STATE OF NEW JERSEY VS. ALI S. MORGANO (88-10-3334, ESSEX COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-3527-14T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ALI S. MORGANO,

Defendant-Appellant.

__________________________________

Submitted September 11, 2017 – Decided June 26, 2018

Before Judges Sabatino and Ostrer.

On appeal from Superior Court of New Jersey,

Law Division, Essex County, Indictment No. 88-

10-3334.

Joseph E. Krakora, Public Defender, attorney

for appellant (Andrew J. Shaw, Designated

Counsel, of counsel and on the brief).

Robert D. Laurino, Acting Essex County

Prosecutor, attorney for respondent (Stephen

A. Pogany, Special Deputy Attorney General/

Acting Assistant Prosecutor, on the brief).

Appellant filed a pro se supplemental brief.

PER CURIAM

Defendant Ali S. Morgano appeals from the denial of his sixth

petition1 for post-conviction relief (PCR) after an evidentiary

hearing. Defendant collaterally challenges his 1989 conviction

for robbery, felony murder, purposeful murder, and other related

crimes. He principally contends that his trial counsel was

ineffective by failing to investigate alibi witnesses. He also

argues counsel was ineffective for failing to call his co-defendant

as a witness. Further, he contends the testimony of one of the

alibi witnesses is newly discovered evidence that entitles him to

a new trial. See R. 3:20-2.

We presume familiarity with the facts given defendant's

numerous appeals. See e.g., State v. Morgano, No. A-5262-88 (App.

Div. Jan. 28, 1991) (Morgano I). Suffice it to say there was

substantial evidence – including defendant's two incriminating

statements to police – that he aided Sean Jones in the commission

of the 1988 robbery and murder of a street vendor in Newark. In

his second statement, defendant told police that on June 6, 1988,

Jones approached him about robbing a man selling pictures out of

a van on Sixth Avenue in Newark. Although defendant "didn't want

no part in the [r]obbery," he drove Jones to retrieve a gun kept

1

The PCR court's 2011 order erroneously categorized this as

defendant's seventh PCR petition by including defendant's federal

habeas corpus petition in its count.

2 A-3527-14T1

at defendant's mother's house, and then drove Jones to Sixth

Avenue. Defendant then went to Hawk's Patio, a bar that was around

the corner on Ninth Street. He was in the bar when he heard

gunshots; he and other bar patrons went outside to see what

happened. Jones ran towards him. They got into defendant's car

and drove away. Jones gave defendant $1500 in what defendant

claimed was hush money.

Defendant claimed his second statement was coerced. In his

first statement, given several hours before the second, he admitted

only that he was in Hawk's bar, heard shots, stepped outside, and

agreed to drive Jones away from the scene. The police obtained

the second statement after Jones gave a statement, implicating him

in the robbery. According to Jones, defendant proposed the robbery

and was with Jones when it happened.2 After a hearing, the court

denied defendant's Miranda3 motion. We affirmed that ruling on

defendant's direct appeal. Morgano I, slip op. at 2-3.

Defendant filed the PCR petition at issue in 2011. He argued

trial counsel was ineffective in failing to investigate alibi

2

Defendant was tried separately, and Jones did not testify. The

State proceeded on the theory, consistent with defendant's own

statement, that he was in the bar when the actual robbery and

shooting occurred, but had aided Jones by helping him obtain the

gun, and flee the scene.

3

Miranda v. Arizona, 384 U.S. 436 (1966).

3 A-3527-14T1

witnesses, particularly individuals who were at the bar with him

at the time of the shooting. The PCR court determined the petition

was procedurally barred by Rules 3:22-4 and 3:22-12.

We affirmed in State v. Morgano, No. A-3682-11 (App. Div.

Jan. 25, 2013). We focused on defendant's argument that his

attorney was ineffective for failing to locate and call as a

witness William "Eddie" Brown, who was allegedly present with him

in the bar. We held that Brown was not a new witness, since

defendant was aware of his presence. Therefore, he could have

raised the claim previously. Id. at 1-2.

Defendant filed a petition for certification, and moved under

Rule 3:20-2 for a remand for an evidentiary hearing. In attached

certifications, he asserted the testimony of two newly discovered

witnesses, Abdullah Jackson and Qadir Pugsley, who were "unknown

to [him] at the time of . . . trial," would corroborate his alibi

that he was in Hawk's bar with Brown at the time of the shooting,

and establish trial counsel was ineffective for not investigating

alibi witnesses. The Supreme Court granted certification and

remanded defendant's petition to the PCR court for reconsideration

4 A-3527-14T1

and an evidentiary hearing on defendant's PCR. State v. Morgano,

216 N.J. 2 (2013).4

At the hearing that followed, the State presented the

testimony of defendant's trial counsel, who was a veteran public

defender at the time of trial. He acknowledged, after reviewing

his notes from defendant's file, that defendant gave him the names

of possible alibi witnesses from Hawk's bar. His notes included

Brown's name and a general area — as opposed to a specific address

— where he might be found.

Testifying twenty-five years after the trial, counsel did not

independently recall whether the individuals were located or

investigated. He testified that, consistent with his practice,

he would have submitted an investigation request upon receiving

the names from defendant. However, he admitted that he did not

"connect up" with any of the witnesses.

Although he could not recall any investigation of the bar

patrons, trial counsel was unequivocal that their testimony would

not have exculpated defendant. He explained that defendant was

never accused of shooting the street vendor. Rather, he was

accused of being Jones's accomplice. Counsel testified that

4

We note that the record before us does not include defendant's

2011 petition. Consequently, we rely on his submissions to the

Supreme Court to understand the grounds he presents for PCR.

5 A-3527-14T1

defendant essentially confessed to felony murder by admitting to

police that he helped Jones get the gun, dropped him off at the

scene before he went to Hawk's bar, and was Jones's getaway driver

after the shooting. Trial counsel reasoned that testimony from

anyone inside the bar would only serve to place defendant directly

at the scene. He commented that the witnesses were not "really

alibi witnesses" at all.

Trial counsel also testified about his strategy. Although

Jones stated at a pretrial hearing that he was willing to testify

at defendant's trial, there is no competent evidence as to what

he would have said.5 Counsel chose not to call Jones as a witness

because he was "vulnerable," a "bad guy," and his testimony would

have implicated defendant. As counsel stated in his

contemporaneous notes, even if Jones attempted to exculpate

defendant on the stand, the jury would hear his prior statement

inculpating defendant on cross-examination. Counsel wrote that

Jones's testimony would "kill us," and reported that he advised

defendant that he should not be called as a witness. Counsel also

stated he advised defendant that he should not testify in his own

5

In an interview of Jones roughly ten years after trial, he stated

he found religion while incarcerated, and had decided to tell the

truth, that defendant's involvement was limited to his helping

Jones flee. That would appear to indicate that the willingness

to recant occurred long after defendant's trial.

6 A-3527-14T1

defense. He "was not going to do himself much good" by testifying,

and the better strategy was to attack the State's case during

summation.

Defendant testified at the evidentiary hearing that he chose

not to take the stand on the advice of counsel. Regarding trial

counsel's investigation of alibi witnesses, defendant testified

that he informed counsel about Brown, and another person at the

bar whom he identified only by a first name, Jihad. He admitted

he did not personally know whether counsel was able to locate any

of the witnesses he identified. He assumed counsel failed to

investigate, because they did not testify at trial. He stated

that he also asked his attorney to call Jones as a witness, because

he believed Jones would exonerate him, but counsel did not call

him at trial.

Brown and Pugsley testified for the defense at the PCR

hearing. Abdullah Jackson did not, for reasons that are not

apparent from the record. Pugsley testified that on the day of

the shooting, he saw defendant park his car near the bar and meet

Brown outside. He saw them enter the bar together. Pugsley

remained outside and heard the sound of gunshots. He saw Jones,

among others, running from Sixth Avenue. Pugsley saw defendant

and Brown exit the bar. As defendant crossed the street to his

car, Jones asked him for a ride. They both got into the car, and

7 A-3527-14T1

defendant drove away. Pugsley testified that no one questioned

him at the time about the incident, and he never sought out the

police to report what he saw.

Brown testified he was in Hawk's bar with defendant on the

day of the shooting. They heard gunshots, and walked outside to

"see . . . what was going on." Brown testified defendant told him

he was leaving. Brown saw defendant get into his car. He then

saw Jones round the corner and get into defendant's car. He saw

defendant and Jones drive off together. He left the area as the

police began to arrive. He was never contacted about the shooting.

The PCR judge found Pugsley and Brown were credible. So was

trial counsel, but the court noted that, given his lack of specific

memory, he could not definitely say whether he asked for an

investigation of the alibi witnesses. Applying the two-prong

Strickland test, see Strickland v. Washington, 466 U.S. 668, 687

(1984), the court did not expressly find that trial counsel's

performance was deficient. However, reaching the second prong,

the court held that defendant had failed to demonstrate a

"reasonable probability that but for . . . [counsel's] failings,

the result of the proceedings would have been different." Ibid.

The court reasoned that the witnesses' testimony did not overcome

the evidence that defendant aided Jones in the commission of the

robbery. The court concluded trial counsel was not ineffective

8 A-3527-14T1

because even if Pugsley or Brown testified at trial, defendant

"still would have been convicted of felony murder."

On appeal, defendant raises the following points in a

counseled brief:

POINT I: THE PCR COURT ERRED IN

DENYING THE DEFENDANT'S SEVENTH PRO

SE PCR PETITION BASED UPON

INEFFECTIVE ASSISTANCE OF COUNSEL.

A. THE INEFFECTIVE ASSISTANCE

OF COUNSEL STANDARD.

B. THE FELONY MURDER AND

ROBBERY CONVICTIONS.

C. THE MURDER CONVICTION.

D. POSSESSION OF A FIREARM FOR

AN UNLAWFUL PURPOSE CONVICTION.

POINT II: THE PCR COURT ERRED BY

FAILING TO RULE ON THE DEFENDANT'S

MOTION FOR A NEW TRIAL BASED UPON

NEWLY DISCOVERED EVIDENCE.

Defendant also raises the following points in a supplemental pro

se brief:

POINT ONE: THE PCR COURT ERRED IN

DENYING DEFENDANT'S CLAIMS OF

INEFFECTIVE ASSISTANCE OF COUNSEL

WHEN COUNSEL FAILED TO INVESTIGATE

HIS POTENTIAL ALIBI WITNESSES WHOSE

NAMES WERE SUPPLIED TO COUNSEL BY

DEFENDANT. THIS VIOLATED

DEFENDANT'S RIGHT TO A FAIR TRIAL AS

GUARANTEED BY SIXTH AND

FOURTEEN[TH] AMENDMENT[S] TO THE

U.S. CONSTITUTION AS WELL AS ARTICLE

9 A-3527-14T1

1 PARAGRAPH 10 OF THE NEW JERSEY

STATE CONSTITUTION.

POINT TWO: THE DEFENDANT-APPELLANT

CONTENDS THAT THE NEWLY DISCOVERED

EVIDENCE WARRANT[S] A NEW TRIAL.

POINT THREE: DEFENDANT-APPELLANT

CONTENDS THAT TRIAL COUNSEL WAS

INEFFECTIVE FAILING TO CALL CO-

DEFENDANT SEAN JONES AS A DEFENSE

WITNESS TO EXCULPATE DEFENDANT FROM

THE ROBB[E]RY AND FELONY MURDER

CHARGES. THIS VIOLATED DEFENDANT'S

RIGHT TO A FAIR TRIAL AS GUARANTEED

BY SIXTH AND FOURTEEN[TH]

AMENDMENT[S] TO THE U.S.

CONSTITUTION AS WELL AS ARTICLE 1

PARAGRAPH 10 OF THE NEW JERSEY STATE

CONSTITUTION.

Since the trial court did not explicitly address prong one

of the Strickland test — that is, whether trial counsel was

deficient, Strickland, 466 U.S. at 687 – we are constrained to

focus our review on the court's conclusion under prong two that,

even if trial counsel was deficient by failing to investigate

defendant's alibi witnesses, defendant suffered no prejudice. See

ibid. Our review of the court's decision, reached after an

evidentiary hearing, "is necessarily deferential to [the] court's

factual findings based on its review of live witness testimony."

State v. Nash, 212 N.J. 518, 540 (2013). We review legal

conclusions de novo. Ibid. Applying that standard of review, we

discern no error.

10 A-3527-14T1

Our Supreme Court has recognized that the "[f]ailure to

investigate an alibi defense is a serious deficiency that can

result in the reversal of a conviction." State v. Porter, 216

N.J. 343, 353 (2013). "[W]hen a petitioner claims his trial

attorney inadequately investigated his case, he must assert the

facts that an investigation would have revealed, supported by

affidavits or certifications based upon the personal knowledge of

the affiant or the person making the certification." Ibid.

(quoting State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.

1999)). Defendant established at the evidentiary hearing what

Brown and Pugsley would have revealed at trial, assuming an

investigation would have led to their cooperation.6

Brown and Pugsley did not exonerate defendant. "'Alibi'

literally means 'elsewhere; in another place.'" State v. Nunn,

113 N.J. Super. 161, 167 (App. Div. 1971) (quoting State v. Mucci,

25 N.J. 423, 431 (1957)). Proof of an alibi, meaning that a

"defendant was elsewhere at the time and place of the crime," goes

to the heart of the question of whether the State has proved its

6

Neither Brown nor Pugsley described their whereabouts in the

months after the crime; nor did they say they would have cooperated

with an investigator and would have been willing to testify at

trial on defendant's behalf. Also, defendant did not name or

describe Pugsley to his trial counsel. At the PCR hearing, he did

not present evidence to establish the likelihood that a defense

investigator would have been able to identify him as a witness.

11 A-3527-14T1

case beyond a reasonable doubt. Pressler & Verniero, Current N.J.

Court Rules, cmt. 1.3 on R. 3:12-2 (2018). The defense is only

sustainable where the offered evidence establishes "the physical

impossibility of the accused's guilt . . . ." Mucci, 25 N.J. at

431.

Brown and Pugsley established the physical impossibility that

defendant shot the street vendor. But, the bar patrons provide

defendant no alibi, because the State did not allege that defendant

physically robbed and shot the street vendor. The State relied

at trial on a theory of accomplice liability, specifically that

defendant acted "[w]ith the purpose of promoting or facilitating"

Jones's commission of robbery, and ultimately murder, by supplying

Jones with a gun, driving him to the scene of the robbery, waiting

for him around the corner, and driving him away after the robbery

turned deadly. See N.J.S.A. 2C:2-6(c)(1)(b) (defining accomplice

as a person who, "[w]ith the purpose of promoting or facilitating

the commission of [an] offense," aids another in "planning or

committing" it); see also N.J.S.A. 2C:2-6(b)(3) (stating an

accomplice is legally accountable for the conduct of another

person).

Defendant detailed his involvement in two statements to the

police. The statements were admitted at trial, and established

his culpability as an accomplice. The bar patrons' testimony

12 A-3527-14T1

would not have refuted defendant's admissions about his actions

before he walked into Hawk's bar, and it would have only bolstered

the State's proofs that he was Jones's getaway driver after the

shooting. As trial counsel put it, in making those statements,

defendant "walk[ed] himself right into a felony murder." Thus,

defendant suffered no prejudice as a result of any failure to call

the two patrons as witnesses.

Defendant contends in his pro se brief that had Brown and

Pugsley testified, they would have probably affected the trial

result because they would have discredited a significant

prosecution witness. The witness testified that she observed

Jones shoot the vendor; run down the street; and enter defendant's

white Cadillac. In particular, she testified that she saw Jones

drop some money as he ran. As she bent down to pick up what turned

out to be three dollars, defendant got out of his car, told her

to give it him, and then returned to his car and drove off with

Jones.

As a threshold matter, we note that defendant did not raise

this argument before the trial court. Therefore, we are not

obliged to reach it. State v. Arthur, 184 N.J. 307, 327 (2005).

Furthermore, although the two witnesses did not mention

defendant's interaction with the woman, PCR counsel did not

directly ask Brown or Pugsley about whether they saw defendant

13 A-3527-14T1

interact with a woman before driving off. It is conceivable that

twenty-five years later, the witnesses would have acknowledged the

occurrence if their recollection had been refreshed.

In any event, even if the two witnesses definitively stated

they saw no exchange between defendant and the woman, we are

unpersuaded that would have established a reasonable probability

of a different result. Defense counsel vigorously cross-examined

the woman, exploring her bias in assisting the prosecution, because

she had pending drug charges. Furthermore, the principal evidence

against defendant was his own admissions. The State's case was

also supported by the testimony of the victim's helper, who

testified that he saw two men in a large white car — a Cadillac

or Oldsmobile — drive slowly past the vendors shortly before the

robbery.7

In sum, defendant failed to establish that – even if his

attorney provided him with constitutionally deficient

representation by not conducting an investigation – it is

7

In his pro se supplemental brief, defendant also continues to

argue that his second statement was coerced. Defendant did not

raise this issue before the PCR court, and we will not address it

on appeal. Arthur, 184 N.J. at 327 (stating "[a]n appellate court

ordinarily will not consider issues that were not presented to the

trial court"). In any event, the issue is procedurally barred by

Rule 3:22-5. We reviewed the denial of defendant's Miranda motion

on direct appeal. Morgano I, slip op. at 3. We concluded the

trial court's ruling was supported by sufficient credible evidence

in the record, and affirmed his conviction. Ibid.

14 A-3527-14T1

reasonably probable that the result of the trial would have been

different. Strickland, 466 U.S. at 687.

Defendant also raises two arguments on appeal that the trial

court did not address. He contends that trial counsel was

ineffective for failing to call Jones as a witness, and that

Pugsley's testimony is newly discovered evidence that entitles him

to a new trial. Based on a review of the record it is apparent

defendant raised the issues before the PCR court. Rather than

remand for a determination of the issues, we exercise our original

jurisdiction to decide them. See R. 2:10-5.

Defendant contends that his trial attorney was ineffective

for failing to call Jones as a witness. "[A] defense attorney's

decision concerning which witnesses to call to the stand is 'an

art' . . . ." Arthur, 184 N.J. at 321 (quoting Strickland, 466

U.S. at 693). As such, our review "should be 'highly

deferential.'" Ibid. (quoting Strickland, 466 U.S. at 689). Trial

counsel testified that he chose not to call Jones as a witness,

even though he was willing to testify, because "[his testimony]

would have implicated [defendant]." Indeed, in Jones's statement

to police, he alleged that the robbery was defendant's idea, the

gun was defendant's, and defendant participated in the robbery as

well as the flight from the scene.

15 A-3527-14T1

It was reasonable trial strategy for trial counsel not to

call Jones as a witness. Even if he recanted his prior statement

to police and attempted to exonerate defendant, his testimony

would have opened the door to the introduction of his prior

inculpatory statement — in which he alleged that the robbery was

defendant's idea. N.J.R.E. 803(a)(1); see State v. Carabello, 330

N.J. Super. 545, 556 (App. Div. 2000) (stating N.J.R.E. 803(a)(1)

"allows the admission of a witness's inconsistent statement as

substantive evidence"). Absent Jones's appearance, that statement

was inadmissible hearsay. N.J.R.E. 802 (hearsay rule); see also

State v. Weaver, 219 N.J. 131, 151-52 (2014) (stating the

Confrontation Clause does not allow otherwise admissible hearsay

that is "testimonial in nature" to be admitted if the declarant

does not testify).

For the very reason that it was not constitutionally deficient

to forgo calling Jones as a witness, it was not reasonably probable

that his testimony would have changed the result. See Strickland,

466 U.S. at 687. Jones's appearance at trial was as likely to

hurt defendant as help him.

Defendant also argues Pugsley's testimony is newly discovered

evidence that warrants granting him a new trial. See R. 3:20-2.

We disagree, because the testimony would not alter the verdict at

a new trial.

16 A-3527-14T1

It is well-settled that newly discovered evidence sufficient

to warrant a new trial must be "(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." Nash, 212 N.J. at

549 (quoting State v. Carter, 85 N.J. 300, 314 (1981)). A

defendant must satisfy all three prongs to gain relief. State v.

Ways, 180 N.J. 171, 187 (2004).

The central focus of the analysis is on the nature of the

evidence presented. Id. at 191-92 ("The power of the newly

discovered evidence to alter the verdict is the central issue, not

the label to be placed on that evidence."). In that way, prongs

one and three of the test are "inextricably intertwined." Nash,

212 N.J. at 549. Evidence that is merely cumulative, impeaching,

or contradictory "is not of great significance and would probably

not alter the outcome of a verdict." Ways, 180 N.J. at 189.

However, "[m]aterial evidence is any evidence that would 'have

some bearing on the claims being advanced.'" Id. at 188 (quoting

State v. Henries, 306 N.J. Super. 512, 513 (App. Div. 1991)).

"Clearly, evidence that supports a defense, such as alibi, third-

party guilt, or a general denial of guilt would be material."

Ibid.

17 A-3527-14T1

Prong two "requires that the new evidence must have been

discovered after completion of trial and must not have been

discoverable earlier through the exercise of reasonable

diligence." Id. at 192. In this evaluation, a court should

consider the strategic decisions of trial counsel. Ibid. ("A

defendant is not entitled to benefit from a strategic decision to

withhold evidence.").

Here, defendant has offered only cumulative evidence that he

was in a bar at the time of the shooting, a fact already established

by the State's proofs. As we have already discussed, Pugsley is

not an alibi witness. His testimony is not material, and it would

not change the verdict at a new trial. The jury was not tasked

with determining whether defendant shot the street vendor. The

issue at trial was whether defendant was Jones's accomplice.

Except for the possibility that Pugsley could have contradicted

the State's female eyewitness, Pugsley's testimony does nothing

to undermine the State's case. However, for the reasons already

stated, that contradiction — even if we presume it in the absence

of Pugsley's explicit testimony — would not probably change the

result if a new trial were granted.

Affirmed.

18 A-3527-14T1