DOCKET NO. A-3198-13T2
Andrew F. Schneider, attorney for appellant. Robert D. Bernardi, Burlington County Prosecutor, attorney for respondent (Jennifer B. Paszkiewicz, Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Messano and Maven. On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 90-12-1013. Andrew F. Schneider, attorney for appellant. Robert D. Bernardi, Burlington County Prosecutor, attorney for respondent (Jennifer B. Paszkiewicz, Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Thomas S. Pendleton was convicted in 1993 of various crimes committed against a minor, M.R. We affirmed defendant's conviction and sentence in an unpublished opinion. State v. Pendelton, A-6333-92 (App. Div. Dec. 2, 1994) (slip op. at 36), certif. denied, 141 N.J. 94 (1995). One of the points defendant raised on appeal was the State's alleged failure to turn over "Brady" material. Id. at 9. This material was disclosed during discovery in a federal civil suit M.R. filed against defendant. Defendant argued that the information relating to M.R.'s psychological condition and treatment impeached M.R.'s credibility regarding the events at the heart of the crimes. Id. at 22-25. We rejected defendant's claim, concluding that "the defense really knew as much about the subject of M.R.'s mental condition as [did the State][,]" and there was no Brady violation. Id. at 30.
Defendant was subsequently convicted of federal crimes in 2010. In April 2013, while in federal custody, defendant filed a "petition for new trial based on newly discovered evidence pursuant to Rule 4:50-1." Defendant asserted that during his federal prosecution, the United States Attorney disclosed M.R.'s full psychiatric history, and defendant attached portions of M.R.'s federal trial testimony in which he answered questions regarding that history. Defendant further alleged inconsistencies existed between M.R.'s trial testimony in New Jersey and his testimony in federal court years later. Defendant sought "any discovery the State possesses regarding th[e] prosecution including any psychiatric or psychological documents and things regarding [M.R.][,]" as well as "all transcripts and documents concerning the case."
Subsequently, defense counsel filed a certification in which he recounted conversations he had with the Burlington County Prosecutor's Office and the Office of the Attorney General. Counsel certified that the Attorney General possessed the transcripts and "record" from the trial but refused to release it pursuant to N.J.S.A. 2A:82-46(c). Defense counsel requested a hearing to demonstrate good cause existed for release of the State's file.
N.J.S.A. 2A:82-46 generally provides that in prosecutions for certain offenses, the identity of a victim under the age of eighteen shall not appear in the indictment or any other public record, and, any reports, statements or other court documents or public records that includes the victim's identifying information "shall be confidential and unavailable to the public." N.J.S.A. 2A:82-46(b). Subsection (c) provides:
The information described in this act shall remain confidential and unavailable to the public unless the court, after a hearing, determines that good cause exists for disclosure. The hearing shall be held after notice has been made to the victim, parents of victim, spouse, or other person legally responsible for the maintenance and care of the victim, and to the person charged with the commission of the offense, counsel or guardian of that person.
The Law Division heard argument on defendant's request on January 17, 2014. Defense counsel contended that the record should be produced so that defendant could pursue his motion for a new trial based upon newly-discovered evidence. Counsel acknowledged "concerns [for] privacy here," and suggested the judge could, in her discretion, limit disclosure.
The State advised that the Attorney General's Office still had possession of the "appellate file" that contained the transcripts. The assistant prosecutor argued that in order to release the record, defendant's motion had to demonstrate good cause and not speculation about how the file might "assist" defendant in going forward. However, the prosecutor also recognized "something of an unusual circumstance because we're talking about the trial record of . . . defendant," and it was defendant's application, not some member of the public. Nevertheless, the prosecutor argued that defendant's assertion of good cause was "all so speculative."
The prosecutor also suggested that if the judge was considering release, it should be limited to the transcripts "and what was actually admitted at trial." She urged the judge to conduct an in camera review before releasing anything else that might be in the file.
After reserving decision, the judge issued a written opinion on February 4, 2014. Citing Rule 4:50-1(b) and our decision on direct appeal, the judge concluded that "the evidence [defendant] specifically requested would not have affected the outcome of the trial." She also determined that the records defendant requested were "excluded from public access" pursuant to Rule 1:38-3(d)(11). The judge denied defendant's motion. This appeal followed.
It is axiomatic that appeals are taken from final orders and judgments, not from opinions or decisions. Do-Wop Corp. v. City of Rahway, 168 N.J. 191, 199 (2001). The failure to include such an order provides a basis for us to dismiss the appeal. Cipala v. Lincoln Tech. Inst., 179 N.J. 45, 55 (2004). Although defendant failed to obtain an appropriate order from the Law Division, the State has not objected nor sought dismissal of the appeal, and we choose to consider the merits. --------
Defendant argues the judge erred by sua sponte dismissing his "petition" and that he demonstrated good cause for the release of the records. The State counters by arguing defendant never filed a proper motion for a new trial or petition for post-conviction relief, and the judge properly denied defendant's request because he failed to demonstrate good cause pursuant to N.J.S.A. 2A:82-46. Having considered the arguments, we reverse and remand the matter for further proceedings consistent with this opinion.
We begin by clarifying the nature of defendant's application. State v. Behn, 375 N.J. Super. 409, 414-15 (App. Div. 2005). Although labelled as a motion brought under Rule 4:50-1, that Rule, a rule of general application to matters in the Civil Division, has no relevance here. Defendant was ultimately seeking a new trial, relief specifically provided for by Rule 3:20-1, and permitted to be requested at any time if the relief is premised upon newly-discovered evidence. R. 3:20-2.
Evidence is newly discovered and sufficient to warrant the grant of a new trial when it is "(1) material 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.""[E]vidence that would have the probable effect of raising a reasonable doubt as to the defendant's guilt would not be considered merely cumulative, impeaching, or contradictory." State v. Ways, 180 N.J. 171, 189 (2004).
[State v. Nash, 212 N.J. 518, 549 (2013) (quoting State v. Carter, 85 N.J. 300, 314 (1981)).]
This brief discussion demonstrates that even though citing Rule 4:50-1(d), the Law Division judge actually applied these standards to defendant's motion. We agree with the State that defendant's improperly denominated motion failed to provide the State with proper notice. Had the judge granted defendant the ultimate relief he sought, a new trial, we would not have hesitated to reverse, because the State was unprepared to address the merits. However, in denying defendant's application, the judge reached a conclusion about the merits of a request for a new trial, when, in fact, defendant was seeking interim relief, i.e., only release of the State's file.
Our Court has recognized the inherent power of a Law Division judge to order discovery in post-conviction proceedings. State v. Marshall, 148 N.J. 89, 269 (1997). The Court explained:
We anticipate that only in the unusual case will a PCR court invoke its inherent right to compel discovery. In most cases, a post-conviction petitioner will be fully informed of the documentary source of the errors that he brings to the PCR court's attention. Moreover, we note that PCR is not a device for investigating possible claims, but a means for vindicating actual claims. The filing of a petition for PCR is not a license to obtain unlimited information from the State, but a means through which a defendant may demonstrate to a reviewing court that he was convicted or sentenced in violation of his rights.
Moreover, consistent with our prior discovery jurisprudence, any PCR discovery order should be appropriately narrow and limited. [T]here is no postconviction right to "fish" through official files for belated grounds of attack on the judgment, or to confirm mere speculation or hope that a basis for collateral relief may exist. However, where a defendant presents the PCR court with good cause to order the State to supply the defendant with discovery that is relevant to the defendant's case and not privileged, the court has the discretionary authority to grant relief.
Courts may reason by analogy to existing discovery rules, see R. 3:13-2 to -4, in designing an appropriate PCR discovery order. In the document-production context, barring exceptional circumstances, a defendant seeking to inspect State files should identify the specific documents sought for production. The PCR court may choose to view the documents in camera before determining whether to issue the requested discovery order.
[Id. at 270-71 (citations and internal quotation marks omitted); see also State v. Lee, 190 N.J. 270, 282 (2007) (holding the defendant was entitled to post-conviction discovery to establish a claim of racial profiling).]
Instead of applying these standards to defendant's application, the judge concluded that any request to release defendant's own file was barred by the provisions of N.J.S.A. 2A:82-46. That statute, however, prohibits public access to certain information and has no more applicability to a defendant's request for post-conviction discovery than it would to the pre-trial release of the same or similar information consistent with the State's discovery obligations.
Since the judge applied the wrong standard, we could consider de novo whether defendant is entitled to release of the information. However, we decline the opportunity to address the merits of defendant's application in the first instance based upon the record before us. State v. Harris, 1981 N.J. 391, 417 (2004) (stating that an appellate court's ability to invoke original jurisdiction "is permissive" and it is "correspondingly discretionary"). The Law Division judge is in the best position to assess and clearly articulate whether defendant's application was sufficient to trigger the State's obligation to turn over the appellate file, or whether the file needed to be reviewed in camera before a complete evaluation could be made. We therefore remand the matter to the Law Division so the judge may reconsider defendant's motion in the context of the proper legal framework set out in this opinion.
Reversed and remanded. 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