July 18, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
FIDEL CIFUENTES AKA DOMINGO RIVERA, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 92-10-1906.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted June 22, 2011
Before Judges A.A. Rodriguez and LeWinn.
Defendant appeals from the January 10, 2011 order of the trial court denying his motion for discovery pursuant to Rule 3:13-3(b) and (c). We affirm.
In 1993, a jury convicted defendant of first-degree murder and a related weapons offense. On July 22, 1993, he was sentenced to an aggregate term of life with a thirty-year parole ineligibility period. Defendant appealed his conviction and sentence; we affirmed. State v. Cifuentes, No. A-3101-93 (App. Div. April 11, 1995), certif. denied, 143 N.J. 320 (1995). Defendant thereafter filed a petition for post-conviction relief (PCR) in November 1997, alleging numerous grounds of ineffective assistance of counsel. The same judge who had presided over defendant's trial and sentence denied the petition in an order of August 11, 1998; defendant appealed and we affirmed, finding that the judge properly determined that defendant had failed to make a prima facie showing of ineffective assistance of counsel. State v. Cifuentes, No. A-0882-98 (App. Div. March 27, 2000) (slip op. at 3), certif. denied, 165 N.J. 488 (2000).
Defendant filed a second PCR petition in February 2005. The judge denied this petition on March 13, 2006, finding that defendant had "failed to state a claim showing good cause. All of the issues raised . . . were either already addressed in previous proceedings or are without merit." Defendant filed a third petition, which has not been included in the appendices; however, the judge's decision of September 12, 2006, denying relief, is included and, once again, states that defendant "failed to state a claim showing good cause[,]" adding that "the issue raised in [his] current brief - namely, that lack of attorney/client consultation resulted in an incomplete exploration of [his] claims - has not only been addressed in prior proceedings, but is without merit."
Defendant filed a fourth PCR petition, which the judge denied in a letter decision of June 29, 2010, and by an order entered on the following day. The judge found that defendant's claim that his "attorney failed to pursue an intoxication and diminished capacity defense and was therefore ineffective has already been addressed in prior proceedings and is again without merit."
On or about August 2, 2010, defendant filed a motion to compel the Hudson County Prosecutor to provide him "with copies of . . . complete discovery pursuant to [Rule] 3:3-13(b) [and] (c) . . . ." Defendant certified that his trial attorney, employed by the Office of the Public Defender, "provided deficient assistance by failing to provide . . . complete discovery since the inception of this case or at any subsequent occasion . . . ." He asserted that "since the trial several good faith efforts, to no avail[,] have been made to obtain the complete discovery to promote a meaningful appeal . . . ."
Defendant contended that "the discovery is crucial to allow the advancement of a post-conviction motion to be presented based on [n]ewly [d]iscovered [e]vidence which has no time restriction[,]" citing N.J.S.A. 2A:84A-32a. Defendant further asserted that "the passage of time should be of no consequence" in deciding his motion. As support, he relied upon our unpublished opinion in State v. Glenn, No. A-2161-06 (April 28, 2008), in which the defendant had brought a similar discovery motion, ten years after his sentencing, claiming the discovery he previously received had been destroyed by a fire in prison. (Slip op. at 3.) We affirmed the motion judge's denial of the motion "without prejudice to a subsequent motion to compel the Attorney General or the . . . Prosecutor to provide defendant with copies of the requested documents." Id. at 7.
The State opposed defendant's motion, claiming that it had "satisfied its duty under Rule 3:13-3 at the outset of the case . . . ." The State further noted that defendant had failed to specify or document what efforts he made to obtain discovery from the Office of the Public Defender, adding that defendant "is seeking representation by the very same office [Public Defender] that has the ability to provide the discovery he requests."
In his January 10, 2011 decision denying relief, the judge noted:
Although this [c]court has no legal obligation to provide you with the discoverable materials in your case[,] this [c]court has inquired with the Prosecutor's Office, as well as the Office of the Public Defender, to no avail. Neither of those two offices is required to keep files for such a long period of time, and as your case is over seventeen (17) years old and the State satisfied its obligation under Rule 3:13-3 at the outset of the case, it is unlikely that you will be able to obtain all the discoverable materials regarding your case.
Furthermore, although Rule 3:13-3(b)'s post-indictment authorization for discovery has been construed as including post-conviction discovery for purposes of a post-conviction relief application, it is unclear at this time whether you are requesting discovery materials for a legal proceeding or for your own records. . . . Therefore, this [c]court does not find that your request for discovery meets the "relevancy" requirement for these types of requests.
On appeal, defendant raises the following contention for our consideration:
THE DEFENDANT SUBMITS THAT THE TRIAL COURT ERRED BY FAILING TO GRANT A MOTION TO COMPEL THE HUDSON COUNTY PROSECUTOR'S OFFICE TO PROVIDE COPIES OF POST-CONVICTION DISCOVERY PURSUANT TO [RULE] 3:13-3(b) WHICH WAS AN ABUSE OF DISCRETION AND REQUIRES REVERSAL AND REMAND FOR A HEARING BY THE COURT Having reviewed this contention in light of the record and the controlling legal principles, we are satisfied that it is "without sufficient merit to warrant discussion in a written opinion[.]" R. 2:11-3(e)(2). We affirm substantially for the reasons stated in Judge Kevin G. Callahan's written decision of January 10, 2011. We add only the following brief comments.
Defendant's reliance on State v. Glenn, supra, is misplaced. First, it is an unpublished decision; therefore, it does not "constitute precedent" and is not "binding upon" this court. R. 1:36-3. Moreover, to the extent that Glenn recognizes a defendant's right to file a motion to compel the Prosecutor's Office to provide discovery, slip op. at 7, defendant has had the opportunity to file such a motion.
Defendant's assertion that the discovery is necessary to allow him to pursue a PCR petition asserting newly-discovered evidence which, under N.J.S.A. 2A:84A-32a "has no time restrictions[,]" is without merit. The statute upon which he relies, as the State points out, relates to post-conviction motions for DNA testing; such a motion requires a defendant to explain how identification is a significant issue in his case. N.J.S.A. 2A:84A-32a(a)(1)(a). Defendant does not assert, and the record does not indicate, that identification was ever at issue, let alone a significant issue, in his trial. State v. Cifuentes, supra, No. A-3201-93, slip op. at 4.
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