                                NOT FOR PUBLICATION WITHOUT THE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-1388-18T1

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

SOLOMON R. WILBORN,

          Defendant-Appellant.


                   Submitted March 26, 2020 – Decided June 26, 2020

                   Before Judges Alvarez and DeAlmeida.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Camden County, Indictment No. 13-03-0949.

                   Joseph E. Krakora, Public Defender, attorney for
                   appellant (Louis H. Miron, Designated Counsel, on the
                   brief).

                   Jill S. Mayer, Acting Camden County Prosecutor,
                   attorney for respondent (Nancy P. Scharff, Special
                   Deputy Attorney General/Acting Assistant Prosecutor,
                   of counsel and on the brief).

PER CURIAM
      Defendant Solomon R. Wilborn appeals the September 10, 2018 Law

Division order denying his petition for post-conviction relief (PCR). For the

reasons stated by Judge Michele M. Fox regarding the issue now raised on

appeal, we affirm.

      A jury convicted defendant of first-degree armed robbery, N.J.S.A. 2C:15-

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

offenses. Two others were named in the indictment as co-defendants. Only

defendant was charged with second-degree certain persons not to have weapons,

N.J.S.A. 2C:39-7(b). The jury convicted him of that offense as well. The judge

sentenced defendant on January 24, 2014 as a persistent offender, N.J.S.A.

2C:44-3(a), to an aggregate of thirty-four years, twenty-five and one-half of

which were to be served subject to the No Early Release Act's eighty-five

percent parole bar. N.J.S.A. 2C:43-7.2.

      The convictions were affirmed, and the matter remanded for merger of an

additional offense. State v. Wilborn, No. A-4317-13 (App. Div. Mar. 28, 2016).

The Supreme Court denied certification. State v. Wilborn, 228 N.J. 77 (2016).

      Defendant's PCR petition raised several ineffective assistance of counsel

arguments. The only issue on appeal relates to newly discovered evidence.




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                                      2
       The incident involved three assailants attacking and robbing a man who

was riding a bicycle. He was beaten, pistol whipped, and his belongings were

taken. Shortly after the event, the police came upon the victim. The vehicle in

question was almost immediately located nearby, and inside police found several

items taken from the victim. A gun lay on the ground within a few feet of the

car.

       Defendant saw the police approach the vehicle and fled. He avoided

capture by running into some woods, but was soon located walking away from

the direction of the incident. The clothes he wore were stained with blood and

DNA from the victim.

       During the trial, the jury heard the police officer who first responded

describe the scene, the items found in the vehicle, and recount that defendant

was apprehended close by. The State also presented expert testimony regarding

the DNA and blood splatters on defendant's clothing. One of the co-defendants

identified defendant as not only being involved in the robbery, but having been

the person who wielded the handgun.

       In support of his PCR petition, defendant submitted the testifying co-

defendant's one-page, five-paragraph affidavit.       The co-defendant said




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                                      3
defendant had not been involved in the robbery, and that he testified against him

because he was afraid if he did not, he would not "get [his] deal."

      The judge found the "newly discovered evidence" failed to meet the three-

part test enunciated in State v. Carter, 85 N.J. 300 (1981). The co-defendant's

recantation was inherently untrustworthy, if for no other reason that despite

claiming he feared if he did not testify, he would not get a plea, at the time of

trial he had accepted a six-year term of imprisonment, which would be reduced

by a year if he testified truthfully against defendant. Furthermore, although

asserting that defendant was not involved, the co-defendant did not mention the

third person involved in the robbery. Finally, the affidavit did not touch upon

the other proofs the State presented to the jury, such as the victim's blood and

DNA on defendant's clothing, the fact he was discovered near the scene of the

crime, and that he was sweating profusely and "shaking a lot" when stopped.

All told, the four corners of the affidavit cast doubt on its truthfulness. Thus,

Judge Fox concluded that even if the jury had heard the co-defendant's new

narrative, it was unlikely to have affected their ultimate decision. Since the

affidavit failed the Carter1 test, which requires the newly discovered evidence


1
   State v. Carter, 85 N.J. at 314 (newly discovered evidence satisfies the
standard for a new trial where it is material, came to light after the trial, and
would probably change the jury's verdict).
                                                                         A-1388-18T1
                                        4
to be material as well as have the potential of leading to a different outcome, she

denied the motion for a new trial.

        Now on appeal, defendant raises the following points for our

consideration:

              I. THE PCR COURT SHOULD HAVE GRANTED
              DEFENDANT A NEW TRIAL IN THE INTEREST OF
              JUSTICE   BASED   UPON     THE    NEWLY
              DISCOVERED EVIDENCE CONCERNING THE
              STATE'S WITNESS WHO RECANTED HIS TRIAL
              TESTIMONY ALMOST TWO YEARS AFTER
              DEFENDANT'S CONVICTION.

              II. THE PCR COURT ABUSED ITS DISCRETION IN
              NOT CONDUCTING AN EVIDENTIARY HEARING
              TO     ADDRESS     DEFENDANT'S     NEWLY
              DISCOVERED EVIDENCE CLAIM IN ORDER TO
              TEST THE VERACITY OF THE STATEMENTS
              CONTAINED IN THOMAS' AFFIDAVIT AND
              THEIR IMPACT ON DEFENDANT'S TRIAL.

        Motions for a new trial are subject to abuse of discretion review pursuant

to Rule 3:20-1. Such motions are granted where necessary to advance the

interest of justice. Motions for a new trial based on newly discovered evidence

must consist of proof which would affect the jury's verdict. See State v. Smith,

224 N.J. 36, 49 (2016). As Judge Fox pointed out, that is patently not the case

here.    The conviction was not based on the co-defendant's trial testimony.

Rather, the testimony was just one piece of evidence the State presented to the


                                                                           A-1388-18T1
                                         5
jury. Additionally, the "newly discovered evidence" was not credible. The

petition was therefore properly denied.

      Affirmed.




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