                                NOT FOR PUBLICATION WITHOUT THE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-2192-17T1

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

YUSEF B. ALLEN,

     Defendant-Appellant.
___________________________

                    Submitted February 3, 2020 – Decided April 14, 2020

                    Before Judges Ostrer and Susswein.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Union County, Indictment No. 98-08-1208.

                    Yusef Allen, appellant pro se.

                    Lyndsay V. Ruotolo, Acting Union County Prosecutor,
                    attorney for respondent (Meredith L. Balo, Special
                    Deputy Attorney General/Acting Assistant Prosecutor,
                    of counsel and on the brief).

PER CURIAM
      Defendant, Yusef Allen, was tried before a jury and convicted of murder

and related weapons offenses in 1999. He was sentenced to a life term of

imprisonment subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.

That translates to almost 69 years of parole ineligibility. Defendant now appeals

from the dismissal of his most recent motion for a new trial based on what he

claims to be newly discovered evidence.

      This is not the first time we have had occasion to address defendant's

murder conviction. Over the course of the last two decades, defendant has been

persistent in challenging the jury verdict in direct and collateral appeals brought

in State and federal courts. The motion presently before us, moreover, is not the

first time defendant has claimed that he is entitled to a new trial based on newly

discovered evidence.

      Defendant's present motion was filed pro se and an assistant public

defender was assigned to the matter. Assigned counsel investigated defendant's

contentions and submitted a certification to the motion court concluding that

"there was not enough reliable information to validate a credible motion." The

motion judge relied upon that certification and dismissed defendant's motion for

a new trial. The court issued a one-page order that reads in pertinent part,

"[g]iven [assigned counsel's] certification dated June 13, 2017 (copy of which


                                                                           A-2192-17T1
                                        2
is attached), this Court is satisfied that a thorough investigation was conducted

and there was insufficient reliable information to validate a credible motion."

      We begin our analysis by acknowledging the deferential standard of

review that applies in this appeal. "A motion for a new trial is 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. Artis, 36

N.J. 538, 541 (1962) (citing State v. Smith, 29 N.J. 561, 573 (1959)). "An abuse

of discretion 'arises on demonstration of manifest error or injustice,' or when

'there has been a clear error of judgment.'" Rodriguez v. Wal-Mart Stores, Inc.,

237 N.J. 36, 57 (2019) (citations omitted).       Said differently, an abuse of

discretion occurs when the trial judge's "decision is 'made without a rational

explanation, inexplicably departed from established policies, or rested on an

impermissible basis.'" Flagg v. Essex Cty. Prosecutor, 171 N.J. 561, 571 (2002)

(quoting Achacoso-Sanchez v. Immigration and Naturalization Serv., 779 F.2d

1260, 1265 (7th Cir. 1985)). A judge's failure to provide any explanation for

his or her decision, rational or otherwise, clearly constitutes an abuse of

discretion and directly contravenes our Court Rules. See R. 3:29 ("The [trial]

court shall place on the record the reasons supporting its decision on . . . [a]

disposition of a criminal matter."); Cf. R. 2:11-3(e) (permitting only appellate


                                                                          A-2192-17T1
                                        3
courts to summarily decide matters because an argument lacks sufficient merit

to warrant discussion in a written opinion).

      We have reviewed the record in view of these legal principles and are

constrained to conclude that the motion judge failed to provide an adequate

explanation for dismissing defendant's motion. The record suggests that the

motion court essentially delegated to defense counsel the responsibility to

determine the merits of defendant's contentions. There is no indication in the

record that the court conducted its own review of defendant's contentions. Nor

did the motion court address any of the factors that should be considered in

deciding a motion for a new trial based on newly discovered evidence. See State

v. Carter, 85 N.J. 300, 314 (1981) (delineating a three-factor test for courts to

utilize in analyzing motions for a new trial based on newly discovered evidence).

It is incumbent on the motion court to reach its own conclusions and not just

incorporate by reference the conclusions made by assigned counsel.

Accordingly, we reverse and remand so that the motion judge can make his own

findings and state the reasons for his conclusions so as to permit appropriate

appellate review if needed.




                                                                         A-2192-17T1
                                        4
      In light of our decision to remand this matter for further review by the

motion court, defendant's pending motion before us to supplement the record on

appeal is now moot.

      Reversed and remanded. We do not retain jurisdiction.




                                                                       A-2192-17T1
                                      5
