Opinion
DOCKET NO. A-2832-13T2
05-05-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. TERRELL JACKSON, a/k/a DERRELL SAUNDERS, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Ruth E. Hunter, Designated Counsel, on the brief). Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Sara A. Friedman, Special Deputy Attorney General/ Acting Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Yannotti and Vernoia. On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 04-07-2685. Joseph E. Krakora, Public Defender, attorney for appellant (Ruth E. Hunter, Designated Counsel, on the brief). Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Sara A. Friedman, Special Deputy Attorney General/ Acting Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant appeals an October 8, 2013 order denying his petition for post-conviction relief (PCR) after an evidentiary hearing. We affirm in part, reverse in part, and remand for further proceedings.
I.
We previously set forth the facts in this matter in State v. Jackson, No. A-6317-06 (App. Div. May 19, 2009) (Jackson I), remanded, 200 N.J. 205 (2009), and briefly restate salient facts established during defendant's trial.
On March 8, 2004, Amir Wilkins was driving a motor vehicle near the intersection of 18th Avenue and Alexander Street in Newark, New Jersey. Witnesses testified that Wilkins was speeding and driving around in circles in the middle of the road.
Two witnesses, Dorothea Adu and Catasha Newsome, were at a restaurant near 18th Avenue and Alexander Street. Newsome was in the restaurant and Adu was standing outside of it when they heard four or five gunshots. One of the bullets fired struck Wilkins in the head, causing his death. The evidence at trial showed that the shooting occurred between 10:20 and 10:35 p.m.
Immediately after the shooting, Adu and Newsome told the police they did not have any knowledge regarding what occurred. Later, they identified defendant as the shooter, stating that they knew him from the neighborhood as "Rell."
Defendant testified at trial and denied he was present at the scene of the shooting. He testified that at no later than 5:00 p.m. he arrived at his friend Yakiemah Burks's sister's apartment in the Seth Boyden housing complex, where he stayed until 11:00 p.m., at which time he returned to the area of 18th Avenue and Alexander Street. Defendant stated that he was with Burks, her sister "Shuby," and others while he was at the apartment, and that it was a twenty to twenty-five minute car ride from the housing complex to the intersection where Wilkins was shot.
Defendant was charged in an indictment with first-degree murder, N.J.S.A. 2C:11-3(a) (count one); third-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b) (count two); and second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a).
After a December 2005 jury trial, defendant was convicted of a lesser included offense of aggravated manslaughter, N.J.S.A. 2C:11-4(a), under count one and third-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b), under count two. On June 16, 2006, defendant was sentenced to an eighteen-year custodial term on count one with the requirement that he serve eighty-five percent of the sentence without eligibility for parole under the No Early Release Act, N.J.S.A. 2C:43-7.2, and a concurrent four-year custodial term on count two.
We affirmed defendant's conviction and sentence. Jackson I, supra, slip op. at 6. The Supreme Court granted defendant's petition for certification and summarily remanded to us for "reconsideration in light of State v. Hill, 199 N.J. 545 (2009)." State v. Jackson, 200 N.J. 205, 205 (2009). On remand, we affirmed defendant's conviction. State v. Jackson, No. A-6317-06 (App. Div. May 27, 2010) (Jackson II). The Supreme Court denied defendant's petition for certification. State v. Jackson, 203 N.J. 607 (2010).
Defendant's PCR Petition
In March 2011, defendant filed a PCR petition alleging he was denied the effective assistance of counsel because his trial counsel failed to file a timely notice of an alibi defense and failed to subpoena Burks as an alibi witness. In support of his petition, defendant submitted a November 1, 2011 affidavit from Burks in which she asserted the following: on March 8, 2004, defendant was with her from 6:00 p.m. to "approximately 10:30 p.m. and 11:00 p.m."; in June 2006, following defendant's trial but before he was sentenced, she wrote a letter to the court advising that she had just learned about the charges against defendant and knew that he did not commit the crimes resulting in Wilkins's death; defendant was with her at the time Wilkins was shot; she had been willing to testify at defendant's trial; and she was never contacted or subpoenaed by defendant's counsel.
Defendant also submitted a December 29, 2011 affidavit of Talif Scudder in support of his PCR petition. Scudder indicated that he was an inmate at Northern State Prison and asserted that on March 8, 2004, he was in the area of 18th Avenue and Alexander Street in Newark and observed an individual he identified as "Swalli" shooting at a "speeding motor vehicle." Scudder further stated that he did not come forward earlier because he "had a warrant at the time."
Defendant's PCR Hearing
The PCR court granted defendant's request for an evidentiary hearing limited to defendant's claim that counsel was ineffective based upon a failure to file a timely notice of alibi and to subpoena and call Burks as an alibi witness, which resulted in the trial court giving the jury an adverse inference charge under State v. Clawans, 38 N.J. 162 (1962).
The State called defendant's trial counsel as a witness. Counsel recalled that prior to defendant's trial he had discussions with defendant over a period of time regarding the alibi defense and Burks as a possible alibi witness. Counsel was "certain" he would have undertaken to contact Burks, "sure" he attempted to reach Burks, and thought he may have spoken with Burks over the telephone but did not have an independent recollection of doing so. He recalled that there were issues "with respect to [Burks's] availability and willingness" and that she was "unwilling to participate." Counsel assumed that if he had determined Burks was believable and credible he would have called her as a witness, but he did not have "any recollection of ever having had the opportunity to meet her and assess her."
Counsel explained that it was his standard practice to file a notice of alibi if there were alibi witnesses who were willing to testify and who he deemed to be credible. He could not, however, recall being informed by defendant or defendant's mother about how to contact Burks. He testified that if Burks was motivated to testify on defendant's behalf, she could have made herself available, that his office was not "hard to find," and that if Burks was "highly motivated to come and testify, [he] would not have avoided her."
Trial counsel also stated that he spoke with defendant about defendant's possible testimony prior to the trial, but that defendant did not decide to testify until the trial was underway. When asked whether he discussed with defendant the consequences of testifying about an alibi without producing alibi witnesses, counsel said, "I suppose we probably did," but noted that he would not have advised defendant against testifying about his alibi simply because Burks was unavailable.
Defendant's mother, Sharee Saunders, testified that she told trial counsel about defendant's alibi when they first met in July 2004, and told counsel to obtain Burks's contact information from defendant because she did not have it. Saunders testified that in subsequent meetings with counsel, he said he had not obtained Burks's contact information but also explained that the State had the burden of proving defendant's guilt.
Saunders did not have any contact with Burks between July 2004, and the end of defendant's trial and was unable to locate Burks. After defendant's December 2005 conviction and before his June 2006 sentencing, Saunders spoke with Burks, told Burks to contact trial counsel, and suggested that Burks write a letter to the trial judge. The record includes a copy of a June 11, 2006, letter purportedly written by Burks, stating that she did not previously know about the charges against defendant and that he could not have committed the crimes because defendant was "with [her] at the time." The letter is not addressed to a judge or court, but instead reflects that it was sent to "50 Market Street, Newark, New Jersey."
Defendant testified that when he first spoke with trial counsel, he provided Burks's name, date of birth, and address, but acknowledged the address he provided was inaccurate. Defendant stated that while he was released on bail in 2004 he advised counsel that Burks was incarcerated. Defendant also testified that he provided counsel with Burks's aunt's address and informed counsel of Shuby's apartment address. Defendant spoke with counsel about Burks's character, but counsel said that Burks was "ghetto" and that they did not need her.
Defendant testified that counsel wanted him to testify at the trial and knew defendant would elect to testify because he and counsel discussed his alibi. Defendant said that counsel never informed him there would be problems presented if he testified about his alibi without calling any corroborative witnesses.
Burks did not testify at defendant's PCR hearing. Defendant's PCR counsel advised the court she was unable to contact Burks to arrange for Burks's attendance at the hearing. Counsel also stated that there was no mechanism to obtain Burks's appearance at the hearing, explaining that Burks "actually lives in Pennsylvania, so obviously I can't subpoena her." The PCR court accepted PCR counsel's explanation and agreed to consider Burks's affidavit.
The PCR Court's Decision
In an oral opinion, the PCR court denied defendant's petition, finding that trial counsel had been advised defendant was with Burks and Shuby at the time of Wilkins's murder, and that counsel had "attempted, unsuccessfully" to locate Burks on at least two occasions. The court also found that trial counsel did not provide an alibi notice prior to trial because he would not do so where he had not spoken to the purported alibi witnesses.
The court rejected the statements in Burks's affidavit based on what the court characterized as her "unwillingness" and "failure" to come to court to testify during the PCR proceeding. The court found that Burks "had, and ignored, the opportunity to appear as a witness" during the PCR hearing. The court discounted Burks's affidavit because it had "been obtained from someone who is still unwilling to come to [c]ourt."
The court further questioned the truthfulness of Burks's assertion that she had not been aware of defendant's charges until after the 2005 trial ended, finding that she had communications with defendant's family about being an alibi witness. The court found that Burks's "unavailability or unwillingness to appear" at the PCR hearing "undermine[d] any claim" by defendant that she "was not unavailable and not willing to assist" trial counsel.
The court found that the evidence did not establish any failure on trial counsel's part to attempt to contact Burks prior to trial and that counsel's "attempts at that investigation were thwarted by the purported witness'[s] obvious unavailability, which" the court found was "ongoing."
The court accepted the affidavit of an Essex County Prosecutor's Office detective stating that the distance between the scene of the shooting and Shuby's apartment was five and one-tenth miles and required approximately sixteen minutes of driving time. The court found that, even if Burks's affidavit was believed, "the time still allows opportunity [for] defendant['s] . . . commission of the killing at the conclusion of his visit at" the housing complex.
The court found that trial counsel was not ineffective by failing to file an alibi notice "identifying witnesses or other information he sought without success and could not confirm." The court concluded that trial counsel made a proper strategic decision not to file an alibi notice on defendant's behalf because counsel "can not be criticized for a witness'[s] failure to come forward when" counsel undertook to find her and she "obviously made herself unreachable."
The court also rejected the Scudder affidavit as a basis for relief, finding that Scudder identified the shooter by a single name, which was "nonexistent in law enforcement databases." The court concluded that defendant failed to establish that trial counsel erred in failing to locate Scudder as a witness because Scudder was unknown as a witness until he submitted his affidavit many years after defendant's trial. The court also found that defendant failed to establish that had Scudder been available as a witness there is a reasonable probability the result of the trial would have been different.
The court entered an order denying defendant's PCR petition. This appeal followed.
Defendant makes the following arguments:
POINT I:
THE TRIAL COURT ERRED IN DENYING POST-CONVICTION RELIEF BECAUSE THE RECORD DEMONSTRATES THAT DEFENSE COUNSEL FAILED TO INVESTIGATE AN ALIBI WITNESS, FAILED TO GIVE ADEQUATE AND REASONABLE ADVICE TO DEFENDANT ABOUT HIS ELECTION TO TESTIFY, AND FAILED TO FILE A NOTICE OF ALIBI.
POINT II:
THE TRIAL COURT ERRED IN FAILING TO SUBPOENA THE ALIBI WITNESS TO TESTIFY AT THE EVIDENTIARY HEARING.
POINT III:
PCR COUNSEL WAS INEFFECTIVE FOR FAILING TO SUBPOENA THE ALIBI WITNESS.
POINT IV:
THE TRIAL COURT ERRED IN DENYING AN EVIDENTIARY HEARING ON THE ISSUE OF SCUDDER'S AFFIDAVIT BECAUSE IT CONTAINED MATERIAL ISSUES OF DISPUTED FACT.
II.
The Sixth Amendment to the United States Constitution and Article I, Paragraph 10 of the New Jersey Constitution guarantee that a defendant in a criminal proceeding has "the right to the effective assistance of counsel." State v. Nash, 212 N.J. 518, 541 (2013) (quoting Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 2063, 80 L. Ed. 2d 674, 692 (1984)).
To prevail on a claim of ineffective assistance of counsel, a defendant must meet the two-pronged test set forth in Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693, and adopted by the New Jersey Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987).
Under the first prong of the Strickland/Fritz standard, a petitioner "must show that counsel's performance was deficient." Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. It must be demonstrated that counsel's representation "fell below an objective standard of reasonableness," and that "counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Strickland, supra, 466 U.S. at 687-88, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693.
Under the second prong of the Strickland/Fritz standard, a defendant "must show that the deficient performance prejudiced the defense." Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. There must be a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698. Defendant must demonstrate that "counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Id. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693.
A petitioner must establish both prongs of the Strickland/Fritz standard in order to obtain a reversal of the challenged conviction. Id. at 697, 104 S. Ct. at 2069, 80 L. Ed. 2d at 699; Fritz, supra, 105 N.J. at 52. A failure to satisfy either prong of the Strickland/Fritz standard requires the denial of a petition for PCR. Strickland, supra, 466 U.S. at 700, 104 S. Ct. at 2071, 80 L. Ed. 2d at 702; State v. Parker, 212 N.J. 269, 280 (2012).
Where a PCR court has had an opportunity to make "factual findings based on its review of live witness testimony," we defer to the "court's findings that are supported by sufficient credible evidence in the record." Nash, supra, 212 N.J. at 540 (citing State v. Harris, 181 N.J. 391, 415 (2004)). We do not give any deference to the court's legal conclusions, which are reviewed de novo. Id. at 540-41; Harris, supra, 181 N.J. at 415.
A defendant may suffer from ineffective assistance of counsel "when counsel fails to conduct an adequate pre-trial investigation." State v. Porter, 216 N.J. 343, 352 (2013). When evaluating counsel's pre-trial investigation,
our inquiry is whether counsel's performance was "reasonable considering all the circumstances." If counsel thoroughly investigates law and facts, considering all possible options, his or her trial strategy is "virtually unchallengeable." But strategy decisions made after less than complete investigation are subject to closer scrutiny. Indeed, counsel has a duty to make "reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary." A failure to do so will render the lawyer's performance deficient.
[State v. Savage, 120 N.J. 594, 617-18 (1990) (quoting Strickland, supra, 466 U.S. at 688, 690-91, 104 S. Ct. at 2064-66, 80 L. Ed. 2d at 694-95).]
Although a thorough investigation must generally include interviewing all alibi witnesses, State v. Pierre, 223 N.J. 560, 582 (2015), counsel will not be deemed to be ineffective if potential witnesses refuse to cooperate with counsel's investigation. See Nash, supra, 212 N.J. at 542-44 (finding counsel was not ineffective when his cross-examination was hampered due to the refusal of witnesses to cooperate during his pre-trial investigation). However, where counsel chooses "to forego evidence that could have reinforced [defendant's] alibi, . . . the attorney's performance [falls] below the objective standard of reasonableness guaranteed by the United States and New Jersey [C]onstitutions." Pierre, supra, 223 N.J. at 583.
A defendant may show that he was prejudiced by his trial counsel's failure to investigate if the testimony that would have been offered by an alibi witness would "have given rise to reasonable doubt about defendant's guilt." Id. at 588. The testimony of an alibi witness does not have to be free of credibility issues, it must simply have the ability to bolster the defense or refute the prosecution if believed by the jury. Id. at 586-88. If there is a reasonable probability that the testimony of a witness who was not presented at trial or properly investigated by counsel could alter the outcome of the trial, a court should find that "counsel's errors were sufficiently serious so as to undermine confidence that defendant's trial was fair, and that the jury properly convicted him." Id. at 588.
The testimony of an alibi witness, when supported by the witness's affidavit or certification, should not be dismissed as not credible without an evidentiary hearing. See State v. Jones, 219 N.J. 298, 314 (2014) ("Although the timing and motivation of [the alibi witness's] statement and her reason for not voluntarily appearing to testify as apparently had been expected raise important questions, those questions cannot be assessed and resolved without determining credibility."); Porter, supra, 216 N.J. at 356 ("The court's findings regarding defendant's and his girlfriend's credibility, based only on their affidavits, was an improper approach to deciding this PCR claim and effectively denied defendant an opportunity to establish ineffective assistance of trial counsel."). "Even a suspicious or questionable affidavit supporting a PCR petition 'must be tested for credibility and cannot be summarily rejected.'" Id. at 355 (quoting State v. Allen, 398 N.J. Super. 247, 258 (App. Div. 2008)).
Although the court conducted an evidentiary hearing here, defendant argues that he is entitled to a new hearing because his PCR counsel did not obtain Burks's appearance to testify at the PCR hearing. We agree.
We reject defendant's argument that the PCR court was responsible for securing the attendance of Burks at the PCR hearing. See State v. Roman, 248 N.J. Super. 144, 149 (App. Div. 1991) (finding that the prosecutor, not the court, "failed to exercise due diligence in seeking to procure [the witness's] appearance for trial").
Burks's affidavit was prepared by PCR counsel's office, obtained by counsel's investigator, and includes Burks's address in Pennsylvania. During the PCR hearing, counsel advised the court that she did not "have communications with [Burks] to bring her in" and said that because Burks lived in Pennsylvania, counsel "obviously [could not] subpoena her." PCR counsel further stated that she had "no mechanism . . . to physically bring [Burks] in." Counsel offered no other reason for her failure to call Burks as a witness.
PCR counsel was correct that she did not have the ability to subpoena Burks, but she had the ability to compel Burks's appearance at the PCR hearing under the Uniform Act to Secure the Attendance of Witnesses from Within or Without a State in Criminal Proceedings (Uniform Act), N.J.S.A. 2A:81-18 to -23, and because Pennsylvania, where Burks resides, has also enacted the Uniform Act, 42 Pa. Cons. Stat. § 5961-5965. Counsel's mistaken belief deprived defendant of the opportunity to permit the court to make the proper assessment of Burks's credibility which is essential to a fair resolution of defendant's PCR claim. "Assessment of credibility is the kind of determination 'best made through an evidentiary proceeding with all its explorative benefits, including the truth-revealing power which the opportunity to cross-examine bestows.'" Porter, supra, 216 N.J. at 347 (quoting State v. Pyatt, 316 N.J. Super. 46, 51 (App. Div. 1998), certif. denied, 158 N.J. 72 (1999)).
The record supports the conclusion that Burks was a material witness whose address was known, thereby permitting PCR counsel to compel her attendance at the PCR hearing in New Jersey. State v. Farquharson, 280 N.J. Super. 239, 248-49 (App. Div.), certif. denied, 142 N.J. 517 (1995). --------
Moreover, resolution of Burks's credibility was essential to a determination of both prongs of the Strickland/Fritz standard. Whether trial counsel's investigation fell below a reasonable standard was dependent upon the credibility of Burks's assertion that she was never contacted by counsel prior to defendant's trial. See, e.g., Nash, supra, 212 N.J. at 543-44 (finding "counsel's performance was not constitutionally deficient," because "counsel cannot be faulted if he was stonewalled").
If trial counsel failed to investigate defendant's alibi and call Burks as a witness, the assessment of whether defendant was prejudiced was also dependent upon Burks's credibility. Cf. Pierre, supra, 223 N.J. at 586-88 (finding that, although the defendant's alibi witnesses had some credibility issues, "had it been developed to the extent permitted by the available evidence, defendant's . . . alibi would most likely have given rise to reasonable doubt about defendant's guilt"). If Burks's statements were deemed credible and the PCR court determined that they gave "rise to reasonable doubt about defendant's guilt," defendant would establish that he was prejudiced by trial counsel's failure to present Burks as a witness at trial. Pierre, supra, 223 N.J. at 588. See Porter, supra, 216 N.J. at 356 ("The proper way to determine [the witness's] veracity was to assess her testimony on direct and cross-examination.").
Because Burks's absence from the PCR hearing appears to be the product of an erroneous belief that her appearance could not be compelled, we are constrained to remand this matter to permit counsel the opportunity to compel Burks's appearance and testimony as authorized under the Uniform Act. If there are circumstances that render it not possible to compel Burks's testimony, and she is otherwise unwilling or unable to testify, the remand court may consider such circumstances if they are presented.
We are also convinced that a remand is required because the PCR court's determination that Burks's affidavit was not credible was erroneously based upon findings of fact that are without support in the record. See State v. Hreha, 217 N.J. 368, 385 (2014) (rejecting credibility findings that were "unsupported by sufficient credible evidence in the record"). The court found Burks's affidavit was not credible because she was unwilling to testify during the PCR hearing, but there was no evidence that Burks was aware of the hearing, had refused to testify, or was unwilling to testify.
The PCR court also erred in finding that the information contained in Burks's affidavit, even if true, could not have altered the outcome of the trial. The court found that the times provided by Burks permitted the presence of defendant at the scene of Wilkins's shooting. The finding is not supported by sufficient credible evidence in the record.
The evidence showed that the shooting occurred no later than 10:35 p.m. Jackson II, supra, slip op. at 5. According to Burks's affidavit, she was with defendant at Shuby's apartment until "approximately 10:30 p.m. and 11:00 p.m.," and the evidence showed that it took at least sixteen minutes to travel from the apartment to the scene of the shooting. Contrary to the court's finding, if Burks's affidavit is true the earliest defendant could have arrived at the scene of the shooting was 10:46 p.m., a minimum of eleven minutes after the shooting occurred.
We remand for reconsideration of the denial of PCR with regard to defendant's claim regarding trial counsel's alleged failure to present Burks's as an alibi witness and to permit defendant the opportunity to present the witness whose testimony appears essential to his PCR claim. On remand, the court should determine the merits of defendant's PCR claims based upon the record presented and make findings of fact and conclusions of law founded upon the evidence. We express no view as to the merits of defendant's PCR claim.
III.
We reject defendant's argument that the PCR court erred by rejecting his claim that his trial counsel was ineffective by failing to render adequate advice concerning defendant's election to testify and failing to file an alibi notice. Defendant contends he was prejudiced by counsel's alleged failures because he was vulnerable during cross-examination to damaging questions regarding the validity of his alibi, was exposed to questioning about his use of aliases, and his testimony provided the basis for court's Clawans charge.
The PCR court properly rejected defendant's claim because he failed to satisfy the second prong of the Strickland/Fritz standard. The record before the PCR court is devoid of evidence that, but for trial counsel's alleged errors, defendant would have elected not to testify. Defendant did not testify that he would have proceeded differently at trial if he had been aware of the information or advice he now claims his counsel failed to provide. As a result, defendant failed to sustain his burden of establishing that he was prejudiced by his counsel's purported failure to provide complete and accurate advice regarding his election to testify.
We also reject defendant's argument that the PCR court erred by rejecting the statements made in Scudder's affidavit as a basis for the requested relief. Defendant submitted the Scudder affidavit in support of his PCR claim that his trial counsel was ineffective.
The Scudder affidavit did not support defendant's ineffective assistance of counsel claim because defendant made no showing that trial counsel was aware of Scudder's alleged presence at the scene of the shooting or could have become aware of it after a diligent investigation. Indeed, Scudder affirmatively states that he did not disclose his alleged presence at the scene because of concerns regarding a warrant. Scudder's affidavit did not establish that trial counsel's performance was deficient and the court properly rejected defendant's reliance upon it as a basis for his PCR claim.
For the first time on appeal, defendant argues that Scudder's affidavit supports the granting of a new trial based upon newly discovered evidence. We decline to consider the argument because it was not raised in the petition for PCR, was not argued before the PCR court, and does not involve jurisdictional or public interest concerns. State v. Robinson, 200 N.J. 1, 20 (2009); State v. Arthur, 184 N.J. 307, 327 (2005); Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973).
Affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION