STATE OF NEW JERSEY VS. AKBAR SALAAM (10-07-1670, 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NOT FOR PUBLICATION WITHOUT THE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-1278-19

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

AKBAR SALAAM, a/k/a
MALIK SALAAM, NAT
MCDANIEL, WILLIAM
MCDANIEL, WILLIAM
MCDANIELS, and
WILLIAM N. MCDANIELS,

Defendant-Appellant.
________________________

Submitted January 13, 2021 – Decided February 10, 2021

Before Judges Alvarez and Geiger.

On appeal from the Superior Court of New Jersey, Law
Division, Atlantic County, Indictment No. 10-07-1670.

Joseph E. Krakora, Public Defender, attorney for
appellant (Andrew R. Burroughs, Designated Counsel,
on the briefs).
 Damon G. Tyner, Atlantic County Prosecutor, attorney
for respondent (John J. Santoliquido, Assistant
Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Akbar Salaam appeals from an October 2, 2019 order denying

his motion for a new trial and petition for post-conviction relief without an

evidentiary hearing. We affirm substantially for the reasons expressed by Judge

Donna M. Taylor in her well-reasoned written opinion.

We derive the following facts from the record. In September 2008, police

arrested Richard Gillard for selling cocaine to an undercover police officer in

Atlantic City. During custodial interrogation, Gilliard agreed to cooperate and

revealed to Atlantic City Police Department (ACPD) Detective Daryl Dabney

that defendant, also known as "Malik," had been selling heroin at the All Wars

Memorial, a city-owned building in Atlantic City, where defendant worked as a

maintenance supervisor for the Atlantic City Department of Public Works.

Based on this information, Dabney sought to arrange controlled buys of heroin

from defendant using Gilliard as a confidential informant (CI).

On April 30, 2009, Dabney arranged the first controlled buy for Gilliard

to purchase five bricks of heroin from defendant. Police provided Gilliard with

an audio and video recording device and supplied him with currency from the

A-1278-19
2
Drug Enforcement Agency (DEA). Following the controlled buy, Gilliard gave

law enforcement the five bricks of heroin he purchased from defendant.

Four additional controlled buys took place on May 13, May 14, June 11,

and September 10, 2009. Gilliard used an audio recording device for the

purchases on May 13 and May 14, and an audio video recording device for the

purchases on June 11 and September 10.

An Atlantic County Grand Jury returned a thirty-count indictment

charging defendant with five counts of second-degree official misconduct,

N.J.S.A. 2C:30-2(a), and twenty-five narcotics offenses.

Defendant moved to dismiss the charges related to the June 11 purchase,

alleging that Dabney falsely testified before the grand jury, based on the video's

lack of clarity. When testifying, Dabney provided the following description of

what the video depicted:

You can observe Mr. Salaam meeting up with the CI in
what appears to be a conference room and Mr. Salaam
goes right into his pocket and he pulls out the packaged
heroin. You can see it in his hand and he hands it to the
CI, the confidential informant, and that's when he starts
to inform the confidential informant to be careful when
you leave here. The police are in the area.

A-1278-19
3
The court denied the motion, concluding the State had presented some evidence

that all five controlled buys had taken place and finding it best to leave it to the

trial jury to decide "what they see on the video and who they believe."

Thereafter, defendant unsuccessfully moved to dismiss the indictment

again and requested a Driver1 hearing. He sought to preclude the State from

providing the jury with transcripts prepared by Dabney of the recordings of the

controlled buys. The court explained that defendant's motion to dismiss was

identical to his previous motion but would conduct a Driver hearing to address

the quality of the audiotapes and videotapes at another time. However, defense

counsel later withdrew the request.

During the trial, the State relied on audio and video recordings from

Gilliard of the controlled buys to prove defendant sold heroin. The recordings

were played to the jury and admitted into evidence. 2 The trial judge

acknowledged the recordings were difficult to understand and allowed the jury

to use the transcripts as a trial aid but not during deliberations.

1
State v. Driver, 38 N.J. 255 (1962).
2
The record indicates they were provided to the jurors—without objection from
defense counsel—when all five of the recordings were played at trial.

A-1278-19
4
 On direct examination, Dabney testified that he did not use an undercover

police officer for the controlled buys because "[it was] well-known from other

informants that" defendant "ha[d] a particular clientele that he [sold] to." As

soon as Dabney made this statement, the prosecutor intervened and requested

that Dabney's testimony be struck from the record. Defense counsel agreed

without objection. The trial court immediately gave this curative instruction:

I'm going to strike the last answer that Detective
Dabney gave. He started to tell [you] about information
that he may have obtained from other sources and, of
course, that would be hearsay. I'm going to strike it and
instruct you not to consider it for any consideration
whatsoever, so that will be stricken from the record.

The jury found defendant guilty of all thirty counts. In all, defendant was

convicted of five counts of each of the following crimes: second-degree official

misconduct; third-degree distribution of heroin, N.J.S.A. 2C:35-5(a)(1) and

2C:35-5(b)(3); second-degree distribution of heroin within 500 feet of a public

building, N.J.S.A. 2C: 35-7.1; third-degree possession of heroin with the intent

to distribute, N.J.S.A. 2C:35-5(a)(1) and 2C:35-5(b)(3); third-degree

distribution of heroin within 1000 feet of school property, N.J.S.A. 2C:35-7; and

third-degree possession of heroin, N.J.S.A. 2C:35-10(a)(1). State v. Salaam,

No. A-6394-11 (App. Div. Feb. 4, 2015) (slip op. at 2), certif. denied, 222 N.J.

15 (2015). On July 6, 2012, defendant was sentenced "to consecutive terms of

A-1278-19
5
imprisonment resulting in an aggregate sentence of forty years subject to twenty-

five years of parole ineligibility." Id. at 3.

In his pro se supplement brief on direct appeal, defendant argued: (1) the

indictment should have been dismissed due to the prosecutor's failure to present

exculpatory evidence to the grand jury; (2) the prosecutor failed to disclose

discoverable material which hindered defendant's right to present a defense; (3)

the trial court failed to conduct a Driver hearing to determine the reliability and

audibility of the recordings of the drug transactions; and (4) trial counsel was

ineffective by failing to investigate and prepare an effective defense. We

rejected these arguments, explaining:

Twice defendant unsuccessfully moved pre-trial
to dismiss Indictment No. 10-07-1670, alleging that
exculpatory evidence had not been presented to the
grand jury and that Atlantic City Police Detective Daryl
Dabney gave false testimony in order to secure the
return of the indictment. Although counsel and the trial
judge discussed, pre-trial, conducting Driver hearings
as to the tapes of the drug transactions, we have no
indication that such hearings took place.

....

Defendant's first point in his pro se brief requires
little discussion. His attorney appropriately, pursuant
to Rule 3:10-2(c), sought dismissal of the indictment
because of Dabney's "misstatement" to the grand jury
that he saw defendant during the course of the first
transaction on the video, when the video itself was

A-1278-19
6
obstructed. Generally, motions based on flawed grand
jury presentations must be filed before trial, as a
subsequent guilty verdict renders the error harmless.

Although Dabney misspoke with regard to the
video of the first transaction, he was ultimately able to
identify defendant's voice during the transaction. The
prosecution relied upon this identification of defendant
as the drug seller during the trial.

Defendant's attorney filed a pre-trial application
to compel the State to provide him with discovery from
the DEA file regarding another individual who was
investigated along with defendant. The prosecutor's
response to the application was that he had provided
counsel with everything he had related to the
investigation of defendant. The judge, accordingly,
denied the motion as defendant could not identify the
allegedly discoverable materials in the federal file
related to his charges and the prosecutor had no
knowledge of any additional documents related to
defendant in that file. Ultimately, the judge doubted his
authority to order the DEA to provide defendant with
the discovery, even if it had existed. The application
simply lacked any support that made it appear more
than a fishing expedition. We see no error in the judge's
refusal to order discovery that may not have even
existed from a federal agency.

. . . Apparently, the audio quality of the tapes in this
case did not necessitate a hearing.

Defendant also raises the issue of ineffective
assistance of counsel. We do not address that claim at
this stage, as ordinarily, such issues are preserved for
postconviction relief and not in the direct appeal.

A-1278-19
7
 In sum, we do not believe that defendant's pro se
points of error warrant further discussion in a written
decision.

[Salaam, slip op. at 3, 25-27 (citations omitted).]

We affirmed defendant's convictions but remanded for resentencing

because: (1) "the consecutive terms of imprisonment did not comply with the

standards articulated in State v. Yarbough, 100 N.J. 627 (1985)"; (2) the trial

court improperly applied aggravating factors one, N.J.S.A. 2C:44-1(a)(1), and

eleven, N.J.S.A. 2C:44-1(a)(11); (3) defendant's sentence was effectively a life

sentence given his age; and (4) every CDS-related count needed to be merged

"into the five separate official misconduct counts to which they chronologically

correspond." Salaam, slip op. at 3, 28-30, 32.

On remand, defendant was resentenced to an aggregate thirteen-year term

subject to a ten-year parole-bar. Defendant appealed his revised sentence, and

we again remanded because "the court did not provide adequate findings to

support imposition of consecutive terms." State v. Salaam, No. A-1999-15

(App. Div. Aug. 2, 2016). On the second remand, the trial court made additional

findings but did not modify the sentence. Defendant appealed a third time,

challenging the consecutive sentence. The appeal was heard on an oral

sentencing calendar pursuant to Rule 2:9-11 and we affirmed the sentence. State

A-1278-19
8
v. Salaam, No. A-1238-16 (App. Div. Feb. 7, 2017). The Supreme Court denied

certification. State v. Salaam, 233 N.J. 320 (2018).

Meanwhile, on August 8, 2017, defendant filed a pro se PCR petition. The

petition was dismissed without prejudice due to his then pending direct appeal.

On October 23, 2018, defendant filed a second pro se PCR petition. PCR

counsel was appointed, who submitted briefs in support of defendant's petition

and motion for a new trial and filed an amended PCR petition.

First, defendant argued an evidentiary hearing was required because trial

counsel provided ineffective assistance by: (1) failing to pursue a Driver hearing

application; (2) failing to make certain arguments at resentencing; (3) failing to

call witnesses at trial; (4) failing to object to the admittance of the lab report

into evidence; (5) failing to move for a mistrial; and (6) failing to argue the "no

free crime" factor under Yarbough. Second, defendant argued that appellate

counsel was ineffective by failing to appeal the denial of his motion to dismiss

and Brady3 motion. Third, defendant argued the trial court should have declared

a mistrial because the State committed a Brady violation by failing to disclose

Gilliard's CI status and the existence of the DEA investigation.

3
Brady v. Maryland, 373 U.S. 83 (1963).

A-1278-19
9
 Judge Taylor concluded that defendant's claims lacked evidentiary

support. She further found he failed to satisfy either prong of the

Strickland/Fritz4 test, "fail[ing] to meet his burden by a preponderance of the

evidence that trial counsel was ineffective."

A. Ineffective Assistance of Trial Counsel

First, the judge rejected defendant's claim that trial counsel was

ineffective by failing to pursue a Driver hearing, explaining that trial counsel

stated he wanted the recordings played for the jury and intended to use the

recordings to cross-examine Dabney. The court emphasized that Driver "does

not provide the petitioner an avenue for relief to exclude the transcripts, " rather

it "affords defendants . . . the opportunity to challenge the admissibility of the

recordings." In addition, the court rejected defendant's contention that the

transcripts were prejudicial, despite their imperfections, because the jury was

instructed that the transcripts were not evidence—only the audio recordings

were evidence. Furthermore, "[t]here [was] nothing in the record to suggest the

jury failed to adhere to the [c]ourt's instruction."

4
Strickland v. Washington, 466 U.S. 668 (1984); State v. Fritz, 105 N.J. 42
(1987).
A-1278-19
10
 Second, the judge rejected defendant's argument that trial counsel should

have argued against a consecutive sentence during the resentencing hearing.

The judge found that defendant failed to demonstrate prejudice under prong two,

noting that appellate counsel specifically raised this issue on appeal, but the

sentence was affirmed by this court. The judge also found defendant failed to

demonstrate that, but for trial counsel's failure to raise these arguments during

his original sentencing, the trial court would have imposed concurrent rather

than consecutive sentences.

Third, the judge rejected defendant's argument that trial counsel was

ineffective by failing to call four witnesses at trial. While defendant alleged he

requested trial counsel to interview them, who he claimed "would have testified

they were present at the All Wars Memorial Building with [defendant] on the

alleged offense dates and did not observe the alleged transaction," defendant

only submitted a single certification that was not sufficient to demonstrate that

"the outcome of [defendant's] trial would have been different [had] these

witnesses" testified. Even if the witnesses had testified, their testimony "would

not have undermined the State's case let alone resulted in a different verdict. "

Defendant "was recorded distributing narcotics to a confidential informant on

five different occasions."

A-1278-19
11
 Fourth, defendant argued that trial counsel should have objected to the

admission of the laboratory report because the State failed to test all the heroin

seized. The judge explained that the State was not required to do so because it

may use circumstantial evidence to prove the amount of drugs defendant

possessed, citing State v. Gosa, 263 N.J. Super. 527, 537 (App. Div. 1993).

Fifth, the judge rejected defendant's argument that trial counsel was

ineffective by failing to move for a mistrial after Dabney stricken testimony.

testified on direct that he did not believe using an undercover officer "would

ever work" because defendant "ha[d] a particular clientele that he sells to, and

it's well-known from other informants." The judge concluded Dabney had

testified "from [his] personal knowledge rather than relaying what the

informants may have said to him." Moreover, "[t]the prosecutor successfully

stopped Det. Dabney from giving hearsay testimony[,] which he was likely

about to do."

Finally, the judge rejected defendant's claim that trial counsel was

ineffective at resentencing by failing to argue the "no free crimes" factor under

Yarbough. The judge found counsel made this argument and the trial "court

considered all of the competent and credible evidence raised at re-sentencing,

A-1278-19
12
including trial counsel's arguments under Rogers." 5 Thus, defendant failed to

demonstrate prejudice.

B. Ineffective Assistance of Appellate Counsel

First, the judge did not agree that appellate counsel was ineffective for

failing to appeal the denial of the motion to dismiss the indictment. The judge

noted that Dabney's testimony regarding the controlled buys "was not the sole

evidence presented to the grand jury" as "Dabney gave other testimony in

support of the indictment." Further, the Appellate Division had considered and

rejected defendant's pro se argument that the indictment should have been

dismissed because the prosecutor failed to present exculpatory evidence to the

grand jury. Therefore, defendant failed to demonstrate that had appellate

counsel presented this argument, we would have reached a different outcome.

Second, the judge rejected defendant's claim that appellate counsel was

ineffective for failing to appeal the denial of defendant's Brady motion. Judge

Taylor concluded that the prosecutor's office had turned over all discovery

concerning defendant and noted the prosecutor stated he did not have access to

the DEA's file. Thus, the prosecutor fulfilled his discovery obligations.

5
State v. Rogers, 124 N.J. 113 (1991).
A-1278-19
13
 C. Defendant's Motion for a New Trial

Defendant moved for a new trial based on newly discovered evidence,

arguing: (1) Dabney's credibility was in question given newly discovered

evidence; and (2) Gilliard, the State's chief witness, had served as a confidential

informant on ten prior occasions. Defendant relied on an affidavit from Patricia

Hall, who was also being investigated, that revealed defendant was a part of a

drug investigation conducted jointly by the Atlantic City Police Department

(ACPD), the Prosecutor's Office, and the DEA. He reiterated that the

prosecutor's office violated Brady by failing to produce the DEA file.

Next, defendant, relying in part on an affidavit of Felix Beltran, Sr., who

was charged with narcotics offenses in May 2009, that asserted Gilliard was

acting as a CI when he met defendant. Defendant argued that Gilliard "offer[ed]

himself as an informant to curry favor with the police while facing criminal

charges," and the affidavit "would have aided the jury in assessing . . . Gilliard's

credibility." In addition, defendant argued that information about Gilliard's

"access to at least one other supply of heroin . . . at the same time [he] was

supposedly obtaining heroin from [defendant] was relevant and exculpatory "

evidence.

A-1278-19
14
 The judge concluded defendant failed to demonstrate there were disputed

material facts that were "unresolvable through reference to the current record."

Applying the test adopted in State v. Carter, 85 N.J. 300, 314 (1981), the judge

determined that defendant failed to show that the new evidence was "(1) material

to the issue and not merely cumulative or impeaching or contradictory and (2)

discovered since the trial and not discoverable by reasonable diligence

beforehand." The judge found that the new evidence was "impeaching, used for

the purpose of assessing the respective credibility of Detective Dabney and

Richard Gilliard." In addition, the judge found defendant "ma[de] no

demonstration that this evidence could not have been discovered by reasonable

diligence beforehand."

Lastly, the judge found that defendant's remaining arguments6 were

procedurally barred because he did not establish that: (1) he "could not have

reasonably raised the issue[s] in a prior proceeding"; (2) enforcing the bar would

"result in a fundamental injustice"; or (3) "denial of relief would be contrary to

a new rule of constitutional law." R. 3:22-4. This appeal followed.

6
Defendant's remaining arguments were that (1) his sentence was illegal; (2)
his illegal sentence should be corrected; (3) a mistrial should have been granted
based on the removal of a juror for bias; and (4) the trial was tainted because a
paralegal modified recordings of the drug purchases.
A-1278-19
15
Defendant raises the following points:

POINT I

AS DEFENDANT HAD ESTABLISHED A PRIMA
FACIE CASE OF INEFFECTIVE ASSISTANCE OF
TRIAL COUNSEL, THE PCR COURT ERRED
WHEN IT DENIED HIS PETITION FOR POST-
CONVICTION RELIEF WITHOUT HOLDING AN
EVIDENTIARY HEARING.

(1) Trial counsel was ineffective for failing to
pursue a Driver Hearing.

(2) Trial counsel failed to investigate and call
exculpatory witnesses for the defense.

(3) Trial counsel was ineffective by failing to ask
for a mistrial after Detective Dabney's testimony
suggested that defendant had previously been
engaged in the drug trade.

(4) Trial counsel was ineffective at defendant's
final re-sentencing.

POINT II

APPELLATE COUNSEL WAS INEFFECTIVE BY
FAILING TO ARGUE THAT THE TRIAL COURT'S
DENIAL OF DEFENDANT'S MOTION TO DISMISS
THE INDICTMENT WAS ERROR.

POINT III

AS THERE WAS A REASONABLE PROBABILITY
THAT THE VERDICT WOULD HAVE BEEN
DIFFERENT HAD THE JURY CONSIDERED
NEWLY DISCOVERED EVIDENCE, THE PCR

A-1278-19
16
 COURT ERRED WHEN IT DENIED DEFENDANT'S
MOTION FOR A NEW TRIAL.

POINT IV

AS THERE WAS A GENUINE ISSUE OF
MATERIAL FACT IN DISPUTE, AN EVIDENTIARY
HEARING WAS REQUIRED.

"The Sixth Amendment of the United States Constitution and Article I,

paragraph 10 of the New Jersey Constitution require that a defendant receive

'the effective assistance of counsel' during a criminal proceeding." State v.

Porter, 216 N.J. 343, 352 (2013). A two-pronged test for determining whether

trial counsel's performance was ineffective was formulated in Strickland v.

Washington, 466 U.S. 668, 687 (1984), and adopted by our Supreme Court in

State v. Fritz, 105 N.J. 42, 58 (1987).

To prevail on a claim of ineffective assistance of counsel, defendant must

establish that: (1) counsel made errors that were so egregious that he or she was

not functioning effectively as guaranteed by the Sixth Amendment; and (2) the

defect in performance prejudiced defendant's right to a fair trial such that there

exists a "reasonable probability that, but for counsel's unprofessional errors, the

result of the proceeding would have been different." Strickland, 466 U.S. at 694.

"[I]n order to establish a prima facie claim, [the defendant] must do more

than make bald assertions that he was denied the effective assistance of counsel.

A-1278-19
17
He must allege facts sufficient to demonstrate counsel's alleged substandard

performance." State v. Cummings, 321 N.J. Super. 154, 170 (App. Div. 1999).

The defendant must establish, by a preponderance of the credible evidence, that

he is entitled to the requested relief. State v. Nash, 212 N.J. 518, 541 (2013).

Rule 3:22-10(b) governs the right to an evidentiary hearing. It provides:

A defendant shall be entitled to an evidentiary hearing
only upon the establishment of a prima facie case in
support of post-conviction relief, a determination by the
court that there are material issues of disputed 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. To establish
a prima facie case, defendant must demonstrate a
reasonable likelihood that his or her claim, viewing the
facts alleged in the light most favorable to the
defendant, will ultimately succeed on the merits.

We "conduct a de novo review" when a PCR petition is denied without an

evidentiary hearing. State v. Jackson, 454 N.J. Super. 284, 291 (App. Div. 2018)

(quoting State v. Harris, 181 N.J. 391, 421 (2004)).

As to counsel's decision to withdraw the request for a Driver hearing, a

partially intelligible recording with probative value "is admissible even though

substantial portions thereof are inaudible." State v. Nantambu, 221 N.J. 390,

406 (2015) (quoting State v. Zicarelli, 122 N.J. Super. 225, 239 (App. Div.

1973)). Accord State v. Cusmano, 274 N.J. Super. 496, 501 (App. Div. 1994).

A-1278-19
18
Moreover, a defendant may waive a Driver hearing. State v. King, 215 N.J.

Super. 504, 516 (App. Div. 1987).

Counsel made a strategic decision to allow the jury to hear the recordings

after deciding the recordings could be effectively used to cross-examine

Dabney. He "would rather have [Dabney] testify in court and then we cross-

examine and I can use the tapes as opposed to the detective's transcript of what

was said to be used as an aid. Because I know the jury's not going to understand

the tapes."

Defendant has not "overcome the presumption that, under the

circumstances, the 'challenged action might be considered sound trial strategy.'"

Harris, 181 N.J. at 431 (quoting Strickland, 466 U.S. at 689). "Defendants have

a right to a reasonable strategy based on reasonable investigation; they may not

claim ineffective assistance merely because the strategy did not produce the

result counsel sought." Id. at 488 (citing State v. Bey, 161 N.J. 233, 251 (1999)).

Driver does not apply to transcripts of recordings. The trial court may, in

its discretion, allow the use of transcripts to assist the jury in understanding a

recording. Zicarelli, 122 N.J. Super. at 239. Here, the trial court properly

instructed the jury regarding their use.

A-1278-19
19
 Defendant's claims that counsel was ineffective by failing to investigate

and call witnesses also lack merit. At most, the witnesses expected testimony

would have been used to impeach Dabney's testimony. Defendant's assertion

that the witnesses did not observe him selling drugs is not direct exculpatory

evidence that he did not sell heroin to Gilliard. Indeed, none of the witnesses

recalled whether they saw defendant on the dates the crimes occurred.

Defendant's assertion that his co-worker, Terry Phillips could have provided

"exculpatory information" was unsupported. We agree that the testimony of

these witnesses would not have significantly undermined the State's case or

resulted in a different verdict.

Defendant's claim that counsel did not argue the no free crimes factor

under Yarbough is belied by the record. Defendant was convicted of official

misconduct for distributing heroin on five separate occasions in the public

building where he worked. Counsel successfully obtained merger of all but five

of thirty counts, and only one consecutive term.

Lastly, the judge correctly denied defendant's motion for a new trial.

Where the defendant is convicted by a jury, the court may grant the motion for

a new trial only when "it clearly and convincingly appears that there was a

manifest denial of justice under the law." R. 3:20-1. Newly discovered evidence

A-1278-19
20
warrants 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. Carter,

85 N.J. 300, 314 (1981). A defendant must satisfy all three prongs of the test to

be granted a new trial. Ibid. (citing State v. Johnson, 34 N.J. 212, 223 (1961)).

Evidence that is merely impeaching "is not of great significance and

would probably not alter the outcome of a verdict." State v. Ways, 180 N.J. 171,

189 (2004). Here, the proffered evidence was at most impeaching. Second,

defendant did not demonstrate the evidence was not discoverable earlier by

exercising reasonable diligence. Third, he did not demonstrate the newly

discovered evidence was "of sufficient weight that it would probably alter the

outcome of the verdict in a new trial." Id. at 188. Accordingly, the motion was

properly denied. See Carter, 85 N.J. at 314.

In sum, the record amply supports Judge Taylor's factual findings and

legal conclusions, including her determination that defendant did not satisfy

either prong of the Strickland/Fritz test and thus did not present a prima facie

case warranting an evidentiary hearing.

Affirmed.

A-1278-19
21