                                NOT FOR PUBLICATION WITHOUT THE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-1545-17T2

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

LARRY FLEMING,

     Defendant-Appellant.
__________________________

                    Submitted February 26, 2019 – Decided March 25, 2019

                    Before Judges Fisher and Hoffman.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Mercer County, Indictment No. 03-02-0286.

                    Larry Fleming, appellant pro se.

                    Angelo J. Onofri, Mercer County Prosecutor, attorney
                    for respondent (Tasha M. Kersey, Assistant Prosecutor,
                    of counsel and on the brief).

PER CURIAM
      Defendant Larry Fleming appeals from the trial court's denial of his

motion for a new trial. Defendant asserts the transcript of his pre-trial hearing

constitutes newly discovered evidence warranting a new trial. We affirm.

                                       I.

      We summarize the facts as set forth in our previous opinion from

defendant's appeal from the denial of his second petition for post-conviction

relief (PCR):

            On May 11, 2002, defendant, a drug dealer, was in
            Trenton with Curtis Hawkins near a house that had been
            abandoned by its owner but occupied by other persons.
            Defendant and Hawkins observed P.J., a drug dealer,
            "running in and out of" the house. Defendant and
            Hawkins entered the house and went upstairs where
            they found Carmen Jones and Edwin Warren.
            Defendant told Warren that he was a "cross-artist" and
            Warren had "crossed" him, because he was purchasing
            drugs from another dealer. Defendant warned that if
            another $50 was "spent out of here," meaning on drugs
            from another dealer, Warren would "suffer the
            consequences." Defendant and Hawkins then exited the
            house.

                   Soon thereafter, Hawkins saw defendant with a
            gasoline can in his hand. Defendant told Hawkins that
            a "[l]ady across the street wants some gas." Defendant
            gave Hawkins the can and two or three dollars to
            purchase gasoline. After Hawkins purchased the
            gasoline, he gave the can back to defendant. Hawkins
            then observed defendant turn and enter an alleyway
            near the rear of the house.


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                                       2
                   Later that night, Jones saw defendant on the first
            floor of the house. Jones saw a "light" in defendant's
            right hand and a red can with a yellow nozzle in
            defendant's left hand. Thinking defendant was going to
            put gas in his car, Jones and Joseph McKinney went to
            their separate rooms on the second floor.

                  Shortly thereafter, Jones attempted to go
            downstairs but was "hit in the face" with smoke and
            heat. Jones told Warren that the house was on fire.
            Jones, Warren, and McKinney escaped through a
            window on the second floor. Another occupant of the
            house, Ellis McNeill, was trapped in the fire and died.

                   Hawkins was outside when the police and
            firefighters arrived on the scene. Hawkins told
            Detective Timothy Thomas that defendant "did this
            shit." An investigation revealed that the fire was
            caused by gasoline being poured on the first floor and
            then being ignited.

            [State v. Fleming, No. A-1432-14 (App. Div. June 24, 2016) (slip
            op. at 1-3).]

      In February 2003, a grand jury indicted defendant on charges of first-

degree murder, first-degree felony murder, and second-degree aggravated arson.

Defendant rejected a twenty-five year aggravated manslaughter plea offer.

      At a pretrial hearing, defendant received a copy of the pretrial

memorandum and circled "yes" in response to the questions, "Do you understand

that if you reject this plea offer, the Court could impose a more severe sentence

than recommended by the plea offer, up to the maximum sentence permitted if


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                                       3
you are convicted after trial? [and] Do you understand that if you reject this plea

offer today, no negotiated plea can be accepted by this Court unless specifically

authorized by the Criminal Presiding Judge . . . ?" Defendant did not sign the

pre-trial memo. Nonetheless, defendant concedes awareness of the plea offer.

      Further, in colloquy with the court, defendant affirmed to the judge "I read

it myself. I understand what's going on . . . . I don’t want that. I have no interest

in that. I'm ready to go to trial. Whenever you set a date, I'm ready."

      The court conducted a trial in February 2004, and a jury convicted

defendant on all counts. The felony murder conviction merged with the murder

conviction, and defendant received a life sentence. On the remaining charge,

defendant received a consecutive ten year sentence.

      On direct appeal, we affirmed defendant's April 2, 2004 judgment of

conviction. State v. Fleming, No. A-1217-04 (App. Div. Mar. 14, 2007). On

October 10, 2007, defendant filed his first PCR petition, claiming his trial

counsel was ineffective. A PCR judge denied defendant's petition in a written

opinion on May 12, 2011. We affirmed the denial of defendant's first PCR

petition. State v. Fleming, No. A-4691-11 (App. Div. Oct. 10, 2013).

      On August 13, 2014, defendant filed a second PCR petition, alleging his

PCR counsel was ineffective for not arguing that trial counsel was ineffective


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                                         4
for not communicating the State's plea offer to him, after he was ejected from

the courtroom for being argumentative with the trial court during an October 6,

2003 status conference.1 The second PCR judge found defendant's claims were

"procedurally barred" because defendant claimed he learned of the plea offer in

October 2008 and failed to raise the claim within one year. We affirmed the

denial of defendant's second PCR petition. State v. Fleming, slip op at 12.

      In July 2017, defendant filed a pro se motion for new trial, arguing the

transcripts from his pre-trial hearing constituted newly discovered evidence. In

September 2017, Judge Anthony M. Massi denied defendant's motion.

Defendant filed a motion for reconsideration and clarification, which Judge

Massi also denied.

      This appeal followed. Defendant presents the following argument:

            THE DENIAL OF DEFENDANT'S MOTION FOR A
            NEW TRIAL ON GROUNDS OF NEWLY
            DISCOVERED      EVIDENCE     WAS     A
            FUNDAMENTAL       INJUSTICE,  THEREBY
            REQUIRING A REMAND FOR AN EVIDENTIARY
            HEARING OR REVERSAL.




1
  The October 6, 2003 pretrial memorandum stated that the plea offer was for
defendant to plead guilty to aggravated manslaughter with a recommended
twenty-five year sentence with eighty-five percent minimum parole ineligibility.
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                                       5
                                        II.

      "[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). Under the abuse of discretion standard, we will not substitute

our own judgment unless the trial court's decision was so wide of the mark it

created a manifest denial of justice. State v. Kuropchak, 221 N.J. 368, 385-86

(2015). Likewise, we will not set aside a conviction unless it "clearly and

convincingly appears that there was a manifest denial of justice under the law."

R. 3:20-1.

      We disfavor motions for a new trial based on newly discovered evidence

and grant them with caution. State v. Conway, 193 N.J. Super. 133, 171 (App.

Div. 1984). Newly discovered evidence warrants a new trial when the evidence

is (1) material; (2) discovered after the trial; and (3) "would probably change

the jury's verdict if a new trial was granted." State v. Ways, 180 N.J. 171, 187

(2004) (quoting State v. Carter, 85 N.J. 300, 314 (1981)).

      Here, Judge Massi correctly denied defendant's motion for a new trial.

Defendant failed to establish the alleged new evidence was material. Evidence

of a plea offer is not material to the jury's finding of guilt. Evidence of plea


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                                        6
discussions is generally inadmissible and could not even be presented to the

jury. N.J.R.E. 410. Additionally, defendant concedes he knew of the plea offer.

Nonetheless, he stated on the record he wanted to go to trial.

      Defendant could have obtained the transcripts before the trial. Defendant

does not argue otherwise. In addition, the transcripts only contain statements

made during hearings that defendant himself attended. Therefore, the transcripts

do not constitute "new" evidence, even if defendant did not have them in his

possession.

      Affirmed.




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