STATE OF NEW JERSEY VS. PETER SANTIAGO (93-05-1916, ESSEX COUNTY AND STATEWIDE) (RECORD IMPOUNDED) ( 2021 )

RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2815-19
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
PETER SANTIAGO,
Defendant-Appellant.
________________________
Submitted March 22, 2021 – Decided June 10, 2021
Before Judges Rothstadt and Susswein.
On appeal from the Superior Court of New Jersey, Law
Division, Essex County, Indictment No. 93-05-1916.
Peter Santiago, appellant pro se.
Theodore N. Stephens, II, Acting Essex County
Prosecutor (Matthew E. Hanley, Special Deputy
Attorney General/Acting Assistant Prosecutor, of
counsel and on the brief).
PER CURIAM
Defendant appeals from the February 13, 2020 Law Division order
denying his motion for a new trial. He was tried and convicted in 1993 for first-
degree kidnapping, two counts of first-degree aggravated sexual assault, and one
count of third-degree aggravated criminal sexual contact. We affirmed his
conviction and sentence on direct appeal in 1996 and the Supreme Court denied
certification. State v. Santiago, 146 N.J. 567 (1996). Defendant has since filed
five unsuccessful petitions for post-conviction relief (PCR). In each instance,
we affirmed the denial of PCR and the Supreme Court denied certification.
Defendant raises the following issue for our consideration:
POINT I
THE COURT ERRED AND ABUSED ITS
DISCRETION IN SUMMARILY DENYING
DEFENDANT'S MOTION FOR A NEW TRIAL.
In a reply brief, defendant raises the following issue for our consideration:
POINT I
THE STATE MISREPRESENTS THE FACTS TO
ASSERT DEFENDANT'S MOTION WAS
PROPERLY DENIED AND IS BASELESS.
Defendant's latest argument, raised as a motion for a new trial rather than a PCR
petition, lacks sufficient merit to warrant extensive discussion. See R. 2:11-
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3(e)(2). We affirm for the reasons set forth in Judge Mayra V. Tarantino's
concise written opinion. We add the following comments.
The test for granting a new trial based on newly-discovered evidence is
stringent. State v. Carter, 85 N.J. 300, 314 (1981). The Court in Carter stressed,
This Court has stated repeatedly that to qualify as newly
discovered evidence entitling a party to a new trial, the
new evidence must be (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. All three tests must be met before the
evidence can be said to justify a new trial.
[Ibid. (internal citations omitted)].
In this instance, defendant asserts he is entitled to a new trial because the
Supreme Court's decision in State v. Thomas, 187 N.J. 119 (2006), constitutes
newly discovered evidence. As Judge Tarantino correctly noted, a judicial
decision rendered more than a decade following defendant's trial conviction does
not constitute newly-discovered evidence. See State v. Kaiser, 80 N.J. Super.
176, 180 (App. Div. 1963) ("[A] change in the law by judicial decision
subsequent to trial does not constitute newly-discovered evidence—in fact, the
judicial decision is not 'evidence' at all.").
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Defendant was indicted for the crime of first-degree aggravated sexual
assault. Defendant now argues the trial judge should not have instructed the
jury on the lesser-included offense of second-degree sexual assault. Our
Supreme Court's analysis and holding in Thomas simply does not support
defendant's argument. In that case, the defendant claimed that the trial judge
erred by not instructing the jury on a lesser-included charge that neither party
requested. Thomas, 187 N.J. at 123. The Court ruled that the trial judge was
not obligated to sua sponte instruct the jury on the lesser-included charge. Id.at 132–36. Contrary to defendant's claim, Thomas does not stand for the
proposition that it is error for a court to instruct the jury on a lesser-included
offense when there is a rational basis for that instruction.
As the Supreme Court emphasized in State v. Garron, which Thomas cited
with approval,
No defendant should be convicted of a greater crime or
acquitted merely because the jury was precluded from
considering a lesser offense that is clearly indicated in
the record. In view of this ruling, parties, generally,
should not be "surprised" by a court instructing a jury
on such a lesser-included offense. Moreover, we
cannot foresee specific circumstances that will make
defending against a lesser-included offense more unfair
or burdensome than defending only against the greater
offense, even in those cases in which the defense is alibi
or a general denial, "I did not do it."
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[177 N.J. 147, 180 (2003)].
We add that defendant has failed to show how he was in any way
prejudiced by the trial court's decision to instruct the jury on the second-degree
type of sexual assault. As noted, the jury found defendant guilty of two counts
of first-degree aggravated sexual assault—the offense charged in the indictment.
We note finally that "[a] jury verdict rendered after a fair trial should not be
disturbed except for the clearest of reasons." State v. Ways, 180 N.J. 171, 187
(2004). Once again, defendant in this latest challenge has failed to establish a
basis to overturn his convictions.
Affirmed.
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