On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 90-11-2635.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 14, 2011
Before Judges Cuff and Lihotz.
Defendant Anthony Stancavich appeals from the denial of his motion seeking a new trial based on newly discovered evidence. We affirm.
On December 18, 1992, a jury convicted defendant of felony murder, N.J.S.A. 2C:11-3a(3); one count of second-degree aggravated arson, N.J.S.A. 2C:17-1a; and two counts of arson, N.J.S.A. 2C:17-1b, arising from three separate fires started on Mechanic Street in Perth Amboy over a sixteen-month period, one of which claimed the life of a fifteen-year-old boy. After merger, defendant was sentenced to imprisonment for thirty years without parole on the felony murder conviction and an aggregate consecutive term of seven years on the arson convictions. Defendant's conviction and sentence were affirmed in our unpublished opinion, and certification was denied. State v. Stancavich, A-5291-91 (App. Div. March 16), certif. denied, 142 N.J. 452 (1995).
Defendant filed his first PCR petition which was denied. Defendant advises that order was affirmed on appeal.
Defendant moved for a new trial, arguing he recently discovered new evidence disputing material facts presented to the jury. Kenneth Huber, the chief detective of the Middlesex County Prosecutor's Office Arson Unit, testified on cross-examination that defendant became the focus of the investigation based on information from a confidential informant, who was identified as defendant's mother. In his motion, defendant asserted the State used perjury to convict him in the form of Detective Huber's alleged "false testimony." He included the affidavit of Ann Chaviano, his mother, asserting she never acted as an informant for a law enforcement agency. Further, defendant attached Chaviano's certification dated September 2, 2008 to his pro se supplemental brief, in which she states: "I never implicated my son, Anthony Stancavich, as being the person who set any fires" and "I never told [Detective] Huber that my son Anthony Stancavich set any fires at all and the statement at trial during [the] testimony of [Detective] Huber before the [j]udge and jury on January 27, 1992 that I stated that Anthony had set the fires is untrue and false."*fn1
In a written opinion, Judge John H. Pursel denied defendant's motion. On appeal, defendant argues:
PROOF THAT DETECTIVE HUBER'S TRIAL TESTIMONY THAT DEFENDANT'S MOTHER WAS AN INFORMANT AND HAD IMPLICATED DEFENDANT IN THE FIRES WAS FALSE ENTITLED DEFENDANT TO A NEW TRIAL. ACCORDINGLY, THE LOWER COURT'S DECISION DENYING DEFENDANT'S MOTION FOR A NEW TRIAL BASED ON NEWLY DISCOVERED EVIDENCE MUST BE REVERSED.
In a pro se supplemental brief, defendant additionally asserts:
DEFENDANT'S MOTION FOR A NEW TRIAL MUST BE GRANTED PURSUANT TO R. 3:20-2, AS THE ALLEGED SIGNED STATEMENTS AND TAPE RECORDED STATEMENTS OF THE DEFENDANT WERE OBTAINED BY BEATING THE DEFENDANT WHILE HANDCUFFED TO A CHAIR, AND THREATS OF MORE BEATINGS. THE MATERIALITY OF THE STATEMENTS AND THE TESTIMONY OF ANN CHAVIANO, DEFENDANT'S MOTHER, FROM AN ALLEGED JUNE 19, 1990 INTERVIEW WITH DETECTIVE SGT. KENNETH HUBER IMPLICATING THE DEFENDANT AT TRIAL AS AN ALLEGED SUSPECT IN THE FIRES AND STATING CHAVIANO WAS AN INFORMER IN HUBER'S TRIAL TESTIMONY TO THE JURY (NOW NEW EVIDENCE, CERTIFICATION OF ANN CHAVIANO, DISCOVERED SEPT. 2, 2008), ALLOWING THE JURY AT TRIAL TO INFER THAT DEFENDANT WAS GUILTY OF THE CRIMES CHARGED. THE CRIMINAL JUSTICE SYSTEM CAN NEVER DISREGARD MISCONDUCT BY COURTS, PROSECUTORS, OR POLICE IN THE FULFILLMENT OF THEIR PUBLIC DUTIES. THIS DEPRIVED DEFENDANT OF A FAIR TRIAL BY AN IMPARTIAL JURY, THE RIGHT TO DEFEND LIFE AND LIBERTY WITH DUE PROCESS OF LAW BY UNDERMINING THE (ALIBI) DEFENSE WITH FALSE FACTS. THE FACTS PRESENTED WERE OBTAINED BY COERCED STATEMENT CONTRARY TO THE FIFTH, SIXTH AND FOURTEENTH AMENDMENT(S) OF THE U.S. CONSTITUTION AND ARTICLE 1 PARAGRAPH 10 OF THE CONSTITUTION OF NEW JERSEY (1947).
Following our review, in light of the record and applicable law, we conclude defendant's arguments are without merit. R. 2:11-3(e)(2). We affirm, essentially for the same reasons stated in Judge Pursel's opinion, and add these brief comments.
"A jury verdict rendered after a fair trial should not be disturbed except for the clearest of reasons." State v. Ways, 180 N.J. 171, 187 (2004). Claims of "[n]ewly 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." Id. at 187-88. To safeguard those who may have been unjustly convicted, we assess evidence that may cast doubt on the validity of a jury verdict, applying the three-pronged test established in State v. Carter, 85 N.J. 300, 314 (1981). The Court stated that to qualify as newly discovered evidence entitling a party to a new trial, the new evidence must be (1) material to the issue and not merely cumulative or ...