July 7, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
JAMAL LEWIS, DEFENDANT-APPELLANT.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: May 6, 2009
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 this kid," which Miller interpreted as a statement that defendant had shot someone.
Defendant's first trial ended in a mistrial. When his second trial commenced, Miller refused to testify. His testimony from the first trial was read to the jury at the second trial pursuant to N.J.R.E. 804(b)(1)(A). It is the testimony offered by Miller which became the subject of the 2001 and 2005 motions for new trial. Defendant asserts in both motions that Miller recanted his testimony and the recantation is newly discovered evidence that requires a new trial.
A notice of appeal from a final order must be filed within forty-five days of entry. R. 2:4-1(a). An order denying a motion for a new trial is a final order. Pressler, Current N.J. Court Rules, comment 2.3.3 on R. 2:2-3 (2009). If an appeal is not filed, the order is conclusive on the issue raised in the motion. R. 2:4-1(a) and R. 2:4-4(a); State v. Molina, 187 N.J. 531, 535 (2006).
When a defendant resorts to a collateral proceeding, such as a motion for a new trial on newly discovered evidence or a petition for post-conviction relief, a defendant may not pursue this collateral remedy on the same theory and facts raised in a prior collateral proceeding and subject to a final order. State v. Smith, 43 N.J. 67, 74 (1964), cert. denied, 379 U.S. 1005, 85 S.Ct. 731, 13 L.Ed. 2d 706 (1965). That is because the collateral proceeding is not a substitute for a direct appeal either from the judgment of conviction or from a prior order in a prior collateral proceeding that adjudicated the same claim. Ibid. An issue once decided may not be relitigated. Ibid.
Here, we hold that defendant's appeal from the March 2006 order denying his second motion for a new trial based on newly discovered evidence is barred. The 2001 and 2005 motions for a new trial are identical. In each motion, defendant argued that Miller had recanted his trial testimony. The only difference is that defendant submitted more certifications in support of the 2005 motion. Interestingly, all were executed in 2001.
We need not invoke the procedural bars of Rule 3:22-4 or -5 applicable to petitions for post-conviction relief. While defendant seeks relief from his 1994 conviction, he has not invoked that avenue of relief, relying instead on Rule 3:20-1.*fn2
Rather, we consider the 2005 motion barred because defendant filed an identical motion in 2001, the motion was denied, and he did not appeal that decision. The 2001 order denying a new trial based on Miller's recantation is conclusive on the issue of whether defendant is entitled to a new trial based on any recantation by Miller of his prior testimony. Defendant cannot resurrect the argument by filing a new motion in an expanded form years later.