                                NOT FOR PUBLICATION WITHOUT THE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-3549-18T4

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

AL-QAADIR GREEN, a/k/a AL
WILD, ALQUAADIR GRREN,
KYRELL HICKS, ALQUADIR
WHITE,

     Defendant-Appellant.
__________________________

                   Submitted May 26, 2020 – Decided June 18, 2020

                   Before Judges Messano and Vernoia.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Essex County, Indictment No. 01-10-4345.

                   Al-Qaadir Green, appellant pro se.

                   Theodore N. Stephens II, Acting Essex County
                   Prosecutor, attorney for respondent (Frank J. Ducoat,
                   Special Deputy Attorney General/Acting Assistant
                   Prosecutor, of counsel and on the brief).

PER CURIAM
      Defendant Al-Qaadir Green appeals from an order denying his motion for

a new trial based on newly discovered evidence. Having reviewed the record in

light of the applicable legal principles, we discern no basis to conclude the court

abused its discretion by denying defendant's motion, and we affirm.

                                        I.

      Following a jury trial, defendant was convicted of two counts of murder,

N.J.S.A. 2C:11-3(a)(1) or (2); two counts of felony murder, N.J.S.A. 2C:11-

3(a)(3); one count of attempted murder, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3;

four counts of armed robbery, N.J.S.A. 2C:15-1; conspiracy to commit robbery,

N.J.S.A. 2C:5-1 and N.J.S.A. 2C:15-1; aggravated               assault, N.J.S.A.

2C:12(b)(2); unlawful possession of a weapon, N.J.S.A. 2C:39-5(b); and

possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a). The court

imposed an aggregate sentence of two life terms, each subject to a thirty -year

period of parole ineligibility.

      In our decision on defendant's direct appeal from his conviction, we

summarized the facts giving rise to the criminal charges against defendant and

the evidence presented during his trial. State v. Green (Green I), No. A-4154-

05 (App. Div. Aug. 7, 2008) (slip op. at 1-7). To provide context for our




                                                                           A-3549-18T4
                                        2
discussion of defendant's pending appeal from the denial of his motion for a new

trial, we restate the summary from our decision:

            On the evening of May 18, 2001, Christian Made, Juana
            Ozuna, Sofia Rodriguez, Sofia's sister Roseanna
            Rodriguez and Marisol Rosario went to a club in Jersey
            City. They stayed until closing time and Made drove
            the group home . . . . He took the exit from Route 280
            and at the bottom of the ramp, pulled his car over.
            Several witnesses said he did so because Ozuna was ill
            from drinking too much.

            They all got out of the car. Roseanna Rodriguez lived
            approximately two blocks away, and she decided to
            walk home. Another car pulled up, with three
            occupants. The driver and rear-seat passenger were
            male, the front-seat passenger was female; all were
            African-American. The driver asked if everything was
            all right, and the group said yes. Marisol Rosario
            noticed the rear-seat passenger lean forward and
            whisper something to the driver, and she immediately
            sensed trouble and told Sofia Rodriguez they should
            leave. As she said this, she saw the man sitting in the
            rear passenger seat get out of the car, holding a small
            black gun. She walked quickly across the street and hid
            in a stairwell.

            Sofia Rodriguez got into the driver's seat of their car
            and told Ozuna and Made they had to leave. She saw
            one of the two males from the other car strike Made,
            who got into the passenger seat next to Rodriguez and
            said they were being robbed.

            One of the robbers was standing next to Sofia
            Rodriguez, who was in the driver's seat. Rodriguez
            gave her pocketbook to the assailant and realized he had
            a gun. He then reached across her into the car and took

                                                                        A-3549-18T4
                                       3
the keys from the ignition. He then shot her in the head
and she passed out.

Marisol Rosario, who was hiding across the street,
heard several shots. When she heard the other car drive
away, she ran to a cousin's house, which was nearby.
When Sofia Rodriguez regained consciousness, Made
was leaning on her; he had been shot in the right temple.
Ozuna was lying on the street, in a pool of blood. Sofia
Rodriguez ran to the same house as had Marisol
Rosario, saying she had been shot.

Later that morning, Newark police gave Marisol
Rodriguez a series of books containing mug shots of
African-American males and African-American
females. After looking through them, she did not see
anyone she could identify.

Police and emergency personnel responded to the
scene. Four .380 caliber shell casings and a projectile
fragment were recovered from the front passenger seat
of the victims' car. These shell casings matched casings
and a bullet fragment recovered approximately two
weeks earlier from the scene of a May 6 shooting at 611
Martin Luther King Boulevard. Testing revealed that
the bullets recovered at the autopsies of Ozuna and
Made were fired from the same gun that had been used
in the earlier shooting.

Latique Mayse was the victim of the May 6 shooting,
and he was interviewed by Detective Vincent Vitiello
of the Newark Police Department. Detective Vitiello
testified that Mayse gave a statement in which he said
he was "absolutely certain" that defendant was the
person who had shot him. Mayse identified defendant
as the shooter in a photo array and also identified Omar



                                                            A-3549-18T4
                           4
            [Austin]1 as a person who was with defendant at the
            time of the shooting.

            At defendant's trial, Mayse denied that defendant shot
            him on May 6, and said that he could not remember
            giving a statement to that effect and could not
            remember selecting defendant's picture. Mayse was
            then confronted with testimony he had given to a grand
            jury, in which he had said he met defendant on the street
            on May 6 and that defendant had a silver and black .380
            caliber gun. Mayse had also told the grand jury that the
            earlier statement he had given to Detective Vitiello was
            accurate. In response, Mayse said he did not recall that
            testimony and that the grand jury transcript was
            inaccurate.

            Investigator Robert Harris of the Essex County
            Prosecutor's Office learned of the ballistics match
            between the May 6 shooting and the killings of Made
            and Ozuna and that Mayse had identified defendant as
            the May 6 shooter. Based upon that, he prepared
            separate photo arrays including defendant's picture and
            [Austin's] picture and showed them to Sofia Rodriguez
            and Marisol Rosario.        Neither could make any
            identification although Rosario indicated one picture
            might be that of the driver of the car.

            Several weeks later, defendant and Omar [Austin] were
            arrested in New York City. Defendant had a .380
            caliber gun and [Austin] a 9 millimeter at the time of
            their arrests. Ballistics tests linked that .380 caliber gun
            to the May 6 and May 19 shootings. Harris learned of

1
  In Green I, we referred to Omar Austin as "Omar Auston." In the affidavit he
submitted in support of defendant's new trial motion, he used the surname
"Austin." For purposes of clarity, we will refer to Omar Austin by the name he
used to identify himself in his affidavit.


                                                                           A-3549-18T4
                                         5
            these arrests and presented to Sofia Rodriguez and
            Marisol Rosario photo arrays that had been compiled
            by New York police. Rodriguez selected defendant's
            picture as the man who had shot her, and Rosario
            selected [Austin's] picture as the driver of the car.
            Defendant and [Austin] were arrested and charged with
            the May 19 shootings.

            In October 2002, while defendant remained in jail
            awaiting trial, the prosecutor's office, in connection
            with an entirely unrelated matter, conducted a search of
            an apartment at 717 Martin Luther King Boulevard
            occupied by [Narik] Wilson.[2] The search uncovered a
            letter addressed to Wilson.         The envelope bore
            defendant's name, inmate number and cell number and
            the address of the Essex County Jail. The jury heard
            the following redacted version of the letter:

                   Little Bro, when me and O. was home we
                   made some bad moves. This is where I
                   need your help. That little bitch Ky is
                   telling on me. If you got love for me, push
                   her. That's the only person that's stopped
                   me from coming home. Do that, Dog, I
                   want to come home. Al.

            According to the record, the word "push" means "kill"
            in street vernacular.

            Omar [Austin] was tried before defendant and was
            convicted as an accomplice. Kyshael Ivery testified at

2
  Wilson did not testify at defendant's trial. In our opinion on defendant's direct
appeal, we refer to Wilson as "Narique Wilson," Green I, slip op. at 6, but in
connection with defendant's motion for a new trial, which is the subject of this
appeal, Wilson submitted an affidavit identifying himself as "Narik Wilson."
For purposes of clarity, we refer to Wilson by the name he used to identify
himself in his affidavit.
                                                                           A-3549-18T4
                                        6
            [Austin's] trial that she had been in the front seat of the
            car on May 19, 2001, and that [Austin] had a 9
            millimeter gun and defendant a .380 caliber gun. She
            said at [Austin's] trial that she had seen defendant shoot
            one of the victims and take some cell phones which he
            later discarded behind the Seth Boyden homes in
            Newark. She also said she had identified a photograph
            of defendant.

            At defendant's trial, Ivery said she could not recall who
            she was with on May 19. Based upon that, she was
            confronted with her earlier testimony. At defendant's
            trial, she said she could not recall that testimony
            because she had been high on drugs when she testified
            at [Austin's] trial and that she was, while on the stand
            at this trial, also high on drugs. On cross-examination,
            she denied being at the scene of the shootings or acting
            as a lookout.

            Defendant presented only one witness, Police Officer
            Darlene Young, who was the first to respond to the
            scene of the shooting. She interviewed Sofia Rodriguez
            and put in her report that Sofia Rodriguez said she had
            been shot by a "black Hispanic male." The defense
            argued from that statement that defendant had been
            misidentified. This was the first homicide in which
            Officer Young had been involved, and the State
            asserted that Officer Young had made a mistake in
            preparing her report.

            [Green I, slip. op. at 2-7].

      We affirmed defendant's convictions and sentence, Green I, slip. op. at 26,

and the Supreme Court denied his petition for certification, State v. Green, 196

N.J. 601 (2008).


                                                                          A-3549-18T4
                                           7
      Defendant filed a petition for post-conviction relief, asserting his trial and

appellate attorneys provided ineffective assistance of counsel. The PCR court

denied defendant's petition without an evidentiary hearing. We affirmed the

PCR court's decision, State v. Green (Green II), No. A-3437-09 (App. Div. Jan.

11, 2012) (slip op. at 14), and the Supreme Court denied defendant's petition for

certification, State v. Green, 211 N.J. 607 (2012).

      In September 2012, defendant filed a habeas petition in the United States

District Court for the District of New Jersey, challenging the constitutionality

of his convictions. Green v. Warren (Warren), Civil No. 12-6148 (D.N.J. Dec.

20, 2013) (slip op. 1). The District Court denied defendant's application for a

writ of habeas corpus. Warren, slip. op. at 1, 68.

      In 2013, defendant filed a second PCR petition, which was denied in an

order dated May 29, 2013. See State v. Green (Green III), No. A-08020-14

(App. Div. June 9, 2017) (slip op. at 2). Defendant did not appeal from that

denial. Green III, slip op. at 2. Defendant, however, filed a "letter-motion for

reconsideration," Green III, slip op. at 2, which we considered "a third PCR

petition, responding to the first PCR judge's invitation to file a new petition

based on newly discovered evidence," Green III, slip op. at 4. Defendant

asserted his trial counsel was ineffective by failing to consult with a handwriting


                                                                            A-3549-18T4
                                         8
expert to examine the "Narik Wilson" letter that was admitted in evidence at

trial. Green III, slip. op. at 3. The trial court denied defendant's request for

relief, and we affirmed the court's decision. Green III, slip op. at 6-7. It does

not appear defendant filed a petition for certification with the Supreme Court

from our decision.

      Defendant next moved for a new trial based on newly discovered

evidence.3 More particularly, defendant cited as newly discovered evidence

Kyshael A. Ivery's testimony during Austin's post-conviction proceeding.4

According to defendant, Ivery testified she was involved in a romantic

relationship with Austin at the time of the murders, spent the night of the

murders with Austin, and had sexual relations with Austin that evening.

Defendant also relied on a November 20, 2017 affidavit from Austin in which


3
  Defendant does not include the notice of motion filed in support of his motion,
and the record does not otherwise reveal the date the motion was filed. In part,
the motion was supported by a December 9, 2016 affidavit from Wilson, a July
6, 2017 affidavit from Ivery, and a November 20, 2017 affidavit from Austin.
Thus, we surmise the motion was filed at some time after November 20, 2017.
4
   It appears a transcript from Austin's post-conviction relief proceeding was
provided to the motion court because the court refers to the transcript in its
written opinion on defendant's new trial motion. Defendant, however, ha s not
supplied the transcript in the record on appeal. See R. 2:6-1(a)(1) (stating the
appendix "shall contain . . . such other parts of the record . . . as are essential to
the proper consideration of the issues").


                                                                              A-3549-18T4
                                          9
he claimed Ivery testified at this trial she did not know him or defendant but, in

fact, at the time of the murders he and Ivery had a sexual relationship.

      Defendant also relied on a July 6, 2017 affidavit from Ivery in which she

stated that when she gave a January 29, 2002 statement to the police inculpating

defendant and Austin in the murders, she was seventeen years old, but was not

accompanied by her legal guardian.5 Ivery asserted that if her legal guardian

had been present, she "would not have made the statement" implicating

defendant and Austin in the murders. 6

      In support of his motion for a new trial, defendant also relied on a

December 9, 2016 affidavit from Narik Wilson, in which Wilson stated he

intended to testify at defendant's trial but was unable to do so because he was in

a coma and recovering from gunshot wounds. In his affidavit, Wilson also stated

that during a police raid of his house, he witnessed a police officer take a letter



5
  Defendant did not include Ivery's purported January 29, 2002 statement in the
record on appeal. See R. 2:6-1(a)(1).
6
    Ivery's putative affidavit does not properly support defendant's new trial
motion because, although Ivery's signature is notarized, the document does not
include a jurat "evidencing that the notary placed [Ivery] under oath at the time
the document was executed," Tunia v. St. Francis Hosp., 363 N.J. Super. 301,
306 (App. Div. 2003), or a certification in lieu of an oath, R. 1:4-4(b). Thus,
the purported facts set forth in the affidavit could not be considered by the court
in its determination of defendant's motion. R. 1:6-6.
                                                                           A-3549-18T4
                                         10
from the officer's pocket that defendant allegedly sent to him. According to the

affidavit, Wilson later told the officers he never saw the letter prior to them

showing it to him.      Wilson also stated he was familiar with defendant's

handwriting and the letter was not written by defendant.

      In his affidavit, Wilson further stated he gave a statement to the police

following the search of his home because the officers threatened they would

charge him with various offenses and his mother would be charged "with the

drugs that were found during the search of" their home.7 Wilson relayed that he

did not provide consent to the police to conduct the search during which the

officer recovered the letter.

      Defendant argued that if the newly discovered information provided by

Austin, Ivery, and Wilson had been available at his trial, it would have changed

the outcome. The court considered defendant's motion and, in a written opinion,

rejected defendant's claimed entitlement to a new trial based on newly

discovered evidence under Rule 3:20-1 and the standard established by the

Supreme Court in State v. Carter, 85 N.J. 300 (1981).




7
  Wilson's purported statement to the police is not included in the record on
appeal. See R. 2:6-1(a)(1).
                                                                        A-3549-18T4
                                      11
      The court rejected defendant's argument that Ivery's testimony about her

sexual relationship with Austin and Austin's affidavit attesting to the

relationship contradicted any statement or testimony Ivery made about her

relationship with him. The court found defendant failed to "provide[] any

evidence supporting his argument that . . . Ivery ever lied about ever[] being

sexually involved with . . . [Austin]."

      The court also found the information about the sexual relationship

probably would not have changed the jury verdict if a new trial was granted.

The court noted that Ivery gave a voluntary statement to the police regarding the

murders, admitting she was with defendant and Austin, and described in detail

the guns they both possessed. She further described the incident in precise

detail, explained the manner in which the crimes were committed, and detailed

not only defendant's participation in the murders, but Austin's as well.

      The court also rejected defendant's claim Ivery's legal guardian was not

called as a witness at trial because she suffered from "severe schizophrenia."

The court found that whether or not the individual who was with Ivery when she

gave her statement to the police in 2002 was Ivery's legal guardian "would not

alter the verdict."




                                                                           A-3549-18T4
                                          12
      The motion court further rejected defendant's claim Wilson's affidavit

constituted a recantation of an October 3, 2002 statement he gave to the police

concerning defendant. 8 The court found that Wilson's affidavit explained the

purported circumstances under which he gave the statement, but that the

affidavit did not include a recantation of what Wilson told the police on October

3, 2002. The court also found the information in Wilson's affidavit about the

letter would not have affected the outcome of the trial because, at the time of

trial, Wilson was in a coma and unavailable to testify.

      The court entered an order denying defendant's motion for a new trial.

This appeal followed.

      In his brief, defendant presents the following arguments for our

consideration:

            POINT I

            [THE] TRIAL COURT ERRED IN DENYING
            PETITIONER'S MOTION FOR A NEW TRIAL
            BASED ON NEWLY-DISCOVERED EVIDENCE.

            POINT II

            APPELLANT SHOULD HAVE BEEN AFFORDED A
            HEARING TO ESTABLISH A RECORD OF THE
            NEWLY-DISCOVERED EVIDENCE BASED ON

8
  Defendant did not include Wilson's purported October 3, 2002 statement to
the police in the record on appeal. See R. 2:6-1(a)(1).
                                                                         A-3549-18T4
                                      13
            THE AFFIDAVITS THAT WERE SUBMITTED AND
            FOR THE TRIAL COURT TO ACCESS THE
            CREDIBILITY OF THE WITNESSES.

      We apply a three-prong test to determine whether a party is entitled to a

new trial on the ground of newly discovered evidence. Carter, 85 N.J. at 314

(citing State v. Artis, 36 N.J. 538, 541 (1962)). A new trial is warranted "only

if the evidence is (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. Bey, 161 N.J.

233, 287 (1999) (citing Carter, 85 N.J. at 314). As the Supreme Court reiterated

in State v. Ways, "all three prongs of that test must be satisfied before a

defendant will gain the relief of a new trial." 180 N.J. 171, 187 (2004) (citing

Carter, 85 N.J. at 314).

      In Ways, the Court explained that "[a] jury verdict rendered after a fair

trial should not be disturbed except for the clearest of reasons." Ibid. "Newly

discovered evidence," the Court cautioned, "must be reviewed with a certain

degree of circumspection to ensure that it is not the product of fabrication, and,

if credible and material, is of sufficient weight that it would probably alter the

outcome of the verdict in a new trial." Id. at 187-88; see also State v. Conway,


                                                                          A-3549-18T4
                                       14
193 N.J. Super. 133, 171 (App. Div. 1984) (stating that motions for a new trial

based on newly discovered evidence are typically "not favored and should be

granted with caution by a trial court since it disrupts the judicial process" (citing

State v. Haines, 20 N.J. 438, 443 (1956))).

      "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. Puchalski, 45 N.J. 97, 107 (1965)

(quoting Artis, 36 N.J. at 541). "An abuse of discretion 'arises when a decision

is "made without a rational explanation, inexplicably departed from established

policies, or rested on an impermissible basis."'" Pitney Bowes Bank, Inc. v.

ABC Caging Fulfillment, 440 N.J. Super. 378, 382 (App. Div. 2015) (quoting

Flagg v. Essex Cty. Prosecutor, 171 N.J. 561, 571 (2002)).

      We defer to a trial court's fact-finding, moreover, even where it does not

depend on assessing live witnesses' demeanor. The trial court's factual findings

therefore remain entitled to deference even though the record before the court

in this case consisted solely of documentary evidence. An appellate court is

simply not as experienced nor as capable as the trial court at making credibility

assessments or factual findings. State v. S.S., 229 N.J. 360, 379-81 (2017).

Thus, we should not disturb a trial court's factual findings made from a


                                                                             A-3549-18T4
                                        15
documentary record if those findings are supported by "sufficient credi ble

evidence." Id. at 381 (citing State v. Gamble, 218 N.J. 412, 424 (2014)).

      Defendant first contends the newly discovered information showing Ivery

and Austin had a sexual relationship at the time the murders were committed

demonstrated that "Ivery provided a false statement [and] gave perjured

testimony at [defendant's] trial."   We reject the argument because it is a

conclusory assertion untethered to any citation to the record or reference to any

evidence establishing Ivery misrepresented the nature of her relationship with

Austin. Defendant does not include Ivery's purported prior "false statement" to

the police in the record on appeal or the record of her testimony during Austin's

trial, and he does not cite to any portion of his trial record showing Ivery lied

about her relationship with Austin.9 See State v. Cordero, 438 N.J. Super. 472,


9
  In defendant's brief on appeal, he asserts that on January 29, 2002, Ivery gave
a statement to the police that on the evening of the murders "she was only
receiving a ride and she knew [defendant and Austin] for three days." He also
claims Ivery's testimony during Austin's trial "showed that she committed
perjury," but he does not describe the allegedly false testimony. As noted,
defendant's claims constitute nothing more than bald assertions and
unsubstantiated arguments because he fails to provide either the January 29,
2002 statement or Ivery's testimony during the Austin trial in the record on
appeal. See R. 2:6-1(a)(1). However, even accepting defendant's assertions as
an accurate account of Ivery's statement to the police and of her purported
testimony during Austin's trial, the newly discovered evidence that she had a
sexual relationship with Austin is simply not inconsistent with, and does not


                                                                         A-3549-18T4
                                      16
489 (App. Div. 2014) (explaining an appellate court cannot review an issue

where the necessary portions of the record are not included in the record on

appeal).    In fact, during her testimony at defendant's trial, Ivery never

characterized her relationship with Austin in any manner and was never asked

to do so.

      Moreover, even if Ivery had previously denied having a sexual

relationship with Austin in either her statement to the police or testimony during

Austin's trial, defendant failed to demonstrate the newly discovered evidence

they had such a relationship "would probably change the jury's verdict if a new

trial were granted" in his case. See Carter, 85 N.J. at 314; see also State v. Nash,

212 N.J. 518, 549 (2013). In the first instance, the information would have

challenged only Ivery's credibility, and therefore it would have been

"merely . . . impeaching." See Ways, 180 N.J. at 187.

      More significantly, the record does not support a finding the information

would probably have changed the outcome of the trial. During defendant's trial,

Ivery testified that on January 29, 2002, she signed a photographic identification

form acknowledging she selected defendant's photograph as the individual who




undermine, her purported statements she knew Austin for only three days at the
time the murders were committed.
                                                                            A-3549-18T4
                                        17
shot the driver of the victims' vehicle in the head. Ivery also testified she could

not remember the events related to the murders, but she was questioned in detail

about her testimony in a prior proceeding during which she provided a precise

account of the murders, including details—like the calibers of the guns she

observed in defendant's and Austin's possession, the location of the victims in

their vehicle, and the items taken during the robbery—that would have only been

known to someone with personal knowledge of what occurred. 10 Moreover,

Ivery's account of the murders during her sworn testimony in the prior

proceeding, including her description of the respective actions of defendant and

Austin, was consistent with the testimony of other witnesses and the forensic

evidence. The evidence showing defendant was found in possession of the

murder weapon provided additional, and substantial, proof of defendant's guilt.

      In sum, the "thorough, fact-sensitive analysis" required "to determine

whether the newly discovered evidence would probably make a difference to a

jury," Ways, 180 N.J. at 191, permits only a single conclusion here. Information

showing Ivery had a sexual relationship with Austin at the time of the murders

would not have undermined her account of the crimes because her testimony



10
   The prior proceeding during which Ivery testified was Austin's trial on the
charges against him arising from the robbery and murders.
                                                                           A-3549-18T4
                                       18
was corroborated by other testimony and evidence, and there was other

independent evidence establishing defendant's guilt.        In fact, information

concerning Ivery's relationship with Austin may have likely supported her

credibility; it would have explained her presence with Austin on the evening the

murders were committed.

      Defendant also claims the State violated its duty and constitutional

obligation to turn over exculpatory evidence concerning Ivery's purported

relationship with Austin. See Brady v. Maryland, 373 U.S. 83, 87 (1963)

(holding "the suppression by the prosecution of evidence favorable to an accused

upon request violates due process where the evidence is material either t o guilt

or to punishment, irrespective of the good faith or bad faith of the prosecution").

"The Brady rule is invoked where information is discovered after trial 'which

had been known to the prosecution but unknown to the defense.'" State v. Carter

(Carter II), 91 N.J. 86, 111 (1982) (quoting United States v. Agurs, 427 U.S. 97,

103 (1976)). We find the argument lacks sufficient merit to warrant discussion

in a written opinion, R. 2:11-3(e)(2), other than to note defendant makes no

showing information concerning Ivery's relationship with Austin was known to

the State at the time of defendant's trial.




                                                                           A-3549-18T4
                                        19
      Defendant last asserts that Wilson's December 9, 2016 affidavit revealed

facts that "could have change[d] the outcome of the trial." Defendant reasons

that "Wilson gave a statement in 2002," and explained in his December 9, 2016

affidavit that his 2002 statement was made "under duress, at the threat of his

mother being arrested and losing custody of his younger brother if he did not

cooperate."

      We reject defendant's contention because he fails to provide the record

allowing appropriate consideration of it. See Cordero, 438 N.J. Super. at 489.

Defendant has not provided Wilson's 2002 statement and, thus, defendant has

not sustained his burden of demonstrating the newly discovered evidence would

have changed anything at all. The failure to provide the 2002 statement renders

it impossible to assess whether the 2016 affidavit even includes information that

is material to the issues presented at trial or merely cumulative, impeaching or

contradictory; could have been discovered by reasonable diligence before the

trial; or would probably change the verdict if there was a new trial. See Carter,

85 N.J. at 314.

      The record also shows Wilson was in a coma at the time of defendant's

trial and, as a result, he was unable to testify. His purported 2002 statement was

not admitted in evidence at the trial so his statement to the police, whatever i t


                                                                          A-3549-18T4
                                       20
may have been, did not have any effect on the outcome of defendant's trial. As

such, it cannot be logically concluded that the information in Wilson's 2016

affidavit would have changed the jury's verdict.

      The information in Wilson's 2016 affidavit, however, would have

contradicted the testimony of the officer who testified at defendant's trial that he

found the letter from defendant to Wilson during the 2002 raid of Wilson's home.

In addition, the information in Wilson's affidavit—that in Wilson's opinion the

letter was not in defendant's handwriting—would have supported an argument

the letter was not written by defendant.

      In his brief on appeal, defendant does not expressly argue or explain why

the information in Wilson's affidavit would have probably changed the jury's

verdict if a new trial was granted, and our own independent review of the record

establishes the information would probably not have changed the jury's verdict.

The State's case was not dependent on the letter recovered from Wilson's home,

and putative testimony from Wilson asserting defendant did not author the letter

"would [not] have the probable effect of raising a reasonable doubt" about

defendant's guilt. Nash, 212 N.J. at 551 (quoting Ways, 180 N.J. at 189).

      Testimony from Wilson concerning the letter would have been merely

contradictory to the officer's testimony the letter was recovered from Wilson's


                                                                            A-3549-18T4
                                        21
home because the evidence about the letter did not "strike[] at the heart of th e

[State's] case," nor did it "shake the very foundation of the State's case." Ways,

180 N.J. at 189. To the contrary, even without regard to the letter, the evidence

against defendant was substantial. The evidence included: testimony explaining

defendant was later found in possession of the murder weapon; Ivery's testimony

detailing defendant's actions and the weapons defendant and Austin used to

commit    the   offenses;    Sophia    Rodriquez's    out-of-court    and   in-court

identifications of defendant; and Mayse's identification of defendant as the

shooter in the May 6, 2001 incident during which the gun used to commit the

May 19, 2001 murders was also used. Under those circumstances, we discern

no basis to conclude the information in Wilson's affidavit "would probably make

a difference to the jury," id. at 191, and defendant offers no basis in the record

to conclude otherwise.

      We are therefore convinced defendant failed to demonstrate the motion

court abused its discretion by denying his motion for a new trial based on newly

discovered evidence. The court correctly determined defendant failed to sustain

his burden of establishing each of the three prongs of the Carter standard or that

a new trial is required in the interests of justice, see R. 3:20-1.




                                                                            A-3549-18T4
                                        22
      To the extent we have not directly addressed any argument made by

defendant, it is because we have determined the argument is without sufficient

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

      Affirmed.




                                                                      A-3549-18T4
                                      23
