On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 03-09-1773.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Axelrad and Parrillo.
Defendant Kenneth Lewis appeals from the February 9, 2011 order of the Law Division denying his petition for post-conviction relief (PCR), alleging newly discovered evidence and ineffective assistance of trial counsel, and requesting an evidentiary hearing. We affirm.
The record reflects that Jennifer Cole, the intended victim, had received a notice of approval of a loan for which she had not applied. She determined that an $8900 loan had been approved and Fleet Bank had her name, address, and social security number. She notified both the bank branch and the police department in her municipality of the potential identity theft.
On March 10, 2003, co-defendant Lawanda Slade appeared at the local bank branch to close the loan, representing herself as Cole and producing a driver's license, credit card, and telephone bill in Cole's name. While Slade was engaged by the police inside the bank, defendant was parked outside. Defendant initially denied any involvement with Slade, claiming he had simply driven a friend from New York to the bank in Bergen County at her request; however, he later admitted to police she was the mother of his toddler who was in the car. Defendant advised police the car he was driving belonged to his nephew, who was in the military, and he had been using it for about four months.
Defendant consented to a search of the vehicle, during which police found a phone bill in the name of Sabrina Breed; a legal pad containing various names and addresses, including that of Cole; a piece of paper containing Cole's social security and phone numbers; a piece of an envelope containing the names Jacqueline Labasco and Cole, and their addresses, dates of birth, and phone and social security numbers; and a folder containing two photographs of an unidentified woman, as well as a piece of paper containing the name Ruby Paulson along with other identifiers such as her hair and eye color and date of birth. Defendant denied any knowledge of the documents and claimed they belonged to the woman he drove to the bank.
Slade was arrested and initially told police that defendant merely gave her a ride from New York to New Jersey in his car and had no idea what she was planning. On March 11, 2003, however, Slade gave a statement to the Bergen County Prosecutor's Office in which she provided a detailed description of the scheme and defendant's leading role in it, including that defendant gave her the information on Cole, told her to study it, and drove her to the bank to get the money. Slade also mentioned several other times that defendant provided her with a false identity, which she used to fraudulently obtain money from Fleet Banks.
Defendant and Slade were charged with third-degree attempted theft by deception (count one), third-degree identity theft (count two), fourth-degree exhibition of a false driver's license (count three), third-degree credit card theft (count five), and second-degree endangering the welfare of a child (count six). Defendant was additionally charged with third-degree unlawful sale of a false document, a driver's license, issued by a government agency (count four). Prior to trial, the State dismissed counts four and six.
In May 2004, defendant was tried alone, during which co-defendant invoked her right under the Fifth Amendment and refused to testify on defendant's behalf. The court declined to admit as hearsay a letter Slade wrote in which she claimed to have implicated defendant as the mastermind of the scheme because she feared going to jail for a long period of time. Defendant was convicted by a jury of all the remaining charges. Slade pled guilty to counts one, two, and three on May l7, 2004. On June 11, 2004, defendant was sentenced on counts one, two, and five to concurrent four-year custodial terms, and on count three to a concurrent eighteen-month term, and was ordered to pay monetary penalties.
We affirmed defendant's convictions and sentence. State v.
Lewis, No. A-0049-04 (App. Div. July 25, 2005). On June 13, 2006, the Supreme Court denied defendant's petition for certification. State v. Lewis, 187 N.J. 492 (2006). Defendant unsuccessfully pursued relief in the federal court system, filing petitions for habeas corpus relief. His petition was dismissed for failure to exhaust available state court remedies, Lewis v. Burtt, No. 0:07-458-TLW-GCK (D.S.C., Sept. 25, 2008), which was affirmed, Lewis v. Burtt, 324 F.App'x 223 (4th Cir. 2009). The United States Supreme Court denied defendant's petition for certiorari, Lewis v. Burtt, ___ U.S. ___, 130 S. Ct. 803, 175 L. Ed. 2d 565 (2009), and his petition for rehearing, Lewis v. Burtt, ___ U.S. ___, 130 S. Ct. 1573, 176 L. Ed. 2d 156 (2010).
On April 5, 2010, defendant filed a PCR petition by a pro se submission, supplemented by counsel. Defendant asserted he was entitled to a new trial because of newly discovered evidence, namely, co-defendant's post-trial waiver of her privilege against self-incrimination, affidavit confirming she had written the letter in question, and anticipated proffered testimony if permitted to testify. Defendant also argued ineffective assistance of trial counsel, who failed to conduct an adequate pretrial investigation and interview critical witnesses, specifically Ruby Paulson, a family friend, and Donell Lewis, his nephew, who would have provided an explanation for Paulson's documents found in the car. Defendant further argued the PCR application was not time-barred, though it was filed ...