                                NOT FOR PUBLICATION WITHOUT THE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-4728-17T3

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

GERALD H. HINES,

     Defendant-Appellant.
________________________

                    Submitted January 29, 2020 – Decided February 7, 2020

                    Before Judges Haas and Mayer.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Camden County, Indictment No. 17-03-0573.

                    Joseph E. Krakora, Public Defender, attorney for
                    appellant (Michael Denny, Assistant Deputy Public
                    Defender, on the brief).

                    Jill S. Mayer, Acting Camden County Prosecutor,
                    attorney for respondent (Nancy Philion Scharff, Special
                    Deputy Attorney General/Acting Assistant Prosecutor,
                    of counsel and on the brief).

PER CURIAM
      A Camden County grand jury returned an indictment charging defendant

Gerald H. Hines with second-degree unlawful possession of a handgun, N.J.S.A.

2C:39-5(b) (count one); third-degree receiving stolen property, N.J.S.A. 2C:20-

7(a) (count two); third-degree possession of a controlled dangerous substance

(CDS), N.J.S.A. 2C:35-10(a)(1) (count three); and second-degree certain

persons not to possess weapons, N.J.S.A. 2C:39-7(b)(1) (count four). On the

first day of trial, Judge Kathleen M. Delaney granted the State's motion to

dismiss the CDS charge.

      Following a bifurcated trial, the jury convicted defendant of both weapons

offenses, but acquitted him on the receiving stolen property charge. After she

denied defendant's pro se motion for a new trial, Judge Delaney sentenced

defendant to concurrent ten-year terms on the two weapons offenses, subject to

a five-year period of parole ineligibility. This appeal followed.

      On appeal, defendant raises the following contentions:

            POINT I

            THE COURT FAILED TO PROPERLY APPLY THE
            STATE V. CARTER STANDARD IN DENYING THE
            MOTION FOR A NEW TRIAL.

            POINT II

            RESENTENCING IS REQUIRED BECAUSE THE
            TRIAL COURT FAILED TO FIND MITIGATING

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                                        2
             [FACTOR] SEVEN, THAT THE DEFENDANT HAD
             LED A LAW-ABIDING LIFE FOR A SUBSTANTIAL
             PERIOD OF TIME BEFORE THE COMMISSION OF
             THE PRESENT OFFENSE.

       After reviewing the record in light of these contentions, we conclude that

defendant's arguments lack merit.             Accordingly, we affirm defendant's

convictions and sentence.

                                         I.

       The salient facts of this matter may be briefly stated. On December 12,

2016, Trooper Moses Martinez pulled over defendant's pickup truck after he

clocked it on radar traveling at eighty miles per hour. The trooper spoke to

defendant through the passenger side window of the truck and requested his

credentials. As he did so, the trooper detected the odor of burnt marijuana inside

the truck. The trooper asked defendant to participate in a field sobriety test, but

he declined to do so.

       Trooper Martinez arrested defendant, frisked him for weapons, and placed

him in the back of his patrol car. By that time, Trooper Michael Scott had

arrived at the scene, and he escorted the passenger in defendant's car to his patrol

car.

       Trooper Martinez then searched defendant's truck, beginning on the

passenger side. He found a burnt marijuana cigarette and some raw marijuana.

                                                                            A-4728-17T3
                                         3
The trooper then moved to the other side of the truck and immediately after

opening the driver's door, he saw a holstered handgun inside the op en side

pocket of the door. 1 Defendant had purchased the truck one week earlier from

a used car dealer. The dealer's general manager testified that the vehicles it sells

are fully cleaned and detailed before a sale is finalized and, therefore, it would

be "very unlikely" that a car or truck would still contain property belonging to

the former owner when it left the dealership. Defendant testified on his own

behalf. He admitted he was speeding when the trooper pulled him over, and that

he had smoked marijuana in the truck earlier in the day. He denied he owned

the gun and claimed that it must have been left in the open door pocket by the

prior owner. Defendant conceded he drove the truck throughout the week he

had it, but alleged he never discovered the gun that was in plain view in the door

pocket.

                                        II.

      In Point I of his brief, defendant alleges that the trial court gave short

shrift to his pro se motion for a new trial and denied it merely because the court

determined it would be better presented as a petition for post-conviction relief.



1
  A subsequent investigation revealed that the handgun had been stolen from a
home in Newport News, Virginia approximately two years earlier.
                                                                            A-4728-17T3
                                         4
Therefore, defendant claims the court failed to consider his motion on the merits.

However, defendant's arguments lack any factual support in the record.

      Prior to trial, defendant's attorney asked the State to produce any body

cam videos taken by the troopers during the vehicle stop. The troopers were not

able to turn over these videos because they did not believe their body cams were

functioning that evening. However, in preparing their testimony the night before

trial, the troopers found the footage on a server and alerted the prosecutor of this

discovery. On the day of the trial, and prior to any testimony, the prosecutor

notified defendant's attorney that the videos had been found. The prosecutor

told him the State would not introduce the videos in evidence even though they

confirmed the troopers' account concerning the search of defendant's car, and

stated she would agree to an adjournment of the trial to enable the attorney to

review the videos if he wanted to use them.

      Defense counsel met with defendant at counsel table and advised him of

their options. The defense determined to proceed with the trial. When the

attorneys explained the situation to Judge Delaney later that day, defense

counsel stated that the prosecutor had been "more than candid with" him, and he

conceded that the tapes were "incriminating" to defendant.          After the jury

returned its verdict, defendant filed a pro se motion for a new trial. Although


                                                                            A-4728-17T3
                                         5
defendant has not provided us with a copy of his motion papers, it is clear from

his statements at the motion hearing that his primary complaint was that his

attorney ignored his request to introduce the body cam videos into evidence.

However, as defense counsel again explained, the footage confirmed the

testimony of both troopers that Trooper Martinez discovered the handgun in the

open side pocket within seconds of opening the driver's door. 2 Therefore,

defense counsel decided not to introduce this damaging evidence at trial.

       Thus, it was clear from defendant's pro se arguments that he was basing

his motion on a claim that his attorney provided him with ineffective assistance

by declining his alleged request to let the jury review the videos. Accordingly,

Judge Delaney aptly, and correctly, noted that "[e]ssentially what is argued by

. . . defendant in this motion for a new trial is what I would term to be more the

subject of a different kind of a petition such as a petition for post-conviction

relief."

       However, contrary to defendant's unsupported assertion in this appeal,

Judge Delaney went on to fully consider defendant's motion based on his

assertion that the body cam videos were "newly discovered evidence" and



2
  Indeed, defense counsel stated the videos showed Trooper Martinez seizing
the gun less then two seconds after opening the door.
                                                                          A-4728-17T3
                                        6
warranted a new trial. As the judge noted, to secure a new trial based on 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 must be established. Ibid.

      In applying this three-part test, Judge Delaney found that defendant

learned of the existence of the body cam videos on the first day of the trial.

Indeed, no testimony had been taken when the prosecutor provided this

discovery to defendant. Thus, prong two of the test was obviously not met. Just

as importantly, defense counsel determined that the footage completely

contradicted defendant's claims that the troopers did not immediately discover

the handgun upon opening the driver's side door.

      In considering defendant's motion, Judge Delaney also viewed the videos

and confirmed they corroborated the troopers' account of the seizure of the

weapon. Therefore, defendant also failed to satisfy prong three of the Carter



                                                                       A-4728-17T3
                                       7
test. Under these circumstances, Judge Delaney denied defendant's motion for

a new trial based on newly discovered evidence.

      Whether to grant a motion for a new trial based upon newly discovered

evidence rests within the trial judge's sound discretion. State v. Russo, 333 N.J.

Super. 119, 137 (App. Div. 2000). We detect no abuse of discretion here.

Contrary to defendant's baseless claim, Judge Delaney fully considered

defendant's motion and correctly denied it.

                                       III.

      In Point II of his brief, defendant asserts that his sentence was excessive.

We disagree.

      Trial judges have broad sentencing discretion as long as the sentence is

based on competent credible evidence and fits within the statutory framework.

State v. Dalziel, 182 N.J. 494, 500 (2005). Judges must identify and consider

"any relevant aggravating and mitigating factors" that "are called to the court's

attention" and "explain how they arrived at a particular sentence." State v. Case,

220 N.J. 49, 64-65 (2014) (quoting State v. Blackmon, 202 N.J. 283, 297

(2010)). "Appellate review of sentencing is deferential," and we therefore avoid

substituting our judgment for the judgment of the trial court. Id. at 65; State v.

O'Donnell, 117 N.J. 210, 215 (1989); State v. Roth, 95 N.J. 334, 365 (1984).


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                                        8
      We are satisfied Judge Delaney made findings of fact concerning

aggravating and mitigating factors that were based on competent and reasonably

credible evidence in the record, and applied the correct sentencing guidelines

enunciated in the Code. Accordingly, we discern no basis to second-guess the

sentence.

      Affirmed.




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