STATE OF NEW JERSEY v. KAFELE K. BOMANI (09-08-2019, ATLANTIC 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NOT FOR PUBLICATION WITHOUT THE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-0995-19

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

KAFELE K. BOMANI, a/k/a

SHAUN A. GOODING,

SHAWN GOODING, and SHAUN

GRANT,

Defendant-Appellant.

_____________________________

Submitted May 18, 2022 – Decided June 30, 2022

Before Judges Gilson and Gooden Brown.

On appeal from the Superior Court of New Jersey, Law

Division, Atlantic County, Indictment No. 09-08-2019.

Joseph E. Krakora, Public Defender, attorney for

appellant (Michele E. Friedman, Assistant Deputy

Public Defender, of counsel and on the brief).

Cary Shill, Acting Atlantic County Prosecutor, attorney

for appellant (Katrina M. Koerner, Special Deputy

Attorney General/Acting Assistant Prosecutor, of

counsel and on the brief).

PER CURIAM

Defendant appeals from the July 22, 2019 Law Division order denying his

motion for a new trial based on newly discovered evidence. We affirm.

Following a 2011 trial, a jury convicted defendant of first-degree

attempted murder, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3(a)(1), (2); second- and

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

offenses, including second-degree certain persons not to have weapons, N.J.S.A.

2C:39-7. The convictions stemmed from defendant shooting a man on a street

corner in Atlantic City and fleeing in a sports utility vehicle (SUV). Although

the victim survived, he refused to cooperate with the police investigation and

never identified the shooter. However, a recording of the shooting was captured

on a hotel video surveillance camera and observed by two eyewitnesses.

After appropriate mergers, defendant was sentenced to an aggregate

extended term of life imprisonment, subject to the No Early Release Act

(NERA), N.J.S.A. 2C:43-7.2. Defendant appealed and we affirmed the

convictions but remanded for resentencing in an unpublished opinion. State v.

Bomani (Bomani I), No. A-3373-11 (App. Div. March 3, 2014). The Supreme

Court denied certification. State v. Bomani, 219 N.J. 628 (2014). On the first

remand, defendant was resentenced to an aggregate term of thirty-five years'

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imprisonment, subject to NERA. Defendant again appealed his sentence, and

we reversed and remanded for resentencing in an unpublished opinion. State v.

Bomani (Bomani II), No. A-0017-15 (App. Div. Feb. 9, 2016). On the second

remand, defendant was resentenced to an aggregate term of twenty-five years'

imprisonment, subject to NERA. Defendant then filed a petition for post-

conviction relief (PCR), which was denied. We affirmed in an unpublished

opinion, State v. Bomani (Bomani III), No. A-5207-17 (App. Div. February 10,

2020), and the Supreme Court denied certification, State v. Bomani, 242 N.J.

497, 498 (2020).

In Bomani I, we detailed the events underlying defendant's convictions as

follows:

At about 2:18 a.m. on October 20, 2007, Lameck

Ganda was working in the security booth of the

Wyndham Resort Hotel in Atlantic City. He heard a

commotion outside and then saw on the hotel's security

camera monitors that four men were arguing and

fighting on hotel property. One of the men was wearing

a red shirt and another man was wearing a distinctive

multi-colored checkered shirt. Lameck went outside

and spoke to the men, approaching to within about eight

feet of them. He directed the men to leave the hotel

property. The four men went in the direction of the

nearby Resorts Casino.

Shortly before 6:40 a.m., Lameck again saw four

men on the video monitors who appeared to be

arguing. . . . He zoomed in on the men's faces and saw

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that the disturbance involved the same men that he had

approached earlier in the night.

Lameck then saw the man wearing the checkered

shirt go to a dark-colored SUV parked nearby in the

street and retrieve something from inside the vehicle.

That man walked up to the man in the red shirt and fired

a shot at him. The man in the red shirt held his stomach

and fled in one direction as the gunman ran back to the

SUV and drove away.

[Bomani I, slip op. at 1-3.]

We explained that the police soon learned that the shooting had been

"captured and recorded" on "the Wyndham Hotel security cameras" and

witnessed by Lameck, as well as another Wyndham Hotel employee, John

Lopez. Id. at 4-5.

Although Lopez did not see the shooter's face, he

described his clothing and general appearance

consistently with Lameck and the appearance of the

man on the video recording. More significant, Lopez

had observed and memorized the license plate number

of the SUV and gave that information to the police.

The police quickly matched the plate number to

a vehicle registered to defendant . . . at an address on

Memorial Avenue, which [was] within four blocks of

the site of the shooting.

[Id. at 5.]

Two police officers responded to defendant's address "[a]t approximately

7:07 a.m." and encountered defendant shirtless in the hallway of his rooming

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house. Id. at 6-7. When questioned about his whereabouts earlier in the night,

defendant told police, "he had been at a bar earlier that night" and "that his

vehicle was parked at a nearby garage." Id. at 7-8. Ten minutes later, "[a]t 7:17

a.m., an officer found a black Ford SUV in the garage with the license plate

number provided by the eyewitness. The officer touched the vehicle's hood and

found it to be warm, indicating it had been driven recently." Id. at 8.

After defendant was arrested, "Lameck identified defendant [as the

shooter,] but not the vehicle" found at the garage. Id. at 9. On the other hand,

Lopez identified the "SUV as the vehicle he had observed immediately before

and after the shooting" but "did not identify defendant" as the shooter. Ibid. A

subsequent search of defendant's room revealed "a checkered shirt, a light-

colored cap, and tan boots" as seen in the hotel surveillance video. Id. at 7, 9.

"DNA of two persons was found in the checkered shirt and cap . . . and . . . one

of the profiles was consistent with defendant's DNA." Id. at 11. No gun was

recovered.

At trial, the manager of the garage where the SUV was parked, Barry

Goldstein, testified for the State. Goldstein, who had been in the position for

twenty-four years, stated that cars could park at the garage daily "by obtaining

a ticket through the ticket spitter," or by using a "proximity card," which was

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issued to "monthly patron[s]." Goldstein testified that in compliance with a

subpoena issued by the State, he had turned over parking garage business records

gathered from computerized information, which included: (a) information

pertaining to the times cars parking on a daily basis entered the garage on the

morning of October 20, 2007; and (b) two proximity cards which belonged to

defendant but had lapsed by May 2007. Goldstein was familiar with defendant

and testified that defendant continued to park at the garage and "pay by the day"

after his proximity cards lapsed. Goldstein explained that at the time of the

incident, the garage had no "[monitoring] cameras" available, but he had

prepared "a [ticket] dispenser transaction report for . . . October 20, [20]07."

According to Goldstein, to prepare the report, "the computer . . . extracted all

the tickets that were dispensed from th[e] ticket spitter for the variables that

were input." He testified that the report indicated that between 6:44 a.m. and

7:15 a.m., "[t]wo" vehicles entered the garage, one at "6:44 [a.m.] and [one at]

6:55 [a.m.]"

To undermine defendant's claim that his SUV was in the parking garage

when the shooting occurred, at trial,

[t]he prosecution argued before the jury that

defendant's vehicle must have been the second of these

entries, and the defense argued that defendant would

not have had enough time to park his vehicle, dispose

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of evidence, get to his room, undress, and be present

shirtless in the hallway of his rooming house in time for

[the officer] to find him just after 7:07 a.m.

[Id. at 8-9.]

In addition to the testimony of the garage manager, the two eyewitnesses,

the doctor who performed emergency surgery on the victim, the DNA expert,

and numerous police officers and detectives who participated in the

investigation, a copy of the hotel video surveillance recording was presented to

the jury "showing the moment of the shooting and the shooter's flight on foot to

the SUV." Id. at 11. We noted that "[b]ecause of the angle of the surveillance

view and the quality of the recording, the face of the shooter [was] not clear,

although his general appearance, clothing, and actions [were] readily visible."

Id. at 11-12. Defendant did not testify at trial. The victim was subpoenaed by

the defense and testified "that defendant was not the person who shot him, and

he did not know who the shooter was." Id. at 12.

Weeks after the jury convicted defendant, he moved for a new trial based

on newly discovered evidence. In support of that motion, he presented a

certification from a fellow inmate who claimed that he was a friend of the victim

and acquainted with defendant. The inmate stated he had been with the victim

at the time of the shooting and claimed that it was not defendant who shot the

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victim. The trial court conducted an evidentiary hearing during which the

inmate testified. The court denied defendant's motion for a new trial, finding

that the inmate's testimony was not credible.

In 2019, defendant filed a second motion for a new trial based on newly -

discovered evidence – this time, based on his discovery that Goldstein had

allegedly committed perjury at trial and fabricated records when he testified

about the existence of computerized parking records. Specifically, defendant

alleged that in response to his numerous New Jersey Open Public Records Act

(OPRA) requests in 2017 and 2018 for "all internet or computerized record data

from the [garage's] dispenser transaction machine and cash dispenser machine

from October 20, 2007," a representative from the South Jersey Transportation

Authority indicated "that there never were any [i]nternet or computerized record

data from the dispenser transaction machine or the cash dispenser machine" and

"[a]ny paper records" for that "time period . . . were disposed of [in April 2009]

pursuant to State of New Jersey Division of Revenue Record Management

guidelines." As a result, defendant proffered that because Goldstein's report was

not made until 2011, he must have "presented both perjured testimony and

fabricated computerized/electronic physical evidence to the jury."

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On July 22, 2019, without conducting an evidentiary hearing, the motion

judge denied defendant's motion for a new trial, finding the newly discovered

evidence failed to meet the three-part test enunciated in State v. Carter, 85 N.J.

300, 314 (1981). In a written decision, the judge stated "Goldstein . . . gave

specific details as to how the[] records were recorded and maintained," and he

"was responsible for keeping such records in the regular course of business and

personally prepared the reports in anticipation of trial." Moreover, "Goldstein,

as the custodian of these records for this particular garage at that time, was in a

much better position to know how these records were kept than an author of an

OPRA request response almost a decade later."

The judge added "[e]ven assuming this evidence was material and not

merely cumulative and was discovered after the trial and not reasonably

discoverable prior to or during the trial, it [wa]s not of a nature as to probably

have affected the jury's verdict." Thus, the judge concluded "[t]he allegation

that these records were not available at the time of the trial and must have

therefore been fabricated, based on information provided to defendant in

response to his multiple OPRA requests, does not rise to the level necessary

under Carter to merit the granting of a new trial." The judge entered a

memorializing order and this appeal followed.

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On appeal, defendant raises a single point for our consideration:

THE MOTION COURT IMPROPERLY

DISCOUNTED THE VERACITY OF THE

INFORMATION CONTAINED WITHIN THE OPRA

RESPONSE(S), ABSENT AN EVIDENTIARY

HEARING, AND OVERLOOKED BOTH THE

MATERIAL IMPACT OF . . . GOLDSTEIN'S

TESTIMONY AT TRIAL AND THE LIKELIHOOD

THAT A NEW JURY WOULD RENDER A

DIFFERENT VERDICT BASED UPON THE

NEWLY-DISCOVERED EVIDENCE.

"A motion for a new trial based on the ground of newly-discovered

evidence may be made at any time . . . ." R. 3:20-2. In Carter, our Supreme

Court adopted a three-prong test for granting a new trial based on newly

discovered evidence. Under that test,

[e]vidence 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."

[State v. Nash, 212 N.J. 518, 549 (2013) (quoting

Carter, 85 N.J. at 314).]

Under prong one, a defendant must show the evidence "ha[s] some bearing

on the claims being advanced" and includes evidence that supports a general

denial of guilt. State v. Ways, 180 N.J. 171, 188 (2004) (quoting State v.

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Henries, 306 N.J. Super. 512, 531 (App. Div. 1997)). This requires the court to

engage in "an evaluation of the probable impact such evidence would have on a

jury verdict." Id. at 188-89. "[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." Id. at 189.

Under prong two, "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. To be sure, a defendant must "act

with reasonable dispatch in searching for evidence before the start of the trial. "

Ibid. Under prong three, evidence that "would shake the very foundation of the

State's case and almost certainly alter the earlier jury verdict" would clearly

qualify. Id. at 189. "[T]he test is whether the evidence if introduced is such as

ought to have led the jury to a different conclusion — one of probability and not

mere possibility . . . ." State v. Haines, 20 N.J. 438, 445 (1956).

"[A]ll three prongs of th[e] test must be satisfied before a defendant will

gain the relief of a new trial." Ways, 180 N.J. at 187; accord Carter, 85 N.J. at

314. Further, it is the defendant's "'burden to establish each prong is met.'" State

v. Fortin, 464 N.J. Super. 193, 216 (App. Div. 2020) (quoting State v. Smith, 29

N.J. 561, 573 (1959)). While we acknowledge that the purpose of post-

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conviction review based on newly discovered evidence "is to provide a

safeguard in the system for those who are unjustly convicted of a crime," we are

mindful that "[n]ewly discovered evidence must be reviewed with a certain

degree of circumspection to ensure that it is not the product of fabrication, and,

if credible and material, is of sufficient weight that it would probably alter the

outcome of the verdict in a new trial." Ways, 180 N.J. at 187-88.

To that end, motions for a new trial based on newly discovered evidence

"should be granted with caution by a trial court since [they] disrupt[] the judicial

process." State v. Conway, 193 N.J. Super. 133, 171 (App. Div. 1984) (citing

Haines, 20 N.J. at 443). Such motions are "'addressed to the sound discretion of

the trial court, and its determination will not be reversed on appeal unless there

has been a clear abuse of that discretion.'" State v. Puchalski, 45 N.J. 97, 107

(1965) (quoting State v. Artis, 36 N.J. 538, 541 (1962)); see also State v. Russo,

333 N.J. Super. 119, 137 (App. Div. 2000). That said, a "reviewing court must

engage in a thorough, fact-sensitive analysis to determine whether the newly

discovered evidence would probably make a difference to the jury. " Ways, 180

N.J. at 191. "The power of the newly discovered evidence to alter the verdict is

the central issue, not the label to be placed on that evidence." Id. at 191-92.

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Like with a petition for post-conviction relief (PCR), the mere raising of

a claim of newly discovered evidence does not entitle the defendant to an

evidentiary hearing. See State v. Cummings, 321 N.J. Super. 154, 170 (App.

Div. 1999) ("Although R[ule] 3:22-1 does not require evidentiary hearings to be

held on [PCR] petitions, R[ule] 3:22-10 recognizes judicial discretion to conduct

such hearings."). Instead, trial courts should grant an evidentiary hearing only

if the defendant has presented a prima facie claim for PCR, material issues of

disputed facts lie outside the record, and resolution of the issues necessitates a

hearing. See R. 3:22-10(b); State v. Porter, 216 N.J. 343, 354-55 (2013). In

turn, we review a trial court's denial of an evidentiary hearing on a PCR petition

for abuse of discretion. See State v. Preciose, 129 N.J. 451, 462 (1992). The

same standard applies to a motion for a new trial based on newly discovered

evidence – that is the trial court should grant an evidentiary hearing only if the

defendant has presented a prima facie case of newly discovered evidence

warranting a new trial under the Carter test. 85 N.J. at 314.

Here, defendant argues the judge "committed reversible error by

summarily rejecting the veracity" underlying the OPRA responses "without

conducting an evidentiary hearing" and "by overlooking the material

impact . . . Goldstein's testimony had at trial, as well as the likelihood that the

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newly discovered evidence of his perjury would prompt a new jury to acquit

[defendant]." Considering defendant's contentions in light of the record and

applicable law, we discern no abuse of discretion or legal error in the judge's

decision to deny the motion without conducting an evidentiary hearing because

defendant failed to meet his burden of establishing all three prongs of the Carter

test. "The absence of any one of these elements warrants denial of the motion."

State v. Allen, 398 N.J. Super. 247, 258 (App. Div. 2008).

Critically, as the judge explained, defendant failed to demonstrate that the

jury would reach a different result if a new trial were granted. The garage

manager's testimony was not the central testimony relied on by the jury. Instead,

the jury was presented with surveillance video that captured the shooting and

two eyewitnesses, one of whom identified defendant as the shooter. The police

also discovered in defendant's room clothing matching the clothing worn by the

shooter on the surveillance video and DNA evidence tying defendant to the

clothing.

The import of the garage manager's testimony was to show that

defendant's SUV had entered the garage after the shooting had occurred to

counter the defense theory that the SUV was parked in the garage at the time of

the shooting. However, the State also introduced evidence that the SUV's hood

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was warm approximately thirty-seven minutes after the shooting, "indicating it

had been driven recently." Bomani I, slip op. at 8. Thus, undermining the garage

manager's testimony would probably not change the jury's verdict if a new trial

were granted. In sum, considering the totality of the evidence, we are satisfied

that Goldstein's alleged perjury and fabricated documents do not satisfy the

Carter test to warrant a new trial.

Affirmed.

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