April 23, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
MARC A. JORDAN, DEFENDANT-APPELLANT.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 reasonably discoverable prior thereto. State v. Ways, 180 N.J. 171, 187 (2004).
In his motion papers and appellate brief, defendant makes unsupported and uncertified factual assertions as to the events surrounding the robbery of Santora's home. He also provides a "script" of conversations between himself and his trial attorney. These unfounded statements made years after the fact are not legally competent evidence. See Weber v. Mayan Palace Hotel & Resorts, 397 N.J. Super. 257, 260 (App. Div. 2007).
Defendant did provide a signed certification of an individual named Bridgette Fairley, whom he asserts is the mother of his child. The child is alleged to have been born on March 26, 1997, the day prior to the home-invasion robbery. In the certification, Fairley asserts that defendant was with her at the hospital on the night of the crime. The typewritten date indicates that the certification was prepared in February 2000, after defendant had been convicted. In his factual narrative, defendant asserts that at the time of trial in 1999, before the certification was prepared, his attorney dissuaded him from calling Fairley as his witness because she was refusing to testify on his behalf. As a consequence, defendant claims, his attorney convinced him not to testify on his own behalf, which he otherwise would have done had Fairley been willing to corroborate his alibi. Certainly, the information in the Fairley certification does not constitute newly discovered evidence within the meaning of the rule, as the existence of the "alibi" was known prior to trial.
Defendant asserts that he should have testified because there was a fourth suspect in the car named "Steve," who planted the gun and ski mask used in the robbery in his motel room. Defendant actually hired an investigator, Barry S. Barkin, who certified that Santora reported that when Mazza first stopped at his house, he saw a black male in the car whom he later saw in a car parked in front of his home, several months after the robbery, and who threatened his life when the crime was reported. Even if this means that a fourth person was involved in the home-invasion robbery, defendant is not thereby exculpated.
Defendant further alleges that he was recently supplied with a one-page arrest report and a three-page police incident report that were missing from his original discovery. He asserts that both items corroborate the existence of a fourth person in the vehicle on the night in question. As the State points out, however, the reports had been previously supplied to defendant and his co-defendant in discovery, as borne out by the page numbering on the copies supplied by both defendant and the State. In addition, the authors of these reports were named on witness lists given to defendant long before trial. Our examination of these documents leads us to conclude that defendant has had the reports all along and certainly could have obtained them with due diligence.
In summary, the existence of a fourth person is not exculpatory. Even if it were exculpatory, the evidence related to a fourth conspirator, such as it is, was not only readily discoverable prior to trial, but may have actually been in defendant's possession. Accordingly, we affirm the motion judge's denial of defendant's application for a new trial in Middlesex.
Monmouth County Motion to Vacate Convictions
The details surrounding the crimes that led to the Monmouth County indictments have no bearing on our analysis. They will not be recounted except to say that the offenses arose out of multiple armed robberies, kidnappings, terroristic threats, and thefts by extortion, involving several victims. Since defendant's Monmouth County convictions were affirmed on appeal, he has filed a total of four PCR applications.
Defendant's first motion to retroactively consolidate all of the charges pending in Middlesex, Monmouth and Ocean, and thereby vacate his convictions, was denied on February 3, 2006. The reconsideration motion was denied on March 16, 2007. He again raised precisely the same issues in a motion to vacate his convictions, which was denied on August 3, 2007. It is this order from which this appeal is taken.
On appeal, defendant raises the following points:
DEFENDANT'S MOTION FOR SUMMARY DISPOSITION SHOULD BE GRANTED AND THE MATTER REMANDED TO A DIFFERENT JUDGE 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 BASED ON NEWLY DISCOVERED EVIDENCE (INFORMATION) TO VACATE HIS CONVICTION(S) AND SENTENCE(S) IN MONMOUTH, MIDDLESEX AND OCEAN COUNTIES, AND NEGOTIATE A CONSOLIDATED PLEA.
A. THE TRIAL COURT'S RELIANCE UPON AN OFFTHE-RECORD, OUT OF THE DEFENDANT'S PRESENCE, PLEA DISCUSSION BETWEEN TRIAL COUNSEL AND HERSELF TO TERMINATE AN ORDER OF CONSOLIDATION, WHICH SUBJECTED DEFENDANT TO MULTIPLE CONSECUTIVE SENTENCES, DEPRIVED DEFENDANT OF HIS SIXTH AMENDMENT RIGHT TO BE PRESENT AT A CRITICAL STAGE OF THE PROCEEDINGS AND OF HIS FOURTEENTH AMENDMENT RIGHT TO PROCEDURAL DUE PROCESS.
Defendant's application has no procedural basis and for that reason alone should be denied. This is not an application for PCR. It is not an application for a new trial based on newly discovered evidence. It is not an application to correct an illegal sentence, which may be made at any time. R. 3:22-12. In the interest of finality, however, we make some brief comments.
Defendant's real complaint is that because he was repeatedly convicted and twice sentenced under the "Three Strikes" law, he is worse off than he might have been had he entered guilty pleas under a consolidation order that disposed of all his charges from Middlesex, Monmouth and Ocean Counties. That may be true, but the argument overlooks the obvious.
Consolidation as contemplated by Rule 3:25A is permissible only when negotiated pleas are anticipated. As the rule states, where a number of charges are resolved by plea pursuant to a consolidation order, if any charge remains, "the judge in the forum county shall order each unresolved charge to be returned immediately to the originating county." R. 3:25A-1. Where a "reasonable period" passes after consolidation and no global resolution is reached between the State and defendant, "the judge in the forum county shall order each charge to be returned immediately to the originating county." Ibid.
The consolidation order that defendant's attorney obtained on April 7, 1998, was dissolved a few days later on April 20 because, as the order states, the "matter will not be resolved by way of consolidated plea." The order was dissolved because no successful plea negotiations were anticipated. Defendant offers no proof to the contrary.
Defendant seeks reinstatement of the consolidation order because, according to him, the Monmouth County trial judge was mistakenly advised that defendant would not accept a plea. Defendant argues that the motion judge, who coincidentally was also the trial judge, should have recused herself from the proceedings because she recollected being told informally that defendant would not plead guilty. For this reason, defendant claims, any further involvement on her part is improper.
On March 23, 1999, before defendant was tried on the first Monmouth County case, the judge listed all of defendant's Monmouth County indictments for trial: Indictment Nos. 97-07-1271, 98-01-0144, 98-01-0145, 98-01-0147, 98-10-1836, and 98-02-0203.*fn3 The prosecutor stated on the record that defendant had rejected the State's offer of forty years with twenty-seven years of parole ineligibility. Defendant then, under oath, engaged in the following colloquy with the trial judge:
[The Court]: Forty years with twenty-seven year period of parole ineligibility on all cases. Obviously, I can't give you forty with a twenty-seven on one of these charges if it is only one armed robbery.
You understand I would have to get to it somehow. If you pled guilty, there will be some way that I could put all these cases together to come to forty with a twenty-seven year period of parole ineligibility. That is what we are talking about. That is the deal.
The deal is forty with twenty-seven year period of parole ineligibility. You would get rid of six cases. You are not going to be able to plead guilty to the one case that says you get seven years and then say, I will take the others to trial.
Do you understand that is what the entire agreement is here?
[Defendant]: Very well.
[The Court]: You understand that you do qualify for an extended term?
[Defendant]: I know now.
[The Court]: Well, you know that. You know that you qualify for an extended term here. You have been convicted of a number of prior offenses and that if you are convicted of any of these, I could impose a more serious sentence, and I am not going to go through each and every one of these because I think you know the time constraints here are really astronomical.
For me to tell you that you are going to face sixty-three years on one and ten years on another, ten years on another, thirteen years on another one, fifty years on another one and let's see, this one doesn't have as many years, forty years on others and that you will being facing the extended term, we are talking about numbers that you and I can't even comprehend. I don't think any of us are going to live that long.
[Defendant]: Yes, Your Honor.
[The Court]: I don't mean to be flip, but that is the point, that if we put all these together and I gave you the extended terms and I gave you the 85 percent rule, we are talking about numbers that will probably get close to a hundred.
[Defendant]: Football numbers basically. I understand what you are saying.
[The Court]: So, you understand that most of these charges, the first and second-degree offenses, there is presumptions of imprisonment on these charges.
[Defendant]: Yes, Your Honor.
[The Court]: I would have to impose that you serve eighty-five percent of certain of these sentences. Do you understand that?
[The Court]: And that is probably on indictment 92-02-0203. We are talking about charges like kidnapping, armed robbery, theft by extortion, first and second-degree offenses where I would have to say that you must serve eighty-five percent of the time before being eligible for parole?
[Defendant]: Yes, Your Honor.
[The Court]: If you go to trial on all these, I could run everything consecutively. So, if you got a seven on one, the next case, it would be an armed robbery and it would be a first degree. That is a twenty. I could make that consecutive. That would be a twenty-seven.
I could impose all sorts of periods of parole ineligibility. We are talking numbers here. I don't mean to be flip, but that is the situation here. You understand that?
[Defendant]: I understand very well.
[The Court]: Now, are you on probation or parole?
[Defendant]: No, Your Honor.
[The Court]: So, you are not on probation or parole in any of these cases. You understand though, I could impose any sentence consecutively to sentences that you are already charged?
[Defendant]: Yes, Your Honor.
[The Court]: Do you also understand if you reject this plea offer, all plea negotiations will terminate and no further plea negotiations will take place and that the plea offer here will be withdrawn?
[Defendant]: Yes, Your Honor.
Defendant then made a statement to the court as follows:
Going back to when Mr. Eisler was my attorney and the offer was 50 with 35 on the table, in reviewing through my discovery, et cetera, me and Mr. Eisler sat down and he was bringing to my attention Mr. Campo didn't want to run certain matters together, et cetera, and [it] goes back actually to even Mrs. O'Shea didn't want to run certain matters together, sat down, you know, put together a nice letter, was willing to negotiate at a certain point in time and it seemed like that didn't get resolved.
I wanted to make it clear to you at one point in time, I was willing to negotiate. It is just that I mean, who would want to do 50 with 35? Who would want to do 40 with 27? At one point in time, I was willing to negotiate it.
The judge also indicated to defendant that he might be eligible for sentencing pursuant to the "Three Strikes" law.
The transcript puts to rest the question of how the judge learned that defendant did not intend to plead guilty. It establishes that defendant at no time intended to plead to anything offered by Monmouth County. And it is clear from the transcript that he fully understood that as of March 23, 1999, he was facing a potential sentence of over 100 years, some of which was subject to the eighty-five percent rule, on the Monmouth County charges alone. Although more than 100 years is, strictly speaking, not a life sentence under the "Three Strikes" law, it is the functional equivalent. Defendant himself told the court that he never intended to plead guilty, which negated any possibility of consolidation. He was well aware of the certainty that if convicted, he would spend the rest of his life in prison, and wished to proceed to trial nonetheless. Even if the rules of court were construed to permit this application, it is entirely lacking in merit.