On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 93-02-0650.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Cuff and C.L. Miniman.
In this appeal, we review a March 6, 2006 order denying defendant's motion for a new trial. The motion judge, who was also the trial judge, denied the motion as untimely. We affirm.
On appeal, defendant raises the following arguments:
THE POST-CONVICTION RELIEF COURT ERRED IN CONCLUDING THAT DEFENDANT'S MOTION FOR A NEW TRIAL WAS PROCEDURALLY BARRED.
POINT TWO THE TRIAL COURT ERRED IN FAILING TO GRANT DEFENDANT A NEW TRIAL OR A PROPER HEARING IN LIGHT OF NEWLY FOUND EVIDENCE.
In 1994, a jury found defendant guilty of murder, felony murder, robbery, possession of a weapon for an unlawful purpose, and unlawful possession of a weapon. Defendant is serving a life term subject to a minimum mandatory term of imprisonment of thirty years. On direct appeal, we affirmed the conviction and sentence. State v. Lewis, No. A-445-94 (App. Div. Mar. 29, 1996). The Supreme Court denied certification. 146 N.J. 497 (1996).
In the interim, defendant filed a motion for a new trial citing ineffective assistance of trial counsel. The trial judge denied this motion; defendant did not file an appeal. On June 8, 1998, defendant's petition for post-conviction relief was denied; we affirmed, State v. Lewis, No. A-912-00 (App. Div. April 17, 2002); and certification was denied, 174 N.J. 190 (2002).
In 2001, defendant filed a motion for a new trial based on newly discovered evidence. His motion was denied without a hearing on September 26, 2001. Defendant did not appeal from this order. On October 5, 2005, defendant filed another motion for a new trial based on the same evidence that supported his 2001 motion for a new trial. Finding the motion unfounded and untimely, the motion was denied on March 6, 2006. Defendant filed a notice of appeal on September 4, 2007.*fn1
The conviction arises from the killing of a drug dealer in the lobby of a public housing project in Newark. At trial, two employees of the Newark Housing Authority testified that they walked into the lobby of an apartment building and observed a man standing in front of them. Another man, who they identified as defendant, held a gun to the man's head. Both men recognized defendant as a person they had seen in the neighborhood. One of the men heard defendant say to the other man, "Give me a bag." The other man heard defendant say, "Give me a bag of dope." Then, they heard a shot, saw a man fall to the ground, and saw defendant flee the building.
The State also produced the testimony of Kevin Miller. He testified that he heard a gunshot and encountered defendant as he fled from the building. Defendant gave Miller a revolver, which he tucked into his waistband but later returned to defendant. When defendant transferred the weapon to Miller, defendant told him "I just did ...