June 12, 2013
STATE OF NEW JERSEY, Plaintiff-Respondent,
DAVID NASH, Defendant-Appellant.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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. A-3744-91 (App. Div. Dec. 14, 1993). The Supreme Court denied defendant's petition for certification. State v. Nash, 135 N.J. 467 (1994).
Defendant's 1992 conviction provided a predicate, in part, for an extended term sentence as a persistent offender following defendant's conviction in 1995 of twenty-three counts of a thirty-five count indictment. Defendant was convicted of three counts of first-degree arson for pecuniary gain, N.J.S.A. 2C:17-1d; four counts of second-degree aggravated arson, N.J.S.A. 2C:17-1a; second-degree release or abandonment of hazardous or toxic waste, N.J.S.A. 2C:17-2a(2); third-degree violation of the Water Pollution Control Act, N.J.S.A. 58:10A-10(f)(2); and multiple counts for conspiracy, burglary, and theft-related offenses. The State argued that some of the crimes for which defendant was convicted were committed in retaliation against persons he believed were responsible for his 1992 conviction.
The court granted the State's motion for a discretionary extended term, N.J.S.A. 2C:44-3a, and sentenced defendant on count two to a term of life imprisonment with a period of parole ineligibility of twenty-five years. After accounting for merger and consecutive sentences imposed on various other counts, defendant's aggregate sentence was life plus forty years, with a total parole ineligibility term of forty-five years. We affirmed defendant's conviction and sentence on appeal. State v. Nash, No. A-3402-95 (App. Div. Sept. 17, 1997). In particular, we rejected defendant's argument that his sentence was manifestly excessive, given "the crimes committed, defendant's criminal history, and the requirement that society be protected from such individuals and the consequences of their unlawful acts." Id . at slip op. at 6. The Supreme Court denied certification. State v. Nash, 153 N.J. 51 (1998).
Before filing his 2008 motion for a new trial, defendant filed an unsuccessful petition for post-conviction relief from his 1992 judgment of conviction. Although the court did not disturb the conviction, by an order entered April 8, 1997, the court required reconsideration of the $25, 000 fine, which was later reduced to an aggregate of $12, 500. We affirmed. State v. Nash, No. A-2852-97 (App. Div. Oct. 29, 1999). Defendant also challenged the 1992 conviction in federal court, which dismissed his habeas corpus petition as untimely in 2001. Nash v. Hendricks, Civ. Action No. 00-2189 (D.N.J. June 21, 2001).
Defendant filed two State, and one federal, collateral attacks to his 1995 judgment of conviction. We affirmed the trial court's denial of a 1998 PCR petition. State v. Nash, No. A-2028-99 (App. Div. Apr. 25, 2001), certif. denied, 169 N.J. 611 (2001). We also affirmed the trial court's denial of a second PCR petition as untimely. State v. Nash, No. A-0721-04 (App. Div. Sept. 5, 2005), certif. denied, 186 N.J. 242 (2006).
In the meantime, in April 2002, defendant filed a federal habeas corpus petition, challenging the 1995 judgment of conviction. The District Court stayed the petition in 2004 because of unexhausted state claims. The court granted defendant's motion to reopen the petition in 2006, and in 2007 granted the State's motion to dismiss on procedural and substantive grounds. Nash v. Hendricks, No. 02-2082, 2007 U.S. Dist. LEXIS 77452 (D.N.J. Oct. 18, 2007).
On August 20, 2008, defendant filed his motion for a new trial of the 1991 charges under Rule 3:20-1. He claimed the State withheld a letter from James Wall, in which Wall admitted that he "set up" defendant. Defendant argued disclosure of the letter would have materially affected the outcome of the trial. As a result of an acquittal on the 1991 charges, defendant argued he would have received a reduced sentence on the 1996 conviction.
In support of the motion, defendant's attorney Philip Pagano submitted a certification that addressed defendant's alleged discovery of the evidence. Pagano stated:
Before the trial, the defendant made a motion to reveal the name of a confidential informant. That motion was denied. The defendant filed an action with the United States District Court. That court required the prosecutor's office to let the defendant review their files.
While reviewing the files, defendant found a 1/15/91 letter from James Wall to the prosecutor handling the file. Defendant now has the name of the informant and with this information he wants a new trial. The defendant feels he can win an acquittal of all charges and this would change the sentence of a crime he was [later] found guilty of. The 1/15/91 letter is attached hereto as Exhibit A.
Pagano attached what appears to be a signed, typed letter from James Wall, dated January 15, 1991, addressed to the assistant prosecutor handling his case, and copied generally to the Jackson Police Department. The letter stated:
Pursuant to our phone conversation last week, regarding testifying against Mr. Nash, for the illegal dumping of construction debris on his property, as I said, I agreed with Dave Burns and Skip Brownlee of the Jackson Township Police Department to set-up Mr. Nash, and that I would not have to testify in court against him.
Also, Patrolman Baird, agreed to keep my identity anonymous for the information I provided him on Mr. Nash [sic] activities, I hope you will honor my request to remain anonymous so no animosity will come between Mr. Nash and myself.
At the 2008 motion hearing, Pagano argued that Wall was in the waste disposal business and had tricked defendant into buying construction equipment from him and engaging in disposal activities that defendant did not know were illegal. Had Wall's identity been provided pre-trial, defendant would have called him to testify.
Judge Francis Hodgson denied the motion. Applying Carter, supra, the court concluded that the letter was not material. The court also referred to defendant's admissions, included in his presentence report, that he removed debris without a license, and owned the leaking oil tanks.
On appeal, defendant raises the following points for our consideration:
I. DEFENDANT'S MOTION FOR A NEW TRIAL SHOULD HAVE BEEN GRANTED
A. The Prosecutor's failure to turn over exculpatory evidence to the defense violated Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963)] and warrants the grant of a new trial.
B. Judge Hodgson's improper reliance on statements contained in defendant's PSR unduly prejudiced defendant and a new trial should be granted.
In response, the State argues that the court correctly found the letter was not material under Carter, supra, 85 N.J. at 314, because there was overwhelming evidence of defendant's guilt. Moreover, the letter was not withheld under Brady, supra, nor was it favorable and material. 373 U.S. at 87, 83 S.Ct. at 1196-97, 10 L.Ed.2d at 218. The State also questioned the genuineness of the letter.
We need not reach the issue of the letter's materiality. Simply put, defendant has failed, as a threshold matter, to present cognizable evidence to authenticate the letter, and to establish it is genuine.
Defendant relies on Pagano's certification, but Pagano does not claim any personal knowledge regarding the discovery of the letter. Instead, he stated, "While reviewing the files, defendant found a 1/15/91 letter from James Wall[.]" Nor does Pagano provide a copy of the district court's order, pursuant to which disclosures were made including, allegedly, the Wall letter.
Pagano's certification fails to comply with Rule 1:6-6, which states, "If a motion is based on facts not appearing of record or not judicially noticeable, the court may hear it on affidavits made on personal knowledge, setting forth only facts which are admissible in evidence to which the affiant is competent to testify[.]" See Celino v. Gen. Accident Ins., 211 N.J.Super. 538, 544 (App. Div. 1986). We have previously disapproved reliance on evidence presented through an attorney's certification like Pagano's:
None of the documents were certified as true copies — nor was there any authentication of the documents. See generally N.J.R.E. 901. Moreover, there is nothing that suggests the certifying attorney had any firsthand knowledge concerning the exhibits or facts contained therein. The documents were at best hearsay, once or more removed. One who has no knowledge of a fact except for what he has read or for what another has told him cannot provide evidence to support a favorable disposition[.]
Sellers v. Schonfeld,
270 N.J.Super. 424
Since Pagano's certification is not based upon his personal knowledge of the discovery of the letter, it is not competent evidence.
Moreover, defendant's implicit statement — conveyed in Pagano's certification — that defendant discovered the letter is inadmissible hearsay. See Pressler & Verniero, Current N.J. Court Rules, comment on R. 1:6-6 (2013) ("Affidavits by attorneys of facts not based on their personal knowledge but related to them by and within the primary knowledge of their clients constitute objectionable hearsay." (citations omitted)).
There also is no basis to admit defendant's statement under the principle of fundamental fairness, as recognized in State v. Bunyan, 154 N.J. 261, 271 (1998). Defendant's statement does not bear "clear indicia of reliability." Ibid. (internal quotation marks omitted). It is questionable that Wall, if he indeed wanted to avoid identification as someone who "set up" defendant, would have expressed that desire in a signed writing and sent it to both the prosecutor, and to the police department in general. Defendant has not presented the alleged court order that prompted the letter's disclosure. He also has not stated when or how he discovered it, particularly since the habeas corpus petition pertaining to the 1992 conviction was denied in 2001 — long before the 2008 motion for a new trial. Nor can defendant persuasively contend that, in the absence of the letter, "he did not receive a fundamentally fair trial." Ibid.
"Newly discovered evidence must be reviewed with a certain degree of circumspection to ensure that it is not the product of fabrication" State v Ways 180 N.J. 171187-88 (2004); see also State v Buonadonna 122 N.J. 22 51 (1991) (affirming denial of new trial motion that was based on "sketchy evidence") Defendant's motion for a new trial is not the setting to relax the procedural and evidentiary requirements for consideration of evidence outside the record