On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 99-10-3250.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Sabatino and Kennedy.
Defendant Carlos Alves appeals from a June 17, 2011 order denying his motion for post-conviction discovery. Defendant was convicted in 2001 of murder, N.J.S.A. 2C:11-3(a), for strangling to death his girlfriend, Maria Lobo. Defendant appealed his conviction and we affirmed. State v.Alves, No. A-4355-00 (App. Div. Jan. 23, 2003). The Supreme Court denied defendant's petition for certification. State v. Alves, 178 N.J. 455 (2004).
Defendant thereafter pursued a post-conviction relief (PCR) application which was denied by the trial court. We affirmed the denial of the PCR application, State v. Alves, No. A-6331-07 (App. Div. April 19, 2010), and the Supreme Court denied certification. 203 N.J. 440 (2010).
Defendant thereafter filed a motion for discovery and on June 17, 2011, the trial court denied the motion, holding that defendant "does not have a right to discovery post-disposition." This appeal followed.
The facts of the crime are taken from our opinion affirming the denial of defendant's PCR application:
According to the State's proofs, defendant and Lobo had dinner together in the[ir] apartment on the evening of Wednesday, August 11, 1999. Later that night, defendant strangled Lobo. The following day, Thursday, August 12, defendant booked and boarded a flight to Portugal, where his father was ill. Lobo, a cleaning woman, did not appear at her work sites on either that day or the following day, Friday, August 13. Her dead body was found on the sofa on Saturday, August 14, after police and firefighters broke into the locked apartment. She was wearing the same clothes that a neighbor had seen her wearing on Wednesday, August 11.
Defendant was located in Portugal and he returned to the United States the next day. After receiving Miranda*fn1 warnings, he was interviewed by the police in Portuguese, and he gave a formal statement. In his statement, defendant denied that he had killed Lobo. He insisted that they had both left the apartment on the morning of Thursday, August 12, stopped at a bakery, and then went off to their respective jobs. He maintained that he was in Portugal when Lobo was fatally attacked. At trial, his counsel suggested that the murderer could have been a third-party intruder into the apartment, because Lobo's pocketbook and keys were missing.
There was competing forensic proof at trial contesting the time of the victim's death, including an analysis of the undigested food found in her stomach post mortem. The State's expert, the medical examiner who performed the autopsy, opined that the victim died between sixty and seventy-two hours before her body was discovered around noon on August 14, thereby supporting the State's contention that she was killed on Wednesday, August 11. The medical examiner further opined that the victim had died approximately two hours after her last meal. A defense expert, on the other hand, estimated that the victim had died only thirty-six to forty-eight hours before she was found (i.e., after defendant had already departed to Portugal).
Defendant did not testify at trial. However, his police statement was admitted into evidence.
[State v. Alves, supra, slip op. at 2-3.]
The discovery that defendant sought by motion filed approximately ten years after ...