On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 97-06-0797 and Monmouth County, Indictment Nos. 99-02-0203, 97-07-1271, 98-01-0144, and 98-01-0147.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 12, 2009
Before Judges Sapp-Peterson and Alvarez.
Defendant, Marc A. Jordan, appeals from two separate orders, one entered in Middlesex County and the other in Monmouth County. In Middlesex County, defendant filed a pro se application for a new trial based on newly discovered evidence as to Indictment No. 97-06-0797. In Monmouth County, defendant filed an application to vacate convictions and sentences as to four indictments, Nos. 99-02-0203, 97-07-1271, 98-01-0144, and 98-01-0147, based on an asserted violation of the consolidation rule, Rule 3:25A-1. The matters were calendared back-to-back, and we now consolidate them for disposition in this opinion. For the reasons that follow, we affirm.
Defendant was convicted after a jury trial and sentenced on June 7, 1999, on Middlesex County Indictment No. 97-06-0797, to twenty years of imprisonment, subject to ten years of parole ineligibility, on a second-degree burglary, N.J.S.A. 2C:18-2, followed by thirty years, subject to fifteen years of parole ineligibility, on each of four counts of armed robbery, N.J.S.A. 2C:15-1. The armed robbery sentences were concurrent to each other, but consecutive to the second-degree burglary. That conviction was affirmed on appeal, State v. Jordan, No. A-6545-98 (App. Div. June 25, 2001), and certification was denied, State v. Jordan, 170 N.J. 88 (2001). We remanded, however, for resequencing of the terms so that the sentence for the second- degree offense would be served consecutive to the sentences for the first-degree crimes in accord with State v. Lane, 279 N.J. Super. 209 (App. Div.), certif. denied, 141 N.J. 94 (1995). We further directed that when the sentences were reconsidered, the analysis that resulted in consecutive sentences should be placed on the record because no reasons were given at the initial sentencing. After reviewing the record supplied on this appeal, we cannot discern if the resentencing ever took place.
On June 25, 1999, following his Middlesex County convictions, defendant was sentenced after entering guilty pleas in Ocean County on Indictment Nos. 97-04-0371, 97-08-0706, and 97-08-0707 to thirteen years, three without parole. The judgment of conviction recited that the sentences were concurrent to the sentences in Middlesex, and that the Ocean County court had "no objection with a concurrent sentence with the Monmouth County sentence," as the Monmouth County matters had not yet been finalized.
Defendant was charged in as many as seven indictments in Monmouth, including a superseding indictment. We will only recount the aspects of the procedural history as to the offenses that are relevant to our discussion of defendant's arguments in this appeal. We further note that all of the Monmouth County convictions and sentences were previously affirmed on appeal.*fn1
On Indictment No. 97-07-1271, defendant was sentenced on February 14, 2000, after a jury trial, on robbery and related charges. The trial judge imposed a discretionary extended term of fifteen years with seven-and-one-half of parole ineligibility.
Indictment No. 99-02-0203 charged defendant with thirty-two counts related to the first-degree robberies and kidnappings of several victims. The counts were severed, and defendant was convicted after two separate trials. On October 24, 2000, defendant was sentenced under the "Three Strikes" law, N.J.S.A. 2C:43-7.1, to a life term without parole as a result of the first series of convictions. Thereafter, on November 16, 2001, as a result of the second series of convictions, defendant was sentenced to a consecutive life term without parole under the "Three Strikes" law. Accordingly, the aggregate sentence that defendant is presently serving is sixty-five years, subject to thirty-two-and-one-half years of parole ineligibility, followed by two consecutive life terms.
Prior to any convictions, on April 7, 1998, on defendant's motion, a Middlesex County judge consolidated all of defendant's pending matters for disposition in Monmouth County pursuant to Rule 3:25A-1. A few days later, on April 20, 1998, however, the order of consolidation was dissolved because, as stated in that order, the "matter will not be resolved by way of consolidated plea."
Defendant has pursued several post-conviction relief (PCR) applications as to his Middlesex and Monmouth County convictions, all of which have been denied. All of the denials have been affirmed.*fn2
Middlesex County Motion for a New Trial
Defendant has filed two prior PCR applications, seeking to set aside his Middlesex County conviction. This application for a new trial based on a claim of newly discovered evidence is defendant's thinly-veiled attempt to avoid the five-year PCR time bar contained in Rule 3:22-12.
Discussion of defendant's contentions requires some discussion of the underlying crime, a home-invasion robbery. John Santora, the victim, was acquainted with defendant's co-defendant, Alexander Mazza. In exchange for heroin, on the night of the crime, Mazza's friend, Regina Lee, drove him and defendant to Santora's home. Mazza had previously been to Santora's house and knew the location of Santora's safe. The three met at the Crystal Motor Lodge in Eatontown and made their way to Santora's home in Old Bridge after defendant changed into black clothing and armed himself with a handgun.
When they arrived, the trio saw a car parked in the victim's driveway. Nonetheless, Mazza entered the home and spoke briefly with Santora, after which the three co-conspirators drove away. Because there were guests in the home, Mazza refused to go through with the robbery. At defendant's insistence, however, Lee drove the men back to Santora's house and defendant entered the premises, attired in a black hood and brandishing a silver revolver.
Once inside the home, defendant ordered Santora and the other occupants into a bedroom, forced Santora at gunpoint to open the safe, and removed $3500 in $100 bills. At defendant's direction, Santora placed the money into a pillowcase, into which the other victims also put their valuables. Finally, defendant took jewelry from Santora's dresser.
Defendant got into Lee's blue Toyota and was driven away. Within days, police located Lee and Mazza, both of whom identified defendant as the actual robber. Items used in the robbery, including a gun and ski mask, were found hidden in the ceiling of defendant's motel room.
In his brief, defendant asserts the following grounds for reversal:
DEFENDANT'S MOTION FOR SUMMARY DISPOSITION SHOULD BE GRANTED AND A NEW TRIAL ORDERED OR IN THE ALTERNATIVE, DEFENDANT'S MOTION BRIEF SHOULD BE ACCEPTED AS HIS MERITS BRIEF AS THE ISSUE CONTAINED IN THE SAME WILL BE THE ONLY ONE RAISED ON APPEAL FROM THE DENIAL OF HIS MOTION FOR A NEW TRIAL BASED ON NEWLY DISCOVERED EVIDENCE.
A. THE STATE'S FAILURE TO DISCLOSE MATERIAL INFORMATION IN ITS POSSESSION THAT COULD HAVE BEEN USED TO PROVE THAT SOMEONE OTHER THAN THE DEFENDANT COMMITTED THE CRIMES HE WAS CHARGED WITH DEPRIVED DEFENDANT OF HIS RIGHT TO DUE PROCESS AND A FAIR TRIAL.
Rule 3:20-1 requires a new trial when new evidence that was not reasonably discoverable by the moving party prior to entry of judgment comes to light. The evidence must be of such a nature that it would, in all probability, have affected the jury's verdict and must not have been ...