in Bogota. Hira and Kalsaria had been shot in the head at close range while they were lying face down on the floor, bound by duct tape. Raval had been shot in the face, likely while kneeling, and then stabbed twenty-six times in the neck, chest and abdomen before dying from his wounds. Over $60,000 in diamonds, gold jewelry and cash had been taken from the house, and Hira's Toyota Avalon was missing from Kalsaria's driveway.
Investigation at the scene uncovered pieces of a rubber silencer, as well as a knife covered with blood, later confirmed to be that of the victim, Raval. Police also recovered several nine-millimeter bullets and a number of spent shell casings. It was subsequently determined that all of the bullets and casings had been discharged from the same weapon, which could have been a MAC 11 automatic firearm.
The State's investigation disclosed that Dimpy Patel, a wealthy entrepreneur in his thirties, first met Darwin Godoy, a twenty-year old Secaucus student who had hoped to secure employment with Patel through Patel's cousin, sometime in August 1997. Shortly thereafter, Patel requested that, in return for $10,000, Godoy find a hit man who would be willing to do a job for him. Godoy had been acquainted with defendant Suarez, with whom he had been selling illegal cloned cell phones. Godoy knew Suarez to be a violent person who had bragged that he enjoyed killing people. Godoy arranged a meeting between Suarez and Patel, which he also attended.
During that meeting, Patel told Suarez that he wanted to hire him to kill a diamond merchant and that, if he agreed, Suarez could keep any jewelry and cash he found inside the diamond merchant's home, estimated by Patel to be worth $200,000. Neither the identity nor address of the diamond merchant was disclosed by Patel at that time. After reaching an agreement, Patel gave $1,000 to Godoy for he and Suarez to purchase a firearm with a silencer. Thereafter, Suarez, co-defendant Morales, who was a long-time friend of Suarez, Godoy, and another man, Eddie Nieves, drove into New York City where Godoy and Suarez purchased a MAC 11 automatic firearm with a silencer from someone named "Mike," to whom they were introduced by Nieves.
Two days before the murders, Patel telephoned Godoy and provided the address of Kalsaria, the diamond merchant, which was 71 Chestnut Street, Bogota. The next day, Godoy and Suarez drove by the house. The following day, October 23, Godoy met Suarez, who was accompanied by Morales,*fn2 and they drove in separate vehicles to Bogota - Godoy in his Subaru, and Suarez and Morales in Suarez's Honda. After parking his vehicle, Godoy entered Suarez's vehicle and they drove to the area of 71 Chestnut Street.
Suarez showed Godoy a light blue, bullet-proof vest he intended to wear while carrying out the job, as well as the MAC 11 and silencer. Suarez also advised that he had brought along a nine-millimeter handgun and some duct tape which he planned to place over the victim's mouth, at which time Morales drew his hand across his mouth to pantomime what was going to occur. Suarez instructed Godoy to act as a lookout while he and Morales entered the residence and completed the hit. Suarez and Morales exited the vehicle, with Suarez carrying the firearm.
Godoy then returned to his car, drove by 71 Chestnut Street, circled back and parked a short distance away. From where he remained inside the parked vehicle, Godoy spotted Suarez and Morales walking along Chestnut Street towards the diamond merchant's home. Moments later, though, Godoy saw the pair walking back towards their car. Thereafter, Suarez called Godoy on his cell phone and advised that there were three men inside the ...