On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 97-06-0797.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Skillman and Roe.
Defendant, Marc A. Jordan, appeals from a denial of a motion for a new trial based on newly discovered evidence. We affirm.
Following a jury trial in April 1999, defendant was found guilty of conspiracy, in violation of N.J.S.A. 2C:5-2; burglary, in violation of N.J.S.A. 2C:18-2; armed robbery, in violation of N.J.S.A. 2C:15-1; possession of a weapon for an unlawful purpose, in violation of N.J.S.A. 2C:39-4(a); and terroristic threats, in violation of N.J.S.A. 2C:12-3(b).
State's witness, Anthony Mazza, testified at defendant's trial that he and defendant had planned and participated in an armed robbery of John Santora. Mazza stated he pled guilty to several offenses arising out of his participation in the armed robbery, and had been sentenced to a term of fifteen years imprisonment, with a seven and one-half year period of parole ineligibility. Mazza denied having entered into a plea agreement with the State in exchange for his testimony in this case.
On direct appeal, defendant challenged several pretrial and trial decisions, and argued that he had received ineffective assistance of counsel. We affirmed defendant's conviction in an unpublished opinion, but remanded for resentencing. State v. Jordan, No. A-6545-98T4 (App. Div. June 25, 2001).
Thereafter, according to defendant, he reviewed a transcript of Mazza's plea hearing and learned for the first time the State allegedly made several promises to Mazza in exchange for his guilty plea that were not disclosed by the State and denied by Mazza at defendant's trial. Defendant filed a motion for a new trial on March 6, 2009, arguing that he was deprived of his right to due process and a fair trial when the State knowingly elicited alleged false testimony from the State's witness regarding the plea agreement.
On July 30, 2009, the court denied defendant's motion for a new trial without a hearing.
On appeal, defendant presents the following argument for our consideration:
DEFENDANT WAS DEPRIVED OF HIS RIGHT TO DUE PROCESS AND A FAIR TRIAL WHEN THE STATE KNOWINGLY ENLISTED FALSE TESTIMONY FROM ITS KEY WITNESS, ALEXANDER MAZZA, IN ORDER TO OBTAIN A TAINTED CONVICTION.
To meet the standard for a new trial based on newly discovered evidence, defendant must show new evidence was "(1) material to the issue and not merely cumulative or impeaching or contradictory; (2) discovered since the trial and not discoverable by reasonable diligence beforehand; and (3) of the sort that would probably change the jury's verdict if a new trial were granted." State v. Carter, 85 N.J. 300, 314 (1981). "Newly discovered evidence must be reviewed with a certain degree of circumspection to ensure that it is not the product of fabrication, and, if credible and material, is of sufficient weight that it would probably alter the outcome of the verdict in a new trial." State v. Ways, 180 N.J. 171, 187-88 (2004).
Newly discovered evidence of an undisclosed plea agreement with a key prosecutorial witness can be sufficient newly discovered evidence to warrant a new trial. In Giglio v. United States, 405 U.S. 150, 155, 92 S.Ct. 763, 766, 31 L.Ed. 2d 104, 109 (1972), the Court reversed a conviction for passing forged money orders on the basis that the government did not disclose that its key witness had testified in exchange for a promise that he would not be prosecuted. In State v. Taylor, 49 N.J. 440, 447-48 (1967), the Court reversed the defendant's conviction and ...