                                NOT FOR PUBLICATION WITHOUT THE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-5026-16T4

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

R.B.,

     Defendant-Appellant.
____________________________

                    Submitted March 25, 2019 – Decided April 4, 2019

                    Before Judges Sabatino and Haas.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Hudson County, Indictment No. 06-08-1277.

                    R.B., appellant pro se.

                    Esther Suarez, Hudson County Prosecutor, attorney for
                    respondent (Alanna M. Jereb, Assistant Prosecutor, on
                    the brief).

PER CURIAM

          Defendant R.B. appeals from the May 31, 2017 Law Division order

denying his second petition for post-conviction relief (PCR). We affirm.
      The parties are fully familiar with the procedural history and facts

surrounding defendant's convictions for first-degree kidnapping, N.J.S.A.

2C:13-1(b); and third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(7), which

is set forth in detail in our opinion denying defendant's first petition for PCR.

State v. R.B., No. A-0172-14 (App. Div. July 20, 2016), certif. denied, 228 N.J.

62 (2016). Therefore, we will not repeat that discussion here.

      In his second PCR petition, defendant alleged that during his first and

second trials, the State committed a "Brady1 violation" by failing to disclose a

complaint against defendant's wife, who was the victim of the kidnapping and

assault involved in this matter, that the Division of Child Protection and

Permanency (Division) filed in November 2014, long after those trials were

completed.2 The complaint also named defendant as a party-defendant because

he was the father of one of the victim's children.

      In the complaint, the Division sought to assume care and custody of all

three of the victim's children. In setting forth the facts underlying its claims, the



1
  A "Brady violation" occurs when the prosecution fails to produce exculpatory
evidence in its possession or under its control. Brady v. Maryland, 373 U.S. 83,
87 (1963).
2
  The first trial was held in 2007, and the second was completed in 2010. R.B.,
(slip op. at 1-2).
                                                                             A-5026-16T4
                                         2
Division recounted its involvement with the family prior to defendant's violent

attack on the victim. The complaint was also based upon the victim's alleged

actions following defendant's conviction.

      Defendant argued that had he known the victim was the subject of a

Division investigation, and that the Division alleged she used drugs and

committed domestic violence against him in the years prior to his conviction, he

and his trial attorney could have used this information to challenge the victim's

credibility on cross-examination.    Because he was deprived of this "newly

discovered evidence," defendant asserted that he was entitled to a new trial.

      Defendant also alleged that the attorney who represented him on his first

PCR petition provided ineffective legal assistance to him because he failed to

conduct a proper investigation, as evidenced by his failure to uncover the

information concerning the victim that was set forth in the Division's November

2014 complaint.

      In a written decision rendered on May 31, 2017, Judge Sheila Venable

rejected these contentions, and denied defendant's second petition for PCR. The

judge found that defendant was fully aware of the allegations against the victim

because he was married to her, and was also directly involved with the Division

as a subject of its investigation during the period leading up to his attack upon


                                                                         A-5026-16T4
                                       3
her. Indeed, defendant's attorney at his first trial attempted to cross-examine the

victim concerning her use of drugs, alleged acts of domestic violence, and

involvement with the Division. 3 Thus, this information was certainly not "newly

discovered."

      The judge also found that defendant's complaints about his PCR attorney

were unfounded. The judge noted that the attorney submitted an eighty-four-

page brief in support of defendant's petition, and had effectively presented

defendant's contentions to the court. This appeal followed.

      On appeal, defendant presents the following contentions:

             POINT ONE

             THE PCR COURT'S DENIAL OF DEFENDANT'S
             SECOND PETITION FOR [PCR] WAS ERROR AS
             GOOD CAUSE WAS SHOWN AND THE FACTUAL
             PREDICATE FOR THE RELIEF SOUGHT COULD
             NOT HAVE BEEN DISCOVERED EARLIER
             THROUGH REASONABLE DILIGENCE DUE TO
             THE STATE'S FAILURE TO DISCLOSE AND THE
             INEFFECTIVE ASSISTANCE OF PCR COUNSEL
             FOR FAILURE TO INVESTIGATE.

             POINT TWO

             THE PCR COURT FAILED TO REVIEW NEWLY
             DISCOVERED EVIDENCE AS A BRADY

3
   The trial judge sustained the State's objection to this line of questioning, after
concluding that the Division's investigation was a "collateral issue" that was
irrelevant to the kidnapping and assault charges pending against defendant.
                                                                             A-5026-16T4
                                         4
VIOLATION,     AND  RELIED    ON    A
MISREPRESENTATION OF THE FACTS BY THE
STATE INSTEAD OF GRANTING REQUESTED
EVIDENTUARY [SIC] REVIEW TO CLEARIFY
[SIC] THE RECORD.

A.   The State Purposely Withheld Information
     Contained In The Newly Discovered [Division]
     Document Resulting In A Clear Brady Violation
     Preventing [Defendant's] Attorney From
     Impeaching The Primary State's Witness
     Testimony At Trial.

B.   Another Example Of The State Withholding
     Evidence And The [Trial] Court Refusing To
     Hear Argument About The Personal Letters Sent
     to [Defendant] By [The Victim] That Were In
     Possession Of The State And A Clear Brady
     Violation Because The State Refused To Give
     Them To The Defense, As The Letters Were
     Proof Of [The Victim's] Mental Instability And
     Bolsters The Newly Discovered [Division]
     Statement.

POINT THREE

THE PCR COURT FAILED TO REVIEW CLAIMS
WITHIN [DEFENDANT'S] PETITION WAS PLAIN
ERROR AND DENIED [DEFENDANT] HIS
CONSTITUTIONAL RIGHT TO CROSS-EXAMINE
THE STATE'S ONLY WITNESS PERTAINING TO
THE ADMITTANCE OF TESTIMONY GEARED
TOWARD MENTAL HEALTH ISSUES, PAST
FIGHTING, DOMESTIC VIOLENCE ACTS, AND
VIOLATED THE CONFRONTATION CLAUSE
GUARANTEED IN THE SIXTH AMENDMENT.



                                                      A-5026-16T4
                        5
            A.    The Trial Court Infringed On [Defendant's] Sixth
                  Amendment Right Of Confrontation And To
                  Cross-Examine The State's Only Witness By
                  Ruling All Evidence Collateral.

            B.    Alternatively, If This Court Were To Deny
                  [Defendant's] Clear Brady Violations By The
                  State Then [Defendant's] Constitutional Right To
                  Effective Assistance Of Second Trial And PCR
                  Counsel Was Violated [Where] The Assigned
                  Public Defender Failed To Adequately Protect
                  [Defendant's] Rights By Failing To Investigate
                  The Probative Values Of Information Contained
                  Herein The Newly Discovered [Division]
                  Document.

      Having considered defendant's contentions in light of the record and the

applicable law, we conclude they are without sufficient merit to warrant

discussion in a written opinion. R. 2:11-3(e)(2). We affirm substantially for the

reasons set forth by Judge Venable in her thoughtful written decision, and add

the following brief comments.

      Contrary to defendant's contention, the State did not commit a Brady

violation in this matter. As noted above, the State must turn over exculpatory

material in its possession or under its control to the defense. Brady, 373 U.S. at

87. Here, the Division's complaint was not filed until November 2014 and,

therefore, was obviously not in the State's possession or control at the time of

either of defendant's trials. In addition, defendant failed to establish that the


                                                                          A-5026-16T4
                                        6
State was privy to any of the information the Division assembled as part of its

separate, and completely unrelated, investigation of defendant and his family.

Therefore, the judge properly rejected defendant's contention on this point.

      Judge Venable also correctly determined that the information set forth in

the complaint as it related to the victim's involvement with the Division prior to

the trials was not "newly discovered." To secure a new trial based upon newly

discovered evidence, 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.'" State v. Ways, 180 N.J.

171, 187 (2004) (quoting State v. Carter, 85 N.J. 300, 314 (1981)). All three

prongs of the test must be established. Ibid.

      Here, the record demonstrates that defendant, who was himself a subject

of the Division's investigation, and his defense team were aware that the

Division had investigated the victim, and was concerned that she was using

drugs and fighting with defendant. Indeed, defendant's attorney in the first trial

attempted to cross-examine the victim using this information. However, the

judge in that proceeding ruled that this information was not material to the


                                                                          A-5026-16T4
                                        7
criminal charges defendant was facing, and barred its entry at trial. Defendant

did not challenge that ruling on direct appeal, and did not attempt to refer to the

Division's allegations in the second trial.

      Defendant failed to demonstrate that this information would have changed

the jury's determination that he was guilty of the violent offenses involved in

this matter. Because defendant had been aware of the investigation for years,

and the Division matter was not material to the criminal proceedings,

defendant's first PCR attorney did not need to conduct an investigation into the

Division's allegations. Thus, the judge did not abuse her discretion by denying

defendant's PCR petition. State v. Preciose, 129 N.J. 451, 462 (1992).

      Affirmed.




                                                                           A-5026-16T4
                                         8
