                                NOT FOR PUBLICATION WITHOUT THE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-4415-18T3

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

CRAIG A. SCOTT, a/k/a
ALTEREK JONES, RICKEY
JONES, RICKY SMIOTH,
and RICKY SMITH,

     Defendant-Appellant.
_________________________

                   Submitted May 26, 2020 – Decided June 9, 2020

                   Before Judges Fasciale and Rothstadt

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Essex County, Indictment No. 08-04-1209.

                   Craig Scott, appellant pro se.

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

PER CURIAM
       Defendant—who was convicted of two murders in 2010—appeals from a

February 7, 2019 order denying his second petition for post-conviction relief

(PCR). In his second petition, defendant primarily maintained that trial counsel

failed to request statements of witnesses to the shootings. Judge Michael L.

Ravin denied the petition as untimely, entered the order, and rendered a written

decision.

       Importantly, defendant sought alternative relief by filing his petition.

Defendant's main request was that the PCR judge grant a new trial, contending

that the statements constituted newly discovered evidence. On May 6, 2019, the

judge denied defendant's motion for a new trial, entering an order and a detailed

written decision concluding there was no Brady1 violation and that the

statements did not amount to newly discovered evidence. 2

       We affirm.




1
    Brady v. Maryland, 373 U.S. 83 (1963).
2
   Defendant did not identify the May 6, 2019 order in his Notice of Appeal. In
his merits brief, however, defendant argues the judge erred by denying his
motion for a new trial, and in this decision, we address the substance of his new-
trial contentions.
                                                                          A-4415-18T3
                                        2
                                        I.

       Defendant is serving two consecutive life prison terms for murdering two

juveniles. We affirmed the convictions in an unpublished opinion. State v.

Scott, No. A-2948-10 (App. Div. Aug. 13, 2013), certif. denied, 217 N.J. 288

(2014). Defendant then filed his first petition for PCR. The PCR judge granted

defendant's request for an evidentiary hearing, but ultimately denied his petition

on April 15, 2016. Defendant appealed, and we affirmed. State v. Scott, No.

A-0630-16 (App. Div. Jan. 22, 2018), certif. denied, 233 N.J. 472 (2018). On

November 2, 2018, defendant filed his motion for a new trial or alternatively

PCR.

       For purposes of this appeal, we summarize the following facts. Defendant

was convicted of beating and then shooting two victims to death in the street.

Among the eyewitnesses to this crime was Patrick Hall, who observed the

shooting from a block away. Mr. Hall testified at trial, identifying defendant as

the shooter. Mr. Hall's three stepchildren were with him at the time of the

shooting, and they provided statements to police. Defendant alleges that these

statements were not turned over during discovery. Defendant's PCR counsel

attempted to get in contact with one of the children, Jasmine Sampson, many

times, but she did not want to get involved. After numerous requests, Ms.


                                                                          A-4415-18T3
                                        3
Sampson gave a recorded statement, explaining that she could not identify the

shooter, as she and her family members immediately ran in the opposite

direction once they heard the gunshots.

      On appeal, defendant argues:

            POINT I

            PCR AND PCR APPEAL COUNSEL BOTH WERE
            INEFFECTIVE WHEREFORE [DEFENDANT] IS
            WITHIN THE ONE LIMITATION TO FILE A
            SECOND       OR SUBSEQUENT       PETITION
            PURSUANT TO [RULE] 3:22-12 (A)(2)(C)[.] (Not
            Raised Below).

            POINT II

            [THE] PCR [JUDGE] ERRED WHEN [HE]
            SUMMARILY DENIED [DEFENDANT'S] MOTION
            FOR [A] NEW TRIAL BASED ON VIOLATION OF
            BRADY[,] . . . WHICH VIOLATED [DEFENDANT'S]
            FUNDAMENTAL RIGHT TO DUE PROCESS AND
            A FAIR TRIAL [U.S. CONST.] V, VI, XIV AMENDS
            ART. I [¶] 10 OF THE [N.J. CONST.] (Raised Below).

            POINT III

            [THE] PCR [JUDGE] ERRED WHEN [HE]
            SUMMARILY DENIED [DEFENDANT'S] MOTION
            FOR [A] NEW TRIAL BASED ON NEWLY
            DISCOVERED EVIDENCE BASED ON THE
            AVAILABILITY OF CO-DEFENDANTS THAT
            ESTABLISHE[D]     DEFENDANT'S      ACTUAL
            INNOCENCE[.] ([Not] Raised Below).



                                                                     A-4415-18T3
                                      4
            POINT IV

            TRIAL COUNSEL WAS INEFFECTIVE AND DID
            NOT PERFORM AS REQUIRED BY THE SIXTH
            AND FOURTEENTH AMENDMENT[S] TO THE
            UNITED STATES CONSTITUTION[.] (Raised
            Below).

            POINT V

            THE [DEFENDANT] IS ENTITLED TO AN
            EVIDENTIARY HEARING, PURSUANT TO [RULE]
            3:22-10 BECAUSE HE HAS PRESENTED A PRIMA
            FACIE CLAIM OF INEFFECTIVE ASSISTANCE OF
            COUNSEL[.] (Raised Below).

                                       II.

      Defendant contends that his second PCR petition is not time barred,

arguing that the factual predicate date is October 25, 2018⸻the date that Ms.

Sampson gave her recorded statement to counsel. We disagree and affirm

substantially for the reasons stated by the PCR judge, adding the following brief

remarks.

      Rule 3:22-4 provides that a second PCR petition will be dismissed unless

it is timely under Rule 3:22-12(a)(2), which allows for the filing of a subsequent

PCR petition up to one year after "the date on which the factual predicate for the

relief sought was discovered, if that factual predicate could not have been




                                                                          A-4415-18T3
                                        5
discovered earlier through the exercise of reasonable diligence[.]" R. 3:22-

12(a)(2)(B) (emphasis added).

      Mr. Hall's stepchildren made statements to police on July 13, 2007.

Defendant's trial counsel received the police continuation report and the search

warrant affidavit as part of discovery prior to defendant's 2010 trial. These

documents contained references to the statements of Mr. Hall's stepchildren.

Defendant did not file his subsequent PCR petition until November 2, 2018—

over eleven years after the witnesses made these statements and eight years after

the judgment of conviction.      Defendant could have discovered the factual

predicate of his present claim through reasonable diligence because, as the PCR

judge pointed out, defendant possessed other pieces of discovery that referenced

these statements.

      Defendant further asserts that his subsequent PCR petition should be

considered in accordance with Rule 1:1-2(a), which states that "[u]nless

otherwise stated, any rule may be relaxed or dispensed with . . . if adherence to

it would result in an injustice." However, in 2009, the New Jersey Supreme

Court amended Rule 1:3-4⸻which governs time enlargements⸻to provide that:

"Neither the parties nor the court may . . . enlarge the time specified by . . .

[Rule] 3:22-12 (petitioners for [PCR])[.]" Therefore, "[t]he 'time limitations' in


                                                                          A-4415-18T3
                                        6
Rule 3:22-12 'hence are not subject to the relaxation provision of Rule 1:1-2.'"

State v. Jackson, 454 N.J. Super. 284, 293 (App. Div. 2018) (quoting Aujero v.

Cirelli, 110 N.J. 566, 577 (1988)).

      Moreover, after our Supreme Court's 2009 amendments, Rule 3:22-12(b)

now provides: "These time limitations shall not be relaxed, except as provided

herein." Rule 3:22-12(a)(1)(A) allows for consideration of a PCR petition filed

more than five years after the date of the judgment of conviction if defendant

shows both "that the delay . . . was due to [the] defendant's excusable neglect

and that there is a reasonable probability that if the defendant's factual assertions

were found to be true[,] enforcement of the time bar would result in a

fundamental injustice[.]" However, this exception to the five-year limitation

"has no application to second or subsequent petitions filed within one year of

the events specified in Rule 3:22-12(a)(2), as that subparagraph is itself an

exception to the five-year requirement of Rule 3:22-12(a)(1)(A)." Jackson, 454

N.J. Super. at 294.

      Defendant has not shown exceptional circumstances justifying the filing

of his second PCR petition over nine years after his judgment of conviction. In

his second petition, he made no attempt to prove excusable neglect. Defendant

also was aware of the stepchildren's statements before his trial, when he was


                                                                             A-4415-18T3
                                         7
provided with the police continuation report and the search warrant affidavit.

Therefore, the PCR judge was correct in denying defendant's petition as time

barred.

                                        III.

         Defendant argues that the prosecutor committed a Brady violation by

allegedly failing to turn over the statements of Mr. Hall's stepchildren.

Defendant bases this argument on the fact that these statements were not found

in his trial counsel's file when his second PCR counsel began to investigate this

issue.

         The State has a duty to provide a defendant with exculpatory evidence in

its possession during discovery. State v. Marshall, 148 N.J. 89, 154 (1997);

Brady, 373 U.S. at 87. The Brady rule applies even where a defendant did not

make a formal request for the material. State v. Martini, 160 N.J. 248, 268

(1999); State v. Nelson, 330 N.J. Super. 206, 212 (App. Div. 2000). To establish

a Brady violation, a defendant must show that:           "(1) [T]he prosecution

suppressed evidence; (2) the evidence is favorable to the defense; and (3) the

evidence is material." Martini, 160 N.J. at 268.

         Defendant fails to meet the three requirements. As noted by the PCR

judge, we conclude that there is no evidence that the prosecution suppressed the


                                                                         A-4415-18T3
                                         8
evidence, therefore defendant does not meet the first requirement. The fact that

defendant's second PCR counsel could not find the statements of Mr. Hall's

stepchildren in the trial file, years after the trial occurred, does not necessa rily

mean that the State failed to turn them over during discovery. Further, the State

turned over the police continuation report, which contains descriptions of the

witnesses and their statements. Defendant also does not satisfy the second

requirement because there is no evidence that the stepchildren's statements

would have been favorable to him. Because Ms. Sampson did not see the

shooting does not necessarily mean that Mr. Hall did not witness the shooting,

as he testified. Lastly, defendant does not satisfy the third requirement. Ms.

Sampson did not indicate in her October 2018 certification that her statement

differed from the information that was provided in the police continuation

report.

      Importantly, even if the State failed to turn over the documents, there must

be a "real possibility" that the undisclosed evidence would have affected the

result. State v. Carter, 91 N.J. 86, 113 (1982). There must be more than the

"mere possibility that the undisclosed information might have helped the

defense." Ibid.; see also Marshall, 123 N.J. at 200. Mr. Hall's testimony was

consistent with the continuation report summaries of his stepchildren's


                                                                             A-4415-18T3
                                         9
statements. Additionally, Mr. Hall was able to identify defendant from a photo

array. Given the weight of the evidence against defendant, there is no reasonable

likelihood that this impeaching evidence would have affected the trial's

outcome. Therefore, we conclude that the PCR judge did not err by rejecting

defendant's Brady violation claim.

                                       IV.

      Defendant asserts that the PCR judge erred in denying his motion for a

new trial. He contends that the judge failed to consider the affidavits of co-

defendants, James Grate and Fuquan Cromwell. Grate and Cromwell were

advised by their attorneys to invoke their Fifth Amendment right to remain

silent, and they continued to do so through the trial's duration. Now that his co-

defendants have exhausted their appeals, both certified that defendant did not

shoot the victims. Defendant argues that Ms. Sampson's certification, as well as

these new affidavits, constitute newly discovered evidence upon which a new

trial should be granted.

      "A jury verdict rendered after a fair trial should not be disturbed except

for the clearest of reasons." State v. Ways, 180 N.J. 171, 187 (2004). "Newly

discovered evidence must be reviewed with a certain degree of circumspection

to ensure that it is not the product of fabrication[.]" Id. at 187-88. Evidence is


                                                                          A-4415-18T3
                                       10
considered newly discovered and sufficient to warrant a new trial when it is:

"(1) [M]aterial 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. Carter, 85 N.J. 300, 314 (1981).

      Ms. Sampson's unsworn statement does not meet the test's requirements.

As defendant argues, her statement would be used to impeach Mr. Hall, thereby

failing prong one of the Carter test. See ibid. As to the second prong, her

statements⸻as well as those of her siblings⸻could have reasonably been

discovered by defendant, as his counsel possessed multiple documents that

referenced the statements. Additionally, as previously mentioned, there exists

no proof that defendant's counsel did not already possess these statements. As

to this evidence, it does not qualify as newly discovered evidence upon which a

new trial should be granted.

      As to defendant's contention regarding his co-defendant's statements, he

failed to raise this before the PCR judge. Although we decline to address this

issue, Nieder v. Royal Indem. Ins., 62 N.J. 229, 234 (1973); State v. Robinson,

200 N.J. 1, 20 (2009), we note that "a mere exculpatory statement of a co -

defendant cannot by itself give rise to a new trial if that statement is clearly false


                                                                              A-4415-18T3
                                         11
or merely designed to give an accomplice a second chance for acquittal." State

v. Robinson, 253 N.J. Super. 346, 366-67 (App. Div. 1992); see also State v.

Allen, 398 N.J. Super. 247, 258 (App. Div. 2008) (recognizing that "post[-

]conviction statements of persons who did not testify at trial . . . are 'inherently

suspect'" (quoting Robinson, 253 N.J. Super. at 367)).

      To the extent that we have not addressed defendant's other contentions,

we conclude that they are without merit to warrant attention in a written opinion.

R. 2:11-3(e)(2).

      Affirmed.




                                                                            A-4415-18T3
                                        12
