NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 27, 2012
On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 90-10-1134.
Joseph E. Krakora, Public Defender, attorney for appellant (Lora B. Glick, Designated Counsel, on the brief).
Marlene Lynch Ford, Ocean County Prosecutor, attorney for respondent (Samuel Marzarella, Supervising Assistant Prosecutor, of counsel; Nicholas D. Norcia, Assistant Prosecutor, on the brief).
Before Judges Ostrer and Kennedy.
Defendant appeals from the trial court's order denying his 2008 motion to vacate a 1992 judgment of conviction and to grant him a new trial pursuant to Rule 3:20-1. Defendant relied on the alleged discovery of a letter, purportedly from an informant, who admitted he "set up" defendant. Applying State v. Carter, 85 N.J. 300, 314 (1981), the court denied the motion. We have reviewed defendant's arguments in light of the facts and applicable law, and affirm.
Defendant was indicted on October 3, 1990, and charged with fourth-degree knowingly operating an unauthorized sanitary landfill facility, N.J.S.A. 48:13A-6.1 and -12 (count one); fourth-degree knowingly engaging in the business of solid waste collection or disposal without a certificate, N.J.S.A. 48:13A-6 and -12a (count two); and third-degree reckless release and abandonment of toxic pollutants as defined in N.J.S.A. 58:10A-3, N.J.S.A. 2C:17-2a(2) (count three).
The case began when police in Jackson Township stated they received a tip about illegal dumping on defendant's property. Defendant unsuccessfully sought disclosure of the informant. At defendant's 1991 trial, police lieutenant David Burns testified that a call from a code enforcement officer prompted him to visit defendant's property on May 25, 1990. He observed a twenty-feet wide, eight-feet deep hole, and a trailer filled with construction debris.
One evening about a month later, Jackson police officer Denis Baird observed a substantial amount of construction debris, a large crane, and a mound of dirt about fifteen-feet high. Upon a dispatcher's report of dumping on defendant's property, the officer returned the same day to find the trailer emptied, the crane replaced by a bulldozer, the mound lowered, and the pit filled with soft dirt from which construction materials emerged. A subsequent search pursuant to a warrant uncovered materials from the truck, household waste, tree trunks and roots, and automotive parts, discovered in layers, indicating burial over time. Several large tanks, one leaking what was later confirmed to be a petroleum product, were also unearthed.
A search of defendant's office also discovered evidence that James Wall had sold defendant equipment, including a tractor and trailers. The State also called a witness who testified he paid defendant in May 1990 to remove debris from his construction project. Defendant called a witness who claimed to have seen a man other than defendant clear ground behind defendant's house about four to six years earlier and bury various items in a big hole.
In October 2011, defendant was found guilty of all counts after a jury trial. At sentencing, the court denied the State's motion for a discretionary extended term as a persistent offender pursuant to N.J.S.A. 2C:44-3a. The court sentenced defendant, then forty-one years old, to concurrent prison terms of five years on count three, and three years each on counts one and two, and imposed a $25, 000 fine. We affirmed defendant's conviction on counts two and three, but reversed on count one. State v. Nash, No. ...