On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 93-08-1826.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Cuff and Waugh.
Defendant appeals from the denial of his motion for a new trial*fn1 based on allegedly withheld exculpatory evidence. A jury found defendant guilty of two counts of felony murder, two counts of armed robbery, and one count of possession of a handgun for an unlawful purpose. He is serving consecutive life terms with thirty-year parole disqualifiers. We affirmed defendant's conviction and sentence on direct appeal, State v. Hannah, No. A-5022-94 (App. Div. December 11, 1997); the Supreme Court denied certification, 153 N.J. 217 (1998). Defendant's first petition for post-conviction relief (PCR) was denied; we remanded for a evidentiary hearing. State v. Hannah, No. A-6424-99 (App. Div. Jan. 31), certif. denied, 174 N.J. 41 (2002). Following an evidentiary hearing, the petition was denied; we affirmed. State v. Hannah, No. A-6379-01 (App. Div. Nov. 7, 2003), certif. denied, 178 N.J. 453 (2004). Defendant filed a motion for new trial based on newly discovered evidence. The motion was denied; defendant appealed, and the matter was remanded for an evidentiary hearing to determine whether a Brady*fn2 violation occurred. State v. Hannah, No. A-3788-07 (App. Div. June 19, 2009). Following the evidentiary hearing, the judge found the State did not withhold exculpatory evidence and denied the motion. Defendant also filed a motion for recusal. The judge denied this motion and defendant appeals from both orders. We reverse the order denying defendant's motion for recusal and remand for a new evidentiary hearing.
The conviction arises from the shooting of two drugs dealers by two men in Jersey City. The jury found that defendant and William LaCue lured Luis Flores and Angel Salazar to Jersey City under the pretense that defendant and LaCue wanted to purchase a large quantity of heroin for distribution by them. When Flores and Salazar arrived in Jersey City, two men entered their car, shot them and took the heroin. When arrested, LaCue implicated defendant, who was arrested, indicted, and eventually convicted of two counts of felony murder, among other charges.
Defendant has insisted throughout these proceedings that another person, referred to variously as Maurice Thomas, Mo-T, and Big Mo-T, was the second man in the car with LaCue. As developed more completely in the evidentiary hearing conducted to address defendant's first PCR petition, defendant admitted he was in the vicinity when Flores and Salazar were shot and killed. He has consistently maintained, however, that Mo-T was the second shooter, and the State withheld evidence from him at trial that placed Mo-T in the victim's car.
Defendant filed a request in 2007 for the discovery provided to his defense attorney prior to his 1993 trial. On receipt, defendant discovered a six-page supplementary report dated June 8, 1993, prepared by Lieutenant Charles Lee Redd (Redd Report), of the Hudson County Prosecutor's Office. Redd related that a pager found at the scene of the shooting was traced to a person known as Rabb. Defendant is known as Rabb. According to the Redd Report, when an officer paged the number, Mo-T, not defendant, responded. Arguing that the Redd Report had not been provided to him or his attorney prior to his 1993 trial and insisting that this evidence established Mo-T was LaCue's companion, defendant filed a motion for a new trial.
At the conclusion of the new-trial evidentiary hearing, defendant argued the judge should recuse himself because he was the Hudson County Prosecutor from 1997-2002. During that time, this court rendered its opinion on defendant's direct appeal, defendant filed a PCR petition, and this court reversed the denial of the first PCR and remanded for an evidentiary hearing. During the time the judge served as county prosecutor, the evidentiary hearing was conducted and the petition was denied, and defendant filed a notice of appeal. When we affirmed denial of the first PCR, Judge Theemling was no longer prosecutor.
On appeal, defendant raises the following arguments:
THE PCR II JUDGE SHOULD HAVE RECUSED HIMSELF FROM DECIDING WHETHER THE HUDSON COUNTY PROSECUTOR'S OFFICE VIOLATED BRADY V.
MARYLAND, 373 U.S. 83 (1963), BECAUSE HE WAS FORMERLY THE HUDSON ...