                                NOT FOR PUBLICATION WITHOUT THE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-1072-17T4

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

CARLOS SIERRA, a/k/a
JOSE RAMIREZ,

     Defendant-Appellant.
_________________________

                    Submitted May 14, 2019 – Decided June 28, 2019

                    Before Judges Yannotti and Gilson.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Bergen County, Indictment No. 10-09-1596.

                    Joseph E. Krakora, Public Defender, attorney for
                    appellant (David J. Reich, Designated Counsel, on the
                    briefs).

                    Mark Musella, Bergen County Prosecutor, attorney for
                    respondent (William P. Miller, Assistant Prosecutor, of
                    counsel and on the brief; Catherine A. Foddai, Legal
                    Assistant, on the brief).

PER CURIAM
      Defendant Carlos Sierra appeals from an August 18, 2017 order denying

his petition for post-conviction relief (PCR) and a motion for a new trial based

on newly discovered evidence. Defendant also appeals from a July 26, 2018

order denying his request for reconsideration for a new trial following a remand,

discovery, and supplemental proceedings.          Having reviewed defendant's

contentions in light of the record and law, we affirm.

                                        I.

      On May 15, 2010, D.M. 1 was assaulted and robbed. Defendant was

indicted for six crimes related to that assault and robbery. Those charges

included conspiracy to commit first-degree robbery, N.J.S.A. 2C:5-2 and

N.J.S.A. 2C:15-1; first-degree kidnapping, N.J.S.A. 2C:13-1(b)(2); and second-

degree aggravated assault, N.J.S.A. 2C:12-1(b)(1).

      In July 2011, a jury acquitted defendant of all of the indicted charg es, but

convicted him of lesser-included offenses. Thus, defendant was convicted of

conspiracy to commit second-degree robbery, N.J.S.A. 2C:5-2 and N.J.S.A.

2C:15-1; and two disorderly persons offenses of false imprisonment, N.J.S.A.

2C:13-3, and simple assault, N.J.S.A. 2C:12-1(a)(1).



1
   We use initials for the victim and certain witnesses to protect their privacy
interests.
                                                                           A-1072-17T4
                                        2
      Later that year, in October 2011, defendant was sentenced to an aggregate

term of nine-and-one-half years in prison with a period of parole ineligibility.

Specifically, defendant was sentenced as follows: (1) on the conviction of

second-degree conspiracy, he was sentenced to nine years in prison subject to

the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2; (2) on the conviction for

simple assault, he was sentenced to a consecutive period of incarceration for six

months; and (3) on the conviction for false imprisonment, he was sentenced to

a concurrent period of incarceration for six months.

      Defendant appealed his convictions and sentence. In his direct appeal,

defendant contended, among other things, that the trial court committed

reversible error in not instructing the jury on the lesser-included charge of

conspiracy to commit theft.     Defendant also argued that his sentence was

excessive. We rejected defendant's arguments and affirmed his convictions and

sentence for second-degree conspiracy and false imprisonment. We vacated his

conviction and sentence for simple assault and remanded so that the simple

assault conviction could be merged with the conviction for conspiracy to commit

robbery.   State v. Sierra, No. A-2465-11 (App. Div. Feb. 12, 2014). The

Supreme Court denied certification. State v. Sierra, 220 N.J. 99 (2014).




                                                                           A-1072-17T4
                                       3
      On September 14, 2016, defendant filed a petition for PCR. Thereafter,

he supplemented his petition with the assistance of his assigned PCR counsel.

Defendant argued that he should be given a new trial because Detective Sergeant

Eric Reamy, who testified against defendant at his trial, had engaged in criminal

activity unrelated to defendant's convictions. Defendant only learned of that

criminal activity after his trial was completed and he argued that, had he known

of the criminal activity, that information could have been used to undercut

Reamy's credibility. Defendant also argued that his trial counsel had been

ineffective in not requesting a jury charge on the lesser-included offense of

conspiracy to commit theft.

      The PCR court denied defendant's petition in an order entered on August

18, 2017.   The PCR court held that defendant's arguments about the jury

instruction were procedurally barred by his direct appeal.       The court also

reasoned that defendant could not satisfy the two-prong test to establish

ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668

(1984). Finally, the PCR court denied defendant's motion for a new trial.

      Defendant appealed from that order. In April 2018, defendant filed a

motion for a remand to supplement the record with evidence concerning

Reamy's criminal activities. We granted that motion.


                                                                         A-1072-17T4
                                       4
      On remand, the PCR court allowed defendant to conduct discovery and to

supplement the record.      The court then heard arguments on a motion for

reconsideration focused on whether defendant should receive a new trial because

of the newly discovered evidence concerning criminal activity by Reamy. On

July 26, 2018, the PCR court denied defendant's request for reconsideration.

The PCR court explained the reasons for its ruling in a sixteen -page written

opinion.

      In its opinion, the PCR court stated that it had reviewed the trial transcripts

and information concerning Reamy's criminal activities. Namely, in March

2016, Reamy had pled guilty to two counts of second-degree endangering the

welfare of a child, N.J.S.A. 2C:24-4(a)(1), and third-degree theft by selling

firearms, which properly belonged to or were in the custody of the Borough of

Glen Rock, N.J.S.A. 2C:20-9.        Those convictions were based on activities

Reamy had engaged in between 2011 and 2015. The PCR court noted, however,

that Reamy was also alleged to have sold firearms dating back to 2008.

      The PCR court found that the evidence concerning Reamy was material

and newly discovered. The court found, however, that the evidence concerning

Reamy's illegal activities would not have been of the sort that would probably




                                                                             A-1072-17T4
                                         5
change the jury's verdict if a new trial were granted. Thus, the court denied

defendant's request for reconsideration of his motion for a new trial.

         In our prior opinion, we described the facts that gave rise to defendant's

convictions. Accordingly, we need only summarize the facts and procedural

history relevant to defendant's petition for PCR and his arguments for a new

trial.

         D.M. had placed a notice on Craigslist seeking to meet an interested man.

In response, on May 15, 2010, D.M. received a call from a man who stated that

he wanted to come meet him. D.M. gave that man his address and told him to

come to his home after 11 p.m. that night. When D.M. opened his door to meet

the man, the man came in and pushed D.M. down the basement stairs.

Thereafter, D.M. was assaulted and robbed.

         The State's theory at trial was that defendant had assaulted and robbed

D.M. in revenge for a fraudulent scheme that had been perpetrated on

defendant's girlfriend, V.S.      D.M. had previously been in a twenty-year

relationship with F.C. D.M. had allowed F.C. to use checks with a false business

name and D.M.'s address. F.C. tried to defraud V.S. out of several thousand

dollars by using unfunded checks with D.M. as the signor of the checks.

Thereafter, defendant made several efforts to force D.M. to pay for the fraud.


                                                                           A-1072-17T4
                                          6
      The State contended that in May 2010, defendant conspired to assault and

rob D.M. As part of its investigation, the police learned that D.M. had been

called on a cell phone used by C.C. When the police questioned C.C., he

ultimately confessed to participating in the robbery and assault and he agreed to

testify against defendant.

      In his testimony, C.C. stated that he lent his cell phone to defendant on

May 15, 2010, and defendant used that cell phone to arrange to come to D.M.'s

home. C.C. also testified that he, defendant, and another individual known as

"E." drove to D.M.'s home. As they were driving, defendant told C.C. that he

was going to D.M.'s home to beat him up and get money. When they arrived,

defendant and E. went inside D.M.'s home while C.C. waited outside. Defendant

and E. later came outside and defendant told C.C. that he had punched the guy

and got money.

      The police also questioned and obtained statements from defendant. In a

formal statement, defendant claimed that he had been in Pennsylvania at the time

of the robbery. After his alibi was disproved, the police arrested defendant.

Defendant then made oral statements to Reamy in which he claimed that he had

driven the two other men to D.M.'s house, but remained in the car while the




                                                                         A-1072-17T4
                                       7
other two went into the house and assaulted D.M. In that regard, defendant

claimed he was "there," but had nothing to do with assaulting D.M.

      At trial, the State presented evidence of the calls allegedly made to D.M.

by defendant using C.C.'s cell phone. The State also presented evidence that

defendant's cell phone had been used to make several calls from the vicinity near

D.M.'s home on the day of the assault and robbery. In addition, the State called

Reamy to testify concerning the admissions allegedly made by defendant.

      Defendant elected to testify at trial. He admitted to lying about being in

Pennsylvania. He testified that on May 15, 2010, E., joined by C.C., gave him

a ride to pick up diapers at a friend's house in Fair Lawn. He also testified that

he remained at the friend's house from 11 p.m. until about 12 a.m., and that E.

and C.C. then picked him up and gave him a ride home. Finally, he testified that

when he was arrested, he told the police that he went on a ride to get diapers and

that when he was being driven home he saw that C.C. had blood on his shoes.

                                        II.

      On this appeal, defendant challenges both the denial of his petition for

PCR and the denial of his motion for a new trial. Specifically, defendant

articulates his arguments as follows:

            POINT I:  THE PCR COURT ERRED IN
            CONCLUDING THE NEWLY DISCOVERED

                                                                          A-1072-17T4
                                        8
            EVIDENCE THAT SERGEANT REAMY WAS
            HIMSELF ENGAGED IN CRIMINAL ACTIVITY AT
            THE TIME HE INVESTIGATED THE CRIME AND
            TESTIFIED BEFORE THE JURY AGAINST
            [DEFENDANT] WAS INSUFFICIENT TO ENTITLE
            [DEFENDANT] TO A NEW TRIAL

            POINT II: THE PCR COURT ERRED IN DENYING
            [DEFENDANT] AN EVIDENTIARY HEARING
            CONCERNING HIS CLAIM TRIAL COUNSEL WAS
            INEFFECTIVE IN FAILING TO REQUEST A JURY
            CHARGE FOR THE LESSER-INCLUDED OFFENSE
            OF CONSPIRACY TO COMMIT THEFT

      Having conducted a de novo review of the record, we reject both of these

arguments. The newly discovered evidence concerning the illegal activity by

Reamy is not the sort of evidence "that would probably change the jury's verdict

if a new trial were granted." State v. Nash, 212 N.J. 518, 549 (2013) (quoting

State v. Ways, 180 N.J. 171, 189 (2004)). Defendant also failed to present a

prima facie showing that his trial counsel was ineffective in failing to request a

lesser-included charge of conspiracy to commit theft.

      A.    The New Evidence Concerning Reamy

      Newly discovered evidence is sufficient to warrant a new trial if it 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 verdi ct if


                                                                          A-1072-17T4
                                        9
a new trial were granted." Ibid. (quoting State v. Carter, 85 N.J. 300, 314

(1981)). A defendant must satisfy all three prongs to gain relief. Ways, 180

N.J. at 187 (citing Carter, 85 N.J. at 314).

      "Under prong one of the Carter test, '[m]aterial evidence is any evidence

that would have some bearing on the claims being advanced,' and includes

evidence that supports a general denial of guilt."       Nash, 212 N.J. at 549

(alteration in original) (quoting Ways, 180 N.J. at 188). The central focus of the

analysis is on the nature of the evidence presented. Ways, 180 N.J. at 191-92.

In that regard, prongs one and three of the test are "inextricably intertwined."

Nash, 212 N.J. at 549. Evidence that is merely cumulative, impeaching, or

contradictory, "is not of great significance and would probably not alter the

outcome of a verdict." Ways, 180 N.J. at 189. In contrast, "[m]aterial evidence

is any evidence that would 'have some bearing on the claims being advanced.'"

Id. at 188 (quoting State v. Henries, 306 N.J. Super. 512, 531 (App. Div. 1997)).

      "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.'" Nash, 212 N.J. 550 (quoting Ways, 180 N.J.

at 192). In making that evaluation, a court should consider the strategy decisions




                                                                          A-1072-17T4
                                       10
of trial counsel. Ways, 180 N.J. at 192 ("A defendant is not entitled to benefit

from a strategic decision to withhold evidence.").

      Here, the PCR court determined that the information concerning Reamy's

criminal activity was material and newly discovered. Defendant argues that the

PCR court erred, however, in concluding that the evidence would not have been

likely to change the jury's verdict. In that regard, defendant contends that

Reamy's unimpeached trial testimony was critical evidence and helped to

support C.C.'s testimony which, on its own, would have been "highly suspect."

      We disagree.    A thorough review of the evidence presented at trial

establishes that Reamy's testimony was not the critical evidence against

defendant. Instead, the testimony of C.C. was the foundation on which the State

rested its case.   C.C. gave direct evidence that defendant conspired and

committed the assault and robbery of D.M. There was also evidence supporting

C.C.'s testimony and independently supporting defendant's convictions. In that

regard, the State introduced records concerning the use of defendant's and C.C.'s

cell phones and where calls had been made during the night of the assault and

robbery. Defendant's credibility was also called into question because he had

originally claimed that he was in Pennsylvania. At trial, he admitted that his

alibi was false and he claimed instead that he visited a friend in Fair Lawn.


                                                                          A-1072-17T4
                                      11
      We note that the criminal activity in which Reamy was engaged was not

directly related to his testimony against Sierra. As pointed out, Reamy pled

guilty to two counts of endangering the welfare of a child and one count of theft.

His guilty pleas were based on activities that took place between 2011 and 2015,

which is after he had investigated the charges against defendant. Specifically,

the charges were based on allegations that Reamy had exchanged sexual text and

photo messages with underage girls, and had engaged in theft by selling firearms

that belonged to or were in the custody of the Glen Rock Police Department.

      Thus, had Reamy been confronted with this information, it would have

gone to his credibility in general because there was no evidence that Reamy had

falsely testified against defendant or other defendants.       Consequently, in

considering the newly discovered evidence, it must be weighed against the other

direct evidence against defendant and, on that scale, the evidence was not the

sort that would probably change the jury's verdict if a new trial was granted.

      In short, having reviewed the trial and PCR records, we agree with the

PCR court that the newly discovered evidence concerning criminal activity by

Reamy was not the sort of evidence that would have changed the jury's verdict

if a new trial was granted. We, therefore, affirm the denial of the motion for a

new trial.


                                                                          A-1072-17T4
                                       12
      B.       The Jury Charge for the Lesser-Included Offense of Conspiracy to
               Commit Theft

      Defendant also argues that the PCR court erred in denying his petition

concerning the ineffective assistance of his trial counsel.     In that regard,

defendant contends that trial counsel's failure to request a jury charge on the

lesser-included offense of conspiracy to commit theft constituted ineffective

assistance of counsel.

      On his direct appeal, defendant had argued that the trial judge committed

plain error by not sua sponte giving a lesser-included offense instruction on

conspiracy to commit theft. We rejected that argument, and pointed out that

neither party claimed that there had been a conspiracy to commit theft by

unlawful taking. Instead, the State's evidence showed that defendant conspired

with C.C. and E. to get money from D.M. by inflicting bodily injury or using

force on D.M. In contrast, defendant's testimony was that he was not involved

in any conspiracy and he had merely taken an innocent ride to get diapers.

Accordingly, we concluded that the evidence did not show a conspiracy to

commit theft. State v. Sierra, No. A-2465-11 (App. Div. Feb. 12, 2014) (slip

op. at 8-9).

      The PCR court reasoned that defendant's ineffective assistance of counsel

argument was both procedurally barred and failed to establish a prima facie

                                                                        A-1072-17T4
                                       13
showing of ineffective assistance of counsel. We need not reach the procedural

issue, because we conclude that defendant failed to make a prima facie showing

of prejudice.

      A defendant is entitled to an evidentiary hearing on a PCR petition if he

or she establishes a prima facie showing in support of the petition. R. 3:22-

10(b). To establish a claim of ineffective assistance of counsel, a defendant

must satisfy a two-part test: (1) "counsel made errors so serious that counsel

was not functioning as the 'counsel' guaranteed the defendant by the Sixth

Amendment[,]" and (2) "the deficient performance prejudiced the defense."

Strickland, 466 U.S. at 687; accord State v. Fritz, 105 N.J. 42, 58 (1987)

(adopting the Strickland test).

      In rejecting defendant's direct appeal, we noted that defendant's testimony

at trial was that he was not involved in the assault and robbery at all. We also

concluded that the evidence did not show a conspiracy to commit theft.

Consequently, defendant did not show that he suffered any prejudice by his trial

counsel's failure to request a jury charge on the lesser-included offense of

conspiracy to commit theft. The jury obviously rejected defendant's testimony

that he was not involved in the conspiracy to commit robbery.          The only

testimony at trial was that defendant conspired with C.C. and E. to take money


                                                                         A-1072-17T4
                                      14
from D.M. by inflicting bodily injury or using force on D.M. Thus, defendant

did not present a prima facie showing of prejudice to satisfy the second part of

the Strickland test.

      Affirmed.




                                                                        A-1072-17T4
                                      15
