March 1, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
VERNON COLLINS, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 86-08-0769.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 25, 2011 - Decided Before Judges Carchman and Waugh.
Defendant Vernon Collins appeals from an order of the Law Division denying his application for vacation of his conviction and sentence; discovery concerning racial profiling at the time of his arrest in 1986; and a new trial based upon newly discovered evidence. We affirm.
We discern the following facts and procedural history from the record on appeal.
In 1986, Collins was a passenger in a vehicle stopped by a state trooper for tailgating. The stop took place on the New Jersey Turnpike. A subsequent search of the vehicle revealed heroin and a semi-automatic .9 millimeter handgun with a magazine clip of hollow-nosed ammunition. Collins was ultimately found guilty of possession of heroin; possession of heroin with intent to distribute; unlawful possession of a weapon; and possession of a prohibited device (hollow-nosed bullets).
Collins appealed his conviction and sentence. We affirmed the conviction in an unpublished decision. State v. Collins, No. A-5173-88 (App. Div. July 21, 1992) (slip op. at 5). However, we found that the convictions for possession of heroin and intent to distribute should have merged, and remanded for resentencing. Id. (slip op. at 6, 16). The Supreme Court denied certification. State v. Collins, 130 N.J. 601 (1992).
Subsequent petitions for a writ of habeas corpus in the United States District Court for the District of New Jersey and for post-conviction relief (PCR) in the Law Division in 2002 were denied. Collins did not appeal the denial of his PCR petition, in which he had sought discovery concerning racial profiling.
On October 18, 2005, Collins filed a notice of motion seeking the relief outlined above. The motion judge heard oral argument on September 8, 2006. On February 6, 2008, the judge issued a written opinion and an order denying Collins's motion. The judge found no newly discovered evidence to support a motion for a new trial, State v. Carter, 85 N.J. 300, 314 (1981), and that Collins failed to establish the "colorable basis" required for selective-enforcement discovery under State v. Kennedy, 247 N.J. Super. 21, 25 (App. Div. 1991). This appeal followed.
On appeal, Collins raises the following issue:
THE DENIAL OF DEFENDANT'S DISCOVERY MOTION MUST BE REVERSED AND THIS MATTER MUST BE REMANDED FOR AN EVIDENTIARY HEARING, SO THAT DEFENDANT IS AFFORDED THE OPPORTUNITY TO ESTABLISH A PRIMA FACIE CASE OF RACIAL PROFILING.
Having reviewed the arguments raised by Collins in light of the record before us, we find them to be without merit and not warranting extended discussion in a written opinion. R. 2:11-3(e)(2). We add only the following.
In Kennedy, supra, 247 N.J. Super. at 31-32, we recognized the right of a criminal defendant to discovery concerning racial profiling upon presentation of a colorable basis for a claim of selective enforcement. That opinion was issued in March 1991, prior to the disposition of Collins's direct appeal. In State v. Soto, 324 N.J. Super. 66, 69 (Law Div. 1996), the Law Division determined that the Soto defendants had "established a prima facie case of selective enforcement [on the New Jersey Turnpike] which the State has failed to rebut requiring suppression of all contraband and evidence seized."
The State released its Interim Report of the State Police Review Team Regarding Allegations of Racial Profiling in April 1999. On September 12, 2000, the Supreme Court issued an administrative order reflecting the State's concession that, for the period January 1, 1988 through April 20, 1999, "a colorable basis to allow discovery regarding racial profiling ha[d] been established" for searches by state troopers on several roadways, including the Turnpike. State v. Lee, 190 N.J. 270, 274 (2007) (internal quotation marks omitted).
Collins was not stopped and arrested during the time period contained in the State's stipulation. Consequently, he had an obligation to establish a colorable claim of racial profiling before he was entitled to discovery on that issue. Collins acknowledges that he raised the issue of racial profiling for the first time in the PCR petition he filed in 2002, and that he sought discovery on the issue at that time. The petition was denied, apparently without a specific discussion of racial-profiling discovery. Collins did not appeal the dismissal.
Collins did not raise the issue again for almost three years, at which time he filed his motion seeking discovery and a new trial. Although he sought discovery on racial profiling, he presented no certifications or other evidence supporting a colorable claim of racial profiling, such as the statistical information supplied in Kennedy, supra, 247 N.J. Super. at 33. In fact, the motion papers consisted primarily of a list of the documents sought by Collins. He argues that the motion judge erred in failing to order a plenary hearing so that he could prove his colorable claim. We disagree.
At oral argument on the motion, defense counsel represented in very general terms that unnamed witnesses would testify that there was racial profiling on the Turnpike at the time of Collins's arrest. However, as noted, Collins's moving papers did not identify the proposed witnesses, outline the specifics of their proposed testimony, or attach certifications from them setting forth the facts to which they would testify. On that record, Collins was not entitled to a hearing. See State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999).
In summary, Collins is belatedly seeking to relitigate a claim raised in his unsuccessful petition for PCR, and doing so without making the showing of a colorable basis required by Kennedy. Consequently, we affirm the denial of his motion for the reasons stated by the motion judge, as supplemented in this opinion.
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