On appeal from Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 91-07-0599.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 11, 2011
Before Judges Baxter and Koblitz.
Defendant appeals from the trial court order denying his petition for post-conviction relief (PCR). After reviewing the record in light of the contentions advanced on appeal, we affirm.
After the State's motion to try defendant as an adult was granted, pursuant to N.J.S.A. 2A:4A-26, a jury convicted defendant of conspiracy to commit robbery, N.J.S.A. 2C:5-2, felony murder during the commission of a sexual assault, N.J.S.A. 2C:11-3a(3); robbery, N.J.S.A. 2C:15-1a(1); two counts of aggravated sexual assault, N.J.S.A. 2C:14-2a(3) and N.J.S.A. 2C:14-2a(5)(a); burglary, N.J.S.A. 2C:18-2a(1); and three counts of theft, N.J.S.A. 2C:20-3a. Defendant appealed, and we affirmed his conviction and sentence. State v. Spencer, No. A-3771-93T3 (App. Div. August 6, 1997).
In that opinion, we set forth the factual basis underlying defendant's conviction:
Defendant was involved in a burglary of a private residence in the early morning hours of May 22, 1989. The victim, who suffered from physical illnesses including a heart condition, was home at the time. She was sexually assaulted and died as the result of "stress cardiomyopathy" or a "cardiac infarction."
Tried alone, defendant denied any participation in the event. He asserted that his statements to the police, including a recorded statement in which he admitted his involvement in the burglary and theft but not the sexual assault, were coerced and involuntary due to his age. He also asserted that because he was at home or going to work at the time the incident had to have occurred, he could not have been involved.
The Supreme Court denied defendant's petition for certification. State v. Spencer, 152 N.J. 189 (1997).
On January 14, 1999, defendant, represented by counsel, filed a PCR*fn1 petition. On March 13, 2008, defendant, represented by new counsel, filed another PCR petition incorporating by reference the earlier petition as well as a motion for a new trial based on newly discovered evidence. This motion was based on a certification from a witness, Donna Herbst Ridgeway, who, in 1989, visited one of defendant's unindicted co-conspirators, Keith Chambers, in jail. She certified that Chambers, who died in 1994, told her that defendant "had nothing to do with" the murder. Ridgeway certified that she wrote defendant and was subsequently contacted by both of defendant's PCR attorneys.
The trial court denied defendant's motion for a new trial and his PCR petition after oral argument without conducting a plenary hearing, and this appeal followed. Defendant ...