STATE OF NEW JERSEY v. KAFELE K. BOMANI (09-08-2019, ATLANTIC COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-0995-19
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
KAFELE K. BOMANI, a/k/a
SHAUN A. GOODING,
SHAWN GOODING, and SHAUN
GRANT,
Defendant-Appellant.
_____________________________
Submitted May 18, 2022 – Decided June 30, 2022
Before Judges Gilson and Gooden Brown.
On appeal from the Superior Court of New Jersey, Law
Division, Atlantic County, Indictment No. 09-08-2019.
Joseph E. Krakora, Public Defender, attorney for
appellant (Michele E. Friedman, Assistant Deputy
Public Defender, of counsel and on the brief).
Cary Shill, Acting Atlantic County Prosecutor, attorney
for appellant (Katrina M. Koerner, Special Deputy
Attorney General/Acting Assistant Prosecutor, of
counsel and on the brief).
PER CURIAM
Defendant appeals from the July 22, 2019 Law Division order denying his
motion for a new trial based on newly discovered evidence. We affirm.
Following a 2011 trial, a jury convicted defendant of first-degree
attempted murder, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3(a)(1), (2); second- and
third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1), (2); and three weapons
offenses, including second-degree certain persons not to have weapons, N.J.S.A.
2C:39-7. The convictions stemmed from defendant shooting a man on a street
corner in Atlantic City and fleeing in a sports utility vehicle (SUV). Although
the victim survived, he refused to cooperate with the police investigation and
never identified the shooter. However, a recording of the shooting was captured
on a hotel video surveillance camera and observed by two eyewitnesses.
After appropriate mergers, defendant was sentenced to an aggregate
extended term of life imprisonment, subject to the No Early Release Act
(NERA), N.J.S.A. 2C:43-7.2. Defendant appealed and we affirmed the
convictions but remanded for resentencing in an unpublished opinion. State v.
Bomani (Bomani I), No. A-3373-11 (App. Div. March 3, 2014). The Supreme
Court denied certification. State v. Bomani, 219 N.J. 628 (2014). On the first
remand, defendant was resentenced to an aggregate term of thirty-five years'
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imprisonment, subject to NERA. Defendant again appealed his sentence, and
we reversed and remanded for resentencing in an unpublished opinion. State v.
Bomani (Bomani II), No. A-0017-15 (App. Div. Feb. 9, 2016). On the second
remand, defendant was resentenced to an aggregate term of twenty-five years'
imprisonment, subject to NERA. Defendant then filed a petition for post-
conviction relief (PCR), which was denied. We affirmed in an unpublished
opinion, State v. Bomani (Bomani III), No. A-5207-17 (App. Div. February 10,
2020), and the Supreme Court denied certification, State v. Bomani, 242 N.J.
497, 498 (2020).
In Bomani I, we detailed the events underlying defendant's convictions as
follows:
At about 2:18 a.m. on October 20, 2007, Lameck
Ganda was working in the security booth of the
Wyndham Resort Hotel in Atlantic City. He heard a
commotion outside and then saw on the hotel's security
camera monitors that four men were arguing and
fighting on hotel property. One of the men was wearing
a red shirt and another man was wearing a distinctive
multi-colored checkered shirt. Lameck went outside
and spoke to the men, approaching to within about eight
feet of them. He directed the men to leave the hotel
property. The four men went in the direction of the
nearby Resorts Casino.
Shortly before 6:40 a.m., Lameck again saw four
men on the video monitors who appeared to be
arguing. . . . He zoomed in on the men's faces and saw
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that the disturbance involved the same men that he had
approached earlier in the night.
Lameck then saw the man wearing the checkered
shirt go to a dark-colored SUV parked nearby in the
street and retrieve something from inside the vehicle.
That man walked up to the man in the red shirt and fired
a shot at him. The man in the red shirt held his stomach
and fled in one direction as the gunman ran back to the
SUV and drove away.
[Bomani I, slip op. at 1-3.]
We explained that the police soon learned that the shooting had been
"captured and recorded" on "the Wyndham Hotel security cameras" and
witnessed by Lameck, as well as another Wyndham Hotel employee, John
Lopez. Id. at 4-5.
Although Lopez did not see the shooter's face, he
described his clothing and general appearance
consistently with Lameck and the appearance of the
man on the video recording. More significant, Lopez
had observed and memorized the license plate number
of the SUV and gave that information to the police.
The police quickly matched the plate number to
a vehicle registered to defendant . . . at an address on
Memorial Avenue, which [was] within four blocks of
the site of the shooting.
[Id. at 5.]
Two police officers responded to defendant's address "[a]t approximately
7:07 a.m." and encountered defendant shirtless in the hallway of his rooming
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house. Id. at 6-7. When questioned about his whereabouts earlier in the night,
defendant told police, "he had been at a bar earlier that night" and "that his
vehicle was parked at a nearby garage." Id. at 7-8. Ten minutes later, "[a]t 7:17
a.m., an officer found a black Ford SUV in the garage with the license plate
number provided by the eyewitness. The officer touched the vehicle's hood and
found it to be warm, indicating it had been driven recently." Id. at 8.
After defendant was arrested, "Lameck identified defendant [as the
shooter,] but not the vehicle" found at the garage. Id. at 9. On the other hand,
Lopez identified the "SUV as the vehicle he had observed immediately before
and after the shooting" but "did not identify defendant" as the shooter. Ibid. A
subsequent search of defendant's room revealed "a checkered shirt, a light-
colored cap, and tan boots" as seen in the hotel surveillance video. Id. at 7, 9.
"DNA of two persons was found in the checkered shirt and cap . . . and . . . one
of the profiles was consistent with defendant's DNA." Id. at 11. No gun was
recovered.
At trial, the manager of the garage where the SUV was parked, Barry
Goldstein, testified for the State. Goldstein, who had been in the position for
twenty-four years, stated that cars could park at the garage daily "by obtaining
a ticket through the ticket spitter," or by using a "proximity card," which was
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issued to "monthly patron[s]." Goldstein testified that in compliance with a
subpoena issued by the State, he had turned over parking garage business records
gathered from computerized information, which included: (a) information
pertaining to the times cars parking on a daily basis entered the garage on the
morning of October 20, 2007; and (b) two proximity cards which belonged to
defendant but had lapsed by May 2007. Goldstein was familiar with defendant
and testified that defendant continued to park at the garage and "pay by the day"
after his proximity cards lapsed. Goldstein explained that at the time of the
incident, the garage had no "[monitoring] cameras" available, but he had
prepared "a [ticket] dispenser transaction report for . . . October 20, [20]07."
According to Goldstein, to prepare the report, "the computer . . . extracted all
the tickets that were dispensed from th[e] ticket spitter for the variables that
were input." He testified that the report indicated that between 6:44 a.m. and
7:15 a.m., "[t]wo" vehicles entered the garage, one at "6:44 [a.m.] and [one at]
6:55 [a.m.]"
To undermine defendant's claim that his SUV was in the parking garage
when the shooting occurred, at trial,
[t]he prosecution argued before the jury that
defendant's vehicle must have been the second of these
entries, and the defense argued that defendant would
not have had enough time to park his vehicle, dispose
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of evidence, get to his room, undress, and be present
shirtless in the hallway of his rooming house in time for
[the officer] to find him just after 7:07 a.m.
[Id. at 8-9.]
In addition to the testimony of the garage manager, the two eyewitnesses,
the doctor who performed emergency surgery on the victim, the DNA expert,
and numerous police officers and detectives who participated in the
investigation, a copy of the hotel video surveillance recording was presented to
the jury "showing the moment of the shooting and the shooter's flight on foot to
the SUV." Id. at 11. We noted that "[b]ecause of the angle of the surveillance
view and the quality of the recording, the face of the shooter [was] not clear,
although his general appearance, clothing, and actions [were] readily visible."
Id. at 11-12. Defendant did not testify at trial. The victim was subpoenaed by
the defense and testified "that defendant was not the person who shot him, and
he did not know who the shooter was." Id. at 12.
Weeks after the jury convicted defendant, he moved for a new trial based
on newly discovered evidence. In support of that motion, he presented a
certification from a fellow inmate who claimed that he was a friend of the victim
and acquainted with defendant. The inmate stated he had been with the victim
at the time of the shooting and claimed that it was not defendant who shot the
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victim. The trial court conducted an evidentiary hearing during which the
inmate testified. The court denied defendant's motion for a new trial, finding
that the inmate's testimony was not credible.
In 2019, defendant filed a second motion for a new trial based on newly -
discovered evidence – this time, based on his discovery that Goldstein had
allegedly committed perjury at trial and fabricated records when he testified
about the existence of computerized parking records. Specifically, defendant
alleged that in response to his numerous New Jersey Open Public Records Act
(OPRA) requests in 2017 and 2018 for "all internet or computerized record data
from the [garage's] dispenser transaction machine and cash dispenser machine
from October 20, 2007," a representative from the South Jersey Transportation
Authority indicated "that there never were any [i]nternet or computerized record
data from the dispenser transaction machine or the cash dispenser machine" and
"[a]ny paper records" for that "time period . . . were disposed of [in April 2009]
pursuant to State of New Jersey Division of Revenue Record Management
guidelines." As a result, defendant proffered that because Goldstein's report was
not made until 2011, he must have "presented both perjured testimony and
fabricated computerized/electronic physical evidence to the jury."
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On July 22, 2019, without conducting an evidentiary hearing, the motion
judge denied defendant's motion for a new trial, finding the newly discovered
evidence failed to meet the three-part test enunciated in State v. Carter, 85 N.J.
300, 314 (1981). In a written decision, the judge stated "Goldstein . . . gave
specific details as to how the[] records were recorded and maintained," and he
"was responsible for keeping such records in the regular course of business and
personally prepared the reports in anticipation of trial." Moreover, "Goldstein,
as the custodian of these records for this particular garage at that time, was in a
much better position to know how these records were kept than an author of an
OPRA request response almost a decade later."
The judge added "[e]ven assuming this evidence was material and not
merely cumulative and was discovered after the trial and not reasonably
discoverable prior to or during the trial, it [wa]s not of a nature as to probably
have affected the jury's verdict." Thus, the judge concluded "[t]he allegation
that these records were not available at the time of the trial and must have
therefore been fabricated, based on information provided to defendant in
response to his multiple OPRA requests, does not rise to the level necessary
under Carter to merit the granting of a new trial." The judge entered a
memorializing order and this appeal followed.
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On appeal, defendant raises a single point for our consideration:
THE MOTION COURT IMPROPERLY
DISCOUNTED THE VERACITY OF THE
INFORMATION CONTAINED WITHIN THE OPRA
RESPONSE(S), ABSENT AN EVIDENTIARY
HEARING, AND OVERLOOKED BOTH THE
MATERIAL IMPACT OF . . . GOLDSTEIN'S
TESTIMONY AT TRIAL AND THE LIKELIHOOD
THAT A NEW JURY WOULD RENDER A
DIFFERENT VERDICT BASED UPON THE
NEWLY-DISCOVERED EVIDENCE.
"A motion for a new trial based on the ground of newly-discovered
evidence may be made at any time . . . ." R. 3:20-2. In Carter, our Supreme
Court adopted a three-prong test for granting a new trial based on newly
discovered evidence. Under that test,
[e]vidence is newly discovered and sufficient to
warrant the grant of a new trial when it 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. Nash, 212 N.J. 518, 549 (2013) (quoting
Carter, 85 N.J. at 314).]
Under prong one, a defendant must show the evidence "ha[s] some bearing
on the claims being advanced" and includes evidence that supports a general
denial of guilt. State v. Ways, 180 N.J. 171, 188 (2004) (quoting State v.
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Henries, 306 N.J. Super. 512, 531 (App. Div. 1997)). This requires the court to
engage in "an evaluation of the probable impact such evidence would have on a
jury verdict." Id. at 188-89. "[E]vidence that would have the probable effect of
raising a reasonable doubt as to the defendant's guilt would not be considered
merely cumulative, impeaching, or contradictory." Id. at 189.
Under prong two, "the new evidence must have been discovered after
completion of trial and must not have been discoverable earlier through the
exercise of reasonable diligence." Id. at 192. To be sure, a defendant must "act
with reasonable dispatch in searching for evidence before the start of the trial. "
Ibid. Under prong three, evidence that "would shake the very foundation of the
State's case and almost certainly alter the earlier jury verdict" would clearly
qualify. Id. at 189. "[T]he test is whether the evidence if introduced is such as
ought to have led the jury to a different conclusion — one of probability and not
mere possibility . . . ." State v. Haines, 20 N.J. 438, 445 (1956).
"[A]ll three prongs of th[e] test must be satisfied before a defendant will
gain the relief of a new trial." Ways, 180 N.J. at 187; accord Carter, 85 N.J. at
314. Further, it is the defendant's "'burden to establish each prong is met.'" State
v. Fortin, 464 N.J. Super. 193, 216 (App. Div. 2020) (quoting State v. Smith, 29
N.J. 561, 573 (1959)). While we acknowledge that the purpose of post-
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conviction review based on newly discovered evidence "is to provide a
safeguard in the system for those who are unjustly convicted of a crime," we are
mindful that "[n]ewly 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." Ways, 180 N.J. at 187-88.
To that end, motions for a new trial based on newly discovered evidence
"should be granted with caution by a trial court since [they] disrupt[] the judicial
process." State v. Conway, 193 N.J. Super. 133, 171 (App. Div. 1984) (citing
Haines, 20 N.J. at 443). Such motions are "'addressed to the sound discretion of
the trial court, and its determination will not be reversed on appeal unless there
has been a clear abuse of that discretion.'" State v. Puchalski, 45 N.J. 97, 107
(1965) (quoting State v. Artis, 36 N.J. 538, 541 (1962)); see also State v. Russo,
333 N.J. Super. 119, 137 (App. Div. 2000). That said, a "reviewing court must
engage in a thorough, fact-sensitive analysis to determine whether the newly
discovered evidence would probably make a difference to the jury. " Ways, 180
N.J. at 191. "The power of the newly discovered evidence to alter the verdict is
the central issue, not the label to be placed on that evidence." Id. at 191-92.
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Like with a petition for post-conviction relief (PCR), the mere raising of
a claim of newly discovered evidence does not entitle the defendant to an
evidentiary hearing. See State v. Cummings, 321 N.J. Super. 154, 170 (App.
Div. 1999) ("Although R[ule] 3:22-1 does not require evidentiary hearings to be
held on [PCR] petitions, R[ule] 3:22-10 recognizes judicial discretion to conduct
such hearings."). Instead, trial courts should grant an evidentiary hearing only
if the defendant has presented a prima facie claim for PCR, material issues of
disputed facts lie outside the record, and resolution of the issues necessitates a
hearing. See R. 3:22-10(b); State v. Porter, 216 N.J. 343, 354-55 (2013). In
turn, we review a trial court's denial of an evidentiary hearing on a PCR petition
for abuse of discretion. See State v. Preciose, 129 N.J. 451, 462 (1992). The
same standard applies to a motion for a new trial based on newly discovered
evidence – that is the trial court should grant an evidentiary hearing only if the
defendant has presented a prima facie case of newly discovered evidence
warranting a new trial under the Carter test. 85 N.J. at 314.
Here, defendant argues the judge "committed reversible error by
summarily rejecting the veracity" underlying the OPRA responses "without
conducting an evidentiary hearing" and "by overlooking the material
impact . . . Goldstein's testimony had at trial, as well as the likelihood that the
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newly discovered evidence of his perjury would prompt a new jury to acquit
[defendant]." Considering defendant's contentions in light of the record and
applicable law, we discern no abuse of discretion or legal error in the judge's
decision to deny the motion without conducting an evidentiary hearing because
defendant failed to meet his burden of establishing all three prongs of the Carter
test. "The absence of any one of these elements warrants denial of the motion."
State v. Allen, 398 N.J. Super. 247, 258 (App. Div. 2008).
Critically, as the judge explained, defendant failed to demonstrate that the
jury would reach a different result if a new trial were granted. The garage
manager's testimony was not the central testimony relied on by the jury. Instead,
the jury was presented with surveillance video that captured the shooting and
two eyewitnesses, one of whom identified defendant as the shooter. The police
also discovered in defendant's room clothing matching the clothing worn by the
shooter on the surveillance video and DNA evidence tying defendant to the
clothing.
The import of the garage manager's testimony was to show that
defendant's SUV had entered the garage after the shooting had occurred to
counter the defense theory that the SUV was parked in the garage at the time of
the shooting. However, the State also introduced evidence that the SUV's hood
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was warm approximately thirty-seven minutes after the shooting, "indicating it
had been driven recently." Bomani I, slip op. at 8. Thus, undermining the garage
manager's testimony would probably not change the jury's verdict if a new trial
were granted. In sum, considering the totality of the evidence, we are satisfied
that Goldstein's alleged perjury and fabricated documents do not satisfy the
Carter test to warrant a new trial.
Affirmed.
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