State of New Jersey v. Afrim Tairi ( 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NOT FOR PUBLICATION WITHOUT THE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-3772-22
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
AFRIM TAIRI,
Defendant-Appellant.
________________________
Argued October 29, 2024 – Decided November 20, 2024
Before Judges Gilson, Firko, and Augostini.
On appeal from the Superior Court of New Jersey, Law
Division, Bergen County, Indictment No. 01-06-1503.
Ernesto Cerimele argued the cause for appellant
(Klingeman Cerimele, attorneys; Henry E. Klingeman
and Ernesto Cerimele, on the briefs).
K. Charles Deutsch, Assistant Prosecutor, argued the
cause for respondent (Mark Musella, Bergen County
Prosecutor, attorney; K. Charles Deutsch, of counsel
and on the brief).
PER CURIAM
Defendant Afrim Tairi appeals from a June 22, 2023 order denying his
second petition for post-conviction relief (PCR) seeking a new trial based on an
alleged Brady1 violation without an evidentiary hearing. Defendant claims the
State violated its obligation under Brady when it failed to produce a sworn
petition for habeas corpus filed by co-defendant Edwin Torres. Defendant also
alleged trial counsel was ineffective by failing to uncover Torres's habeas corpus
petition earlier. Defendant claims he would have used Torres's habeas corpus
petition to impeach his trial testimony. We reject those arguments and affirm.
I.
The parties are familiar with the facts, which were described in our prior
opinions, including: State v. Tairi (Tairi I), No. A-2684-09 (App. Div. Feb. 16,
2010) (slip op. at 4-17), where we affirmed defendant's conviction and sentence,
but remanded for entry of an amended judgment of conviction to vacate the Law
Enforcement Officers' Training and Equipment Fund fee; and State v. Tairi
(Tairi II), No. A-1016-19 (App. Div. July 15, 2022) (slip op. at 2-5), in which
we initially affirmed the denial of defendant's first petition for PCR following
an evidentiary hearing but then later remanded the matter to the Law Division
1
Brady v. Maryland, 373 U.S. 83 (1963).
A-3772-22
2
to continue the hearing to permit defendant to call Torres as a witness. We need
only summarize the facts relevant to this appeal.
Defendant, Torres, and another co-defendant Felix DeJesus, now
deceased, were charged with three separate home invasions that took place in
1995. One invasion resulted in a victim being murdered. Following a lengthy
investigation, Torres and DeJesus were arrested for murder, robbery, and related
charges. On July 30, 1996, a warrant for defendant's arrest was issued after they
provided statements as to what happened and who was involved. Defendant fled
the country while Torres and DeJesus were tried and convicted in 1998 and 1999
respectively. On December 1, 2006, defendant was located and extradited back
to New Jersey.
Upon his return, defendant was charged under Indictment No. 01-06-1503
with one count of first-degree kidnapping in violation of N.J.S.A. 2C:13-1(a);
one count of second-degree kidnapping by holding for other purposes in
violation of N.J.S.A. 2C:13-1(b); one count of second-degree and one count of
third-degree receiving stolen property in violation of N.J.S.A. 2C:20-7; two
counts of second-degree burglary in violation of N.J.S.A. 2C:18-2; two counts
of first-degree and one count of second-degree robbery in violation of N.J.S.A.
2C:15-1; one count of second-degree assault in violation of N.J.S.A. 2C: 12-
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1(b)(1); two counts of second-degree possession of a weapon for an unlawful
purpose in violation of N.J.S.A. 2C:39-4(a); one count of first-degree murder in
violation of N.J.S.A. 2C:11-3(a) (1) or (2); one count of first-degree murder in
violation of N.J.S.A. 2C:11-3(a)(3); one count of third-degree theft by unlawful
taking or disposition in violation of N.J.S.A. 2C:20-3; one count of second-
degree conspiracy in violation of N.J.S.A. 2C:5-2; and one count of fourth-
degree credit card theft in violation of N.J.S.A. 2C:21-6(c).
On August 3, 2008, Torres filed a sworn petition for habeas corpus
seeking relief based on ineffective assistance of counsel. Torres's petition
alleged in part: "Counsel on the initial PCR ignored [his] request to investigate
claims that [his] co-defendant would have submitted an affidavit on his behalf,
which would have explained that [he] had no knowledge of the Staten Island
robbery and kidnapping of Lenny Theodoulou." Torres asserted that it was "now
too late because [his] co-defendant (DeJesus) passed away due to cancer."
In 2009, defendant was tried before a jury. Pertinent here, Torres testified
against defendant and placed him at the scene of each home invasion. The jury
found defendant guilty on all counts. On January 12, 2012, defendant was
sentenced to a term of life imprisonment plus eighty years, with a seventy-year
period of parole ineligibility.
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4
In our opinion on defendant's direct appeal, we found that Torres's
testimony—although questionable in certain respects—was "corroborated in
many details by the victims of the crimes, other physical evidence, and by the
testimony of Marisol Melton,2 which circumstantially established defendant's
active involvement in the criminal enterprise." We ultimately held that "the
testimony taken as a whole was sufficient to establish defendant's guilt of the
charges beyond a reasonable doubt, and the judge properly denied his motion to
set aside the jury's verdict." Tairi I, No. A-2684-09 (slip op. at 24-26). On July
12, 2012, our Supreme Court denied certification. State v. Tairi, 211 N.J. 608(2012).
A. First PCR Petition
Thereafter, defendant filed his first PCR petition. He asserted claims of
ineffective assistance of trial and appellate counsel, and prosecutorial
misconduct that denied him due process and a fair trial. Defendant also
requested an evidentiary hearing. On March 20, 2013, defendant's requested
relief was denied without an evidentiary hearing. Defendant appealed from the
order denying his first PCR petition.
2
Marisol Melton is DeJesus's sister, and was Torres's girlfriend at the time of
the home invasions.
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5
On appeal, defendant argued that the first PCR court abused its discretion
by denying defendant's motion seeking the court's recusal and by denying PCR
counsel's request for additional time to prepare and file his brief. We reversed
and remanded for a new PCR hearing, stating:
PCR counsel was unable to fully investigate and assess
the trial record for potential claims for relief, and was
unable to have meaningful discussion with his client
regarding the State's opposition to the brief that he did
file. These limitations, imposed not by PCR counsel's
ineffective assistance, but rather by the mistaken
exercise of judicial discretion, cut to the core
obligations our [c]ourt has imposed upon PCR
proceedings, specifically to assure fairness and that a
defendant receives effective assistance of counsel on
PCR. The appropriate remedy in these circumstances is
a remand for a new PCR hearing.
State v. Tairi, No. A-1560-13 (App. Div. Mar. 3, 2016)
(slip. op at 10-11).
On remand, defendant filed another PCR petition and a motion for new
trial based upon newly discovered evidence. Defendant alleged that the affidavit
of Steven Kadonsky dated September 14, 2012—a fellow inmate who provided
services as a "jailhouse lawyer"—supported defendant's contention that he is
innocent of the crimes for which he had been convicted. Specifically, defendant
asserted there were three hearsay statements involved in this petition: two
statements made by DeJesus, and one statement made by Torres.
A-3772-22
6
According to defendant, these three statements would have been
admissible at trial and would have been exculpatory because DeJesus and Torres
allegedly told Kadonsky that they "framed" defendant. Also, on page forty-
seven of defendant's brief in support of his PCR petition, defendant
acknowledged the existence of a petition for habeas corpus filed by Torres in
2008:
Torres was . . . confined at the New Jersey State Prison
since 1999. Torres and Mr. Kadonsky became friends.
Approximately three years after the death of DeJesus,
Torres asked Mr. Kadonsky to help prepare his
[p]etition for [h]abeas [c]orpus to be filed in the United
States District Court for the District of New Jersey.
[(emphasis added).]
On October 10, 2018, following remand, defendant's first PCR petition
was denied without an evidentiary hearing. Then, on October 26, 2018,
defendant filed a motion for reconsideration that asserted an evidentiary hearing
was warranted based on "newly discovered evidence," specifically Kadonsky's
affidavit. On March 21, 2019, defendant's motion for reconsideration was
granted, in part, and, the second PCR court conducted an evidentiary hearing
that was limited strictly to the contents of the Kadonsky affidavit.
Later that same day following the evidentiary hearing, the second PCR
court denied PCR. The second PCR court first noted that "based on his
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demeanor and testimony provided, [it] did not find Kadonsky to be a credible
witness, and further, that his testimony did not add any new information to what
had been previously submitted in his affidavits." The second PCR court "found
it significant that there were four separate cases cited by the State where
Kadonsky provided affidavits, and those [c]ourts found Kadonsky to be
unreliable." The second PCR court concluded defendant's argument failed under
all three prongs of the Carter3 test.
On November 7, 2019, defendant filed a notice of appeal arguing, in part,
that the second PCR court should have afforded him an opportunity to examine
Torres at an evidentiary hearing. On January 19, 2021, this court affirmed the
denial of defendant's petition for PCR. State v. Tairi, No. A-1016-19 (App. Div.
Jan. 19, 2021) (slip. op at 1-6, 12). However, on March 3, 2021—after defendant
filed another motion for reconsideration—we vacated our decision and
remanded the matter to the Law Division to continue the evidentiary hearing for
the limited purpose of permitting defendant to call Torres as a witness.
3
The test for newly discovered evidence entitling a party to a new trial consists
of three factors: "(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).
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B. Evidentiary Hearing Following Remand on First PCR Petition
Following remand and relevant to this appeal, Torres testified at the July
27, 2021 evidentiary hearing that he paid Kadonsky to prepare the 2008 habeas
corpus petition for him. Torres explained on cross-examination:
Prosecutor: These ideas [in the habeas corpus petition]
were from [Kadonsky], not from you?
Torres: Correct.
Prosecutor: And one of the major points of this habeas
corpus is that the Staten Island conduct did not fall in
the jurisdiction of the New Jersey court, correct?
Torres: Correct.
Prosecutor: And that was his idea, not yours, right?
Torres: Right.
Prosecutor: So, Mr. Kadonsky was advising you as to
how to proceed with your habeas corpus.
Torres: Correct.
Prosecutor: While it's in your handwriting, none of
these ideas came from you, is that correct?
Torres: Correct.
Prosecutor: And Mr. Kadonsky's idea was to get an
affidavit from a dead guy; right?
Torres: Correct.
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Prosecutor: And that was supposed to help you in
court.
Torres: Correct.
Prosecutor: So, one of the services that Mr. Kadonsky
provided you was advice to obtain an affidavit; correct?
Torres: Correct.
Prosecutor: That could not be verified.
Torres: Correct.
Prosecutor: To help you in court.
Torres: Correct.
...
Prosecutor: Now, at no point in your petition for habeas
corpus did you say you were not present?
Torres: Correct.
Prosecutor: You simply said that the affidavit would
be from DeJesus that you had no knowledge of the
Staten Island robbery.
Torres: Correct
Prosecutor: And this was pertaining specifically to the
Staten Island robbery because Mr. Kadonsky advised
you to raise a jurisdiction issue, correct?
Torres: Correct.
...
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Prosecutor: And at no point in this document did you
say that [defendant] was not a party to those crimes; is
that correct?
Torres: Correct.
Prosecutor: Did you ever tell Steven Kadonsky that
[defendant] was not present during any of these crimes?
Torres: No.
Prosecutor: Was [defendant] present during the
Teaneck robbery and homicide?
Torres: Correct.
Prosecutor: Was he present in Englewood Cliffs?
Torres: Yes.
Prosecutor: Was he present in Staten Island?
Torres: Yes.
On September 29, 2021, defendant filed a supplemental brief with this
court arguing that Torres's 2008 habeas corpus petition was "new evidence" that
justified granting defendant a new trial under Carter. Defendant asserted that
Torres was not credible because Torres stated he did not have knowledge of the
Staten Island robbery and kidnapping of Lenny Theodoulou in his petition.
However, Torres testified at defendant's trial that he did have knowledge
of the Staten Island incident. Defendant contended that Torres's recantation of
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his trial testimony significantly undermined his credibility, bias, and motive,
and constitutes the type of evidence that would change the jury's verdict.
Defendant maintained this was crucial to his case as Torres's "testimony alone
resulted in [defendant]'s conviction."
C. Second PCR Petition
In a November 1, 2021 letter brief, defendant also raised—for the first
time—the argument that the State violated Brady and Giglio4 when it failed to
produce Torres's 2008 habeas petition. Defendant argued that because the State
withheld the petition, he was unable to confront Torres with it and the jury was
ignorant of its existence, much less its significance.
On November 17, 2021, the second PCR court concluded a new trial was
not warranted because the Carter standard was not satisfied. The second PCR
court first found that Torres—while having admitted to submitting false
statements to a court on one occasion—provided consistent and candid
testimony at the evidentiary hearing and was thus a "credible" witness. The
second PCR court supported its conclusion by noting "Torres's testimony at
[defendant]'s trial in October 2009, his affidavit from July 2018, and hi s
testimony at the evidentiary hearing on July 27, 2021, [were] all consistent."
4
Giglio v. United States, 405 U.S. 150 (1972).
A-3772-22
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The second PCR court also found significant, that during the July 27, 2021
evidentiary hearing, Torres was forthcoming about his efforts to introduce the
false affidavit for his habeas corpus petition. The PCR court held the jury was
aware of Torres's inconsistent testimony, yet still found defendant guilty.
Furthermore, the second PCR court acknowledged defendant's argument
that Torres lies under oath also implicated Kadonsky—defendant's own
witness—because Kadonsky certified that he prepared Torres's petition for
habeas corpus. The second PCR court highlighted that it previously found
Kadonsky lacked credibility as a witness.
The second PCR court analyzed the three-prong test under Carter. The
second PCR court determined defendant failed to satisfy prong one of the Carter
test because the newly discovered evidence must be material to the issue and not
merely cumulative, impeaching, or contradictory. The second PCR court found
the habeas corpus petition touched on Torres's advanced knowledge of one of
the crimes, and not defendant's culpability for those crimes. Thus, the newly
discovered evidence was not material but impeaching.
Regarding prong two of the Carter analysis—the newly discovered
evidence must be discovered subsequent to the trial and was not discoverable by
reasonable diligence beforehand—the second PCR court determined Torres's
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false statements were submitted in 2008 in his habeas corpus petition; therefore,
defendant "had ample opportunity to raise the issue presented by this evidence
on appeal and in his first PCR petition for [PCR]."
The second PCR court finally determined defendant failed prong three of
the Carter analysis—the newly discovered evidence be of the sort that would
probably change the jury's verdict if a new trial were granted because "there
existed copious amounts of corroborating evidence to support [defendant's]
conviction." The second PCR court noted, "[e]ven if Torres's trial testimony
[was] found to be untruthful, there exists significant amounts of evidence
elsewhere in the record to support [defendant's] conviction." A memorializing
order was entered.
Defendant appealed from the denial of his first PCR petition. On July 15,
2022, we affirmed the decision denying defendant's first PCR petition. We
stated:
Here, reduced to its essence, defendant claims
Torres'[s] "recantation" in his 2008 habeas petition of
his involvement in the Staten Island home invasion,
combined with Kadonsky's affidavits and testimony at
the evidentiary hearing, are "not 'merely' cumulative,
impeaching or contradictory," . . . but rather "shake[s]
the very foundation of the State's case and almost
certainly [would] alter the earlier jury verdict[.]"
However, Torres admitted his recantation, drafted with
the assistance of Kadonsky's deft hand, was itself false.
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The judge found Torres credible in this regard. The
judge earlier found Kadonsky was not credible in his
assertion that Torres and DeJesus admitted framing
defendant. Applying appropriate standards to the
review of the judge's findings and conclusion following
two evidentiary hearings, we find no reason to conclude
defendant met the rigorous standards required to set
aside "[a] jury verdict rendered after a fair trial [which]
should not be disturbed except for the clearest of
reasons."
While defendant's appeal of the denial of his first PCR petition was
pending, he filed his second petition for PCR seeking a new trial, which is the
subject of the matter under review. In his second PCR petition, defendant again
reiterated he was entitled to PCR because the State violated its obligation under
Brady when it failed to produce Torres's sworn habeas corpus petition.
Defendant also claimed his trial counsel was ineffective by failing to uncover
Torres's habeas corpus petition earlier. In defendant's second PCR reply brief,
he raised new arguments under Giglio5 and Jencks.6
5
Giglio, 405 U.S. at 153-155 (1972) (explaining that the Supreme Court
extended Brady's scope to include material evidence that would bear upon the
credibility of the State's witnesses and [held] prosecution's withholding evidence
affecting credibility of witnesses whose reliability may be determinative of guilt
also violates due process).
6
Jencks v. United States, 353 U.S. 657 (1957) (explaining that the Supreme
Court reversed defendant['s] conviction because the trial court had refused to
A-3772-22
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On June 27, 2023, the second PCR court entered an order denying
defendant's second PCR petition without an evidentiary hearing. In an
accompanying comprehensive thirty-two-page written decision 7, the second
PCR court concluded that defendant's Brady claims were procedurally barred
under Rule 3:22-4(b)(2)(B) because it was undisputed that Torres's habeas
corpus petition was discoverable sooner on PACER 8 as a publicly filed
document—for over one year before defendant's trial—through the exercise of
reasonable diligence. The second PCR court pointed out that "the factual
predicate was already reviewed and carefully considered by this court in
[defendant]'s prior PCR under the standard set forth in [Carter] on granting a
new trial based on newly discovered evidence." The second PCR court noted:
At this point, [defendant] is attempting to backdoor the
same factual predicate behind the facade of a Brady
claim, as opposed to the already-litigated Carter claim,
to argue to this court that it is a never-before-seen issue.
[Defendant] argues that no court has yet decided
direct the [g]overnment to produce prior reports by witnesses for use in their
cross examination).
7
The second PCR court refers to defendant's "third" PCR petition in its decision.
However, based upon a review of the record, we conclude the petition to be
defendant's second PCR petition.
8
PACER stands for "Public Access to Court Electronic Records." PACER
provides information about accessing and filing federal court records
electronically.
A-3772-22
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whether he is entitled to a new trial based on the State's
violation of its obligation to turn over Brady material
prior to [defendant]'s trial. This court will note that the
Carter elements have notable overlap with the Brady
elements, and any other Brady factor that was not
addressed in the prior PCR is encompassed by the Court
Rules establishing procedural bars on PCR. In sum and
substance, this court has either already decided the
underlying issues that come before it now under the
Brady claim, or they are procedurally barred from
review by the Rules. See State v.McQuaid, 147 N.J.
464, 484 (1997) (precluding PCR review of issues that
are identical or substantially equivalent to an issue
litigated below on the merits). [Defendant] could have
raised the Brady claim in the prior PCR along with its
Carter claim but failed to do so. Accordingly, it is
patently clear and already established by this court that
the habeas petition could have been discovered earlier,
and thus [defendant] cannot satisfy this first factor.
Notwithstanding the procedural bar, the second PCR court addressed the
merits of defendant's Brady claim. Applying the first Brady element—evidence
is favorable to the accused—the second PCR court determined the habeas corpus
petition could not be deemed as favorable to defendant, even if the petition is
considered impeachment evidence:
[Defendant] cannot assert that Torres' habeas petition is
impeachment evidence if the within statements were
not even conceived by Torres[.] [I]ndeed, this can more
accurately be described as a statement by Kadonsky, as
he dictated to Torres how it should be written.
[Defendant] argues that, if the habeas petition was
disclosed to him prior to trial, then he could have used
it to impeach Torres' testimony as to the Staten Island
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home invasion. However, at this point, it has been well
established that Torres did not conceive the contents of
the habeas petition, Kadonsky did. [Defendant] ignores
that pivotal fact in arguing that it contradicts Torres'
trial testimony. Accordingly, this court does not find
that it constitutes impeachment evidence and is thus not
favorable within the meaning of Brady.
Applying the second Brady element—the State suppressed the evidence,
either purposely or inadvertently—the second PCR court determined that since
the habeas corpus petition was filed on PACER, the State was in constructive
possession of the habeas petition, despite not being in the prosecutor's actual
file. Finally, applying the third Brady element—the evidence is material to the
defendant's case—the second PCR court determined the habeas petition was not
material evidence because defendant's jury already knew that Torres did not
testify truthfully yet convicted defendant regardless because the State
sufficiently corroborated Torres' testimony. The habeas petition was also found
not to be material evidence by the second PCR court because it would not have
been admissible under N.J.R.E. 803(a)(1) as a prior inconsistent statement of
Torres, as he never disclaimed knowledge of the Staten Island kidnapping and
because Kadonsky conceived the contents of the petition.
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The second PCR court also determined defendant failed to establish a
prima facie Strickland/Fritz9 claim because he did not overcome the strong
presumption that his trial counsel was not deficient. The second PCR court
noted that defendant did not offer sufficient evidence that "his trial counsel was
so ineffective such that he rendered the idea of a fair trial meaningless" and
emphasized there was plenty of corroborating evidence to support defendant's
conviction.
The second PCR court determined that defendant's Jencks and Giglio
claims were procedurally barred because they were raised for the first time in
his reply brief instead of his second original PCR petition. Defendant's request
for an evidentiary hearing was denied, and a memorializing order was entered.
Defendant filed a motion for reconsideration, which was denied.
This appeal followed, with defendant presenting the following points for
our consideration:
I. [DEFENDANT] IS ENTITLED TO A NEW
TRIAL BASED ON THE STATE'S FAILURE
TO PRODUCE A SWORN STATEMENT THAT
CATEGORICALLY UNDERMINED THE
CREDIBILITY OF AN IMPORTANT STATE
WITNESS.
9
Strickland v. Washington, 466 U.S. 668 (1984); State v. Fritz, 105 N.J. 42(1987).
A-3772-22
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a. THE FAILURE TO PRODUCE TORRES'[S]
SWORN STATEMENT TO [DEFENDANT]
CONSTITUTES A BRADY VIOLATION.
i. IN ACCORDANCE WITH NEW
JERSEY LAW, THE
ADMISSIBILITY OF TORRES'[S]
SWORN STATEMENT AT TRIAL
DOES NOT IMPACT ITS STATUS
AS BRADY MATERIAL.
1. TORRES'[S] SWORN
STATEMENT WOULD BE
ADMISSIBLE AT TRIAL
UNDER N.J.R.E. 803(a)(1).
2. TORRES'[S] SWORN
STATEMENT IS ADMISSIBLE
UNDER N.J.R.E. (608).
3. TORRES'[S] SWORN
STATEMENT IS ADMISSIBLE
BECAUSE HE CONCEIVED
THE CONTENTS OF THE
SWORN STATEMENT.
b. THE FAILURE TO PRODUCE TO
[DEFENDANT] THE SWORN
STATEMENT PRIOR TO HIS TRIAL
CONSTITUTES GIGLIO AND JENCKS
VIOLATIONS.
i. THE FAILURE TO PRODUCE
TORRES'[S] SWORN STATEMENT
TO [DEFENDANT] CONSTITUTES A
GIGLIO VIOLATION.
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ii. THE FAILURE TO PRODUCE
TORRES'[S] SWORN STATEMENT
TO [DEFENDANT] CONSTITUTES A
JENCKS VIOLATION.
II. THERE EXISTS NO PROCEDURAL BAR TO
THE RELIEF SOUGHT IN THE PETITION.
a. THE ISSUE BEFORE THE COURT HAS
NEVER BEEN RAISED OR
ADJUDICATED, NOR COULD IT HAVE
BEEN RAISED OR ADJUDICATED.
i. TORRES'[S] SWORN STATEMENT
WAS NOT DISCOVERABLE AT THE
TIME [OF] [DEFENDANT'S] TRIAL
OR APPEAL.
b. THE PETITION FOR [PCR] IS TIMELY
III. ALTERNATIVELY, [DEFENDANT] IS
ENTITLED TO A NEW TRIAL BASED ON
INEFFECTIVE ASSISTANCE OF COUNSEL.
II.
"P[CR] relief is New Jersey's analogue to the federal writ of habeas
corpus." State v. Pierre, 223 N.J. 560, 576 (2015) (quoting State v. Preciose,
129 N.J. 451, 459 (1992)). [PCR] provides a "built-in 'safeguard that ensures
that a defendant [is] not unjustly convicted.'" State v. Nash, 212 N.J. 518, 540
(2013) (quoting McQuaid, 147 N.J. at 482.)
A-3772-22
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"A petitioner must establish the right to [PCR] by a preponderance of the
credible evidence." Preciose, 129 N.J. at 459 (citations omitted). "Our standard
of review is necessarily deferential to a PCR court's factual findings. . . .
[However,] we need not defer to a PCR court's interpretation of the law; a legal
conclusion is reviewed de novo." Nash, 212 N.J. at 540-41.
"A petitioner is generally barred from presenting a claim on PCR that
could have been raised at trial or on direct appeal, R. 3:22-4(a), or that has been
previously litigated, R. 3:22-5." Id. at 546. Rule 3:22-5 provides:
A prior adjudication upon the merits of any ground for
relief is conclusive whether made in the proceedings
resulting in the conviction or in any post-conviction
proceeding brought pursuant to this rule . . . .
[R. 3:22-5.]
"PCR will be precluded 'only if the issue is identical or substantially
equivalent' to the issue already adjudicated on the merits." State v. Afanador,
151 N.J. 41, 51 (1997) (citing McQuaid, 147 N.J. at 482 (quoting Picard v.
Connor, 404 U.S. 270, 276-77 (1971))).
Second or subsequent PCR petitions must comply with the requirements
of Rule 3:22-4(b) and Rule 3:22-12(a)(2). Rule 3:22-4(b) explains that a
subsequent petition for [PCR should] be dismissed unless:
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(1) it is timely under R. 3:22-12(a)(2); and
(2) it alleges on its face either:
(A) that the petition relies on a new rule of
constitutional law, made retroactive to
defendant's petition by the United States
Supreme Court or the Supreme Court of New
Jersey, that was unavailable during the pendency
of any prior proceedings; or
(B) that 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 the relief
sought would be granted; or
(C) that the petition alleges a prima facie case of
ineffective assistance of counsel that represented
the defendant on the first or subsequent
application for [PCR].
"[N]o second or subsequent petition shall be filed more than 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). The one-year time
limitation for second or subsequent petitions is non-relaxable. R. 3:22-12(b).
Rule 3:22-4(b)(1) requires dismissal of a second or subsequent petition if not
timely under Rule 3:22-12(a)(2).
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"[T]rial courts ordinarily should grant evidentiary hearings to resolve
ineffective-assistance-of-counsel claims if a defendant has presented a prima
facie claim in support of [PCR]." Preciose, 129 N.J. at 462. "[C]ourts should
view the facts in the light most favorable to a defendant to determine whether a
defendant has established a prima facie claim." Id. at 462-63.
The Sixth Amendment to the United States Constitution and Article I,
Paragraph 10 of the New Jersey Constitution guarantee criminal defendants a
right to the assistance of counsel. State v. Gideon, 244 N.J. 538, 549 (2021).
The right to counsel includes "the right to the effective assistance of counsel."
Nash, 212 N.J. at 541 (quoting Strickland, 466 U.S. at 686).
In Strickland, the Court established a two-part test, later adopted as
applicable under the New Jersey Constitution in Fritz, 105 N.J. at 58, to
determine whether a defendant has been deprived of the effective assistance of
counsel. Strickland, 466 U.S. at 687. Under the first prong of the Strickland
standard, a petitioner must show that counsel's performance was deficient. Ibid.It must be demonstrated that counsel's handling of the matter "fell below an
objective standard of reasonableness" and that "counsel made errors so serious
that counsel was not functioning as the 'counsel' guaranteed the defendant by the
Sixth Amendment." Ibid.A-3772-22
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Under the "second, and far more difficult prong of the" Strickland
standard, a defendant "must show that the deficient performance prejudiced the
defense." Gideon, 244 N.J. at 551 (quoting Preciose, 129 N.J. at 463). To
establish prejudice, "[t]he defendant must show that there is a reasonable
probability that, but for counsel's unprofessional errors, the result of the
proceeding would have been different. A reasonable probability is a probability
sufficient to undermine confidence in the outcome." Id. at 550-51 (alteration in
original) (quoting Strickland, 466 U.S. at 694).
Proof of prejudice under Strickland's second prong "is an exacting
standard." Id. at 551 (quoting State v. Allegro, 193 N.J. 352, 367 (2008)). A
defendant seeking PCR "must affirmatively prove prejudice" satisfying the
second prong of the Strickland standard. Ibid. (quoting Strickland, 466 U.S. at
693).
To prevail on a PCR petition, a defendant must establish both prongs of
the Strickland standard. Strickland, 466 U.S. at 687; Nash, 212 N.J. at 542. A
failure to satisfy either prong of the Strickland standard requires the denial of a
PCR petition founded on an ineffective assistance of counsel claim. Strickland,
466 U.S. at 700. "With respect to both prongs of the Strickland test, a defendant
asserting ineffective assistance of counsel on PCR bears the burden of proving
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25
his or her right to relief by a preponderance of the evidence." State v. Gaitan,
209 N.J. 339, 350 (2012).
The State has a "constitutional obligation to provide criminal defendants
with exculpatory evidence in the State's possession[.]" State v. Marshall, 148
N.J. 89, 154 (1997). "[T]he suppression by the prosecution of evidence
favorable to an accused upon request violates due process where the evidence is
material either to guilt or to punishment, irrespective of the good faith or bad
faith of the prosecution." State v. Knight, 145 N.J. 233, 245 (1996) (quoting
Brady, 373 U.S. at 87). In order to make a Brady claim, a defendant must show
three criteria: "(1) the prosecution suppressed evidence; (2) the evidence is
favorable to the defense; and (3) the evidence is material." State v. Martini, 160
N.J. 248, 268-69 (1999) (citing Moore v. Illinois, 408 U.S. 786, 794-95 (1972)).
As to the first factor, the "disclosure rule applies to information of which
the prosecution is actually or constructively aware." State v. Nelson, 330 N.J.
Super. 206, 213 (App. Div. 1998) (citing Kyles v. Whitley, 514 U.S. 419, 437-
38 (1995)). The lack of actual awareness does not relieve the State of its Brady
obligations because the prosecutor has a duty to learn of any favorable evidence
known to others acting on the government's behalf. Kyles, 514 U.S. at 437-38;
see also State v. Nelson, 155 N.J. 487, 499 (1998).
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The second Brady factor is often presumed, and few courts have
considered exactly what must be shown in order to establish that withheld
evidence is favorable to the defendant. Evidence found to be favorable has
generally involved information that impeaches the testimony of a government
witness. See State v. Henries, 306 N.J. Super. 512, 533 (App. Div. 1997).
Favorability is not limited to impeachment, however, and it has been recognized
in cases where evidence simply bolsters a defendant's claims. See Nelson, 155
N.J. at 497.
The third Brady factor involves the materiality of the evidence that was
withheld. "[E]vidence is material for Brady purposes 'if there is a reasonable
probability that, had the evidence been disclosed to the defense, the result of the
proceeding would have been different.'" Marshall, 148 N.J. at 156 (quoting
United States v. Bagley, 473 U.S. 667, 682 (1985)). "A 'reasonable probability'
is a probability sufficient to undermine confidence in the outcome." Nelson,
155 N.J. at 500 (quoting Bagley, 473 U.S. at 682). As our Supreme Court has
stated:
"[A] showing of materiality does not require
demonstration by a preponderance that disclosure of the
suppressed evidence would have resulted ultimately in
the defendant's acquittal." Rather, the question is
whether in the absence of the undisclosed evidence the
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27
defendant received a fair trial, "understood as a trial
resulting in a verdict worthy of confidence."
[Ibid. (alteration in original) (citation omitted) (quoting
Kyles, 514 U.S. at 434).]
In applying the materiality test "where a conviction has followed a full
trial, we assess the strength of the State's case, and determine whether
introduction of the suppressed evidence would probably have changed the jury's
verdict." State v. Parsons, 341 N.J. Super. 448, 455 (App. Div. 2001) (citation
omitted).
Whether non-disclosure of evidence violates Brady is a mixed question of
law and fact, where the lower court's decision concerning the materiality of the
evidence merits deference. Marshall, 148 N.J. at 185-86. We do not defer,
however, where the trial court did not analyze the claim under the correct legal
standard. Id. at 185. We next apply these foundational principles to the matter
before us.
A.
From the onset, we conclude Rule 3:22-4(b)(2)(B) precludes PCR to
defendant. In order to defeat the procedural bar, defendant would need to
demonstrate that (1) Torres's habeas corpus petition was not discoverable earlier
through reasonable diligence; and (2) the statements contained in the habeas
A-3772-22
28
corpus petition, if proven, would raise a reasonable probability that the Brady
claim would be granted.
On appeal, defendant argues he did not have access to PACER as a pretrial
detainee in a county jail. We reject this argument because defendant's attorney
could have obtained the habeas corpus petition via PACER or as a publicly filed
document. Moreover, defendant's contention that PACER was not readily
available or prominently used seventeen years ago is misguided because PACER
has been in use for over twenty years. See About Us, PACER,
https://pacer.uscourts.gov/about-us (last visited Nov. 13, 2024).
Indeed, the habeas corpus petition was known to defendant when he filed
his first PCR petition as evidenced in the April 28, 2017 letter brief filed on his
behalf in support of PCR where the habeas corpus petition is mentioned.
Therefore, based upon our de novo review, the second PCR court correctly found
that defendant failed to satisfy the first Rule 3:22-4(b)(2)(B) factor because the
habeas corpus petition was discoverable sooner through the exercise of due
diligence.
Defendant also failed to establish the second Rule 3:22-4(b)(2)(B) factor
because he has not raised a reasonable probability that the relief sought would
be granted if proven in light of the evidence as a whole. In addition, in our
A-3772-22
29
opinion denying defendant's first PCR, we rejected his argument that the habeas
corpus petition entitles him to a new trial as it did not substantially impact
defendant's culpability, rather, the false statements would go to Torres's
culpability. Tairi II, slip op. at 6-7.
We similarly reject defendant's argument that no court has yet to decide
whether he is entitled to a new trial based on the precedent established in Brady
because it is "identical to or substantially equivalent," State v. Afanador, 151
N.J. 41, 51 (1997), to the arguments addressed in his first PCR. Therefore, we
are satisfied that defendant failed to sustain his prima facie right to PCR or right
to a new trial.
B.
Notwithstanding the procedural bar to defendant's Brady claim, we will
address the merits. As to the first Brady factor, we will assume the State had an
obligation to produce Torres' habeas petition.
As to the second Brady factor, the statements contained in Torres' habeas
corpus petition would not have been admissible at trial because Torres did not
prepare the habeas corpus petition, in conceiving the arguments—Kadonsky did,
as confirmed by both Torres's and Kadonsky's sworn testimony. Therefore, the
second PCR court properly found that the purported evidence could not be used
A-3772-22
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as intended by defendant—to impeach Torres's testimony about the Staten Island
home invasion—and therefore, was not favorable within the meaning of Brady.
Applying the third Brady factor, the context of the record disfavored
materially. Our Supreme Court has directed us to consider "the strength of the
State's case, the timing of disclosure of the withheld evidence, the relevance of
the suppressed evidence, and the withheld evidence's admissibility" when
analyzing whether new evidence is considered material under Brady. State v.
Brown, 236 N.J. 497, 519 (2019).
Even in the absence of Torres's testimony, there was other sufficient
corroborating evidence to support defendant's conviction, as noted in Tairi I;
details provided by the victims of the crimes, other physical evidence , and
Melton's testimony, which circumstantially established defendant's involvement
in the criminal enterprise. Tairi I, slip op. at 24-26.
Moreover, we previously held that "[u]nlike in Nash, where the case was
essentially a credibility contest . . . , in this case there exists copious amounts of
corroborating evidence to support [defendant]'s conviction. Nash, 212 N.J. at
543-544. Whereas the defendant's conviction in Nash, was premised on the
testimony of one individual, [defendant]'s conviction was supported by a robust
A-3772-22
31
record of evidence." Thus, we conclude, based upon our de novo review, that
Torres's petition was not material under Brady.
Further, the second PCR court correctly determined that Torres's habeas
corpus petition would be inadmissible under N.J.R.E. 803(a)(1), which requires
a prior statement offered by an adversary to be inconsistent with the witness's
trial testimony. See State v. Caraballo, 330 N.J. Super. 545, 556 (App. Div.
2000) (explaining that a prior statement is "inconsistent" when it deviates from
what the witness asserted on the stand). Contrary to defendant's assertion,
Torres's habeas corpus petition never stated he had no knowledge of the Staten
Island incident.
Rather, it merely stated his trial counsel ignored his request to investigate
claims that DeJesus would have submitted an affidavit explaining he had no
knowledge of the incident. Torres confirmed this interpretation of his habeas
corpus petition when he testified at the July 21, 2021 evidentiary hearing. The
second PCR court correctly reasoned that "an impeachable contradiction of that
statement would be Torres testifying at trial that his trial counsel did not ignore
his requests to investigate those claims." Consequently, the statement is not
inconsistent, let alone material. Based upon our de novo review, defendant failed
to establish a prima facie Brady claim.
A-3772-22
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C.
Next, defendant argues he is entitled to a new trial based on ineffective
assistance of counsel. Specifically, defendant contends that "if the [c]ourt finds
that defendant's counsel had the ability or opportunity to obtain [the habeas
corpus petition] through alternative means, then [he] was deprived of his [d]ue
[p]rocess right to constitutionally effective assistance of counsel." The State
contends that defendant's argument is both procedurally barred under Rule 3:22-
4(b)(2)(B) and substantially meritless. We agree.
Defendant is procedurally barred from raising the ineffective assistance
of counsel argument because he had the opportunity to raise this issue in his first
PCR petition but failed to do so.
In the context of PCR, a defendant is entitled to an evidentiary hearing if
the defendant demonstrates "a prima facie case in support of [PCR], a
determination by the court that there are material issues of fact that cannot be
resolved by reference to the existing record, and a determination that an
evidentiary hearing is necessary to resolve the claims for relief." State v. Porter,
216 N.J. 343, 354 (2013) (alteration in original) (quoting R. 3:22-10(b)). The
mere raising of a claim for PCR, however, does not entitle the defendant to an
evidentiary hearing. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.
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1999). Rather, as a threshold matter, before a trial court grants an evidentiary
hearing, it should determine whether the defendant has presented a claim for
ineffective assistance of counsel; material issues of disputed facts are outside
the record; and resolution of the issues necessitates a hearing. R. 3:22-10(b).
When making such a determination, the PCR court must consider the facts in a
light favorable to the defendant. Preciose, 129 N.J. at 462-63.
"A prima facie case is established when a defendant demonstrates 'a
reasonable likelihood that his or her claim . . . will ultimately succeed on the
merits.'" Porter, 216 N.J. at 355. In other words, when claiming ineffective
assistance of counsel, "a petitioner must do more than make bald assertions that
he was denied the effective assistance of counsel. He must allege facts sufficient
to demonstrate counsel's alleged substandard performance." Cummings, 321
N.J. Super. at 170. If the "allegations are too vague, conclusory, or speculative,"
then an evidentiary hearing is not warranted. Marshall, 148 N.J. at 158.
Applying these principles to the matter before use, we are convinced
defendant failed to establish a prima facie right to PCR based on ineffective
assistance of counsel. While defense counsel admittedly did not discover
Torres's habeas corpus petition, the jury heard Torres testify, considered the
inconsistencies in his testimony, and still found defendant guilty of the crime s
A-3772-22
34
charged. Further, the second PCR court duly pointed that, "[t]he alleged failure
of [defendant]'s trial counsel to trial counsel to uncover one statement within an
eight-page document which . . . would have had little impact on the trial does
not rise to the level of constitutional deficiency within the meaning of
Strickland/Fritz[.]" Therefore, defendant failed to satisfy the first
Strickland/Fritz prong.
Defendant also failed to satisfy the second Strickland/Fritz prong because
he did not present evidence establishing a reasonable probability that but for
counsel's alleged error in failing to discover Torres's habeas corpus petition, the
result of his trial would have been different.
To the effect we have not addressed any of defendant's remaining
arguments, we conclude they lack sufficient merit to warrant discussion in a
written opinion. R. 2:11-3(e)(2).
Affirmed.
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