NOT FOR PUBLICATION WITHOUT THE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-4785-14T2
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JOSEPH HYMAN,
Defendant-Appellant.
_________________________________
Submitted May 3, 2017 – Decided June 27, 2017
Before Judges Accurso and Manahan.
On appeal from Superior Court of New Jersey,
Law Division, Essex County, Indictment No. 93-
04-1396.
Law Offices of Ferro and Ferro, attorneys for
appellant (Nancy C. Ferro, on the brief).
Carolyn A. Murray, Acting Essex County
Prosecutor, attorney for respondent (Tiffany
M. Russo, Special Deputy Attorney
General/Acting Assistant Prosecutor, of
counsel and on the brief).
PER CURIAM
Defendant Joseph Hyman appeals from a denial of a motion for
a new trial based upon newly discovered evidence. We affirm for
the reasons set forth in the comprehensive written opinion of
Judge Peter V. Ryan. We add the following.
I.
Tried by jury in 1994, defendant was convicted of murder,
N.J.S.A. 2C:11-3(a)(1) and (2) (count one), a charge which, for
purposes of sentencing was merged with possession of a weapon for
unlawful purpose, N.J.S.A. 2C:39-4(a) (count three). Defendant
was also convicted of unlawful possession of a weapon, N.J.S.A.
2C:39-5(b) (count two). On March 31, 1994, the judge imposed a
thirty-one year term of incarceration with a minimum of thirty
years parole ineligibility on count one and a concurrent term of
five years imprisonment on count two.
On June 6, 1994, defendant filed a notice of appeal. We
affirmed defendant's conviction and sentence. State v. Hyman, No.
5160-93 (App. Div. Sept. 19, 1995). Seven months later, the
Supreme Court denied defendant's petition for certification.
State v. Hyman, 143 N.J. 325 (1996).
Defendant then filed a petition for post-conviction relief
(PCR) which was denied. In an opinion dated April 26, 1999, we
affirmed the denial of the PCR, State v. Hyman, No. 3407-97 (App.
Div. April 26, 1999), and the Supreme Court denied certification
five months later. State v. Hyman, 162 N.J. 131 (1999).
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On January 21, 2000, defendant petitioned for writ of habeas
corpus before the United States District Court, which was denied
without issuing a certificate of appealability. The United States
Court of Appeals for the Third Circuit denied defendant's request
for a certificate three months later due to defendant's failure
to show a denial of constitutional rights pursuant to 28 U.S.C. §
2253(c)(2).
Defendant filed a second PCR which was denied in July 2002.
We affirmed the denial on April 15, 2003. State v. Hyman, No. A-
2455-02 (App. Div. Dec. 5, 2003). Defendant's petition for
certification was denied. State v. Hyman, 179 N.J. 311 (2004).
II.
In September 2013, twenty one years after his conviction,
defendant filed a motion for a new trial based upon "information
[defendant] had received about the criminal background of the
chief witness against [defendant], Gene Barclay." Defendant
argued this newly discovered evidence reveals the State violated
the Brady requirements by failing to disclose to defendant the
full criminal history of Barclay. On April 6, 2015, the judge
issued a written decision that denied the motion predicated on the
factual legal analysis delineated. This appeal followed.
Defendant argues the following point on appeal.
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POINT I
THE COURT BELOW ERRED IN DENYING DEFENDANT'S
MOTION FOR A NEW TRIAL BASED ON NEWLY
DISCOVERED EVIDENCE [].
In order for newly discovered evidence to warrant a new trial,
the evidence must be "(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). All three prongs must be satisfied before a new trial is
granted. State v. Ways, 180 N.J. 171, 187 (2004). A defendant
has the burden to establish each prong is met. State v. Smith,
29 N.J. 561, 573, cert. denied, 361 U.S. 861, 80 S. Ct. 120, 4 L.
Ed. 2d 103 (1959).
Defendant argues that the State's failure to disclose
exculpatory evidence in the form of a partial prior record of a
witness, Gene Barclay, was a due process violation under Brady v.
Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d. 215 (1963).
In order to establish a Brady violation, a defendant must show:
the prosecutor failed to disclose the evidence, the evidence was
of a favorable character to the defendant, and the evidence was
material. State v. Parsons, 341 N.J. Super. 448, 454 (App. Div.
2001) (internal citations omitted). A Brady violation therefore
4 A-4785-14T2
occurs even where the evidence is not directly exculpatory, but
rather "upon the suppression of evidence which is reasonably
calculated to lead to evidence impugning the credibility of the
State's witnesses." State v. Laganella, 144 N.J. Super. 268, 282
(App. Div. 1976) (citing State v. Taylor, 49 N.J. 440, 447-48
(1967); State v. Blue, 124 N.J. Super. 276 (App. Div. 1973)).
At the outset, we note that the judge held, and we agree,
that defendant's Brady claim failed on procedural grounds in that
the defendant failed to provide an affidavit attesting to the
State's failure to comply with discovery. The judge then addressed
the Carter prongs.
Regarding the first prong of Carter relating to the material
and non-cumulative nature of the evidence, the judge found that
Barclay was asked questions on direct examination regarding his
criminal history. Additionally, the judge noted that Barclay's
prior convictions were made available to the jury, and the jury
was instructed prior to its deliberation that Barclay's criminal
history was introduced for the limited purpose of evaluating his
credibility. The judge concluded Barclay's additional criminal
history would clearly be cumulative and solely used for the purpose
of impeachment.
Concerning the second prong of Carter, that the evidence
could not have been discovered through reasonable diligence, the
5 A-4785-14T2
judge noted that "prior records are public records and, therefore,
readily discoverable by the defense." As such, the judge held that
defendant's claim of non-disclosure was "plainly insufficient."
As to the third prong of Carter, which requires that the
newly discovered evidence be material and the sort that would
alter the verdict, the judge noted that three of the four
unreferenced convictions were disorderly persons offenses and
inadmissible per N.J.R.E. 609 and that the fourth was probably
inadmissible as well (although considered as potentially
admissible for purpose of the motion). Additionally, the judge
noted that evidence of "one more conviction would constitute
additional fodder for cross-examination" and would be
"cumulative." Therefore, the judge held defendant had not
satisfied that prong by his failure to demonstrate that the
evidence of these convictions would have altered the verdict.
Finally, the judge held that defendant failed to satisfy any
of the required three prongs of the Carter test, and denied the
motion for a new trial. Ways, supra, 180 N.J. at 187. Having
considered the record in light of controlling principles of law,
we discern no basis to disturb the judge's decision.
Affirmed.
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