                                NOT FOR PUBLICATION WITHOUT THE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-0464-16T1

STATE OF NEW JERSEY,

           Plaintiff-Respondent,

v.

ERICK L. McMILLAN,
a/k/a ERIC WALKER,

     Defendant-Appellant.
_____________________________

                    Submitted October 3, 2018 – Decided October 16, 2018

                    Before Judges Alvarez and Mawla.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Union County, Indictment Nos. 98-06-0865
                    and 98-06-0867.

                    Joseph E. Krakora, Public Defender, attorney for
                    appellant (Alison S. Perrone, Designated Counsel, on
                    the brief).

                    Michael A. Monahan, Acting Union County
                    Prosecutor, attorney for respondent (Alexandra L.
                    Pecora, Special Deputy Attorney General/Acting
                    Assistant Prosecutor, and James C. Brady, Special
            Deputy Attorney General/Acting Assistant Prosecutor,
            of counsel and on the briefs).

            Appellant filed a pro se supplemental brief.

PER CURIAM

      Defendant Erick L. McMillan appeals from a June 20, 2016 order denying

his motion for a new trial. We affirm.

      The following facts are taken from the record. In May 2001, defendant

was tried before a jury and convicted of one count of: first-degree robbery,

N.J.S.A. 2C:15-1(b); third-degree unlawful possession of a weapon, N.J.S.A.

2C:39-5(b); second-degree possession of a weapon for an unlawful purpose,

N.J.S.A. 2C:39-4(a); third-degree receiving stolen property, N.J.S.A. 2C:20-7;

third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(5); fourth-degree resisting

arrest, N.J.S.A. 2C:29-2(a); and second-degree certain persons not to have

weapons, N.J.S.A. 2C:39-7(b).

      Defendant was sentenced to an extended aggregate term of fifty years,

with twenty-five years of parole ineligibility.      We affirmed defendant's

convictions and sentence on appeal. State v. McMillan, 373 N.J. Super. 27, 28

(App. Div. 2004); State v. McMillan, No. A-1528-01 (App. Div. Oct. 13, 2004)

(slip op. at 5). Defendant's petition for certification was denied.     State v.

McMillan, 182 N.J. 628 (2005).

                                                                        A-0464-16T1
                                         2
      The facts underlying defendant's conviction involved a plan to rob an

Amoco gas station in Hillside in February 1998, by defendant and co-defendant,

Jorge Pagan. The pair drove to the gas station and as the attendant approached,

defendant exited the vehicle, pointed a silver gun at him, took him inside the

attendant's booth, and searched his pockets for money. Pagan found a safe in

the gas station bathroom, but the attendant could not open it. Defendant and

Pagan robbed the attendant of approximately fifty dollars he had on his person

and fled in a car.

      The attendant called police and reported the license plate number of the

car. Within a few minutes, police began to chase the car through Newark. After

a short pursuit, defendant and Pagan fled on foot, but were apprehended. Police

recovered the money from them and also recovered a silver-colored handgun

discarded during the chase.

      Initially, defendant and Pagan were tried together. The first trial ended in

a mistrial, and the second a hung jury. Their third trials were severed. On May

29, 2001, after defendant's trial and conviction, Pagan pled guilty to one count

of first-degree robbery, and one count of second-degree eluding. As part of the

plea agreement, Pagan stated he was driving the vehicle and during the robbery

defendant "had [the gun] in his hand the whole time." Pagan described how


                                                                          A-0464-16T1
                                        3
defendant accosted the gas station attendant while Pagan removed cash from the

attendant's pockets. Pagan confirmed surveillance video from the gas station

depicted him and defendant. Pagan described the pair's attempt to elude the

police by car and then on foot.

      Pagan's plea was sealed. Defendant's attempts to unseal the plea were

denied by the motion judge, affirmed by us on appeal, and denied certification

by the Supreme Court. State v. McMillan, A-4719-06 (App. Div. Jan. 5, 2010);

State v. McMillan, 201 N.J. 442 (2010).

      On June 28, 2012, Pagan signed a sworn certification, which stated

defendant was "innocent of the charges for which he has been convicted." Pagan

claimed he had been offered a sentence of "[three] years [of] probation in

exchange to pleading guilty to a charge of [fourth-] degree eluding." He claimed

before the start of his trial, the prosecutor offered him a deal "in exchange for

. . . saying the gun" belonged to defendant. Pagan claimed he accepted the plea

deal and then decided to "get out of town" because his "attorney said that

[defendant's] attorney wanted to call [him] to testify on [defendant's] behalf."

Pagan claimed, "[t]here's a lot of things that were said in [defendant's] case that

I believe will exonerate [defendant] if I'm allowed to testify [o]n his behalf. The




                                                                           A-0464-16T1
                                        4
[p]rosecutor and the [j]udge had my case sealed up so that this information

couldn't go to [defendant] or his attorney."

      Based on Pagan's statement, defendant renewed his motion to unseal the

record of Pagan's plea, which was granted. Defendant then filed a motion for a

new trial. The motion judge denied the motion without an evidentiary hearing.

The judge found no evidence of an alleged secret agreement between Pagan and

the prosecutor in exchange for Pagan's inculpatory statement against defendant.

Moreover, the judge found Pagan's statement was not material, timely, or likely

to have changed the outcome. This appeal followed.

      Defendant raises the following arguments on appeal:

            POINT I

            DEFENDANT IS ENTITLED TO AN EVIDENTIARY
            HEARING ON HIS MOTION FOR A NEW TRIAL
            BASED ON NEWLY DISCOVERED EVIDENCE.

In his pro se brief, defendant raises three additional points:

            POINT II

            THE DENIAL OF DEFENDANT'S MOTION FOR A
            NEW TRIAL BASED ON NEWLY DISCOVERED
            EVIDENCE MUST BE REVERSED AS THE LAW
            DIVISION FINDINGS OF FACTS WERE NOT
            BASED ON ADEQUATE SUBSTANTIAL OR
            CREDIBLE EVIDENCE (not raised below).



                                                                       A-0464-16T1
                                         5
            POINT III

            THE     STATE'S FAILURE  TO   DISCLOSE
            EXCULPATORY      EVIDENCE     VIOLATED
            DEFENDANT'S DUE PROCESS RIGHT TO A FAIR
            TRIAL UNDER BRADY V. MARYLAND (not raised
            below).

            POINT IV

            THE DISPARITY OF SENTENCE BETWEEN
            MCMILLAN AND HIS CO-DEFENDANT IS
            GROSSLY    UNFAIR        AND     WARRANTS
            RESENTENCING (not raised below).

                                         I.

      "[A] motion for a new trial 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) (citations omitted).         "Appellate review is limited to a

determination of whether the trial court could reasonably have reached the

findings it made based on 'sufficient credible evidence . . . in the record.'" State

v. Van Ness, 450 N.J. Super. 470, 496 (App. Div. 2017) (quoting State v.

Brooks, 366 N.J. Super. 447, 454 (App. Div. 2004)).            "[T]his court owes

deference to the trial judge's 'feel for the case' because he or she had the

opportunity to 'observe and hear the witnesses as they testified.'" Ibid. (quoting

Brooks, 366 N.J. Super. at 454). "A jury verdict rendered after a fair trial should

                                                                            A-0464-16T1
                                         6
not be disturbed except for the clearest of reasons." State v. Ways, 180 N.J. 171,

187 (2004).

      A motion seeking a new trial based on newly discovered evidence,

requires that 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."

              [Ibid. (quoting State v. Carter, 85 N.J. 300, 314
              (1981)).]

      Evidence is material if it would "have some bearing on the claims being

advanced." State v. Henries, 306 N.J. Super. 512, 531 (App. Div. 1997) (quoting

Korostynski v. Div. of Gaming Enf't., 266 N.J. Super. 549, 555 (App. Div.

1993)). The judge should evaluate "the probable impact such evidence would

have on a jury verdict." Ways, 180 N.J. at 189. The second prong is met by

demonstrating "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. "[E]vidence that would have the probable

effect of raising a reasonable doubt as to the defendant's guilt would not be



                                                                          A-0464-16T1
                                         7
considered merely cumulative, impeaching, or contradictory." Id. at 189 (citing

Henries, 306 N.J. Super. at 535).

      "[A] mere exculpatory statement of a co-defendant cannot by itself give

rise to a new trial if that statement is clearly false or merely designed to give an

accomplice a second chance for acquittal." State v. Robinson, 253 N.J. Super.

346, 366-67 (App. Div. 1992). Where the sentenced co-defendant has nothing

to lose by exonerating the defendant, the testimony is "inherently suspect." Id.

at 367 (internal citations and quotations omitted). "Courts generally regard

recantation testimony as suspect and untrustworthy." State v. Carter, 69 N.J.

420, 427 (1976) (citing 58 Am. Jur. 2d New Trial § 175 (1976)). The proponent

of the recanted statement has the burden to prove "it is probably true and the

trial testimony probably false." Ibid.

      Defendant argues Pagan's certification was newly discovered evidence

and material because it squarely addressed the charges against defendant , which

cast doubt on his guilt. Defendant asserts Pagan's statement would have changed

the jury's verdict, but there was no way to obtain it at the time of trial.

      We are unpersuaded.        Defendant has not demonstrated the unsealed

testimony was material and would have affected the verdict. Indeed, Pagan's

statements in the plea agreement inculpated defendant because he admitted to


                                                                              A-0464-16T1
                                         8
committing the robbery with defendant and then eluding the police. Pagan

described defendant's involvement in the robbery and stated defendant "had [the

gun] in his hand the whole time."

      Pagan's 2012 certification, which claimed the gun used in the robbery

belonged to him, also failed to meet the materiality requirement. As the motion

judge noted:

             During [the] trial, . . . [t]he State . . . introduced a
             statement by [d]efendant that inculpated both himself
             and Pagan. Defendant's statement was not inconsistent
             with Pagan's recantation of June 18, 2012. In his
             statement, [d]efendant stated that he and Pagan had
             been present when the robbery took place. He stated
             that he was with Pagan when he executed the robbery,
             but that he was not in possession of the gun. . . . Pagan's
             certification did not illuminate or reveal any facts that
             are inconsistent with [d]efendant's own inculpating
             statement that the jury heard during [d]efendant's trial.
             It therefore cannot be said that Pagan's June 28, 2012
             certification is of the type that would likely change the
             jury's verdict if a new trial were granted, as the jury in
             [d]efendant's trial considered the same facts through
             [d]efendant's own statement.

      Furthermore, the content of Pagan's 2012 certification was discoverable

at the time of trial because as the motion judge noted, "[d]efendant and Pagan

both knew each other and had gone through two trials together. There was ample

opportunity for [d]efendant and his attorney to speak with Pagan over the course

of the two trials."

                                                                           A-0464-16T1
                                         9
      Defendant failed to meet all three prongs of Carter. The motion judge did

not abuse his discretion.

                                       II.

      In his uncounseled brief, defendant asserts he should have received a new

trial because the prosecutor withheld exculpatory evidence. Specifically, he

asserts his attorney requested information on Pagan's disposition and plea, but

it was not provided.

      "It is a well-settled principle that our appellate courts will decline to

consider questions or issues not properly presented to the trial court when an

opportunity for such a presentation is available 'unless the questions so raised

on appeal go to the jurisdiction of the trial court or concern matters of great

public interest.'" Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973)

(quoting Reynolds Offset Co., Inc. v. Summer, 58 N.J. Super. 542, 548 (App.

Div. 1959)). "Generally, an appellate court will not consider issues, even

constitutional ones, which were not raised below." State v. Galicia, 210 N.J.

364, 383 (2012) (citations omitted).

      Defendant did not raise this claim before the motion judge and we decline

to consider it for the first time on appeal. However, even if we were to consider

the contention, it is without merit.


                                                                         A-0464-16T1
                                       10
      In Brady v. Maryland, 373 U.S. 83 (1963), the Supreme Court of the

United States held "the suppression by the prosecution of evidence favorable to

an accused upon request violates due process where the evidence is material

either to guilt or to punishment, irrespective of the good faith or bad faith of the

prosecution."    Id. at 87.    "Due process requires that the State disclose

information it possesses which is material to the defense, even where it concerns

only the credibility of a State's witness." State v. Spano, 69 N.J. 231, 235 (1976)

(citations omitted).

      "In order to establish a Brady violation, the defendant must show that: (1)

the prosecution suppressed evidence; (2) the evidence is favorable to the

defense; and (3) the evidence is material." State v. Martini, 160 N.J. 248, 268-

69 (1999) (citing Moore v. Illinois, 408 U.S. 786, 794-95 (1972)).

"Nondisclosure of evidence favorable to the accused violates the constitutional

right of due process only 'where the evidence is material to guilt or punishment.'"

State v. Carter, 91 N.J. 86, 112 (1982) (quoting Brady, 373 U.S. at 87). Evidence

is material "if there is a reasonable probability that, had the evidence been

disclosed to the defense, the result of the proceeding would have been different."

Kyles v. Whitley, 514 U.S. 419, 433-34 (1995) (quoting United States v. Bagley,

473 U.S. 667, 682 (1985)).


                                                                            A-0464-16T1
                                        11
      As we have noted, the prosecution did not withhold evidence because

Pagan's plea took place after defendant's trial. Moreover, as we previously

explained, Pagan's statement at the time of the plea was inculpatory. Pagan's

2012 certification merely stated defendant did not own the gun, which had no

means of exculpating defendant because ownership of the gun was not necessary

to prove he committed a robbery while employing a gun.            The evidence

defendant claims was withheld was not material because it would not have

changed the verdict. Defendant failed to meet any of the Brady factors.

                                      III.

      Defendant argues there was a disparity between his sentence and Pagan's,

which "must be corrected." We decline to consider this argument because it was

not raised before the motion judge.        Nieder, 62 N.J. at 234.    Moreover,

defendant's challenge of the sentence is procedurally barred because it was

previously adjudicated. R. 3:22-5. Indeed, we affirmed defendant's sentence on

appeal. State v. McMillan, No. A-1528-01 (App. Div. Oct. 13, 2004) (slip op.

at 5). For these reasons, we do not revisit his claims regarding the sentence.

      Finally, defendant claims he was deprived of his Sixth Amendment right

to confrontation because he was not called for a status conference scheduled by

the motion judge to set a briefing schedule regarding the motion for a new trial.


                                                                          A-0464-16T1
                                      12
We note the conference was attended by defendant's counsel, and the transcript

reflects it was a non-testimonial, administrative event. This argument is without

sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

      Affirmed.




                                                                         A-0464-16T1
                                      13
