Opinion
DOCKET NO. A-3790-13T3
03-15-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. JAMES MERTZ, Defendant-Appellant.
Stephen M. Pascarella argued the cause for appellant. Nicholas Norcia, Assistant Prosecutor, argued the cause for respondent (Joseph D. Coronato, Ocean County Prosecutor, attorney; (Samuel Marzarella, Supervising Assistant Prosecutor, of counsel; Mr. Norcia, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Sabatino and Accurso. On appeal from Superior Court of New Jersey, Law Division, Ocean County, Municipal Appeal No. 34-13. Stephen M. Pascarella argued the cause for appellant. Nicholas Norcia, Assistant Prosecutor, argued the cause for respondent (Joseph D. Coronato, Ocean County Prosecutor, attorney; (Samuel Marzarella, Supervising Assistant Prosecutor, of counsel; Mr. Norcia, on the brief). PER CURIAM
Following a trial in the municipal court and trial de novo on the municipal court record in the Law Division, defendant James Mertz was convicted of driving while intoxicated, N.J.S.A. 39:4-50; refusal to submit to a breath test, N.J.S.A. 39:4-50.2; and reckless driving, N.J.S.A. 39:4-96, arising out of a single-car accident in Point Pleasant Beach and sentenced as a first-time offender. We affirmed defendant's conviction and sentence State v. Mertz, No. A-0610-09 (App. Div. Sept. 1, 2010), and the Supreme Court denied his petition for certification, State v. Mertz, 205 N.J. 99 (2011).
We are advised defendant has fully served his sentence.
Defendant thereafter filed a timely petition for post-conviction relief in the municipal court alleging he was deprived of his rights under the federal and State constitutions. His petition was denied, and he appealed to the Law Division, where he claimed the State committed a Brady violation by failing to provide him with the accident report in discovery, and that new developments in the science of traumatic brain injuries lend more credence to the defense he presented at trial, namely that his failure to perform the sobriety tests resulted not from drunkenness but from the effects of a concussion suffered in the accident, entitling him to an evidentiary hearing.
Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963).
In a cogent and comprehensive opinion delivered from the bench, Judge Hodgson rejected those arguments. Assuming for purposes of his analysis that the prosecutor failed to disclose the accident report and that it was favorable to defendant, the judge nevertheless rejected the Brady claim because there was no reasonable probability that had the report been disclosed to the defense, defendant would not have been convicted. See State v. J.J., 397 N.J. Super. 91, 101 (App. Div. 2007) ("Evidence is considered material 'if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.'") (quoting United States v. Bagley, 473 U.S. 667, 682, 105 S. Ct. 3375, 3383, 87 L. Ed. 2d 481, 494 (1985)), appeal dismissed 196 N.J. 459 (2008). The judge also rejected defendant's claim the report was newly discovered evidence entitling him to a new trial, finding it "clearly cumulative" based on the affidavit of defendant's expert stating it only reinforced the opinion he rendered previously in the matter. See State v. Carter, 85 N.J. 300, 314 (1985).
Defendant appeals raising the following issues.
POINT ONE
Defendant Should be Afforded A Plenary Hearing on the Issues Regarding the Scientific and Medical Communities Advancement of Concussions.
POINT TWOThe State argues defendant's petition is procedurally barred under Rule 7:10-2 and without merit in any event. We agree.
The Subsequent Discovery of An Accident Report Buttresses the Defendant's Assertion as to the Seriousness of the Accident.
Defendant does not identify the procedural underpinning for his petition. Our own review discloses no cognizable claim for post-conviction relief. Defendant has abandoned his Brady claim by failing to urge it in his letter brief as a ground for reversal in this court, see R. Neumann & Co. v. City of Hoboken, 437 N.J. Super. 384, 390 (App. Div. 2014), and raises no other claim of constitutional dimensions. He has also not challenged the trial court's jurisdiction or the sentence imposed and has not asserted any ground for a collateral attack on his conviction. See R. 7:10-2 (setting out the grounds for cognoscibility of a petition for post-conviction relief in the municipal courts).
We deem the claim without merit in any event for the reasons expressed in Judge Hodgson's opinion. --------
In addition, his substantive claim, that he was not drunk but suffering from a concussion, is substantially the same as, if not identical to the one he raised at trial. Because the claim was already the subject of an adverse final adjudication on the merits, it may not be re-litigated in this proceeding. See State v. Marshall, 173 N.J. 343, 351 (2002).
Because the claim is procedurally barred and substantively without merit for the reasons expressed by Judge Hodgson in his well-reasoned opinion from the bench on March 12, 2014, defendant was not entitled to an evidentiary hearing. See State v. Preciose, 129 N.J. 451, 462-64 (1992).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION