Case Number: A-0639-15T2
Judge: Richard S. Hoffman
Court: SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION
Plaintiff's Attorney: Andrew C. Carey
Middlesex County Prosecutor
Brian D. Gillet
Deputy First Assistant
Defendant's Attorney: Monique Moyse
Joseph E. Krakora
Public Defender Prosecutor
Description: Defendant Gary S. Harris appeals from an August 24, 2015
order of the Law Division denying his petition for post-conviction
relief (PCR) couched as a "motion for a new trial."1 Defendant
argues he was deprived of a fair trial based upon ineffective
assistance of counsel and other constitutional violations.
Defendant also contends that the motion judge erred by deciding
his motion without oral argument. We disagree and affirm.
The facts resulting in defendant's conviction and sentence
are set forth in our opinion in State v. Harris, No. A-7683-95
(App. Div. Jan. 5, 1998), certif. denied, 156 N.J. 386 (1998). In
his direct appeal, defendant raised eight arguments. We rejected
defendant's arguments on appeal and affirmed his conviction.
Defendant's petition for certification was denied on June 30,
We need not repeat the facts leading to defendant's
conviction. However, we detail defendant's judicial filings since
his conviction as those filings are pertinent to this appeal.
In or around May 2000, defendant filed his first PCR petition,
arguing that his trial and appellate counsel were ineffective and
that his trial counsel had a conflict of interest. An evidentiary
1 This is defendant's seventh attempt to overturn his conviction/sentence. His arguments in this appeal are duplicative of claims previously raised and adjudicated before other courts.
hearing was conducted. On June 6, 2000, the judge denied PCR
Defendant appealed the denial of his first PCR petition. On
appeal, defendant argued his trial counsel had an alleged conflict
of interest and failed to move for dismissal of the indictment.
We affirmed the denial of defendant's first PCR petition on October
29, 2002. Defendant's petition for certification was denied. See
State v. Harris, No. A-6184-99 (App. Div. Oct. 29, 2002), certif.
denied, 176 N.J. 279 (2003).
On May 5, 2004, defendant filed a petition for a writ of
habeas corpus in the United States District Court for the District
of New Jersey. Before the federal court, defendant argued that
his trial counsel had a conflict of interest, his appellate counsel
was ineffective in failing to raise the conflict issue, and the
trial was tainted by prosecutorial misconduct. On November 29,
2005, the federal court dismissed the petition, with prejudice,
as untimely. Harris v. Hendricks, No. 04-2125, 2005 U.S. Dist.
LEXIS 30201 (D.N.J. Nov. 29, 2005).
In or around February 2007, defendant filed a motion to
correct an illegal sentence, realleging ineffective assistance of
trial counsel. The motion judge treated defendant's motion as a
second PCR application and denied the petition as substantively
and procedurally deficient. Defendant's request for
reconsideration was denied.
Defendant appealed the denial of his 2007 motion to correct
an illegal sentence, arguing he was deprived of a fair trial and
his state and federal constitutional rights were violated. On
June 11, 2008, we found defendant's appeal of his 2007 motion was
"absolutely without merit," and the Court denied certification.
State v. Harris, No. A-5022-06 (App. Div. June 11, 2008) (slip op.
at 3), certif. denied, 196 N.J. 596 (2008).
In or around March 2009, defendant filed a second motion to
correct/vacate an illegal sentence. That motion was denied on
March 13, 2009, and defendant appealed. In his appeal, defendant
alleged violation of his constitutional rights, ineffective
assistance of trial counsel, and "all points raised by defendant
in any and all prior submissions to the court." In denying
defendant's appeal, we found that defendant's "arguments have been
addressed and rejected on several occasions." State v. Harris,
No. A-3781-08 (App. Div. Apr. 27, 2010) (slip op. at 3), certif.
denied, 203 N.J. 607 (2010).
On September 10, 2010, defendant moved for a new trial based
on newly discovered evidence. Defendant again claimed ineffective
assistance of trial counsel, albeit on a different basis, by
alleging his trial counsel should have challenged his arrest
warrant because the warrant was based upon false statements and
lacked probable cause. On August 18, 2011, the judge denied the
motion, finding that defendant's ineffective assistance claim was
procedurally barred and that his motion for a new trial failed to
satisfy any of the elements warranting a new trial.
On March 1, 2012, defendant filed another PCR petition. By
order dated September 27, 2012, the judge denied defendant's third
PCR application as untimely.
On February 22, 2015, defendant again moved for a new trial
based on newly discovered evidence. The "new evidence" was
defendant's repeated claim that his arrest warrant was based on
false information. The "new evidence" also included defendant's
discovery that his trial counsel was also the New Brunswick
Planning Board attorney, which defendant alleged created a
conflict of interest. On August 24, 2015, the judge denied
defendant's motion without oral argument. The judge expressly
found that defendant's claims had either been raised and
adjudicated in defendant's prior motions and/or were procedurally
On appeal, defendant, through his assigned counsel and in his
pro se brief, raises the following arguments:
THIS MATTER MUST BE REMANDED FOR ORAL ARGUMENT.
MR. HARRIS IS ENTITLED TO A REMAND ON HIS MOTION FOR NEW TRIAL BASED ON NEWLY DISCOVERED EVIDENCE.
PROSECUTORIAL MISCONDUCT THROUGHOUT THE PROCEEDINGS DEPRIVED DEFENDANT OF HIS RIGHTS TO DUE PROCESS OF LAW, TRIAL BY JURY AND RIGHT TO A FAIR TRIAL AGAINST ALL POLICY, LAW, AND JUSTICE AND IN VIOLATION OF U.S. CONST. AMENDS. V, VI, AND XIV AND N.J. CONST. (1947) ART. 1, PARAS. 1, 9, AND 10.
THE DEFENDANT'S RIGHT TO BE FREE FROM ILLEGAL SEARCH AND SEIZURE UNDER U.S. CONST. AMEND. IV WAS VIOLATED DUE TO THE FALSE STATEMENTS WITHIN THE AFFIDAVITS BY THE ALLEGED VICTIM, WHICH MISLED THE MUNICIPAL JUDGE'S DETERMINATION OF "PROBABLE CAUSE." POINT V
IT IS A VIOLATION OF U.S. CONST. AMEND IV TO KNOWINGLY AND INTENTIONALLY, OR WITH RECKLESS DISREGARD FOR THE TRUTH, INCLUDE FALSE STATEMENTS IN AN AFFIDAVIT FILED IN SUPPORT OF A WARRANT.
THE TRIAL COURT ERRED IN THE PROCEEDING BY VIOLATING THE DEFENDANT'S SUBSTANTIVE AND PROCEDURAL DUE PROCESS RIGHTS, IN VIOLATION OF THE LAW, CORRECT PROCEDURES, AND THE FUNDAMENTAL RIGHTS OF THE DEFENDANT. THIS CAUSED PROCEDURAL AND JURISDICTIONAL DEFECTS
WITHIN THE TRIAL MECHANISM, RENDERING IT INVALID.
THE TRIAL COURT'S IMPROPER DECISION AND ABUSE OF DISCRETION CONSTITUTED ERROR, BAD FAITH, PREJUDICE, AND BIAS, WHICH CAUSED PROCEDURAL AND JURISDICTIONAL DEFECTS WITHIN THE TRIAL MECHANISM AND CLEARLY DENIED THE DEFENDANT HIS RIGHT TO A FAIR TRIAL AND DUE PROCESS OF LAW, IN VIOLATION OF U.S. CONST. AMENDS. VI AND XIV AND N.J. CONST. (1947) ART. 1, PARAS. 1, 9, AND 10.
THE TRIAL COURT AND THE STATE LOST ALL SUBJECT MATTER JURISDICTION OVER PETITIONER'S TRIAL PROCEEDINGS ON FEBRUARY 22, 1996 DUE TO UNCONSTITUTIONAL MANIPULATION OF THE INDICTMENT PRIOR TO OPENING STATEMENTS OVER THE OBJECTION OF PETITIONER WHE[N] THEY OMITTED A MATERIAL ELEMENT OF THE OFFENSE THE GRAND JURY HAD CHARGED WITHIN THE INDICTMENT THAT WOULD'VE EXONERATED AND PROVED PETITIONER'S ACTUAL INNOCENCE AT TRIAL. DUE TO THIS UNLAWFUL ACTION THE JURISDICTION WAS LOST TO CONTINUE TO "TRY" OR SENTENCE PETITIONER, CAUSING HIM TO BE ILLEGALLY AND UNLAWFULLY CONFINED IN VIOLATION OF HIS RIGHTS UNDER U.S. CONST. AMEND[S]. IV, VI, AND XIV AND N.J. CONST. (1947) ART. 1 PARAS. 1, 9, AND 10.
Our review of defendant's appeal requires the application of
several standards, including the criteria governing PCR
applications, new trial motions, and oral argument of PCR
Rule 3:22-4(b) places strict limitations on second and
subsequent petitions for post-conviction relief. The Rule compels
dismissal of a subsequent petition for PCR unless a defendant can
satisfy the time requirement within which to seek such relief and
the substantive grounds for such relief.
Rule 3:22-12(a)(2) imposes a time limitation for subsequent
PCR petitions. In this case, defendant's application is a
subsequent petition and therefore must be filed within one year
after "the date on which the factual predicate for the relief
sought was discovered, if that factual predicate could not have
been discovered earlier through the exercise of reasonable
diligence." R. 3:22-12(a)(2)(B).
"[A] motion for a new trial is addressed to the sound
discretion of the trial judge, and the exercise of that discretion
will not be interfered with on appeal unless a clear abuse has
been shown." State v. Armour, 446 N.J. Super. 295, 306 (App.
Div.) (alteration in original) (quoting State v. Russo, 333 N.J.
Super. 119, 137 (App. Div. 2000)), certif. denied, 228 N.J. 239
"The question of whether oral argument is granted on a
petition for post-conviction relief remains within the sound
discretion of the [PCR] court." State v. Mayron, 344 N.J. Super.
382, 387 (App. Div. 2001). We review such decisions under an
abuse of discretion standard. See State v. Parker, 212 N.J. 269,
Having reviewed the record, we concur with the judge that
defendant's claims are procedurally barred by the New Jersey Court
Rules. We also agree with the judge that defendant's claims are
based on unfounded assertions and could have been discovered sooner
through the exercise of reasonable diligence. We likewise find,
as did the judge, that oral argument was not required to decide
defendant's seventh application challenging his judgment of
Rule 3:22-4(b) mandates dismissal of a second or subsequent
PCR petition unless it meets the requirements of the rule as to
timing and substance. The instant petition represents defendant's
third PCR application, subjecting him to the strict requirements
of Rule 3:22-4(b).
Defendant contends that his third PCR petition is timely as
"the factual predicate for the relief sought could not have been
discovered earlier through the exercise of reasonable diligence,
and the facts underlying the ground for relief, if proven and
viewed in light of the evidence as a whole, would raise a
reasonable probability" that relief would be granted. Rule
3:22-4(b)(2)(B). In support of his most recent PCR petition,
defendant asserts two factual predicates not discoverable earlier:
(1) that his arrest warrant was based on fabricated information;
and (2) that his trial counsel was also the attorney for the New
Brunswick Planning Board.
Defendant's challenge to the arrest warrant was previously
raised and adjudicated by another panel of this court and,
therefore, is barred by Rule 3:22-5. Further, defendant's claim
that his arrest warrant was based on false statements is
unsupported by any evidence in the record and defendant failed to
proffer any evidentiary basis for this claim. Defendant's bare
allegations with respect to the arrest warrant do not constitute
evidence that would raise a reasonable probability that relief
would be granted. See R. 3:22-4(b)(2)(B).
Similarly, defendant's claim that his trial counsel was also
the New Brunswick Planning Board attorney, thus presenting a
conflict of interest, is not information that could not have been
discovered earlier through the exercise of reasonable diligence.
This information could have been revealed by a simple inquiry.
Furthermore, this information does not raise a reasonable
probability that relief would be granted.
We concur with the judge that the arrest warrant allegation
is not new and that both allegations were discoverable earlier
through the exercise of reasonable diligence. Thus, defendant's
third PCR petition fails to satisfy the substantive requirements
of Rule 3:22-4(b) and is untimely pursuant to Rule 3:22-12(a)(2).
Relying on the same arguments, defendant contends that he is
entitled to a new trial. Rule 3:20-1 provides that a defendant
may be entitled to a new trial "if required in the interests of
justice." Rule 3:20-2 specifies that a motion for new trial based
on newly discovered evidence may be filed "at any time." In
seeking a new trial, a defendant must proffer evidence that is
"(1) material to the issue and not merely cumulative or impeaching
or contradictory; (2) discovered since the trial and not
discoverable by reasonable diligence beforehand; and (3) of the
sort that would probably change the jury's verdict if a new trial
were granted." State v. Carter, 85 N.J. 300, 314 (1981).
Defendant's claim that his arrest warrant was based on false
statements has no evidentiary basis and has been litigated
previously. As such, defendant's newly discovered evidence claim
on this ground is not "of the sort that would probably change the
jury's verdict." Ibid.
Nor is defendant's discovery that his trial counsel was also
the attorney for the New Brunswick Planning Board information that
was not discoverable beforehand to warrant a new trial. There is
also no basis in the record to support a claim that counsel's
representation of the New Brunswick Planning Board created any
conflict that would have changed the jury's verdict. Defendant
does not explain how his trial counsel's representation of the
Planning Board was prejudicial to his case. Based on our review
of the record, trial counsel moved for disclosure of certain
evidence by the State, moved to suppress defendant's statements
to the police, moved to admit certain evidence against the State's
witness and to suppress certain evidence by the State, diligently
cross-examined the State's witnesses at trial, and moved for a
mistrial after closing. Defendant's representation by an attorney
who also was the municipal Planning Board attorney is neither new
evidence not available at the time of trial, nor evidence that
would tend to lead to a different result.
Defendant argues the motion judge erred by denying his motion
without oral argument. Defendant contends that the "barebones
statement" in his motion brief regarding his ineffective
assistance claim requires the court to conduct oral argument so
that he can "fully and meaningfully set forth his claim."
Defendant further argues that the motion judge misunderstood the
basis of his ineffective assistance claim and that oral argument
would have clarified the arguments. Defendant also asserts the
judge failed to provide a statement of reasons for denying oral
We find that the judge's decision to deny the motion without
oral argument was not an abuse of discretion. A judge's decision
to grant oral argument on a PCR petition depends on "the apparent
merits and complexity of the issues raised, whether the petition
is an initial application, whether argument of counsel will add
to the written positions that have been submitted, and in general,
whether the goals and purposes of the post-conviction procedure
are furthered by oral argument." Mayron, 344 N.J. Super. at 387.
While "there is a strong presumption in favor of oral argument in
connection with an initial petition for post-conviction relief,"
Parker, 212 N.J. at 283, this is defendant's third PCR, and
defendant had the benefit of oral argument in prior applications.
In his pro se brief, defendant raises additional arguments
including: defendant's arrest warrant for violation of a
restraining order was invalid as there was no restraining order;
defendant was deprived of the ability to present exculpatory
evidence at trial; the entire trial was tainted by prosecutorial
misconduct related to the restraining order; false statements used
to procure the warrant for violation of the restraining order
constitute "new evidence" in support of a new trial; defendant's
arrest was unconstitutional and, therefore, all information
supporting the arrest warrant for violation of the restraining
order should have been suppressed as fruit of the poisonous tree;
trial counsel was ineffective for failing to challenge the
arrest/warrant; and the trial court impermissibly altered the
indictment before trial, stripping the court of jurisdiction.
These contentions were raised and adjudicated in prior