On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 95-07-2488.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued: September 27, 2010 -- Decided:
Before Judges Grall and C.L. Miniman.
Defendant Herron Alston appeals from the denial of his verified petition for post-conviction relief (PCR) and his motion for a new trial. We affirm.
Defendant and his co-defendant, Reginald Davis, were indicted on July 19, 1995, and charged with second-degree conspiracy to commit murder, contrary to N.J.S.A. 2C:5-2 and N.J.S.A. 2C:11-3 (count one); first-degree purposeful or knowing murder, contrary to N.J.S.A. 2C:11-3a(1), (2) (count two); third-degree unlawful possession of a handgun, contrary to N.J.S.A. 2C:39-5b (count three); and second-degree possession of a handgun for an unlawful purpose, contrary to N.J.S.A. 2C:39-4a (count four).
Tried with his co-defendant, the jury convicted defendant of aggravated manslaughter, a lesser-included offense to murder, and both weapons offenses. State v. Alston (Alston I), 312 N.J. Super. 102, 105 (App. Div. 1998). Defendant appealed, and we reversed his convictions on May 29, 1998. Id. at 116.
Defendant and his co-defendant were subsequently retried during December 1999 on the aggravated manslaughter charge and the two weapons offenses. The jury again found defendant guilty of all three offenses. The judge merged count four with count two for sentencing purposes and imposed an extended term of life imprisonment with a twenty-five-year period of parole ineligibility for aggravated manslaughter and a concurrent five-year term on count three. Defendant again appealed, we affirmed his conviction and sentence, and the Supreme Court denied defendant's petition for certification. State v. Alston (Alston II), No. A-3453-00 (App. Div. Feb. 8, 2002), certif. denied, 174 N.J. 41 (2002).
Thereafter, defendant filed his PCR petition alleging ineffective assistance of counsel. He subsequently filed a new-trial motion based on alleged newly discovered evidence. The judge conducted an evidentiary hearing to determine the issues, after which the judge denied all relief. Defendant appealed and raises the following issues for our consideration:
POINT ONE - THE PCR COURT ERRONOUSLY RULED THAT [DEFENDANT] WAS NOT DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL GUARANTEED BY [N.J. CONST.] ART. I, [¶] 10 AND THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION. POINT TWO - THE TRIAL COURT ERRONOUSLY RULED THAT [DEFENDANT] WAS NOT ENTITLED TO A NEW TRIAL BASED UPON THE FAILURE OF THE STATE TO TURN OVER EVIDENCE THAT THE PRIMARY WITNESS AT TRIAL, [M.W.], HAD BEEN ARRESTED FOR ENDANGERING THE WELFARE OF HER CHILD WHICH LED TO A LENGTHY DYFS INVESTIGATION THAT RESULTED IN THE TERMINATION OF HER PARENTAL RIGHTS FOR THREE OF HER CHILDREN.
POINT THREE - DEFENDANT IS ENTITLED TO A NEW TRIAL BASED UPON NEWLY DISCOVERED EVIDENCE THAT THE STATE'S PRIMARY WITNESS, [M.W.], RECANTED HER IDENTIFICATION OF DEFENDANT AS THE SHOOTER, WAS ON PRESCRIPTION MEDICATION WHICH CAUSED HER TO BE CONFUSED[,] AND HAD BEEN ARRESTED FOR ENDANGERING THE WELFARE OF HER CHILD WHICH LED TO A LENGTHY DYFS INVESTIGATION THAT RESULTED IN THE TERMINATION OF HER PARENTAL RIGHTS FOR THREE OF HER CHILDREN.
These are the facts relevant to the issues on appeal. Defendant's convictions arise from the fatal shooting of Paul Magliero on January 6, 1995, in Newark. Alston II, supra, slip op. at 2-6. According to Magliero's cousin, John Coccia, he and Magliero purchased cocaine a few times per week in the area of Sanford Avenue and Silver Street. Coccia "would do the buying" while Magliero waited in the car because Magliero had cheated the drug dealers in this area on several occasions. Magliero would drop Coccia off a few blocks from where they would purchase drugs. After Coccia made a purchase, he would walk back to the car.
On January 6, 1995, fifteen-year-old M.W. was at the home of her boyfriend, Lamar Brown, at 43 Silver Street. They were sitting on the front steps in the rain when they saw a car stop in front of a white house on Sanford Avenue near the intersection with Silver Street. M.W. testified that she observed defendant and his co-defendant standing near the car and saw defendant approach the driver's side. Defendant asked the driver, "[A]ren't you the one who owe[d] me some money back in the summer[?]" She further testified that the co-defendant also approached the car and said, "[Y]eah, get him."*fn1 She testified that defendant took out a gun and shot Magliero twice, causing his death.
Newark Police Detective Rashid Sabur spoke with M.W. on January 12, 1995, and she indicated that she had heard rumors about the homicide but did not have personal knowledge of it. However, when Sabur again interviewed M.W. on February 9, 1995, she admitted seeing the murder and identified both defendant and his co-defendant from photo arrays.
Sabur also spoke with Brown, who initially stated that he did not have any information about the homicide. However, like M.W., Brown later gave a statement identifying both defendant and co-defendant as the perpetrators and selected their pictures from photo arrays. Later, he recanted his identification in an unsworn statement and then testified at the retrial that he was not a witness to the homicide. These inconsistencies were introduced at the retrial.
In his January 20, 2005, PCR petition, defendant stated that his retrial attorney had represented him during the first appeal. He claimed that his attorney consulted with him only once during the appeal and never met with him thereafter. As a consequence, he asserted that he was denied the effective assistance of counsel. He further alleged that he was prejudiced by this lack of consultation because he was deprived of the opportunity to discuss an alibi defense and to discuss whether he should testify on his own behalf.
Defendant also asserted that M.W. was the only witness who testified that she saw him shoot Magliero and, without her testimony, the State could not prove its case beyond a reasonable doubt. He then claimed a Brady*fn2 violation based on the State's failure to advise him that M.W. had been charged with second-degree child endangerment on March 20, 1997, for an offense committed on June 11, 1996, and that the charges were dismissed on March 24, 1997, while his first appeal was pending. Defendant was not apprised of this charge and its disposition during his retrial.
On September 4, 2007, defendant filed an application for a new trial pursuant to Rule 3:20 based on newly discovered evidence. Defendant asserted that, in a May 10, 2007, statement to a defense private investigator, M.W. recanted her identification of him as the shooter. She asserted that she was not even outside during the evening of the shooting and did not see it. She also advised the investigator that her parental rights to her three children had been terminated and that she took Tegretol for seizures. The State opposed this motion.
The judge heard defendant's PCR and new-trial applications on September 25, 2008; December 22, 2008, which was an evidentiary hearing; and May 21, 2009. The following evidence was adduced at the evidentiary hearing, at which defendant, M.W., and the attorney who represented defendant on his first appeal and retrial testified.
Defendant testified that his mother retained his attorney to represent him on his appeal and admitted that his attorney knew a lot about his case. Immediately before his retrial, defendant was ...