State of New Jersey v. Naeem Livingston ( 2024 )

NOT FOR PUBLICATION WITHOUT THE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-0649-22
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
NAEEM LIVINGSTON,
Defendant-Appellant.
________________________
Submitted February 6, 2024 – Decided February 13, 2024
Before Judges Haas and Gooden Brown.
On appeal from the Superior Court of New Jersey, Law
Division, Essex County, Indictment No. 16-02-0456.
Jennifer Nicole Sellitti, Public Defender, attorney for
appellant (Steven M. Gilson, Designated Counsel, on
the brief).
Theodore N. Stephens, II, Acting Essex County
Prosecutor, attorney for respondent (Matthew E.
Hanley, Special Deputy Attorney General/Acting
Assistant Prosecutor, of counsel and on the brief).
PER CURIAM
Defendant Naeem Livingston appeals from a Law Division order denying
his petition for post-conviction relief (PCR) following an evidentiary hearing.
We affirm.
We set forth the following pertinent facts of this matter in our prior
opinion on defendant's direct appeal of his convictions and sentence:
While driving a gray Dodge Charger through the streets
of Newark on September 15, 2015, defendant engaged
in a running gun battle with the driver of another car.
A witness called the police and, after an officer located
the Charger, defendant ignored the officer's signals to
stop. Defendant eventually crashed the Charger into a
garbage truck, and a school bus full of children and
several adults. The driver of the truck suffered
whiplash. The officer stopped to help the children, and
observed defendant fleeing the scene.
The police identified defendant as the driver of the
Charger by running the license plate number and
discovering that defendant had recently received a
traffic ticket while driving the car. The officer who
pursued defendant was also able to identify defendant
as the driver of the Charger, and defendant's DNA was
found on the discharged air bag of the car. In addition,
defendant's friend, [Erica Darby], testified that
defendant persuaded her to rent the Charger for him,
and then to report it as stolen following the crash.
[Darby] refused to do so.
[State v. Livingston, No. A-3470-17 (Feb. 27, 2020)
(slip op. at 3-4), certif. denied, 243 N.J. 272 (2020).]
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Based on these facts, a jury convicted defendant of second-degree eluding,
second-degree aggravated assault while eluding, fourth-degree resisting arrest,
and criminal mischief, a disorderly persons offense. Id. at 1. The trial judge
sentenced defendant to an aggregate extended term of fourteen years in prison,
subject to the No Early Release Act, N.J.S.A. 2C:43-7.2. Ibid.
After we affirmed defendant's convictions and sentence on his direct
appeal (id. at 3), he filed a timely petition for PCR. Among other things,
defendant presented a certification from Darby who, as set forth above, was one
of the witnesses who had testified for the State at trial. Id. at 4.
In her certification, Darby recanted her trial testimony. She stated that
defendant was the "best friend" of her baby's father. Darby admitted she rented
the Dodge Charger for defendant, but now claimed that he returned it to her
before the events that led to his conviction. Darby said she used the car for a
while but it was then stolen from her neighborhood. Darby said she "called
multiple tow companies" looking for it, but was "afraid to file a police report
because [she] did not have insurance on the car." Darby asserted that she later
learned that defendant "was arrested in connection with the stolen Dodge
Charger."
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Darby claimed that two years went by before the prosecutor's office
contacted her shortly before the trial. Darby met with two women, but could not
recall their names. She told them that defendant returned the car to her before
the shooting incident. However, the women did not believe her and "threatened
to charge [her] with the stolen vehicle and the shoot-out."
Darby concluded her certification by stating:
I became more terrified and made up the story
involving [defendant]. The truth is [defendant] never
told me that the car was stolen and he never asked me
to report the car stolen. I don't know who stole the car
and who was involved in the shoot-out. All I know is
that I had the only set of keys to the car when
[defendant] returned it to me in early September 2015.
Relying upon Darby's certification, defendant argued in his PCR petition
that his trial attorney was ineffective because she "failed to illicit testimony
[from] . . . Darby. Ms. Darby would have admitted to the police that she had
lied and [d]efendant never told her to report the car as stolen." He also argued
he was entitled to a new trial based on the newly discovered evidence in Darby's
certification.
The PCR judge decided to conduct an evidentiary hearing in order to
permit Darby to testify on defendant's behalf. At the beginning of the hearing,
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the judge asked Darby if she would like to speak to an attorney before testifying.
She replied that she did. The judge then adjourned the hearing.
On the next hearing date, Darby retracted her certification. She explained
that she had spoken to two attorneys and now wanted to "pull [her] certification."
She indicated she was "refusing to testify" and was "pleading the Fifth[.]"
Defendant called no other witnesses and the hearing concluded.
The PCR judge rendered a written decision denying defendant's petition.
The judge found that defendant failed to satisfy both prongs of Strickland v.
Washington, 466 U.S. 668, 687 (1984), which requires a showing that trial
counsel's performance was deficient and that, but for the deficient performance,
the result would have been different.
The judge noted that Darby repudiated her certification. The judge stated
that "[d]efendant's argument also fails to take into account the other evidence
against him." Besides Darby's testimony at trial, the State presented "DNA
evidence recovered from the deployed airbag in the [Charger that] was linked to
[d]efendant." This evidence demonstrated that defendant was the driver at the
time of the crash. In addition, a police officer who pursued defendant as he ran
away identified him as the driver.
On appeal, defendant presents the following contention:
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THE RECANTATION CERTIFICATION OF ERICA
DARBY, A STATE'S KEY WITNESS,
CONSTITUTED NEWLY DISCOVERED
EVIDENCE AND MANDATES THAT
DEFENDANT'S CONVICTIONS BE REVERSED.
We have considered defendant's argument in light of the record and the
applicable legal principles, and conclude it is without sufficient merit to warrant
extended discussion in a written opinion. R. 2:11-3(e)(2). We affirm
substantially for the reasons set forth by the PCR judge in his written decision
and add the following brief comments.
To secure a new trial based on newly discovered evidence, a
defendant must show that the evidence is 1) material,
and not "merely" cumulative, impeaching, or
contradictory; 2) that the evidence was discovered after
completion of the trial and was "not discoverable by
reasonable diligence beforehand"; and 3) that the
evidence "would probably change the jury's verdict if a
new trial were granted."
[State v. Ways, 180 N.J. 171, 187 (2004) (quoting State
v. Carter, 85 N.J. 300, 314 (1981)).]
All three prongs must be established. "Newly discovered evidence must
be reviewed with a certain degree of circumspection to ensure that it is not the
product of fabrication, and, if credible and material, is of sufficient weight that
it would probably alter the outcome of the verdict in a new trial." Id. at 187-88.
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Darby's certification failed to satisfy all three prongs of the Ways test for
a new trial based on newly discovered evidence or the second prong of the
Strickland test. Darby recanted her own recantation certification at the
evidentiary hearing by "pulling" it from consideration and refusing to testify.
Under these circumstances, Darby's revised account of the events leading up to
the shoot-out is not credible. Therefore, the alleged new evidence would not
have affected the outcome at a new trial. Ways, 180 N.J. at 187.
Just as significantly, even removing Darby's trial testimony from the
equation would not affect the result in view of the DNA evidence the State
provided directly linking defendant to the Charger at the time of the crash. This
evidence, coupled with the police officer's identification of defendant, was
sufficient to support defendant's convictions. Strickland, 466 U.S. at 687.
Affirmed.
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