                                NOT FOR PUBLICATION WITHOUT THE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-4614-17T4

STATE OF NEW JERSEY,

           Plaintiff-Respondent,

v.

RONALD BURNS,

     Defendant-Appellant.
___________________________

                    Submitted September 16, 2019 – Decided September 23, 2019

                    Before Judges Sumners and Geiger.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Burlington County, Indictment No. 00-07-
                    0531.

                    Ronald Burns, appellant pro se.

                    Scott A. Coffina, Burlington County Prosecutor,
                    attorney for respondent (Jennifer Bentzel Paszkiewicz,
                    Assistant Prosecutor, of counsel and on the brief).

PER CURIAM
      Defendant Ronald Burns appeals from a May 14, 2018 Law Division order

denying his motion for a new trial. We affirm substantially for the reasons

expressed by Judge Philip E. Haines in his comprehensive written decisions.

      The underlying facts and procedural history were set forth by the Supreme

Court on direct appeal, State v. Burns, 192 N.J. 312, 319-23 (2007), and need

not be recounted at length in this opinion.

      This case arises from a homicide. Defendant was indicted for first-degree

murder, N.J.S.A. 2C:11-3(a)(1) and (2) (count one); second-degree possession

of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count two); third-

degree unlawful possession of a weapon (handgun), N.J.S.A. 2C:39-5(b) (count

three); and third-degree hindering apprehension of another, N.J.S.A. 2C:29-

3(a)(2). Codefendant Tony Felder was also charged in counts one through three

of the indictment.

      Felder was defendant's eighteen-year-old first cousin at the time of the

incident. He began selling drugs for defendant when he was fifteen years old.

Prior to trial, Felder pleaded guilty to aggravated manslaughter and agreed to

testify against defendant.

      The State presented evidence at trial to show that defendant and the

victim, Ronald Patterson, Jr., were rival drug dealers who sold drugs from


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                                        2
nearby houses on the same street in Mt. Holly. Defendant's drug sales declined

because Patterson was selling better quality cocaine. Defendant was upset with

Patterson and contemplated killing him. On September 6, 1999, defendant told

Felder he wanted Patterson dead. Felder said he would kill Patterson that night.

Defendant told Felder to use the gun he had previously given to Bobby Bryant.

At around eight p.m., defendant's girlfriend, drove defendant and Felder to

Bryant's residence where they met Bryant, Tifani Young, Lawrence Hightower,

and others. Defendant asked Felder, "You gonna kill him?" Felder replied,

"Yeah."   Defendant gave Felder the gun.       Felder then crossed the street,

approached Patterson, and attempted to shoot him but the gun did not discharge.

Felder returned and told defendant that the gun misfired. Defendant took the

gun. Bryant and Hightower saw defendant unjam the gun and hand it back to

Felder. Felder again approached Patterson and shot him several times, killing

him. Felder then threw the gun in a nearby lake and later met up with defendant

and Young.

      Tried to a jury, defendant was convicted of murder, second-degree

possession of a weapon for an unlawful purpose, and third-degree hindering

apprehension. Defendant was sentenced to life in prison with thirty years of

parole ineligibility on the murder conviction and to a five-year consecutive


                                                                        A-4614-17T4
                                       3
sentence on the hindering apprehension after merger of count two. We reversed

the conviction on direct appeal. State v. Burns, No. A-6273-01 (App. Div. May

11, 2006) (Burns I). The Supreme Court reversed and reinstated the conviction

and sentence. Burns, 192 N.J. at 343.

       Defendant's first petition for post-conviction relief (PCR) was denied. We

affirmed the denial. State v. Burns, No. A-1098-10 (App. Div. June 4, 2012)

(Burns II). The Supreme Court denied certification. State v. Burns, 213 N.J.

396 (2012).

       In 2013, defendant filed a petition for a writ of habeas corpus in the United

States District Court for the District of New Jersey. Judge Robert B. Kugler

issued a comprehensive written opinion and order denying the habeas petition

and declining to issue a certificate of appealabilty. Burns v. Warren, Civ. No.

13-1929 (RBK) (D.N.J. Mar. 22, 2016). That ruling was not overturned on

appeal.

       In January 2015, defendant also moved for a new trial, based on an alleged

Brady1 violation and newly discovered evidence. The motion judge rejected

those claims. Defendant appealed and moved for a limited remand, asserting we

should consider a September 15, 2015 Felder affidavit, in which he recanted his


1
    Brady v. Maryland, 373 U.S. 83 (1963).
                                                                            A-4614-17T4
                                         4
trial testimony implicating defendant.      The State opposed the application,

contending the timing and credibility of Felder's affidavit was highly suspect

given his max-out date of January 26, 2017. The State further argued that

Felder's affidavit directly contradicted the January 13, 2010 affidavit of

Investigator Angela Townes, stating Felder "informed [her] that he would not

testify in court without getting a guarantee that the new information he could

provide would not net him any additional penalty." We denied the motion and

affirmed for the reasons expressed by the motion judge. We found defendant's

appellate arguments were without sufficient merit to warrant discussion in a

written opinion. State v. Burns, No. A-0446-15 (App. Div. Apr. 12, 2017)

(citing R. 2:11-3(e)(2)). The Supreme Court denied certification. State v.

Burns, 231 N.J. 218 (2017).

      Felder executed a subsequent April 15, 2016 certification, which stated he

told the truth during his plea hearing, his meeting with First Assistant Prosecutor

Raymond Milavsky, and the trial. He further certified:

                   I greatly regret signing the certification that was
            filed in support of Burns' application for post-
            conviction relief. I was in state prison at the time I
            signed that certification, and you must understand that,
            since Burns is my cousin, I was under a lot of pressure
            from my family to sign a certification that supported his
            efforts to overturn his conviction. I am sorry that I gave
            in to that pressure and signed a false certification. It

                                                                           A-4614-17T4
                                        5
            was the result of poor judgment – and, as I said,
            overwhelming pressure from my family.

      In August 2017, defendant moved for a new trial based on newly

discovered evidence.     In support of his motion, defendant submitted the

following documents: (1) the September 15, 2015 Felder affidavit; (2) the

January 1, 2013 Townes certification; (3) an April 22, 2010 Young certification;

(4) the April 15, 2016 Felder certification; (5) an August 5, 2017 Felder

affidavit; (6) a January 7, 2010 Morris K. Burns certification; and (7) a June 13,

2013 Reverend Rose Burns-Hayes notarized letter.

      The motion judge noted the Young, Townes, and Morris K. Burns

certifications were previously addressed in the court's July 2015 decision.

Felder died in February 2018 while the motion was pending.             The judge

determined that even if Felder were alive to testify at a new trial, his affidavits

and certification failed to meet the three-prong test for newly discovered

evidence set forth by the Court in State v. Carter, 85 N.J. 300 (1981).2 He found


2
   In Carter, the Court reiterated the following test for newly discovered
evidence:

            to qualify as newly discovered evidence entitling a
            party to a new trial, the new evidence must be (1)
            material to the issue and not merely cumulative or
            impeaching or contradictory; (2) discovered since the


                                                                           A-4614-17T4
                                        6
the Felder affidavits and certification were merely contradictory. The judge

noted that in his September 2015 and August 2017 affidavits, Felder took full

responsibility for Patterson's death yet, in his April 2016 certification, Felder

states that his testimony during the plea hearing was accurate and that he was

under family pressure to sign the September 2015 affidavit. In his August 2017

affidavit, Felder recanted his April 2016 certification.          Thus, the judge

determined defendant did not satisfy the first prong of the newly discovered

evidence test.

       The judge found the affidavits and certification failed to satisfy "the

second prong of the newly discovered evidence test because the information

could have been discovered at the time of trial. Mr. Felder was present and even

testified at trial."

       As to the third prong, the judge noted the credibility of Felder's recantation

was addressed in Burns II. We found:

              At trial, Felder testified against defendant pursuant to a
              plea agreement that required his truthful testimony in
              order to obtain the benefit of his bargain. Although
              Felder is allegedly now willing to recant, he is reported

              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.

              [Id. at 314.]
                                                                             A-4614-17T4
                                          7
            as being willing to do so only if the proffer of the new
            testimony does not "net him any additional penalty."
            When we consider this condition, together with the
            absence of any certification of Felder himself, we find
            ample grounds to conclude that Felder's alleged proffer
            is the product of fabrication and is not credible. Thus
            an evidentiary basis for a new trial based on Felder's
            alleged recantation is absent.

            [Burns II (slip op. at 9-10).]

      The judge found the 2015 and 2017 Felder affidavits were not reliable.

Moreover, "[t]estimony based on the information provided in Felder's affidavits

would be impeached by his previous testimony. Any new testimony provided

by Mr. Felder would be no more credible than his original trial testimony."

Therefore, "[s]ince these recantations are not credible," and the April 2016

certification "is consistent with his trial testimony," the 2015 and 2017 Felder

affidavits "would probably not change the result if a new trial were granted." In

addition, the judge noted Felder had previously signed a false certification due

to family pressure.

      Burns-Hayes is defendant's mother. The judge concluded her notarized

letter was not material and is merely impeaching and contradictory. The judge

also found it failed to satisfy the second prong because she knew on the night of

the murder that Felder said he killed Patterson because "he disrespected him."

Thus, the evidence was "reasonably discoverable before trial."             More

                                                                         A-4614-17T4
                                        8
fundamentally, the letter "contains nothing material or new" since Felder already

testified that he was the one that shot Patterson and did so at defendant's request.

"Information that the victim disrespected him would probably not change the

result if a new trial were granted."

      Defendant submitted four additional April 2018 certifications in support

of his motion. The court noted Sedvia Felder, Sonya Burns-Walker, Morris

Burns, and Regina Burns were all members of defendant's family.                They

indicated Felder died in February 2018. They also indicated Felder wished to

absolve defendant and take full responsibility for the murder. The judge found

the certifications merely contradictory to Felder's trial testimony, the evidence

reasonably could have been discovered at the time of trial, the information

contained in the certifications would not change the result if a new trial were

granted, and were dependent on the Felder affidavits passing the newly

discovered evidence test, which they did not. The judge concluded the four

certifications failed to meet each prong of the Carter test.

      Based on these findings and conclusions, the motion judge denied the

motion for a new trial. This appeal followed.

      In this appeal, defendant raises the following issues:

            I. MOTION FOR NEW TRIAL ORDER SHOULD BE
            GRANTED DUE TO NEWLY DISCOVERED

                                                                            A-4614-17T4
                                         9
EVIDENCE TO "DEFEND LIFE AND LIBERTY" AS
GUARANTEED BY N.J. CONST. (1949) ART I, PAR.
1; U.S. CONST. AMEND XIV § 1 TOWARDS
ACQUITTAL DUE TO ACTUAL INNOCENCE
(Raised Below).

     A. Recantation.

     B. Actual Innocence.

II. MOTION FOR NEW TRIAL ORDER SHOULD BE
GRANTED DUE TO NEWLY DISCOVERED
EVIDENCE.       THE STATE'S "KNOWING"
PRESENTATION OF PERJURED TESTIMONY OF
TONY     FELDER,    DURING    TRIAL  WAS
FUNDAMENTALLY         UNFAIR,  AND   THE
CONVICTION MUST BE SET ASIDE SINCE THERE
IS A REASONABLE LIKELIHOOD THAT THE
FALSE TESTIMONY AFFECTED THE JUDGMENT
OF THE JURY. LITIGANT MOVES TO "DEFEND
LIFE AND LIBERTY" AS GUARANTEED BY N.J.
CONST. (1949) ART I, PAR. 1; U.S. CONST.
AMEND XIV § 1 (Raised below).

      A. Prosecutorial promises w[]ere made prior to
Felder testifying.

     B. Perjured testimony.

     C. Third Party Guilt, et al.

III. REMAND TO THE TRIAL COURT WITH
DIRECTIONS TO HOLD EVDENTIARY HEARINGS
ON THE ISSUES RAISED AND WITNESS
TESTIMONY BE PROVIDED TO SUPPLEMENT
THE TRIAL RECORD (Not Raised below).



                                                       A-4614-17T4
                         10
      We reject these arguments and affirm substantially for the reasons stated

by Judge Philip E. Haines in his written decisions. We add the following

comments.

      We review a motion for a new trial based on newly discovered evidence

under an abuse-of-discretion standard. State v. Russo, 333 N.J. Super. 119, 137

(App. Div. 2000). We discern no abuse of discretion here.

      Where a defendant’s petition for a new trial is based upon the recantation

of a State’s witness, the appropriate test is: (1) “whether the testimony given at

the trial was probably false,” and, if so, (2) whether “on that account there is a

substantial possibility of [a] miscarriage of justice.” State v. Baldwin, 47 N.J.

379, 400 (1966); see also State v. Carter, 69 N.J. 420, 427 (1976) (“The test for

the judge in evaluating a recantation upon a motion for a new trial is whether it

casts serious doubt upon the truth of the testimony given at the trial and whether,

if believable, the factual recital of the recantation so seriously impugns the entire

trial evidence as to give rise to the conclusion that there resulted a possible

miscarriage of justice.” (quoting State v. Puchalski, 45 N.J. 97, 107-08 (1965)).

      “Courts generally regard recantation testimony as suspect and

untrustworthy,” therefore the burden is placed squarely upon the defendant to

prove the recantation statement “is probably true and the trial testimony


                                                                             A-4614-17T4
                                        11
probably false.” Carter, 69 N.J. at 427.     In particular, where the recanting

witness is incarcerated, courts are even more skeptical in assessing the veracity

of the recantation. See, e.g., State v. Engel, 249 N.J. Super. 336, 386 (App. Div.

1991) (“Prisoners often have nothing to lose and much to gain by repudiating

their trial testimony. For that reason, we regard recantations as inherently

suspect.”); Baldwin, 47 N.J. at 400 (“Recantations by fellow prisoners are not

uncommon. It would be unwise to vest in a State’s witness the effective power

thereby to grant a new trial.”).

      Judge Haines found the affidavits and certifications submitted by

defendant in support of his motion did not satisfy any of the three prongs of the

test for newly discovered evidence. He found the contradictory Felder affidavits

and certification were not reliable or credible; testimony based on the

information contained in Felder's affidavits would be impeached by his previous

testimony; and any new testimony provided by Felder would be no more credible

than his original trial testimony.    Coupled with Felder certifying he had

previously signed a false certification due to family pressure, the judge

concluded the information contained in the affidavits and certifications would

probably not change the out result if a new trial were granted.




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                                       12
      Based on our review of the record, we are satisfied that Judge Haines'

comprehensive factual findings are amply supported by substantial evidence in

the record and his conclusions predicated on those findings are legally sound.

The judge properly denied the motion for a new trial.

      Defendant's remaining arguments are without sufficient merit to warrant

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

      Affirmed.




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                                      13
