NOT FOR PUBLICATION WITHOUT THE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-5026-16T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
R.B.,
Defendant-Appellant.
____________________________
Submitted March 25, 2019 – Decided April 4, 2019
Before Judges Sabatino and Haas.
On appeal from Superior Court of New Jersey, Law
Division, Hudson County, Indictment No. 06-08-1277.
R.B., appellant pro se.
Esther Suarez, Hudson County Prosecutor, attorney for
respondent (Alanna M. Jereb, Assistant Prosecutor, on
the brief).
PER CURIAM
Defendant R.B. appeals from the May 31, 2017 Law Division order
denying his second petition for post-conviction relief (PCR). We affirm.
The parties are fully familiar with the procedural history and facts
surrounding defendant's convictions for first-degree kidnapping, N.J.S.A.
2C:13-1(b); and third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(7), which
is set forth in detail in our opinion denying defendant's first petition for PCR.
State v. R.B., No. A-0172-14 (App. Div. July 20, 2016), certif. denied, 228 N.J.
62 (2016). Therefore, we will not repeat that discussion here.
In his second PCR petition, defendant alleged that during his first and
second trials, the State committed a "Brady1 violation" by failing to disclose a
complaint against defendant's wife, who was the victim of the kidnapping and
assault involved in this matter, that the Division of Child Protection and
Permanency (Division) filed in November 2014, long after those trials were
completed.2 The complaint also named defendant as a party-defendant because
he was the father of one of the victim's children.
In the complaint, the Division sought to assume care and custody of all
three of the victim's children. In setting forth the facts underlying its claims, the
1
A "Brady violation" occurs when the prosecution fails to produce exculpatory
evidence in its possession or under its control. Brady v. Maryland, 373 U.S. 83,
87 (1963).
2
The first trial was held in 2007, and the second was completed in 2010. R.B.,
(slip op. at 1-2).
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Division recounted its involvement with the family prior to defendant's violent
attack on the victim. The complaint was also based upon the victim's alleged
actions following defendant's conviction.
Defendant argued that had he known the victim was the subject of a
Division investigation, and that the Division alleged she used drugs and
committed domestic violence against him in the years prior to his conviction, he
and his trial attorney could have used this information to challenge the victim's
credibility on cross-examination. Because he was deprived of this "newly
discovered evidence," defendant asserted that he was entitled to a new trial.
Defendant also alleged that the attorney who represented him on his first
PCR petition provided ineffective legal assistance to him because he failed to
conduct a proper investigation, as evidenced by his failure to uncover the
information concerning the victim that was set forth in the Division's November
2014 complaint.
In a written decision rendered on May 31, 2017, Judge Sheila Venable
rejected these contentions, and denied defendant's second petition for PCR. The
judge found that defendant was fully aware of the allegations against the victim
because he was married to her, and was also directly involved with the Division
as a subject of its investigation during the period leading up to his attack upon
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her. Indeed, defendant's attorney at his first trial attempted to cross-examine the
victim concerning her use of drugs, alleged acts of domestic violence, and
involvement with the Division. 3 Thus, this information was certainly not "newly
discovered."
The judge also found that defendant's complaints about his PCR attorney
were unfounded. The judge noted that the attorney submitted an eighty-four-
page brief in support of defendant's petition, and had effectively presented
defendant's contentions to the court. This appeal followed.
On appeal, defendant presents the following contentions:
POINT ONE
THE PCR COURT'S DENIAL OF DEFENDANT'S
SECOND PETITION FOR [PCR] WAS ERROR AS
GOOD CAUSE WAS SHOWN AND THE FACTUAL
PREDICATE FOR THE RELIEF SOUGHT COULD
NOT HAVE BEEN DISCOVERED EARLIER
THROUGH REASONABLE DILIGENCE DUE TO
THE STATE'S FAILURE TO DISCLOSE AND THE
INEFFECTIVE ASSISTANCE OF PCR COUNSEL
FOR FAILURE TO INVESTIGATE.
POINT TWO
THE PCR COURT FAILED TO REVIEW NEWLY
DISCOVERED EVIDENCE AS A BRADY
3
The trial judge sustained the State's objection to this line of questioning, after
concluding that the Division's investigation was a "collateral issue" that was
irrelevant to the kidnapping and assault charges pending against defendant.
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VIOLATION, AND RELIED ON A
MISREPRESENTATION OF THE FACTS BY THE
STATE INSTEAD OF GRANTING REQUESTED
EVIDENTUARY [SIC] REVIEW TO CLEARIFY
[SIC] THE RECORD.
A. The State Purposely Withheld Information
Contained In The Newly Discovered [Division]
Document Resulting In A Clear Brady Violation
Preventing [Defendant's] Attorney From
Impeaching The Primary State's Witness
Testimony At Trial.
B. Another Example Of The State Withholding
Evidence And The [Trial] Court Refusing To
Hear Argument About The Personal Letters Sent
to [Defendant] By [The Victim] That Were In
Possession Of The State And A Clear Brady
Violation Because The State Refused To Give
Them To The Defense, As The Letters Were
Proof Of [The Victim's] Mental Instability And
Bolsters The Newly Discovered [Division]
Statement.
POINT THREE
THE PCR COURT FAILED TO REVIEW CLAIMS
WITHIN [DEFENDANT'S] PETITION WAS PLAIN
ERROR AND DENIED [DEFENDANT] HIS
CONSTITUTIONAL RIGHT TO CROSS-EXAMINE
THE STATE'S ONLY WITNESS PERTAINING TO
THE ADMITTANCE OF TESTIMONY GEARED
TOWARD MENTAL HEALTH ISSUES, PAST
FIGHTING, DOMESTIC VIOLENCE ACTS, AND
VIOLATED THE CONFRONTATION CLAUSE
GUARANTEED IN THE SIXTH AMENDMENT.
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A. The Trial Court Infringed On [Defendant's] Sixth
Amendment Right Of Confrontation And To
Cross-Examine The State's Only Witness By
Ruling All Evidence Collateral.
B. Alternatively, If This Court Were To Deny
[Defendant's] Clear Brady Violations By The
State Then [Defendant's] Constitutional Right To
Effective Assistance Of Second Trial And PCR
Counsel Was Violated [Where] The Assigned
Public Defender Failed To Adequately Protect
[Defendant's] Rights By Failing To Investigate
The Probative Values Of Information Contained
Herein The Newly Discovered [Division]
Document.
Having considered defendant's contentions in light of the record and the
applicable law, we conclude they are without sufficient merit to warrant
discussion in a written opinion. R. 2:11-3(e)(2). We affirm substantially for the
reasons set forth by Judge Venable in her thoughtful written decision, and add
the following brief comments.
Contrary to defendant's contention, the State did not commit a Brady
violation in this matter. As noted above, the State must turn over exculpatory
material in its possession or under its control to the defense. Brady, 373 U.S. at
87. Here, the Division's complaint was not filed until November 2014 and,
therefore, was obviously not in the State's possession or control at the time of
either of defendant's trials. In addition, defendant failed to establish that the
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State was privy to any of the information the Division assembled as part of its
separate, and completely unrelated, investigation of defendant and his family.
Therefore, the judge properly rejected defendant's contention on this point.
Judge Venable also correctly determined that the information set forth in
the complaint as it related to the victim's involvement with the Division prior to
the trials was not "newly discovered." To secure a new trial based upon 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 of the test must be established. Ibid.
Here, the record demonstrates that defendant, who was himself a subject
of the Division's investigation, and his defense team were aware that the
Division had investigated the victim, and was concerned that she was using
drugs and fighting with defendant. Indeed, defendant's attorney in the first trial
attempted to cross-examine the victim using this information. However, the
judge in that proceeding ruled that this information was not material to the
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criminal charges defendant was facing, and barred its entry at trial. Defendant
did not challenge that ruling on direct appeal, and did not attempt to refer to the
Division's allegations in the second trial.
Defendant failed to demonstrate that this information would have changed
the jury's determination that he was guilty of the violent offenses involved in
this matter. Because defendant had been aware of the investigation for years,
and the Division matter was not material to the criminal proceedings,
defendant's first PCR attorney did not need to conduct an investigation into the
Division's allegations. Thus, the judge did not abuse her discretion by denying
defendant's PCR petition. State v. Preciose, 129 N.J. 451, 462 (1992).
Affirmed.
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