STATE OF NEW JERSEY v. GARY S. HARRIS

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,

1998.

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.







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hearing was conducted. On June 6, 2000, the judge denied PCR

relief.

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







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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







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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

barred.

On appeal, defendant, through his assigned counsel and in his

pro se brief, raises the following arguments:











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POINT I

THIS MATTER MUST BE REMANDED FOR ORAL ARGUMENT.



POINT II

MR. HARRIS IS ENTITLED TO A REMAND ON HIS MOTION FOR NEW TRIAL BASED ON NEWLY DISCOVERED EVIDENCE.



POINT III

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.



POINT IV

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.



POINT VI

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







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WITHIN THE TRIAL MECHANISM, RENDERING IT INVALID.



POINT VII

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.



POINT VIII

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

applications.







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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

(2016).

"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







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abuse of discretion standard. See State v. Parker, 212 N.J. 269,

283 (2012).

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

conviction.

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:







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(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







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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







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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

argument.







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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;







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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

applications.

Affirmed.