                        NOT FOR PUBLICATION WITHOUT THE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-2655-15T4

STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

JOY J. JEFFERSON, a/k/a JOY J.
JEFFESON,

     Defendant-Appellant.
___________________________________

              Submitted January 29, 2018 – Decided August 14, 2018

              Before Judges Sabatino and Ostrer.

              On appeal from Superior Court of New Jersey,
              Law Division, Middlesex County, Indictment No.
              13-08-1054.

              Joseph E. Krakora, Public Defender, attorney
              for appellant (Kevin G. Byrnes, Designated
              Counsel, on the brief).

              Andrew C. Carey, Middlesex County Prosecutor,
              attorney for respondent (Nancy A. Hulett,
              Assistant Prosecutor, of counsel and on the
              brief).

PER CURIAM

        Defendant appeals from her convictions, after a jury trial,

of     second-degree      aggravated     assault,    N.J.S.A.     2C:12-1(b)(1);
third-degree possession of a weapon for an unlawful purpose,

N.J.S.A. 2C:39-4(d); and fourth-degree unlawful possession of a

weapon, N.J.S.A. 2C:39-5(d).        The jury found defendant slashed the

victim on the arm and wrist with a small razor or other sharp

object   during    a   fight     involving    the    victim,    defendant      and

defendant's sister, Velicia Odum.           After merger, the court imposed

a seven-year term of imprisonment on the assault charge, subject

to the No Early Release Act, N.J.S.A. 2C:43-7.2.

     The principal issue on appeal is the court's denial of

defendant's motion for a new trial.           The motion was based on what

defendant claimed was newly discovered evidence that Odum admitted

she, rather than defendant, slashed the victim.                We affirm.

     Odum    had   denied      responsibility       in   a   police    interview

immediately after the slashing.1           Before trial, the prosecutor and

defense counsel discussed on the record that Odum might admit

guilt.      Defense    counsel    stated    she   conferred     with   Odum    and

defendant.     Odum was also on defendant's witness list.                      The

prosecutor observed her in the courthouse during the trial.                   Yet,

neither side called her as a witness.




1
  Odum's statement to police is not in the record before us. We
rely on the assistant prosecutor's representation during oral
argument on the motion and the trial court's ruling.

                                       2                                 A-2655-15T4
     The State presented multiple witnesses who saw defendant

directly confront the victim and make slashing motions. The victim

and a witness heard defendant say "this is for my niece" or "this

is for my nieces" before the victim was slashed. Also, a videotape

of the altercation belied defendant's recorded statement to police

that she was nowhere near the victim.                  The victim's blood was

found on a sweatshirt that defendant was seen holding in her hand.

Defendant did not testify in her own defense.

     Over two months after the jury's verdict, Odum sent two

letters to the prosecutor and the trial judge, dated four days

apart.    In the first, Odum said she wanted to "tell [her] story

and my sister is innocent."             In the second, she repeated, "My

sister is innocent." She added, "I am the one who cut [the victim]

with a razor after she attacked me with a group of others."                       She

volunteered to take a polygraph.             The court adjourned defendant's

sentencing date to allow the defense to investigate Odum's claim.

After    Odum   could    not     be   located,   the    court    proceeded       with

sentencing.

     About seven months later, defendant filed her motion for a

new trial based on newly discovered evidence.                   Judge Michael A.

Toto denied defendant's motion in well-reasoned written opinion.

Applying State v. Carter, 85 N.J. 300, 314 (1981), Judge Toto

determined      that    Odum's    post-trial     admission       was   not     newly

                                         3                                   A-2655-15T4
discovered evidence entitling defendant to a new trial.                     Carter

requires that such be "(1) material to the issue and not merely

cumulative or impeaching or contradictory; (2) discovered since

the    trial    and     not   discoverable     by   any   reasonable     diligence

beforehand; and (3) of the sort that would probably change the

jury's verdict if a new trial were granted."                 Carter, 85 N.J. at

314.

       Regarding the first and third Carter factors, Judge Toto

acknowledged      that    evidence    that     someone    other   than   defendant

injured the victim was "material evidence that may change the

jury's verdict if a new trial were granted."                 However, the judge

highlighted that the State would have confronted Odum with her

prior denial if she accepted guilt at a new trial.                The judge also

questioned whether Odum's account was plausible in light of the

evidence against defendant.          As for the second Carter factor, the

court   found     the    evidence    was   "simply    not   new,"   because     the

"information was available" before trial, and defendant could have

called Odum to testify.

       Defendant raises the following points on appeal:

               POINT I

               THE DEFENDANT'S CONVICTION IS UNJUST, VIOLATES
               THE FEDERAL AND STATE CONSTITUTIONS, AND
               UNDERMINES CONFIDENCE IN THE ADMINISTRATION OF
               JUSTICE, AS NO JURY EVER HEARD AN ADMISSION
               BY DEFENDANT'S SISTER INCULPATING HERSELF AND

                                           4                               A-2655-15T4
EXONERATING THE DEFENDANT FROM THE COMMISSION
OF THE CRIMES.

     A. THE DEFENDANT'S RIGHT TO A COMPLETE
     DEFENSE AS GUARANTEED BY THE SIXTH
     AMENDMENT   TO    THE   UNITED   STATES
     CONSTITUTION AND ART. I, PAR. 10 OF THE
     NEW JERSEY CONSTITUTION WAS VIOLATED BY
     THE OMISSION OF CRITICAL EXCULPATORY
     EVIDENCE: A THIRD-PARTY ADMISSION OF
     GUILT.

     B.   THE DEFENDANT'S MOTION FOR A NEW
     TRIAL BASED ON NEWLY DISCVOVERED EVIDENCE
     SHOULD HAVE BEEN GRANTED.

POINT II

THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW
AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO
THE UNITED STATES CONSTITUTION AND ART. I,
PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS
VIOLATED BY THE SUPPRESSION OF EXCULPATORY
EVIDENCE (NOT RAISED BELOW).

POINT III

IF THE TRIAL COURT'S DECISION IS CORRECT - THE
THIRD PARTY ADMISSION OF GUILT WAS AVAILABLE
PRIOR TO TRIAL - COUNSEL WAS INEFFECTIVE FOR
NOT EVEN KNOWING ABOUT IT.

POINT IV

THE DEFENDANT'S RIGHT TO REMAIN SILENT AS
GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE
UNITED STATES CONSTITUTION AND THE NEW JERSEY
COMMON LAW WAS VIOLATED BY THE PROSECUTOR'S
COMMENT ON THE DEFENDANT'S SILENCE.

POINT V

THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW
AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO
THE UNITED STATES CONSTITUTION AND ART.I, PAR.

                      5                          A-2655-15T4
            1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED
            BY PROSECUTORIAL MISCONDUCT.

            POINT VI

            THE SENTENCE IS EXCESSIVE.

     We reject defendant's argument that the trial court was

obliged to grant a new trial based on Odum's post-trial admissions.

A new trial motion "is addressed to the sound discretion of the

trial judge, and the exercise of that discretion will not be

interfered with on appeal unless a clear abuse has been shown."

State v. Russo, 333 N.J. Super. 119, 137 (App. Div. 2000).                     We

discern none here.

     Defendant had the burden of establishing her right to relief

by satisfying all three Carter factors.          State v. Ways, 180 N.J.

171, 187 (2004).     The Carter analysis focuses on the nature of the

evidence presented.       Id. at 191-92.        "The power of the newly

discovered evidence to alter the verdict is the central issue, not

the label to be placed on that evidence."               Ibid.    As a result,

prongs one and three of the test are "inextricably intertwined."

State v. Nash, 212 N.J. 518, 549 (2013).         Evidence that is "merely

cumulative, or impeaching, or contradictory . . . is not of great

significance   and     would   probably   not   alter    the    outcome   of   a

verdict."    Ways, 180 N.J. at 188-89 (internal quotation marks

omitted).    "Material evidence is any evidence that would 'have


                                     6                                A-2655-15T4
some bearing on the claims being advanced.'"        Id. at 188 (quoting

State v. Henries, 306 N.J. Super. 512, 513 (App. Div. 1991)).

"Clearly, evidence that supports a defense, such as alibi, third-

party guilt, or a general denial of guilt would be material."

Ibid.

     Although proof of a third-party's guilt may certainly be

material,   Odum's   statements     were   inherently    self-serving      and

unreliable, because she admitted she slashed the victim only in

self-defense. She alleged she cut the victim only after the victim

and a group of others attacked her.            The clear import of her

apparently uncounseled letter was that she used such force because

she reasonably believed it was necessary to protect herself from

her attackers.   See N.J.S.A. 2C:3-4(a); see also State v. Urbina,

221 N.J. 509, 525 (2015) (noting that self-defense exonerates a

defendant).   She attempted to exonerate defendant while insulating

herself from criminal responsibility.          As the Supreme Court has

observed, "statements that exculpate the declarant from liability

by shifting blame to another . . . are inherently self-serving and

presumptively unreliable."        State v. White, 158 N.J. 230, 239

(1999).

     Furthermore,    Odum   would    be    discredited   with   her     prior

denials.    Her claim to be the slasher was also belied by the

testimony of multiple eyewitnesses and the forensic evidence of

                                     7                                A-2655-15T4
the victim's blood on defendant's sweatshirt.            Therefore, we shall

not disturb the trial court's judgment that Odum's statement was

not "of the sort that would probably change the jury's verdict if

a new trial were granted."        Ways, 180 N.J. at 188-89 (quoting

Carter, 85 N.J. at 314).

     Prong two "requires that the new evidence must have been

discovered after completion of trial and must not have been

discoverable    earlier      through       the     exercise   of   reasonable

diligence."    Id. at 192.    In that regard, a court should consider

the strategic decisions of trial counsel in deciding whether

evidence is newly discovered.      Ibid.         "A defendant is not entitled

to benefit from a strategic decision to withhold evidence."             Ibid.

     Although Odum sent her two letters after trial, the record

is barren of any competent evidence that defendant or her counsel

were unaware of, or could not reasonably discover, Odum's claims

before or during trial, or her willingness to testify.                Defense

counsel admitted on the record before trial that she jointly

conferred with Odum and defendant.               The parties discussed at a

pre-trial hearing that Odum might "take responsibility" for the

crime.   She was present at trial.           Notwithstanding that defense

counsel may have been concerned that Odum might incriminate herself

without an attorney's advice, defendant or her counsel decided not

to call her.    See Ways, 180 N.J. at 192.

                                       8                              A-2655-15T4
     In    sum,   the   trial   judge   –   who   had   the   benefit   of   the

perspective of having presided over the trial – did not abuse his

discretion in finding that defendant failed to meet her burden

under Carter to show she was entitled to a new trial based on

newly discovered evidence.

     Defendant's        remaining   points    require     relatively      brief

comment.    Defendant argues that if Odum's admission was available

before trial, then the State must have suppressed it from the

defense in violation of Brady v. Maryland, 373 U.S. 83, 87 (1963),

and she is entitled to a new trial.           As defendant did not raise

this issue before the trial court, we are not obliged to reach it.

See State v. Arthur, 184 N.J. 307, 327 (2005) (stating "[a]n

appellate court ordinarily will not consider issues that were not

presented to the trial court").         In any event, defendant presents

no competent evidence that the State, before or during trial,

possessed a statement from Odum that exculpated defendant.

     Alternatively, defendant argues that if her trial counsel did

possess Odum's admission before or during trial, it was ineffective

assistance of counsel not to use it. We acknowledge that "evidence

clearly capable of altering the outcome of a verdict that could

have been discovered by reasonable diligence at the time of trial

would almost certainly point to ineffective assistance of counsel

. . . ."      Ways, 180 N.J. at 192.              Yet, the trial court was

                                        9                               A-2655-15T4
unconvinced that Odum's self-serving admission was clearly capable

of changing the result.    Regardless, as defendant's ineffective

assistance of counsel claim involves evidence outside the trial

record, it should be resolved on a petition for post-conviction

relief, and not on direct appeal.    See State v. Quixal, 431 N.J.

Super. 502, 512 (App. Div. 2013).

     Defendant also challenges her conviction on the ground that

the prosecutor engaged in misconduct in his opening statement, by

asserting that the victim's injury had changed her life, and in

his summation, by noting "there's no answer" to the inconsistencies

between defendant's statement to police and the videotape of the

altercation.   As to the former, defendant contends it was unduly

prejudicial.   As to the latter, defendant contends the argument

impermissibly commented on defendant's decision not to testify.

     We are unpersuaded.     The comment in the opening statement

fairly addressed the nature of the victim's injury, which was

supported by testimony that she lost full use of her hand and had

scarring on her arm because of the assault.         We discern no

misconduct, let alone the egregious misconduct that deprives a

defendant of a fair trial.    See State v. Frost, 158 N.J. 76, 83-

84 (1999).   As for the statement in summation, we acknowledge that

the jury conceivably may have perceived it as a challenge to

defendant for not taking the stand to explain the inconsistency.

                                10                          A-2655-15T4
But, more reasonably, the prosecutor meant that there could be no

rational explanation for the inconsistency.               In any event, the

judge instructed the jury that defendant was entitled to remain

silent, and cautioned the jury that it "must not consider for any

purpose or in any manner . . . the fact that [she] did not testify."

We therefore conclude that statement in summation does not warrant

a new trial.        See State v. Tucker, 190 N.J. 183, 190 (2007)

(finding    that    "the   State's   pointing    out     inconsistencies       in

defendant's statements" that were voluntarily given and admitted

into evidence at trial "did not constitute an unconstitutional

comment on silence").

       Finally, we reject defendant's challenge to her sentence.               We

are satisfied that it is not manifestly excessive or unduly

punitive and does not constitute an abuse of discretion.                  State

v. Cassady, 198 N.J. 165 (2009); State v. Roth, 95 N.J. 334 (1984).

The    trial   court   appropriately        identified    and   weighed      the

aggravating and mitigating factors, and imposed a sentence within

the second-degree range, which we shall not disturb.                   State v.

Case, 220 N.J. 49, 64-65 (2014).

       To the extent not addressed, defendant's points on appeal

lack   sufficient    merit   to   warrant    discussion    in   this    written

opinion.    R. 2:11-3(e)(2).

       Affirmed.

                                     11                                 A-2655-15T4
